Date: 20101004
Docket: IMM-721-10
Citation: 2010 FC 970
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, October
4, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
ANTOINE
IDONY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the Act) for judicial review of a
decision dated January 20, 2010, by the Refugee Protection Division of the
Immigration and Refugee Board (the panel). The panel determined that the
applicant was neither a refugee nor a person in need of protection and
therefore rejected his refugee claim.
[2]
The
applicant is a citizen of Haiti. In 2002, he had been working for three
years as a truck driver for a transport company. On January 15, 2002, while
he was putting gasoline in the truck, he alleges that he was attacked by
unknown armed bandits. They got into the truck, threatened him at gunpoint and
stabbed him in the back. The truck was stolen along with the merchandise. The
applicant or his boss reported this to the police.
[3]
On
March 15, 2002, the same bandits attacked the applicant again and hit him
on the head with a gun. He was hospitalized for almost a week, then stayed with
a friend for a week and left Haiti for the Dominican Republic on
March 25, 2002.
[4]
The
applicant went to the United States where he claimed
refugee status but, after a delay of several years, his application was denied.
He arrived at the Canadian border on September 16, 2007, and immediately claimed
refugee protection.
[5]
The
panel determined that the applicant’s risk would be no different from that of
the entire Haitian population, which as a whole faces a very difficult
situation. The panel concluded that the applicant was not personally targeted
and would not run a prospective risk of return. It found that, after eight
years, there was no reason to believe that the same unknown bandits would attack
him.
[6]
In
addition, the panel found that the applicant’s credibility was undermined because
of a number of contradictions between his testimony and the documentary
evidence. The panel also referred to the documentary evidence a number of times
and concluded that the Haitian population as a whole lives in a constant state
of collective vulnerability and that, therefore, the applicant is not subject personally
to a risk as required by section 97 of the Act. Last, the panel determined that
truck drivers do not constitute a social group within the meaning of section 96
of the Act and that, accordingly, the applicant could not obtain the protection
afforded by this section. The applicant did not specifically dispute this
finding.
[7]
The
applicant’s primary submission is that the panel erred by making its finding
without regard to his testimony when he said that the second incident with the bandits
was connected to his complaint to the police and that, therefore, he was
personally targeted. However, the panel clearly indicated at paragraph 13 of
its reasons that it had problems with the credibility of the applicant’s story about
the alleged incidents. The fact that the panel did not mention every aspect of
the applicant’s story is not an error (see Ayala v. Minister of Citizenship
and Immigration, 2008 FC 1258).
[8]
By
analogy to his situation , the applicant refers to the decision of the Refugee
Protection Division (RPD) in Re W.C.Z., [2003] R.P.D.D. No. 425, where
the claimant had testified against his friends at a criminal trial and where
the RPD found that the applicant would be personally targeted if he returned to
Jamaica. The respondent submits, and I agree, that the facts are clearly
distinguishable because W.C.Z. knew the people he testified against and the
police took action against them whereas in this case the gunmen are unknown and
the police did nothing.
[9]
The
applicant notes that if a reasonable person had been involved in such attacks,
that person would be afraid of returning to a place where he or she would risk
being attacked again, especially in a small country like Haiti. However,
subsection 97(1) is an objective test to be administered in the context of a
present or prospective risk for the claimant (Sanchez v. Minister of
Citizenship and Immigration, 2007 FCA 99, at paragraph 15). Accordingly, the
applicant’s subjective fear is not sufficient if the panel did not find an
objective risk to his safety.
[10] At paragraphs
12 to 15 of its reasons, the panel found that the applicant’s credibility was
undermined by various contradictions concerning the identity of the bandits,
whether the first incident took place and who filed a complaint with the
police. Because of these contradictions, the panel found that the sole purpose
of the attacks was to steal the merchandise in the truck and that the
applicant’s credibility was undermined. It noted at paragraph 24 that,
according to the applicant’s testimony, other colleagues from the same company
were also robbed in the course of their work during the same time period, which
makes it less likely that the attackers targeted the applicant. It is trite law
that this Court must not intervene where the applicant only repeats the
explanations that the panel found not credible without providing evidence that
its findings were arbitrary. See, for example, Muthuthevar v. Canada (Citizenship
and Immigration), [1996] F.C.J. No. 207, at paragraph 7, where
Mr. Justice Cullen wrote:
. . . While the applicant seeks
to “explain away” testimony that the Board found implausible, it must not be
forgotten that these same explanations were before the Board and were not
accepted as credible. The applicant has not directed to this Court evidence
that was ignored or misconstrued, and in the absence of such a finding, the
Board's conclusions on credibility must stand.
[11] In addition, the
panel cited the decision in Innocent v. Minister of Citizenship and Immigration,
2009 FC 1019, where Mr. Justice Mainville determined that even
multiple attacks by the same thugs were not sufficient to personalize the
prospective risk. Mainville J. found that the applicant, who had been the victim
of criminal attacks on a number of occasions, was facing a generalized risk
affecting the entire population in the country, not a personalized risk. The
panel in this case consulted the documentary evidence about Haiti and
concluded that all Haitians are at risk of being harassed by bandits and that the
police are unable to intervene.
[12] As for the
applicant’s claim that his work as a truck driver would put him more at risk
than other Haitians, I find that the Sanchez decision, above, is again
relevant on this point. At paragraph 20, the Court determined that persons
are not persons in need of protection simply because of the nature of their occupation
unless they can establish that there is no alternate occupation open to them
that would eliminate the risk of harm. The respondent appropriately notes that,
according to his Personal Information Form, the applicant worked in a
restaurant in the United States and currently works as a day labourer in Canada.
[13] I therefore
find that the applicant has not established that the panel’s decision was
unreasonable with regard to the facts. Accordingly, the Court’s intervention is
not justified. It is well settled that a tribunal’s assessment of the facts
“command[s] a high degree of deference” (Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph
46). The Court will intervene only if this assessment is unreasonable in the
sense that it was done “in a perverse or capricious manner or without regard
for the material before it” (Khosa; Federal Courts Act, R.S.C. 1985, c.
F-7, paragraph 18.1(4)(d)).
[14] For all these
reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision dated January 20, 2010, by
the Refugee
Protection Division of the Immigration and Refugee Board is dismissed.
“Yvon
Pinard”
Certified true translation
Mary Jo Egan, LLB
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