Date: 20090304
Docket: IMM-2689-08
Citation: 2009 FC 232
Ottawa, Ontario, March 4, 2009
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
ALCES
GABRIEL
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant is challenging the legality of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated May 30, 2008 (the impugned decision), according to which his claim for
refugee protection was rejected on the grounds that he is neither credible nor
a “Convention refugee” or a “person in need of protection” under sections 96
and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act).
[2]
A citizen of Haiti, born in Gonaives,
the applicant claims to be a member of the Christian Movement for a New Haiti
(MOCHRENHA), having acted as their delegate for the Bigot zone. His duties essentially involved promoting the party and
distributing information pamphlets. The
applicant claims his membership in this political group is the reason that he
was forced to flee his country. The applicant
alleges that armed supporters of the Lavalas political organization raided a
MOCHRENHA conference held in December 2001. According
to the applicant, he was struck in the forehead but managed to flee towards Port-au-Prince
to rejoin members of his party there. After
discovering that a similar incident had taken place in Port-au-Prince, the
applicant claims that he had no choice but to leave his country and go to the Dominican
Republic.
Subsequently, the applicant reached the island
of Saint Thomas, in the United States Virgin
Islands.
On February 22, 2002, the applicant filed a claim for
refugee status with the United States,
which was rejected. After making his way to Miami,
the applicant arrived in Canada on November
23, 2006, and claimed refugee protection upon his arrival.
[3]
The Board erred at one point in its decision in referring to the
applicant’s returning to Mexico, rather
than Haiti. However, aside
from this purely clerical error, the pivotal issue in this case is the
applicant’s credibility. In such cases, the
standard of review is reasonableness. Any
error in this respect must be determinative for the Court to refer the matter
back for a new hearing.
[4]
In the impugned decision, significant anomalies were noted by the
Board with regard to the documents submitted in support of the applicant’s
claim for refugee protection, namely the applicant’s MOCHRENHA party membership
card and an attestation from the MOCHRENHA movement. The attestation in question, dated November 10, 1999, indicates that the
applicant was a member of the party between November 2000 and November 2002,
which is impossible, since the attestation is dated prior to that time. As for the membership card, it incorrectly indicates that
the applicant’s date of birth is December 5, 1968, when it has been established
that the applicant was born on September 5, 1968. These errors or anomalies cast doubt on the authenticity of
these documents, thus calling into question the applicant’s membership in
MOCHRENHA.
[5]
Furthermore, the Board notes a significant contradiction between
the written account given by the applicant in his claim for refugee status in
the United States on February 22, 2002, and the narrative
given by the applicant on his Personal Information Form (PIF), which
accompanied the claim for refugee protection he made to the Canadian
authorities.
In support of the refugee claim he made in the United
States, the applicant stated having been taken to a police station to be
interrogated about a coup against Aristide, after which he was also tortured
and beaten for two days. These important
events do not appear in the PIF. At the
hearing before the Board, the applicant changed his version of events by
explaining that the interpreter in the United
States who had translated his original statement from Creole to English
had been mistaken, and that he had explained it to the American judge. The Board did not accept this explanation (and neither, it
seems, did the American judge).
[6]
Finally, having deemed the applicant not credible as regards the
essential ingredients of his claim for refugee protection, and after having
considered all of the evidence, the Board adds that the applicant also failed
to discharge his burden of showing that his removal to Haiti would subject him
to a risk to his life, a risk of cruel and unusual treatment or punishment, or
a danger of torture.
[7]
The applicant submits before this Court that the explanations he
provided to the Board are reasonable and should not have been dismissed by the
Board, and that the Board did not perform a serious, in-depth and objective
analysis of his claim for refugee protection in respect of the danger that his
removal to Haiti poses for him.
[8]
As for the errors that appear on the attestation from the
MOCHRENHA party, the applicant submits that he had never before noticed that
the date on the attestation predated his membership in the party. Furthermore, the applicant maintains that there is no
contradiction in this respect, since an attestation can be issued to a person
in recognition of the person’s subscribing to a party’s ideology, even when
that person does not hold a membership card. In
addition, the applicant states that he did not notice that the date of birth on
his membership card was incorrect and that he cannot be held responsible for
mistakes made on his membership card, since the matter of his identity was not
in dispute.
[9]
As for the anomalies identified between the applicant’s statement
made in support of his refugee claim in the United
States and the PIF, the applicant states that they are entirely the
result of the Creole interpreter’s mistranslation. In spite of the statement signed to the effect that the written account
was faithfully translated, the applicant states that he pointed out these
errors to the American judge and maintains that the narrative on his PIF gives
the true version of the events leading to his claim for refugee protection.
[10]
In the Court’s opinion, there is no need to intervene, and the
application for judicial review must fail for the following reasons.
[11]
First of all, the Board’s overall finding of a lack of credibility
is well-founded, and it has not been demonstrated to this Court’s satisfaction
that the finding was “based . . . on an erroneous finding of fact that [the
Board] made in a perverse or capricious manner or without regard for the
material before it” (subsection 18.1(4) of the Federal Courts Act,
R.S.C. 1985, c. F-7). Therefore, it is not
for this Court to replace the Board’s opinion with its own as to the weight to
give the evidence submitted, but rather to rule on the reasonableness of the
impugned decision as regards the rejection of the applicant’s claim for refugee
protection for his lack of credibility, in accordance with the evidence on the
record.
[12]
The applicant had the onus of submitting evidence from reliable
and objective sources. The weight to give
such evidence depends exclusively on the Board’s assessment. In the case at bar, the reasons given by the Board for
doubting the authenticity of the two documents filed by the applicant in
support of his membership in MOCHRENHA seem to me to be reasonable in the
circumstances. In this case, on the whole of
the record, the Board could reasonably determine that there was no credible
evidence that could corroborate the applicant’s allegations about his role in
MOCHRENHA.
[13]
In addition, it was not shown to the satisfaction of the Board, or
that of the Court, that the statement translated in the United
States from Creole to English was erroneous. The applicant cannot simply
blame the interpreter after the fact without any evidence beyond a general
assertion that the interpreter made a mistake.
[14]
Lastly, since the personal risk to the applicant under section 97
of the Act depends, in this case, on the credibility of his account, which has
been seriously put in doubt, the Board did not commit a reviewable error in
further determining that the applicant was not a “person in need of
protection”.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review be dismissed. No question of general importance is raised, and none is
certified by the Court.
“Luc Martineau”
Certified
true translation
Sarah
Burns
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