Date:
20090513
Docket:
IMM-3257-08
Citation:
2009 FC 490
[ENGLISH TRANSLATION]
Ottawa, Ontario,
May 13, 2009
PRESENT: The
Honourable Mr. Justice Orville Frenette
BETWEEN:
Charles Gérard PLACIDE
Applicant
and
THE MINISTER OF IMMIGRATION
AND CITIZENSHIP
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS
FOR ORDER AND ORDER
[1]
The
applicant filed an application for judicial review under subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the IRPA), against a decision made on July 15, 2008 by the delegate of
the Minister of Citizenship and Immigration, who rejected the applicant’s claim
for protection under subsection 112(3) of the IRPA as a person who is
inadmissible due to serious criminality and who is a danger to Canada.
Summary of facts
and proceedings
[2]
The
applicant, a Haitian citizen who was born in that country, arrived in Canada on
August 14, 1983, at age 20.
[3]
In
Canada, he was found guilty of 44 criminal offences that were committed between
1986 and 2005.
[4]
On
November 16, 2007, in response to an application for a pre-removal risk
assessment (PRRA), the officer found that the applicant’s life would be at risk
or he could suffer cruel and unusual treatment or punishment if he were
returned to Haiti.
[5]
On
July 15, 2008, the delegate of the Minister rejected the applicant’s claim
for protection under subsection 112(3) of the IRPA.
[6]
In
a well-reasoned decision, the delegate analyzed the applicant’s history and
criminal record and the publicly available international documentation cited by
the PRRA officer in her decision from November 16, 2007. The delegate of
the Minister considered the documentation filed by counsel for the applicant on
the situation in Haiti, including the updates on that situation that she sent
on March 27, June 19, and June 20, 2008. The delegate also
accessed other documents that are publicly accessible to everyone, covering the
period from 2001 to 2008.
The issue
[7]
On
July 15, 2008, the delegate of the Minister, in a reasoned 33-page
decision, detailed the reasons that showed why the applicant’s application was
rejected as a person who is inadmissible due to serious criminality. According
to the balance of probabilities and despite the applicant’s criminal record,
the delegate decided that if the applicant were to return to Haiti, he would
not be subject to torture or exposed to a risk to his life or to a risk of
cruel and unusual treatment or punishment. He also found that the applicant was
a current and future danger to the public safety of Canada. The delegate of the
Minister considered various public documents, including a report from the U.S.
Department of State, published on March 11, 2008.
[8]
On
July 22, 2008, the applicant filed an application for leave and judicial
review against the aforementioned decision. The hearing was set for April 15,
2009.
[9]
On
April 14, 2009, counsel for the applicant sent the Court a missive
accompanied by a document, which she described as “new evidence”: a report that
she had ordered in another case (that of Nicolas Joseph), prepared on March 23,
2009 by Ms. Michelle Karshan, a citizen of the United States who spent
nine years in Haiti (until 2004). She describes herself as an “expert” and
heads a non-profit organization dedicated to helping criminalized persons who
are deported to Haiti.
[10]
Counsel
for the respondent vigorously attacked the filing and consideration of that
document for various basic and procedural reasons.
The legislation
[11]
The
relevant sections of the IRPA are as follows:
|
112. (3) Refugee protection may not result from
an application for protection if the person
(a) is
determined to be inadmissible on grounds of security, violating human or
international rights or organized criminality;
(b) is
determined to be inadmissible on grounds of serious criminality with respect
to a conviction in Canada punished by a term of imprisonment of at least two
years or with respect to a conviction outside Canada for an offence that, if
committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years;
(c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
(d) is named in a certificate
referred to in subsection 77(1).
113.
Consideration of an application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
(d) in the
case of an applicant described in subsection 112(3), consideration shall be
on the basis of the factors set out in section 97 and
(i) in the case of an applicant for
protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada, or
(ii) in the case
of any other applicant, whether the application should be refused because of
the nature and severity of acts committed by the applicant or because of the
danger that the applicant constitutes to the security of Canada.
114. (1) A decision to allow the application for protection has
(a) in the
case of an applicant not described in subsection 112(3), the effect of
conferring refugee protection; and
(b) in the
case of an applicant described in subsection 112(3), the effect of staying
the removal order with respect to a country or place in respect of which the
applicant was determined to be in need of protection.
(2) If the
Minister is of the opinion that the circumstances surrounding a stay of the
enforcement of a removal order have changed, the Minister may re-examine, in
accordance with paragraph 113(d) and the
regulations, the grounds on which the application was allowed and may cancel
the stay.
(3) If the
Minister is of the opinion that a decision to allow an application for
protection was obtained as a result of directly or indirectly misrepresenting
or withholding material facts on a relevant matter, the Minister may vacate
the decision.
(4) If a decision
is vacated under subsection (3), it is nullified and the application for
protection is deemed to have been rejected.
115. (1)
A protected person or a person who is recognized as a Convention refugee by
another country to which the person may be returned shall not be removed from
Canada to a country where they would be at risk of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion or at risk of torture or cruel and unusual treatment or
punishment.
(2) Subsection
(1) does not apply in the case of a person
(a) who is
inadmissible on grounds of serious criminality and who constitutes, in the
opinion of the Minister, a danger to the public in Canada; or
(b) who is
inadmissible on grounds of security, violating human or international rights
or organized criminality if, in the opinion of the Minister, the person
should not be allowed to remain in Canada on the basis of the nature and
severity of acts committed or of danger to the security of Canada.
(3) A person,
after a determination under paragraph 101(1)(e)
that the person’s claim is ineligible, is to be sent to the country from
which the person came to Canada, but may be sent to another country if that
country is designated under subsection 102(1) or if the country from which
the person came to Canada has rejected their claim for refugee protection.
|
112. (3) L’asile ne peut être conféré au demandeur dans les cas
suivants :
a) il est interdit de territoire pour raison de sécurité ou pour
atteinte aux droits humains ou internationaux ou criminalité organisée;
b) il est interdit de territoire pour grande criminalité pour
déclaration de culpabilité au Canada punie par un emprisonnement d’au moins
deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada
pour une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
c) il a été débouté de sa demande d’asile au titre de la section F
de l’article premier de la Convention sur les réfugiés;
d) il
est nommé au certificat visé au paragraphe 77(1).
113. Il est disposé
de la demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des éléments
de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement
accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les
circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une audience peut être tenue si le ministre l’estime requis
compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3), sur la
base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe 112(3), sur la base
des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur
interdit de territoire pour grande criminalité constitue un danger pour le
public au Canada,
(ii) soit, dans
le cas de tout autre demandeur, du fait que la demande devrait être rejetée
en raison de la nature et de la gravité de ses actes passés ou du danger
qu’il constitue pour la sécurité du Canada.
114. (1) La décision accordant la demande de
protection a pour effet de conférer l’asile au demandeur; toutefois, elle a
pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour
le pays ou le lieu en cause, à la mesure de renvoi le visant.
(2)
Le ministre peut révoquer le sursis s’il estime, après examen, sur la base de
l’alinéa 113d) et conformément aux règlements, des
motifs qui l’ont justifié, que les circonstances l’ayant amené ont changé.
(3)
Le ministre peut annuler la décision ayant accordé la demande de protection
s’il estime qu’elle découle de présentations erronées sur un fait important
quant à un objet pertinent, ou de réticence sur ce fait.
(4)
La décision portant annulation emporte nullité de la décision initiale et la
demande de protection est réputée avoir été rejetée.
115. (1) Ne peut être renvoyée dans un pays où elle
risque la persécution du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques, la
torture ou des traitements ou peines cruels et inusités, la personne protégée
ou la personne dont il est statué que la qualité de réfugié lui a été
reconnue par un autre pays vers lequel elle peut être renvoyée.
(2) Le paragraphe (1) ne
s’applique pas à l’interdit de territoire :
a) pour grande criminalité qui, selon le ministre, constitue un
danger pour le public au Canada;
b) pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux ou criminalité organisée si, selon le ministre, il ne devrait
pas être présent au Canada en raison soit de la nature et de la gravité de
ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.
(3) Une personne ne peut, après prononcé
d’irrecevabilité au titre de l’alinéa 101(1)e), être
renvoyée que vers le pays d’où elle est arrivée au Canada sauf si le pays
vers lequel elle sera renvoyée a été désigné au titre du paragraphe 102(1) ou
que sa demande d’asile a
été rejetée dans
le pays d’où elle est arrivée au Canada.
|
The conditions
for accepting new evidence
[12]
Right
from the start, it should be remembered that in order to reverse administrative
decision, case law states that the Court may only examine the evidence that was
adduced before the initial decision-maker (Isomi v. Minister of Citizenship
and Immigration, 2006 FC 1394; OAA (Ontario Association of Architects)
v. AATO (Assn. of Architectural Technologists of Ontario), [2003] 1 F.C.
331 (F.C.A.)).
[13]
New
or extrinsic evidence can be allowed when the tribunal has committed a
jurisdictional error or violated the rules of procedural fairness (McFadyen
v. Canada (Attorney General), 2005 FCA 360, 341 N.R. 345).
[14]
The
conditions for accepting new evidence result from the application of section 113
of the IRPA (above). Case law has stated the conditions that can justify
re-opening a debate due to such new evidence (Raza v. Minister of
Citizenship and Immigration, 2007 FCA 385; Her Majesty the Queen v.
Canadian Council for Refugees et al., 2008 FCA 171; Mujib v. Minister
for Citizenship and Immigration, 2008 FC 1027; Yansane v. Minister of
Citizenship and Immigration, 2008 FC 1213).
[15]
According
to Sharlow J.A. in Raza, above, the most important conditions are:
1) the relevance of the evidence. Is the evidence relevant for establishing or
denying an essential fact to be considered in the decision? 2) the credibility
of the evidence. Is the evidence credible, considering its source and the
circumstances in which it came into existence? 3) the newness of the evidence.
Did the evidence exist before the decision? 4) the diligence of the parties in
presenting evidence. Were the parties diligent in obtaining and presenting
evidence before the decision? And 5), the materiality of the evidence: would
the presence of such evidence have supported a different decision?
The relevance of the
evidence
[16]
In
a case such as the one before us, regarding the risk of returning to Haiti,
does the evidence depict a different situation than what the tribunal had
during its decision? In its decision, the delegate of the Minister referred to
the PRRA officer’s decision and to the documentation on file that shows the
situation and the risk of returning to Haiti: the report from Alternative
Chance, an organization established in the United States that works for persons
deported to Haiti (2007) and the two documents from the U.S. Department of
State filed by counsel for the applicant: 2006 Country Reports on Human
Rights Practices – Haiti (March 6, 2007) and 2007 Country Reports
on Human Rights Practices – Haiti (March 11, 2008). Those documents
show the serious problems that exist in Haiti and particularly those facing
Haitians with lengthy criminal records when they return to their country of
origin, including arrest and detention. Those reports indicate that the United
Nations, the Red Cross and other international organizations help criminals who
are deported to Haiti and that conditions improved somewhat in 2008. The
delegate of the Minister discussed the arguments from counsel for the
applicant, along with the documentation that she cited (pages 16 to 19 of
the decision) and the general documentation (pages 19 to 26).
[17]
In
particular, he referred to Country Reports from 2007, which stated that
repatriated citizens with criminal records are generally detained for a period
lasting up to two weeks. The 2008 report, which was published on February 25,
2009, repeated that same finding.
[18]
In
my view, the “report” at issue that bears the date March 23, 2009 shows
that Ms. Karshan reported and commented on the situation in Haiti for the
same periods that are covered by the documentation that the delegate of the
Minister considered during his decision. She writes that she investigated
matters regarding Haiti in 2006-2007 and until January 2008. She refers to
the situation in Haiti as revealed by the documentation and her investigation
since 2001. Ms. Karshan concluded her report in the following terms:
Further, Mr. Joseph will be at risk of execution
because of the intense campaign waged by the Haitian Government, without basis,
which targets Criminal Deportees and puts Mr. Joseph at risk of being lynched
once in the community.
Further, I believe based on my various meetings,
observations and research, as well as my meeting with the Police Chief who is a
member of the three member commission overseeing Criminal Deportees and is
charged with processing and detaining Criminal Deportees upon arrival, that the
police will receive and review files, including the criminal history of
respondent and the original police complaint and the original indictment, and
that the police will also access and view various database information online
relating to Mr. Joseph. Further, I believe that Mr. Joseph will be held in
illegal police custody.
Therefore, it is my opinion that if Mr. Joseph is
deported to Haiti he will more likely than not be subjected to severe physical
and mental pain and suffering that will be intentionally inflicted by Haiti’s
police and government officials, and at the very least acquiesced to and
consented to by administrators of the Government of Haiti such as in the
Ministry of Justice, Ministry of Interior, the Immigration department, and the
police etc. who would have custody and physical control of Respondent (said
custody being illegal under Haitian law and ruled as illegal by Haiti’s own
courts in 2006) and that said torture will be for the purpose of making
conditions particularly harsh and inhumane in order to further a pervasive and
widespread extortion campaign to extract an illegally gotten sum of U.S. monies
from the Respondent in exchange for a promise for liberation from a police
station holding cell.
I believe for all the aforesaid reasons that Mr.
Joseph, if placed in police custody in a police station holding cell, will be
more vulnerable and more threatened and more likely than not will suffer gross
persecution, mental and life-threatening physical harm or death because of his
serious medical conditions.
Finally, I believe that Mr. Joseph will specifically
be targeted and be more vulnerable to torture and extortion efforts because the
Haitian government will intentionally withhold medical care or medications and
will deliberately seek to exploit his grave medical condition by making his
condition in illegal detention worse in an effort to gain monies through
extortion.
I believe that based on all the above stated
reasons, Mr. Joseph’s applications for relief from removal to Haiti should be
granted.
[19]
An
analysis of the documents at issue reveals that this is a partial or
non-objective opinion, like that of a lawyer’s arguments in a litigation. It
does not add anything new to the debate that has not already been considered by
the delegate of the Minister based on the evidence and the general
documentation for the period ending July 15, 2008.
[20]
In
addition, this type of document does not meet the essential conditions that are
required for being considered as new evidence and considered after the decision
that was made, because 1) the document does not have any new facts regarding
conditions in Haiti and the return of citizens with a criminal record to the
country; 2) there was no valid explanation that justified not filing the
document before the decision; 3) the document does not have an objective and
impartial opinion; and 4) it does not meet the credibility and materiality
criteria (see Mustafa v. Minister of Citizenship and Immigration, 2009
FC 361, at paragraphs 22 to 24).
Conclusion
[21]
For
all of those reasons, the Court orders that the report by Ms. Karshan,
from March 23, 2009 and submitted on record in this case, is inadmissible
as evidence and must be set aside in the analysis of the decision that was
made.
ORDER
The respondent’s
objection to the production and consideration of the report by Ms. Michelle
Karshan on March 23, 2009, is allowed and the document must be rejected
from the record.
“Orville
Frenette”
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