Date: 20090731
Docket: IMM-5662-08
Citation: 2009 FC 771
Montréal, Quebec, July 31, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
Irllande ACCÉLUS ÉLISMÉ
Randy Fabrice ACCÉLUS
Mackenson ACCÉLUS
Herby ACCÉLUS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The principal applicant,
Irllande Accélus Élismé (applicant) and her sons Randy Fabrice,
Mackenson and Herby, all four Haitian citizens, are seeking, under subsection
72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act),
judicial review of the decision dated December 9, 2008, by the Refugee Protection Division of the Immigration
and Refugee Board (panel) refusing to
recognize them as “refugees” or “persons in need of protection” as defined in
sections 96 and 97 of the Act and, consequently, denying their refugee claim on
the principal ground that the panel found that their account
lacked credibility.
II. Facts
[2]
On
July 6, 2006, individuals allegedly burst into the applicant’s house in the
middle of the night, raping her in front of her children and then taking all of
the merchandise from her business that she kept at home.
[3]
On
September 7, 2006, the applicant was purportedly kidnapped by these same
persons and then released in exchange for a ransom. During her confinement, she
was apparently raped again.
[4]
Furthermore,
the applicant claims that, on December 1, 2006, the same persons followed her
son to school to kidnap him.
[5]
The
applicant left Haiti on December 20, 2006, with her children, for the United
States, and arrived in Canada on December 29, 2006, when she claimed refugee protection.
III. Issue
[6]
This
proceeding raises only one question:
Did the panel
base its negative decision with respect to the applicant’s credibility on
erroneous findings of fact made in a perverse or capricious manner without
regard for the material before it with the result that its decision was
unreasonable?
IV. Analysis
A. Standard
of judicial review
[7]
The
panel’s decision is mainly based on the applicant’s lack of credibility. It is
well established that assessing the credibility of witnesses falls within its
jurisdiction, and that a panel such as this has the necessary expertise to
analyze and assess the facts, which in turn enables it to assess the claimant’s
credibility and subjective fear of persecution (Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL),
at paragraph 14).
[8]
In an
application for judicial review on questions of credibility, the standard of reasonableness
should be applied, as defined in Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190. Thus, the Court must show great deference
since it is normally the panel’s responsibility to assess the applicant’s
testimony and therefore credibility.
B. Credibility
[9]
In
her personal information form (PIF), the
applicant stated that while she was sleeping on the night of July 6, 2006, with
her children, [translation]
“armed men broke down the door to [her] house, and . . . came into [her] house
. . . fired several gunshots into the walls . . . the gangsters invaded the
house . . . pointed their weapons at [her], they forced [her] to disrobe in
front of [her] children, they raped [her] and they took off with all of [her]
merchandise.” She [translation] “contacted
police who took note of the situation.”
[10]
The
applicant produced, to corroborate her account of the event, the statement by a
magistrate from the Tribunal de paix section sud de Port-au‑Prince
(Peace Tribunal of Port‑au‑Prince, South Section), who
declared that he knew the applicant, and that he went to her home on July 7 to obtain
her version of the facts and take note of the state of the premises. His report,
under the seal of the Peace Tribunal, reads as follows:
[translation]
Today seventh day of the month of Jly
2006, 202ndyear of Independence.-
We Mr. Bruno Leriche, Justice of the
Peace for the South section of Port-au-Prince, Judicial Police Officer, adjunct
of the government of this jurisdiction, assisted by our clerk Mr. Joseph Wilson
FLEURY.-
At the vebal request of Jean Yves
Despinas, owner, residing and domiciled in Port-au-Prince, identified as Nif.003-247-481-2
for this current fiscal year, we went to #36 Edmond Paul lane to take note of the
home of Irlande Elisme Accelus victim of criminal acts comitted by armed
individuals, accompanied by rape committed on the same lady mentioned above in
the presence of her children MACKENSON, HERBY, FABRICE, ROUDY and to record
official report. Having arrived we in fact note the house ransacked by gangsters,
the walls have bullet holes, the white and red entrance doors to the house in
the direction of the rising sun are broken and on the ground, searches inside
the said house took place. We also note the children traumatized, given that
this situation happened in their presence. The physical observation finished, the
person requesting our presence gave us this following statement.-
Magistrate, this lady victim of rape is
my friend all of these gangster acts that you have just noted are done in the
presence of the whole family, the lady and her children, Mackenson, Herby,
Roudy, Fabrice. This morning, it was around 2 in the morning when armed
individuals stormed inside the house, they forced down the door and went in, they
fired shots and as you noted the walls are smashed in, violnt sexual assaults. I
followed the action closely despite the fact that I was traumatized, I had the
courage to call upon the Tribunal to call the Justice of the Peace to make a
report. That is all I caan say.
Required to sign, which he did.-
Jean Yves
Despinas.-
We hereby believe we have record and
close this report, this day, month and year with all advantages thereto
pertaining.-
(signed)
JOSEPH WILSON FLEURY, Mr. Bruno
Leriche, Justice of the Peace.-
[Translator’s note:
The French version was reproduced
with all of the punctuation and spelling errors; emphasis added.
The English version (translation)
includes the punctuation and spelling errors to the extent possible; emphasis
added.]
[11]
The
applicant also produced a medical certificate from the Haiti State University
Hospital stating that she was admitted to emergency on July 8, 2006, due to a
very acute and painful vaginal infection resulting from sexual assaults and attacks.
[12]
The
panel sifted through the report reproduced above, compared it with the
applicant’s statements in her PIF and with her son Mackenson’s testimony to
find that “[s]everal of the female claimant’s statements concerning key facts
in her claim for refugee protection were contradicted either by the female
claimant herself or by the testimony of her son Mackenson”, and “does
not correspond to the information in the documents submitted by the female
claimant.” (Emphasis added.) The panel’s analysis led it to make the
following finding:
The panel does not
believe that the female claimant was assaulted or robbed at home in
July 2006. The panel therefore assigns no weight to the statement
submitted in a bundle as Exhibit A‑2. It also assigns no weight to the
medical certificate submitted as Exhibit A‑2 since it does not believe
that the female claimant was assaulted and raped in July 2006.
[13]
However,
the panel is forgetting that the report reproduced above was not written,
dictated or signed by the applicant. In fact, the report certifies that the
justice of the peace went to the applicant’s house at the request of a certain Jean Yves
Despinas, one of the applicant’s friends. Furthermore, the report indicates
that the justice of the peace’s clerk recorded the version of the facts
reported by Mr. Despinas and asked him to sign it. Nowhere in this report do
we find the applicant’s version of events or her signature. How do we
contradict the applicant’s account with a statement that is not hers?
[14]
Now,
we will see how this report is contradictory to the applicant’s account.
[15]
In
her PIF, the applicant stated that the July assault in her home took place [translation] “in front of the
children”, without naming them, while in the report relating the version of
one of the applicant’s friends who knows the family indicates that the assault
took place “in the presence of the whole family, the lady and her children,
Mackenson, Herby, Roudy, Fabrice”. (Emphasis added.)
[16]
How
can we say that the applicant is contradicting the version reported to the
justice of peace by a friend when there is no evidence that this friend
witnessed the incident? Why not see that this version is the friend’s and not
the applicant’s?
[17]
However,
as of the beginning of the hearing, always consistent with her version, the
applicant wanted to clarify that the version of the incident given in the report
was inaccurate: in fact, contrary to what it indicates, her son Mackenson was
not present because he was on vacation in the United States, which he confirms.
Far from contradicting his mother on this matter, Mackenson says the same thing.
If the names of the applicant’s three children appear in the transcript, this
is perhaps only because the friend, who did not witness the incident, but who
reported what the applicant has always maintained, that she was assaulted [translation] “in front of the
children”, understood that the three children, who he says he knows by
name, were all present. Certainly, this was never the applicant’s version. She clarified
at the hearing that, in recounting having been assaulted [translation] “in front of the
children”, she meant to say [translation]
“in front of the children who were present”, that is, Randy Fabrice
and Herby; this did not result in a contradiction, but was rather a clarification.
[18]
Furthermore,
the panel criticized the applicant for the fact that the report indicates the
names of four children, that is, “Mackenson, Herby, Roudy, Fabrice”, while the
applicant only declared three in her PIF. It also noted, against her, the fact
that the child’s name “Randy” does not appear in the names of the children
given by the friend to the justice of the peace.
[19]
However,
if the panel had better analyzed the report prepared by the justice of the
peace, it could not have failed to notice a dozen spelling errors and forty or
so punctuation mistakes. In doing this, it would have been able to better
assess the applicant’s explanations when she stated that the name “Roudy” was
misspelled by the clerk to the official document who should have written “Randy”
as stated by the applicant from the beginning. The mistake is all the more
obvious at the paragraph of the transcript starting with the word [translation] “Magistrate”, when the
name “Roudy” is followed by that of “Fabrice”. Contrary to the panel’s finding,
the comma added between the names “Roudy” and “Fabrice” does not necessarily
indicate a fourth child; on the contrary, this comma is in all likelihood one
of the numerous punctuation errors in the transcript, with the result that the
name of the third child should read, were it not for the clerk’s writing errors,
“Randy Fabrice”, which is what the applicant has said from the beginning.
[20]
It
is true that the justice of the peace’s transcript does not address the
applicant’s merchandise stolen during the July 2006 incident. Maybe the friend who
made the statement to the justice of the peace did not mention it, in which
case this omission does not mean that the theft did not occur as the panel suggests.
One thing for certain, and given that this statement did not come from the
applicant, it is difficult to criticize her for this omission, which is
nevertheless what the panel did.
[21]
Moreover,
the panel glossed over important facts noted by the justice of the peace at the
location of the incident, shortly after it occurred: a ransacked house, walls riddled
with bullet holes, the exterior doors smashed and on the ground and traumatized
children, facts that independently corroborate the applicant’s account.
[22]
The
Court recognizes that, in matters of assessing an applicant’s credibility, it
must normally accord deference to the panel; if its findings are reasonable,
intervention is not warranted. However, the panel’s decision must objectively
rely on the evidence; it should not make it arbitrarily on the basis of
erroneous findings of fact, taken from minor details and in ignorance of or as
the result of misinterpreting important evidence presented (Mugesera v.
Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, at paragraph
38).
[23]
In
this case, the panel, without just cause, disregarded evidence found by the
panel itself to be “key facts” of the refugee claim; it was splitting hairs when
it assessed the justice of the peace’s report, to the point of being overzealous
by looking for contradictions, then in questioning the applicant at the hearing
in a manner aimed at undermining her credibility at all costs.
[24]
However,
by not looking at the big picture, the panel failed to take into account evidence
which, if better analyzed, could have nevertheless corroborated the applicant’s
account. With a more detailed and objective analysis of the report and the
medical certificate disregarded without just cause, the panel would have been
able to make a different finding with respect to the applicant’s credibility.
[25]
The
Court therefore finds that the errors contained in the justice of the peace’s report
cannot be set up against the applicant and serve to contradict the version of facts
provided in her PIF and in her testimony before the panel. The panel committed
an unreasonable error in finding as it did with respect to the applicant’s
credibility, to the point of rejecting out of hand, without just cause, the
medical certificate that could nevertheless corroborate her version to a certain
extent.
[26]
Given
this finding, the Court is of the opinion that it is not useful to rule on the
subjective and objective fear cited by the applicant in support of her refugee
claim, or on the question of general insecurity that prevails in Haiti and is
discussed in the decision. Suffice it to say that the analysis of the fear
cited by the applicant would have been different if the panel had better
weighed the evidence that could corroborate her credibility, and did not
disregard out of hand a medical certificate that could corroborate the July
2006 assault cited by the applicant in her refugee claim.
V. Conclusion
[27]
The
Court is therefore of the opinion that the panel’s finding with respect to the
applicant’s credibility was unreasonable and thus the application for judicial
review will be allowed.
[28]
No
question of general importance was proposed or merits being proposed; no
question will therefore be certified.
JUDGMENT
FOR
THESE REASONS, THE COURT:
ALLOWS
the application for judicial review;
SETS
ASIDE the decision dated December 9, 2008; and
REFERS
the matter to a differently constituted panel of the Board for
redetermination.
“Maurice E. Lagacé”
Certified
true translation
Janine
Anderson, Translator
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