Date: 20110216
Docket: IMM-3069-10
Citation:
2011 FC 189
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, February
16, 2011
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
MYRLINE
ALEXANDRE-DUBOIS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review submitted by the applicant, a citizen of
Haiti, in accordance with subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act). A lawyer by profession, Ms.
Alexandre-Dubois is alleging that her life is in danger because an unhappy
former client is seeking revenge on her and uttering threats. The Immigration
and Refugee Board (Board) found that the applicant was not credible and that
she was not a “Convention refugee” or a “person in need of protection”. For the
following reasons, I am of the opinion that the application for judicial review
of this decision must be allowed.
I. The facts
[2]
The
applicant is claiming that she went to see a leader of a criminal gang (known
as Jean Jean) in prison with her boss. When they informed him that they
would be focussing on a sentence reduction rather than an acquittal, the accused
disagreed. He removed her from his case and promised to make her pay dearly for
her impertinence, convinced that he had enough power to buy his acquittal. Less
than a year later (in July 2007), the lawyer for whom she worked informed her
that Jean Jean had escaped from prison.
[3]
The
applicant apparently immediately left Haiti for the United
States.
When she believed that Jean Jean had calmed down or “had let it go”, she
returned to Haiti in October
2007. Despite the fact that she had relocated far from where she had been living,
the applicant claims that Jean Jean found her because her apartment was
ransacked on October 21, 2008. The next day (or a few days later, according to
different versions of her account), unidentified individuals shot at the applicant’s
car while she and her husband were returning from visiting her sister. After
losing control of the vehicle she was driving and crashing into a wall, the
applicant and her husband allegedly fled on foot and went to the home of the
applicant’s godmother.
[4]
After
this attack, she called a justice of the peace to come to the site to make a
report. She told the justice of the peace what had happened, but did not mention
her fear of Jean Jean. Instead, she said that she did not know why she had been
the victim of such an attack.
[5]
The
applicant also asserted that she had received a telephone call from a woman
named Martine who stated that she had been kidnapped and beaten by bandits who
believed they were dealing with the applicant (Martine apparently looked a lot
like the applicant). Martine purportedly told her that the bandits wanted to
kill her; having been beaten to death, Martine allegedly died of her injuries.
[6]
These
incidents convinced the applicant that Jean Jean was not the kind of person to
abandon his objective of attacking her, so she left Haiti for the United
States
on October 23, 2008, before arriving in Canada on November
13, 2008.
II. Impugned decision
[7]
After
briefly stating these facts, the Board found that the applicant is not a “Convention
refugee” or a “person in need of protection” in accordance with paragraph 97(1)(a)
or (b) of the Act.
[8]
The
Board member mentioned at the outset that he had some difficulty with
Ms. Alexandre‑Dubois’ testimony, and expressed his surprise that she
and her husband had been able to escape unharmed after the shots that were fired
in their direction as they were coming back from visiting the applicant’s
sister.
[9]
The
Board member also reproduced the report written by the justice of the peace, and
was surprised that the applicant had not mentioned her fear of Jean Jean. According
to him, this undermined the subjective fear she claimed to have, not to mention
that she went back to Haiti after having lived in the United States for a few
months in 2007. As the applicant was not able to explain this contradiction,
she was found to be not credible and her claim was rejected on this basis.
III. Issues
[10]
The
applicant’s counsel raised several arguments against the Board’s decision. In
my opinion, three issues must be examined:
a. Is the Board’s
decision with respect to the applicant’s credibility reasonable?
b. Did the Board
properly consider the evidence in the record?
c. Did the Board
breach procedural fairness by providing insufficient reasons in support of its
decision?
IV. Analysis
[11]
Before
examining the above-mentioned issues, the applicable standard of review
warrants brief consideration. There is no doubt that the Board’s findings with
respect to the applicant’s credibility are subject to the standard of
reasonableness. This means that the Court will intervene only in the event that
the Board’s decision is based on an erroneous finding of fact, made in a
perverse or capricious manner, or without regard for the material presented: Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paras. 47‑50; Lin v. Canada (M.C.I.), 2008 FC 698,
at para. 11; Ramirez Bernal v. Canada (M.C.I.), 2009 FC 1007, at
para. 24.
[12]
The
same can be said for the issue of whether or not the Board failed to consider
relevant evidence: Zhang v. Canada (M.C.I.), 2009 FC 787, at para. 5; Ortiz
Garcia v. Canada (M.C.I.), 2010 FC 804, at para. 9.
[13]
Finally,
the case law is consistent that procedural fairness issues are subject to the
standard of correctness: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC
29; Andryanov v. Canada (M.C.I.), 2007 FC 186; Weekes v. Canada
(M.C.I.), 2008 FC 293, at para. 17.
A. Is the Board’s decision with respect to the applicant’s
credibility reasonable?
[14]
The
applicant submitted that the Board’s finding with respect to her credibility
was not reasonable in that the Board member merely noted that “[t]here were
some problems with the claimant’s testimony”, without any further explanation. I
agree with her.
[15]
The
Board is obviously in a better position than this Court to rule on the
credibility of a refugee claimant. However, it must still, even minimally,
explain the reasons that led it to find whether a person is credible or not. In
this case, the Board did not elaborate on the problems presented by the
applicant’s testimony and merely reproduced a part of the statement gathered by
the justice of the peace without any further comment.
[16]
The
only explanation provided by the Board member for refusing to believe the
applicant’s testimony can be found in the following section in his reasons on
the fear of persecution. In this respect, the Board member saw a contradiction between
the statement made by the applicant to the justice of the peace, that is, that
she was unaware of the reasons why the criminals shot at their vehicle, and the
applicant’s subsequent statements that Jean Jean was purportedly behind this
incident.
[17]
Before
coming to the conclusion that these two versions were contradictory, the Board
member had to assess the explanation provided by the applicant. Contrary to
what the Board member wrote, the applicant had explained during the hearing
that she had not wanted to unduly complicate the situation when filing her
report with the justice of the peace. This explanation deserved to be
considered, especially since the credibility and probative value of a piece of
evidence or testimony must be assessed by taking into account what is known
about the conditions that can prevail in the refugee claimant’s country of
origin. Because there is no explanation as to the reasons why the Board member found
that the applicant was not credible, his decision cannot be considered
reasonable.
[18]
In
his memorandum, the respondent’s counsel raised several inconsistencies between
the affidavit submitted by the applicant in support of her application for
judicial review, on the one hand, and her testimony during the hearing, her
Personal Information Form (PIF) and other documents submitted into evidence, on
the other hand. It is true that this affidavit raises more questions than it answers,
and that the applicant’s account is not without ambiguity. However, this is not
the issue. In the context of an application for judicial review, it is the
Board member’s decision (and reasons) that is under review; the Court cannot
consider additional arguments that could have been raised in support of the
decision in order to assess reasonableness; nor is it entitled to consider an ex
post facto rationalization of this decision to assess its validity.
B. Did the Board properly
consider the evidence in the record?
[19]
The
applicant also submitted that the Board failed to consider all of the evidence
before it, instead concentrating on the shots purportedly fired at the
applicant and her husband while on the road. In her PIF and during the hearing,
the applicant nevertheless testified to other incidents she had been the victim
of (home break-ins, threats) and filed documents (photographs of Martine and a police
report) in support of her account.
[20]
Once
again, I am of the opinion that the Board member erred in his treatment of the
evidence. It is true, as argued by the respondent, that the Board was not required
to explicitly refer to all of the evidence filed by the applicant and that a
presumption exists that all of the evidence was considered unless there is a
clear and convincing demonstration to the contrary. However, the fact remains
that it was required to refer to it, if only briefly, insofar as this evidence
could substantiate the applicant’s account. Mentioning the theft the applicant
was a victim of and the phone call from Martine in the account of the facts was
not sufficient. The Board member had to show that he had considered these
elements in his analysis of the claim submitted by the applicant, which he did
not do. This omission seriously taints the reasonableness of his reasons.
C. Did the Board breach
procedural fairness by providing insufficient reasons in support of its
decision?
[21]
Section
169 of the Act provides that reasons must be given when the Refugee Protection
Division makes a decision in which a refugee claim is rejected. In the words of
Justice Evans of the Federal Court of Appeal in Via Rail Canada Inc. v. National
Transportation Agency, [2001] 2 FC 25, at para. 21, “[t]he duty to give
reasons is only fulfilled if the reasons provided are adequate”. While
acknowledging that the adequacy of the reasons may vary in light of the
circumstances of each case, he added the following (at para. 22):
The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion. Rather, the decision-maker must set out its
findings of fact and the principal evidence upon which those findings were
based. The reasons must address the major points in issue. The reasoning
process followed by the decision-maker must be set out and must reflect
consideration of the main relevant factors.
[22]
There
is no doubt in my mind that the Board’s reasons in this case are not consistent
with the standard required by the principles of procedural fairness. First, I
note that the Board member failed to analyze the various elements required by a
claim based on sections 96 and 97 of the Act. Not only did he not address a
number of pieces of evidence submitted by the applicant or explain why she was
found to be not credible, as mentioned above, he also did not address the
objective fear of persecution. Nevertheless, it is well established that
section 96 of the Act could apply even when a person is found to be not
credible in that the person can argue an objective fear of persecution that
could arise from, in this case, the applicant’s profession as a lawyer. If the
Board member wanted rule out this possibility with the fact that the risk faced
by the applicant was generalized and stemmed from the rampant crime occurring
in Haiti, he had to
specify this.
[23]
Furthermore,
the Board member does not really distinguish between the applicant’s
credibility and her subjective fear. In the only paragraph that can really
serve as reasons, he starts by stating that the applicant’s subjective fear is
not sufficient to establish a nexus to one of the Convention grounds, relying
on the fact that she left Haiti for a few months to study English in the United
States before going home. He also added that she “was subsequently able to
solidify her fear”, but that she denied the existence of the source of her fear
in her statement to the justice of the peace. He found that the applicant’s
testimony could not be substantiated. This reasoning, which is seven lines
long, is confusing to say the least and certainly does not enable the principal
party involved (not to mention this Court) to understand the true reasons behind
the Board member’s decision. That is a serious breach of the principles of
procedural fairness, which would in itself warrant the Court’s intervention.
[24]
For
all of these reasons, the application for judicial review must be allowed.
Neither party proposed a question of general importance for me to certify, and
none is stated.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review be allowed.
No question of general importance is certified.
“Yves
de Montigny”
Certified
true translation
Janine
Anderson, Translator
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