Date:
20070305
Docket:
IMM-3777-06
Citation:
2007 FC 249
[ENGLISH TRANSLATION]
Montréal, Quebec, March 5, 2007
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
ELANGE
BULLY SAINNÉUS
VICKIE
SAINNÉUS
Applicants
and
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants are challenging the legality of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (the Board) on June 21,
2006, that determined that they do not have refugee status and are not persons
in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, S. C. 2001, c. 27 (the Act).
[2]
The
principal applicant is a citizen of Haiti. Her daughter (the minor applicant) is
a citizen of the United States and is now five years old. The principal
applicant, owner of a food store in Port-au-Prince, claims that she was
persecuted by Lavalas Chimères. Her allegations can be summarized as follows.
[3]
On
February 24, 2001, the applicant’s family was robbed at their home. The
applicant, who was five months’ pregnant, and her husband were beaten during
the robbery. Following this incident, the principal applicant travelled to the
United States on March 6, 2001. Following her return to Haiti in August 27,
2001, the harassment continued until July 2002. The applicant then sent her son
to the United States to protect him from the threats.
[4]
Nearly
three years later, in March 2004, pro-Aristide slogans and death threats were scribbled
on the walls of her family home and business. On April 3, 2004, her husband was
kidnapped. She managed to raise a portion of the ransom, and her husband was
released. The next year, on May 28, 2005, their home was riddled with bullets.
Although the respondent and her husband were absent, their children, the
principal applicant’s sister and her husband’s brother were home during the
incident. The principal applicant and her husband subsequently decided to stop
spending nights at the house. Then on June 29, 2005, the brother of the
principal applicant’s husband, who was looking after the house, was shot dead
outside of the residence.
[5]
The
principal applicant then decided to stay with her cousin in Delmas. She left
Haiti and arrived in Canada on August 16, 2005. She claimed refugee status
nearly two months later, on October 4, 2005. That same day, the
minor applicant arrived in Canada. A refugee claim was filed on her behalf on
October 14, 2005.
[6]
The
Board first found there was no connection between the principal applicant’s
alleged fear and one of the five Convention grounds. Second, in the Board’s
view, the principal applicant lacks credibility. More specifically, the Board considered
that her behaviour, as well as that of her family, was inconsistent with that
of someone who fears for their life. It noted that between 2001 and 2004, the
principal applicant travelled to the United States five times, and her husband
also visited that country once in 2004. Despite the threats uttered against
them, neither made a refugee claim during their trips to the United States and,
on every occasion, they willingly returned to the Haiti. The Board was of the
opinion that such behaviour was inconsistent with someone who feared for their
life. Furthermore, it found it implausible that the principal applicant and her
family did not permanently move after the incidents that occurred on
February 24, 2001, April 3, 2004, and
May 28, 2005. Moreover, even today, even after the death of her
brother, the principal applicant’s husband goes to their house [translation] “to bathe or to get
clothes.” On the other hand, the Board noted that once in Canada the principal
applicant waited almost two months before claiming refugee status. The Board
also questioned the authenticity of some of the documents submitted in
evidence. In particular, it noted, that some of the documents drafted in
French, one of Haiti’s official languages, do not contain any accents and that the
police complaint submitted in evidence contained a [translation] “major typing error” in the heading of the
document, which read “Service d’ivestigation” instead of “Service
d’investigation.” Finally, the Board dismissed the minor applicant’s claim on
the basis that she did not submit any evidence that she would be at risk of
persecution or would be mistreated in the United States, her country of
citizenship.
[7]
First,
the principal applicant argues that the Board erred in finding that there was
no connection between the fear alleged by the principal applicant and one of
the five Convention grounds. Her counsel submits that the applicant satisfied
section 96 of the Act by alleging and proving that she was persecuted for
activities amounting to political activities and by proving that she could not
be protected by the authorities in her own country because the government in place
was linked to the Chimères, her assailants.
[8]
In
my opinion, it is not necessary to rule on this first argument. Whether it is a
question of section 96 or 97 of the Act, refugee claimants must be believed by
the Board, which is not the case in this case for the specific reasons that
were provided in the Board’s decisions and which are summarized above. Furthermore,
the Board also assessed the risk to life under section 97 of the Act and found
that the applicants were not persons in need of protection.
[9]
Second,
as a second ground for review, the principal applicant submits that the Board’s
adverse credibility findings are patently unreasonable and that they are based
on findings of fact that were erroneous or reached without consideration for
the evidence before it. In particular, she submits that the Board should not
have relied on the period preceding her refugee claim. She also argues that the
Board should not have drawn adverse findings from the fact that she did not
claim refugee status during her various trips to the United States. It was only
after the incidents in May and June 2005 that the principal applicant concluded
that her life was in danger if she remained in Haiti. Despite this, the
principal applicant explains that once she was in Canada, she waited almost two
months to file her refugee claim because she was in a state of shock and did
not know the process for claiming refugee status. She also argues that the
negative determination is based on peripheral facts and details that do not
really matter. Thus, the Board also acted capriciously and arbitrarily by
questioning the authenticity of the police report submitted by the principal
applicant.
[10]
It
is settled law that the standard of review applicable to credibility issues is
the patent unreasonableness standard (Umba v. Canada (Minister of
Citizenship and Immigration), 2004 FC 25). The Board has well-established
expertise in the determination of questions of fact, particularly in assessing
credibility and subjective fear of persecution (RKL v. Canada (Minister of
Citizenship and Immigration), 2003 F.C.T.D. 116 at paragraph 7; Rahaman v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at
paragraph 38 (F.C.T.D.) and Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 at paragraph 14). It
also has complete jurisdiction to determine the plausibility of testimony (Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315.
[11]
In
this case, the principal applicant is essentially asking the Court to reassess
the evidence that was before the Board. However, the Court will only intervene
when it has been established that the Board’s decision is based on an erroneous
finding of fact that it made in a perverse or capricious manner or without
regard for the material before it (paragraph 18.1(4)(d) of the Act. See also Akinlolu
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at
paragraph 14 (F.C.T.D.); Kanyai v. Canada (Minister of Citizenship and
Immigration), 2002 F.C.T.D. 850 at paragraph 9 (F.C.T.D.).
[12]
Subjective
fear, one of the essential elements of the burden of proof placed on refugee
claimants, is first and foremost a question of credibility. Assessing
subjective fear may be based on the principal applicant’s behaviour, such as
the delay in leaving the country of persecution or torture, the voluntary
return to the country of persecution, failure to seek protection in a country
that is signatory to the Convention and the delay in seeking protection in
Canada. The delay in making a claim to refugee status is also a relevant factor
that the tribunal may take into account in assessing both the statements and
actions and deeds of a claimant (Huerta v Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 271 (F.C.A.) (QL), Singh
v. Canada (Minister of Citizenship and Immigration), 2007 FC 62).
[13]
I
am not satisfied that the Board’s findings are patently unreasonable. On the
contrary, they appear to me to be amply justified based on the evidence in the
record. The fact that the Board did not mention each document entered in
evidence does not indicate that it did not consider them. It is assumed to have
weighed and considered all the evidence presented to it unless the contrary is
shown (Florea v. Canada (Minister of Employment and Immigration), [1993
F.C.J. No. 598 (F.C.A)). Given that the principal applicant was found not to be
credible, I do not think that the Board can be faulted here for not commenting
on all the material that she filed (Ozdemir v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 331). Furthermore, the Board could
give no probative value to Exhibit P-1 (police complaint) and P-2 (justice of
the peace’s report) filed by the applicant when, as in this case, the evidence
was sufficient to question her authenticity (Chaudry v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1068; Dzey v. Canada (Minister of
Citizenship and Immigration), 2004 FC 167). Finally, the Board could also
make a negative finding from the fact that the principal applicant waited
almost two months before claiming refugee status in Canada.
[14]
For
the reasons, the application for judicial review must fail. No question of
general importance was raised in this proceeding.
ORDER
THE COURT ORDERS:
1. The application for judicial review is
dismissed.
2. No serious question of general importance
is certified.
“Luc Martineau”
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