Docket:
IMM-10067-12
Citation: 2013 FC 1098
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, October 28, 2013
PRESENT: The Honourable Mr. Justice de Montigny
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BETWEEN:
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PIERRE-TASSY LOSTIN
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
OVERVIEW
[1]
This is an application for judicial review pursuant
to subsection 72(1) of the Immigration and Protection Act, SC 2001, c
27 (IRPA), of a decision by the Refugee
Protection Division of the Immigration and Refugee Board (Board) dated August 31, 2012. Upon concluding that
the applicant was not credible, the Board found Pierre-Tassy Lostin not to be a Convention refugee or a person in need of protection within
the meaning of sections 96 and 97 of the IRPA. For the reasons
that follow, I find that this Court’s intervention is not warranted.
FACTS
[2]
The applicant is a citizen of Haiti and is now
47 years old.
[3]
He alleges that he was the leader of the election
campaign committee for a Senate candidate, Louis-Paul Raphaël, in the elections
of November 28, 2010.
[4]
During the night of December 7 to 8, 2010, following
the declaration of the results putting presidential candidate Michel Martelly in
third place (which excluded him from the second round of elections), his
supporters allegedly came to applicant’s house, armed and masked. The allegedly
accused the applicant of supporting the candidacy of Jude Célestin, who came in
second in the election. They allegedly tortured his wife and children, raped
his daughter, set fire to his car and stole his motorcycle. At the time the
events allegedly took place, the applicant claims that he was not home;
he was allegedly on his way to the Dominican Republic to make purchases. The
applicant says he lost contact with his family at that point and hid in Port-au-Prince
until he left Haiti. At the hearing, the applicant stated that his brother
reported the incident to the police on December 13, 2010.
[5]
The applicant left Haiti for Canada on January 5,
2011, with the intention of remaining in the country for 28 days. On January 8,
2011, the applicant managed to get in contact with his wife. She allegedly told
him that armed men came looking for him and accused him of supporting
presidential candidate Jude Célestin. She allegedly advised the applicant to
remain in Canada for his safety. The applicant filed a refugee claim on January
10, 2011.
[6]
On January 11, 2011, the applicant’s wife passed
away. The applicant wrote in his narrative that her death was attributed to the
attack during the night of December 7 to 8. At the hearing, the applicant stated
that high blood pressure caused her death.
IMPUGNED DECISION
[7]
The Board rejected Mr. Lostin’s refugee claim in
its somewhat terse reasons, stating it was of the view that the applicant’s
credibility was tainted and undermined by several important omissions and contradictions.
[8]
First, the applicant stated during his interview
with the immigration officer on January 20, 2011, that the supporters of Michel
Martelly who attacked his family accused him of having committed fraudulent
acts during the elections to the benefit of candidate René Préval. However, in
his written narrative, the applicant rather explains that the fact that he was
on the campaign committee of candidate Louis-Paul Raphaël caused him problems.
[9]
Second, the applicant did not mention in his
written narrative that his brother had filed a complaint with the police, and
he did not submit the police report to the Board until the last minute, that is
at the hearing, when the document had been in his possession since December
2010. The Board deduced that the document was forged.
[10]
Third, the applicant indicated in his written
narrative that he was a member of Mr. Raphaël’s election campaign committee. However,
at the hearing, the applicant stated that he was the head of said committee. According
to the Board, the applicant changed his testimony to fit a letter entered in
evidence from Mr. Raphaël in which he attests that he chose the applicant as leader
of the election campaign.
[11]
Finally, the Board noted that the applicant’s
wife had not died as a result of the incident recounted, but rather because of
high blood pressure, according to the applicant’s own statements at the hearing.
ISSUES
[12]
The applicant raised a number of arguments
against the Board’s decision. Some of those arguments are without merit and are
not worthy of Court’s attention. I therefore turn to consideration of the
following paragraphs on issues that I find most significant and which can be
articulated as follows:
(a) Did the Board commit a reviewable error in finding
that the applicant is not credible?
(b) Did the Board commit a reviewable error in failing
to conduct a separate analysis of section 97?
(c) Does the Board’s decision violate the principles of
procedural fairness in that it is not sufficiently reasoned and raises a reasonable apprehension of bias?
ANALYSIS
[13]
It is well-established in the case law of this Court
that the applicable standard of review regarding the Board’s findings in
relation to the credibility of a refugee claimant is reasonableness: see Aguebor
v Canada (Minister of Employment and Immigration) (1993), 160 NR 315, at
paragraph 4 (FCA). The same standard applies with respect to the second issue, insofar
as the question has been characterized as one of
mixed fact and law: Velez v Canada (MCI), 2010 FC 923, at paragraphs
20-22. The issue of sufficiency of reasons itself should be part of the reasonableness
inquiry: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, at paragraph 21. Finally, issues of procedural
fairness must be assessed on a standard of correctness, and therefore, receive no
deference from this Court: Sketchley v Canada (Attorney General), 2005 FCA
404, at paragraph 53.
[14]
Before turning to the analysis of the issues
identified earlier, a word should be said about the affidavit filed by the
applicant in support of his application for judicial review. The affidavit is
replete with opinions, arguments and conclusions of law. However, it is
well-established that the purpose of an affidavit is
to adduce facts
relevant to the dispute without gloss or explanation: see,
for example, Canada (Attorney General) v Quadrini, 2010 FCA 47, at paragraph
18; Van Duyvenbode v Canada (Attorney General), 2009 FCA 120. Accordingly,
I find that the substance of the applicant’s affidavit should be stricken, and
will not be considered by the Court when addressing the issues raised in this
application for judicial review.
(a) Did the Board commit a reviewable error in
finding that the applicant is not credible?
[15]
The applicant criticizes the Board for failing
to consider the evidence as a whole as well as the evidence on record and for
having based its decision on speculation. The applicant also submits that the Board’s
reasons do not permit him to understand how it came to its decision.
[16]
I cannot agree with these submissions. The Board
based its finding on two contradictions and one omission in the applicant’s account.
It is trite law that contradictions between the answers given to an immigration
officer and a contradictory narrative or evidence before the tribunal, on
essential elements of the refugee claim, could allow a tribunal to find that
the refugee claim is unfounded: Cienfuegos v Canada (MCI), 2009 FC 1262,
at paragraph 1.
[17]
The Board made a
negative finding with respect to the applicant’s credibility by the fact
that he stated in his written narrative that he was a member of Mr. Raphaël’s election
campaign committee, when he stated at the hearing that he was his campaign leader.
The Board inferred from this that the applicant changed his testimony at the
hearing to mirror the content of the letter from Mr. Raphaël, which indicated
that he had chosen Mr. Lostin as his election campaign leader. The applicant submitted
that the contradiction identified by Board lies is a mere [translation] “slip”. It is true that the
applicant explained at the hearing that for him, a campaign leader is also a
campaign member. The Board, however, considered that if the applicant had been
the campaign leader, it would have stated that in his written narrative. That
finding is not unreasonable to me.
[18]
Moreover, I find that the Board could reasonably
reject the letter from Mr. Raphaël on the ground that it was a document of
convenience. The assessment of the applicant’s evidence and testimony is the
responsibility of the decision-maker, who has the advantage of having seen and
heard Mr. Lostin; the decision-maker is, therefore, is in a better position
than this Court to assess the applicant’s credibility. At the hearing, the Board
questioned the applicant at length on the content and origin of said document, as
well as on the letter of condolence that Mr. Raphaël allegedly sent to the
applicant when his wife passed away. After assessing those documents and the answers
provided by the applicant, and noting the discrepancy between the Mr. Raphaël’s
statement and the applicant’s written narrative, the Board found that the
applicant changed his testimony, and inferred from this that the letter from Mr.
Raphaël recognizing him as the leader of his campaign was a document of convenience.
Once again, this finding does not seem to me to be far-fetched or without merit.
[19]
The Board also based its decision on the
discrepancy between what the applicant stated during his interview with the immigration
officer, indicating that the supporters of Mr. Martelly accused him of [translation] “rigging the elections” for
Jude Célestin, and what he wrote in his written narrative, namely, that he was
accused of being a supporter of Mr. Raphaël. At the hearing, the applicant testified
that the party of René Préval, whose favourite candidate was Mr. Célestin, and
the party of Mr. Raphaël were informally related to each other. Nevertheless, the
applicant stated in his written narrative that he was being sought out because
of his support for Mr. Raphaël and not for having committed election fraud, which
was central to his claim.
[20]
It was also open to the Board to find that the
applicant’s failure to disclose in a timely manner that his brother had filed a
complaint with the police undermined his credibility. The applicant said he
knew about the complaint when he wrote his narrative and also stated that he
received the document at the same time as the other documents filed prior to
the hearing. For a reason the applicant was unable to explain, the applicant nonetheless
failed to include this document with the others, when it was a document material
to his claim. In that context, and having regard to the fact that the document was
a copy and not the original, it was reasonably open to the Board to consider it
to be a false document and give no weight to it.
[21]
Finally, the applicant’s testimony was not entirely
consistent with regard to the cause of his wife’s death. He first testified
that the supporters of Mr. Martelly had killed her. He then claimed that [translation] “she suffered from high
blood pressure and that is what brought her to her death”. However, the
applicant did not mention his wife’s blood pressure problems in his written
narrative. In the absence of any other evidence connecting his wife’s death to
the events that occurred during the night of December 7 to 8, 2010, and having
regard to the Board’s other findings on the applicant’s credibility, it was reasonable
for the Board to conclude that her death was not related to the alleged
incidents.
[22]
In short, the applicant has failed to convince
me that the Board’s finding does not fall within a
range of possible, acceptable outcomes which are defensible in respect of the
facts brought before it and the applicant’s testimony. It is true that
the Board’s reasons are brief, but they are nonetheless intelligible, and they
allow for understanding of its reasoning. The role of the Court is not to
assess these grounds only in terms of what it would have liked to have found or
what it could have considered, but rather to consider whether the decision is
defensible based on the entire record. I find that is the case here.
(b) Did the Board commit a reviewable error in failing to
conduct a separate analysis of section 97?
[23]
The applicant alleges that the Act requires
a panel hearing a claim for refugee protection to consider sections 96 and 97
separately. It is true that a lack of credibility finding is not necessarily fatal
with respect to section 97. If there is evidence
before the Board to support a section 97 analysis, the analysis must be
conducted: Brovina v Canada (MCI), 2004 FC 635, at paragraphs
12-18. Such is not the case, however, when the allegations made or the evidence
produced do not warrant such an analysis. As Chief Justice Crampton recently
noted in Kaur v Canada (MCI), 2012 FC 1379, at paragraphs 50-51:
The Board is not obliged to conduct a separate analysis
under section 97 in each case. Whether it has an obligation to do so will
depend on the particular circumstances of each case (Kandiah
v Canada (Minister of Citizenship and Immigration), 2005 FC 181 at para
16, 137 ACWS (3d) 604). Where no claims have been made or evidence adduced that
would warrant such a separate analysis, one will not be required (Brovina v Canada (Minister of
Citizenship and Immigration), 2004 FC 635 at paras 17-18, 254 FTR 244; Velez, above at paras 48-51).
Given that the allegations made by Ms. Kaur in support of
her claims under section 97 were the same as those that she advanced in support
of her claims under section 96, the Board was under no obligation to undertake
a second analysis of those claims under section 97, once it had found that her allegations
were not credible.
[24]
In this case, the Board found the applicant’s story
to be not credible owing to the contradictions and omissions. The Board did not
believe that the applicant had been the leader or a member of Mr. Raphaël’s election
campaign, nor that his wife had died following the events that allegedly took
place during the night of December 7 to 8, 2010. The applicant did not refer to
any information contained in the documentary evidence that could establish a
personalized risk within the meaning of section 97. Indeed, the allegations
made by Mr. Lostin in support of his refugee claim based on sections 96 and 97 were
the same; having found the allegations to be non-credible, the Board was,
therefore, not obliged to undertake a separate analysis from the perspective of
section 97 after having rejected his claim under section 96.
(c) Does the Board’s decision violate the
principles of procedural fairness in that it is not sufficiently reasoned and raises a reasonable apprehension of bias?
[25]
The applicant vaguely alleged an apprehension of
bias, arguing that the Board had been guided by an [translation] “unwarranted vague opinion” rather than by
the relevant evidence and facts.
[26]
That argument is, in my view, without merit. An
allegation of bias is a serious allegation, the proof of which rests on the party
making it, which should not be made lightly and must be supported by
substantive and concrete evidence. It does not suffice to disagree with the
decision rendered to raise an apprehension of bias. However, that is precisely
what the applicant is attempting to do here. He submits that the Board could
not ignore certain facts and fail to consider some of the evidence. That
argument, which I have already rejected during my analysis of the reasonableness
of the decision regarding the applicant’s credibility, cannot be relied upon
again in support of an apprehension of bias. There is no reason to believe, in the
absence of any factual basis, that a reasonable and right-minded person, who is
well acquainted with the case, could believe
that the Board was biased and would not decide fairly, in the words of the Supreme
Court in Wewaykum Indian Band v Canada, 2003 SCC 45, at paragraph 60.
Accordingly, in my view, this argument cannot succeed.
CONCLUSION
[27]
For all the above reasons, the application for judicial review must be dismissed. Neither party proposed a question for me to certify, and
none will be certified.
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