Docket: IMM-5050-14
Citation:
2015 FC 264
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 3, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ALEX CHERY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Preliminary
[1]
Following a thorough review of the Certified
Tribunal Record, including the hearing transcript, the submissions of the
parties and the reasons of the Refugee Protection Division [RPD], the Court
finds that, with regard to the evidence as a whole (Ramos v Canada (Minister
of Citizenship and Immigration), 2011 FC 298 at para 7 [Ramos]),
the RPD’s assessment of the applicant’s credibility is unreasonable.
[2]
In its assessment of the applicant’s credibility
and subjective fear, the RPD should have given weight to the applicant’s
political opinion and involvement in his community, which go to the heart of
his claim, and to the central importance of the attack that occurred on January 15,
2014, which was the factor that precipitated his flight.
II.
Introduction
[3]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], of a decision of the RPD dated June 3, 2014, in
which it was determined that the applicant was not a Convention refugee or a
person in need of protection under sections 96 and 97 of the IRPA.
III.
Facts
[4]
The applicant, aged 45, is a citizen of Haiti, a
novelist and a lawyer by profession since 2012.
[5]
He is the coordinator of the non-governmental organization
SipoHaiti, which has provided assistance to the citizens of Limbé since the
earthquake in January 2010. He is also vice-president and secretary of the
Front pour le développement de Limbé [FRONDEL], an organization established to [translation] “promote
the development and social integration of all citizens in Limbé and
Bas-de-Limbé” (applicant’s narrative, Tribunal Record, at p 25).
[6]
The applicant claims that he was persecuted by Gaby
Silencieux, deputy commissioner for the electoral district of Limbé and
Bas-Limbé, and his associates, known as the Cent Hommes. The applicant states he
was persecuted for his involvement in SipoHaiti and FRONDEL and for his role as
the representative of the family of Arnaud Saint-Amour, who he says was murdered
by Mr. Silencieux and his associates.
[7]
The applicant claims that Mr. Silencieux and
the Cent Hommes perceive him as a threat to their power.
[8]
On July 23, 2012, the applicant petitioned
human rights organizations and members of civil society to press the police to
execute warrants for the arrest of Gaby Silencieux and his associates for their
crimes.
[9]
On July 30, 2013, the applicant published
an article in the Haitian newspaper Cap-Express condemning a meeting attended
by the President of Haiti, deputy commissioner Gaby Silencieux and a deputy
named Frantzy Louis. On August 17 of that same year, the applicant also
posted to social media a piece entitled [translation]
“Arnaud Jean Robert Saint-Amour murdered by Limbé deputy commissioner Gaby
Silencieux: when will justice be done?”
[10]
On September 8, 2013, the applicant was
threatened and physically assaulted on the public square in Limbé by an
associate of Gaby Silencieux. The next day, the applicant reported the incident,
filing a complaint at the registry of the public prosecutor’s office in
Cap-Haïtien.
[11]
On September 19, 2013, the applicant was
attacked by two individuals on a public bus between Cap-Haïtien and Limbé. When
he disembarked from the bus, a third individual pointed a revolver at him. The applicant
managed to flee and filed a complaint with the police.
[12]
On January 15, 2014, the applicant was
assaulted and threatened at Carrefour Gros Chaudière by two individuals, one of
whom tried to kill him with a piece of iron. The applicant managed to escape
and filed a complaint with the police the next day.
[13]
On the evening of the January 15 attack,
the applicant and his family took refuge at the home of a friend in Plaine du
Nord. On January 23, 2014, he left Haiti for the United States and arrived
in Canada one month later.
[14]
A hearing was held before the RPD on May 7,
2014.
IV.
Impugned decision
[15]
It appears from its reasons that the RPD based
its decision on the following five credibility findings.
i.
Incorrect date on the complaint of September 9,
2013: The applicant alleges that he filed a
complaint with police the day after he was threatened on the public square in
Limbé on September 8 of that year. However, the complaint is dated September 6,
2013. When asked about the inconsistency, the applicant explained that it was
the result of an inadvertent error. He had used a word processing template
dated September 6, 2013, and had forgotten to enter the correct date. The
RPD rejected this explanation, observing that the applicant, who is an
experienced lawyer, should understand the importance of checking the dates of
documents. The RPD further found that the document contained insufficient
details on the incident.
ii.
Altercation on the bus on September 19,
2013: The RPD found that there was a contradiction
in the applicant’s testimony on the attack he suffered on a bus on September 19,
2013, specifically concerning the source of the blows received by the applicant.
iii.
Complaint filed following the incident of September 19,
2013: The RPD notes that the complaint concerning
the incident of September 19 also refers to a second incident that
occurred on September 23, 2013. According to the applicant, the incident
on September 23 was not linked to that of September 19 or to his
persecutors. The RPD finds it unlikely that a police officer included two
unrelated incidents in a single complaint. The RPD further observes that, if
such were the case, it would have been unreasonable for the applicant to sign
such an ambiguous complaint.
iv.
Applicant’s subjective fear: The RPD finds that the applicant’s actions following the incident
of September 19, 2013, and the fact that he continued working and living
at the same places are inconsistent with his alleged fear.
v.
Applicant’s failure to claim refugee
protection in the United States: The RPD draws a
negative inference from the applicant’s failure to seek refugee protection in
the United States and rejects his explanation on that point.
[16]
Lastly, the RPD finds that the applicant did not
establish that he faces a serious possibility of persecution on a Convention ground
or that he would be personally subjected to a danger of torture, to a risk to his
life or to a risk of cruel and unusual treatment or punishment should he return
to Haiti.
V.
Issue
[17]
Is the RPD’s decision with respect to the applicant’s
credibility reasonable?
VI.
Statutory provisions
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Convention refugee
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Définition de réfugié
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VII.
Arguments of the parties
A.
Applicant’s arguments
[18]
The applicant cites numerous errors made by the
RPD in its assessment of the evidence and of the applicant’s credibility that he
characterizes as unreasonable (Maldonado v Canada (Minister of Employment of
Immigration), [1980] 2 FC 302; Jamil v Canada (Minister of Citizenship
and Immigration), 2006 FC 792, at paras 24-27).
(1)
Incorrect date on the complaint of September 9,
2013
[19]
First, the applicant claims that it was
unreasonable for the RPD to reject his explanation of the incorrect date
appearing on the complaint of September 9. In his view, this typographical
error is not implausible or fatal to the document’s credibility. As is apparent
from the official stamps on it, not only was the complaint accepted by the
registry, it also resulted in judicial proceedings.
[20]
It was also unreasonable for the RPD to reproach
the applicant for committing such an error in view of his experience as a
lawyer. The applicant submits that he has practised law since 2012 and that he
is not an experienced lawyer, as the RPD claims.
(2)
Altercation on the bus on September 19,
2013
[21]
The applicant contends that the RPD’s finding
respecting the event of September 19, 2013, is unreasonable. He testified
in a consistent manner, stating that he had received two blows and that he was
unable to determine which of the two men had administered the first or the
second blow since they were outside his field of vision.
(3)
Two events included in a single complaint
[22]
The applicant claims that the RPD’s finding that
the complaint concerning the incidents of September 19 and 23, 2013, is of
no probative value is unreasonable.
[23]
The explanation that the applicant provided,
that the officer saw fit to include two incidents in a single complaint because
the dates of those incidents were close to each other, was reasonable. The applicant
submits that a complaint is not required under Haitian law to be made in any
particular form and that the RPD interpreted the document based on North
American logic.
(4)
Applicant’s subjective fear
[24]
The applicant then claims that the RPD
unreasonably drew a negative inference with respect to his subjective fear by
finding that he had continued his normal activities following the incident on September 19,
2013.
[25]
In the applicant’s view, the RPD erred in
concluding that the applicant’s alleged fear arose on September 19, 2013,
rather than on January 15, 2014.
[26]
The applicant testified that the attack on January 15,
2014, convinced him to leave his country because it made him fear for his
safety and for his life. He testified that he had viewed the September 19
attack as an act of intimidation designed to discourage him from continuing to
work at SipoHaiti and FRONDEL and from acting in the matter of Arnaud
Saint-Amour.
(5)
Full analysis of evidence adduced by the applicant
[27]
The applicant then asserts that the RPD erred by
failing to analyze key documentary evidence that would corroborate crucial
elements of his alleged fear. He characterizes the RPD’s analysis of his
credibility as [translation] “hasty”, as though the [translation] “very essence of his claim
for refugee protection had not been reviewed by the Board member” (applicant’s
memorandum, at para 3.53). The applicant contends that there is an obvious
discrepancy between his actual account and his account as portrayed by the RPD.
[28]
In the applicant’s view, the onus was on the RPD
to assess the evidence and to determine its probative value.
(6)
Applicant’s failure to claim refugee protection
in the United States
[29]
Lastly, the applicant contends that he spent 31
days at his friend’s home before arriving in Canada to claim refugee
protection. He argues that he provided a reasonable explanation for that delay.
However, the RPD accepted only part of the explanation provided by the applicant.
B.
Respondent’s arguments
[30]
The respondent contends that the RPD’s decision
is reasonable. It is for the RPD to assess the probative value of the documents
entered into evidence by the applicant.
[31]
In the respondent’s view, it was open to the RPD
to assign no probative value to the complaint filed on September 9, 2013,
because it contained a dating error. It was also open to the RPD to conclude
that the explanations provided by the applicant on the matter were
unreasonable.
[32]
In the respondent’s view, the RPD could consider
the fact that the applicant did not claim refugee protection in the United
States, even though it is a country that could offer international protection. It
could also conclude that the applicant’s actions were inconsistent with those
of a person who fears persecution.
[33]
It was also open to the RPD to draw a negative
inference from the applicant’s decision to continue working and living in the
same places despite the threats he had received.
[34]
Furthermore, the applicant’s delay in claiming refugee
protection following the incident of September 19, 2013, is a significant
factor to consider in the context of his claim for refugee protection.
[35]
Lastly, the respondent contends that it is not
for the Court to reassess the explanations the applicant provided (Chen v
Canada (Minister of Citizenship and Immigration), 2005 FC 767 at para 24;
Kabir v Canada (Minister of Citizenship and Immigration), 2002 FCT 907 at
para 5). As a specialized tribunal, the RPD is in the best position to
assess a refugee protection claimant’s testimony and the credibility of the
claimant’s statements in the context of the evidence as a whole (Aguebor v
Canada (Minister of Employment and Immigration), [1993] FCJ No 732; He v
Canada (Minister of Employment and Immigration), [1994] FCJ No 1107; Sidhu
v Canada (Minister of Citizenship and Immigration), [2002] FCJ No 1355).
VIII.
Analysis
[36]
The Court concurs with the parties’ position
that the standard applicable to determinations of fact and of mixed fact and
law is the standard of reasonableness (Dunsmuir v New Brunswick, [2008] SCC
9, at paras 47 and 53).
[37]
Following a thorough review of the Certified
Tribunal Record, including the hearing transcript, the submissions of the
parties and the RPD’s reasons, the Court finds that, with regard to the
evidence as a whole (Ramos v Canada (Minister of Citizenship and
Immigration), 2011 FC 298 at para 7 [Ramos]), the RPD’s
assessment of the applicant’s credibility is unreasonable.
[38]
First, the applicant contends that the RPD failed
to note the central importance of the attack he suffered on January 15,
2014. He argues that it was this event that precipitated his departure from
Haiti. The Court finds that the applicant’s claim is supported by the evidence
on the record, as appears from the applicant’s statements in his Basis of Claim
(BOC) form, in his narrative and at the hearing.
[39]
More specifically, in response to question 2(f) of
his BOC form (“Why did you leave at that time and not
sooner, or at a later time?”), the applicant states, [translation] “I
was assaulted on January 15, and I left Haiti on January 23, 2014.
That was the nearest date for which I could find a ticket for the United States
of America” (applicant’s BOC form, Tribunal Record, at p 14).
[40]
Then, in response to question 2(h), the applicant
stated that [translation] “[a]fter the physical assault on Wednesday, January 15,
2014, [he] was forced to leave the country eight days later to save [his] life”
(applicant’s BOC form, Tribunal Record, at p 15).
[41]
In response to question 2(d) of his BOC form,
the applicant states that, on the evening of the incident of January 15,
2014, he spent the night with his family at the home of a friend in Plaine du
Nord and that he filed a complaint with the police the next day. The applicant left
for Port-au-Prince the following day (applicant’s BOC form, Tribunal Record, at
p 14).
[42]
In addition, at the hearing, in response to the
RPD’s question, [translation] “[I] would like to know when you decided to leave your
country”, the applicant said, [translation]
“I decided to leave Haiti after being assaulted, and,
on January 15 [inaudible], two bandits who were in the pay of the deputy commissioner”
(transcript of the RPD hearing, Tribunal Record, at p 409).
[43]
Lastly, the applicant stated that, out of fear, he
and his family have not returned to their house since January 15, 2014 (transcript
of the RPD hearing, Tribunal Record, at p 475).
[44]
However, the RPD views the incident of September 19,
2013, as the factor that triggered the applicant’s fear, leading it to draw a
negative inference from the applicant’s actions of continuing to work and live
in the same places following the incident in which he was involved.
[45]
The Court finds that the RPD’s conclusions on
this point are not supported by the evidence. The incidents of January 15,
2014, and the actions the applicant took to flee his country the next day
should have been considered and weighed by the RPD in its assessment of the applicant’s
credibility and subjective fear.
[46]
Furthermore, it appears from its reasons that
the RPD failed to consider in its analysis the decisive role of the applicant’s
political opinion, whether actual or imputed, under section 96 of the IRPA.
[47]
It appears from the evidence that the applicant’s
political opinion is central to his alleged fear, considering his duties and
involvement in SipoHaiti and FRONDEL, the articles that he published in the
newspaper Cap-Express and in social media, and his involvement in the Arnaud
Saint-Amour matter.
[48]
The applicant’s involvement in his community
clearly goes to the core of his refugee claim.
[49]
More specifically, the applicant testified at
the hearing that he considered himself to be [translation]
“politically active” and that he was perceived
as such in his community and by his persecutors (transcript of the RPD hearing,
Tribunal Record, at pp 496 and 498).
[50]
An article published in Cap-Express, dated
August 10, 2013, confirms that the applicant suffered [translation] “repeated
instances of intimidation and death threats” following the publication
of his first petition to human rights organizations condemning the
assassination of Arnaud Saint-Amour (Tribunal Record, at p 241).
[51]
The evidence on the record also demonstrates the
criminal activities of the applicant’s principal persecutor, Gaby Silencieux (see
the articles that appeared at Radiovision2000haiti.net: [translation] “Gaby Silencieux transported
by official vehicle to investigating judge’s office Wednesday” and [translation] “Gaby Silencieux, a crook promoted
to deputy commissioner of Limbé, says Ketly Julien”, Tribunal
Record, at pp 244 and 245).
[52]
Furthermore, in an interview with the Canada
Border Services Agency [CBSA], on February 25, 2014, in response to the question
[translation] “Why are you seeking refugee protection in Canada?”
the applicant stated, [translation]
“[B]ecause I feel I will not be safe and will be under
pressure in Haiti because the person involved in the Arnaud Jean Robert
Saint-Amour case is the deputy commissioner of the commune of Limbé, representing
the President of Haiti, and he will be a candidate for the Chamber of Deputies
in the next election” (CBSA interview notes, Tribunal Record, at p 89).
[53]
Lastly, the documentary evidence in the RPD
record indicates that Haiti suffers from [translation]
“chronic corruption” in the various branches of its
government and a lack of respect for the rule of law, exacerbated by a failing
judiciary (Haiti 2013 Human Rights Report, Tribunal Record, at p 351;
see also Report of the independent expert on the situation of human rights
in Haiti, Michel Forst, Tribunal Record, at p 363).
[54]
In light of the foregoing, the RPD’s credibility
findings are based on an erroneous interpretation of the evidence, which was
not considered in part, thus warranting the Court’s intervention.
[55]
The Court finds that the RPD’s decision is
unreasonable.
IX.
Conclusion
[56]
The application for judicial review is allowed.
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