Docket: IMM-313-16
Citation:
2016 FC 923
[ENGLISH
TRANSLATION]
Montréal, Quebec, August 12, 2016
PRESENT: The Honourable
Mr. Justice Locke
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BETWEEN:
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DÉLY LOUIS
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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.
Introduction
[1]
This is an application for judicial review made
under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) of a decision made by the Refugee Appeal
Division (RAD) of the Immigration and Refugee Board of Canada (IRB) on
December 30, 2015, affirming a decision rendered by the Refugee Protection
Division (RPD) concluding that the applicant was not a Convention refugee nor a
person in need of protection.
[2]
I am of the opinion that the RAD’s decision was
reasonable and that this application for judicial review should be dismissed.
II.
Facts
[3]
The applicant, Dély Louis, is a Haitian
merchant and entrepreneur who normally lived in Port-au-Prince. Before coming
to Canada, he had a business where he sold various merchandise and also worked
in construction. The applicant arrived in Canada in July 2014. At that
time, he had the intention of returning to Haiti at the end of
February 2015, after having observed how certain businesses and
construction projects functioned in Canada.
[4]
On February 9, 2015, he made a “sur place” claim for refugee protection, after
receiving death threats from unknown individuals who allegedly considered him
to be a competitor. His fear was based on the following allegations:
- On the night of January 24-25,
2015, four armed individuals allegedly robbed the applicant’s business;
they allegedly stated that they knew he was abroad and that it would be
wise for him to stay there if he wanted to live because he was an
embarrassing competitor, in both his business and his construction work;
- On
January 30, 2015, the applicant allegedly learned from his brother
that the storage facility where he kept his construction materials and
tools had been looted; his brother had allegedly heard the news when he received
a call from an individual threatening the applicant and his brother with
death if the applicant ever returned to Haiti;
- Following the
two robberies, the applicant’s brother allegedly continued to receive
calls stating that nothing would happen to him as long as his brother didn’t
return to Haiti; these calls allegedly continued until at least
March 22, 2015.
[5]
After a hearing on April 10, 2015, the RPD
decided, on May 29, 2015, that the applicant was neither a Convention
refugee nor a person in need of protection. The RPD made the following
determinations:
- Identity: The applicant proved his identity;
- Credibility: He was a credible witness, in all of his allegations;
- Section 96
of the IRPA: He is not a Convention refugee
because his fear is not based on any of the grounds set out in the
Convention; neither “victims of criminality”
nor “entrepreneurs” are recognized social
groups within the meaning of Canada (Attorney General) v. Ward,
[1993] 2 SCR 689;
- Subsection 97(1)
of the IRPA: The applicant established that he
was a “person in need of protection”
following the numerous death threats against him; since the applicant had
been targeted by individuals who viewed him as a competitor, this is not a
generalized risk faced by the population as a whole;
- Internal
flight alternative: The applicant nevertheless
has an internal flight alternative (IFA) in Cap-Haïtien, where he
would be safe and to where it would be reasonable for him to move; the RPD
rejected the applicant’s arguments that (1) he would not be safe in
Cap-Haïtien because there are bandits everywhere and he could be found
there and (2) it would be unreasonable for him to move there because
he did not know anyone there and it would therefore be difficult for him
to resume his business activities; the RPD concluded that he would be safe
in Cap-Haïtien because it is a large city located 150 km from
Port-au-Prince and because he would no longer be in competition with the
individuals who had threatened him; the RPD then concluded that it would
be reasonable for him to move there because the applicant is competent in
several trades; the RPD highlighted the fact that the right to work does
not include the right to ply the trade of one’s choice and that there were
therefore grounds to reject the applicant’s arguments claiming that he
would not be able to work as a construction contractor or as a merchant.
III.
Decision
[6]
The RAD affirmed the RPD’s determination that
the applicant is neither a Convention refugee nor a person in need of
protection. It was of the opinion that he had an IFA in Cap-Haïtien.
[7]
First, the RAD rejected the applicant’s
argument, according to which the documentary evidence showed that there could
not be an IFA in Haiti. It is of the opinion that the documentary evidence
cited by the applicant, namely document 1.8 of the National Documentation
Package for Haiti, dated June 27, 2014, entitled Haiti: Summary of
observations on the security and violence in Haiti made in 2008 and updated in
2013 by Cécile Marotte, Associate Researcher at the Knowledge and Freedom
Foundation (Fondation connaissance et liberté, FOKAL /OSI) from 2008 to 2012,
clinical psychologist since 2013 at the Victoria Institute in Montréal (the
Marotte report), as a whole, offers a more nuanced version of the facts than
the applicant proposes.
[8]
According to the RAD, the Marotte report upholds
the applicant’s allegations only in part. It is hard for someone who is being
threatened in Port-au-Prince to find a safe haven elsewhere in the country.
Gangs can move throughout the country and communicate among themselves, and the
institutions in Haiti that are responsible for access to justice and applying
the law are weak. However, the RAD noted that the Marotte report also indicates
that it is possible for victims of a gang that controls an area to relocate
elsewhere and that Haitian authorities, supported by UN forces, are
becoming more and more effective at breaking up armed gangs and kidnapping
rings.
[9]
Second, the RAD affirmed that it was not an
error of law to determine that an IFA could exist in a small country like
Haiti. It is possible to determine that an IFA exists, as long as the two
prongs of the IFA test are met. To do this, the evidence must be assessed as a
whole. The applicant bears the burden of showing that no IFA exists (Osvaldo
v. Canada (Minister of Citizenship and Immigration), 2006 FC 460,
at paragraph 22).
[10]
For the first prong of the test, the RAD
determined that the applicant had not established, on the balance of
probabilities, that he faced a serious possibility of being persecuted or of
having his life threatened in Cap-Haïtien. The applicant’s evidence reveals
that the identities of the individuals who threatened him are unknown, that
they know he is abroad and that the applicant is an embarrassing competitor for
them. It is therefore not possible to conclude that the bandits have the
necessary resources to know when the applicant will return to Haiti, or for the
applicant to know how they operate. The documentary evidence, for its part,
reveals that Haitians have freedom of movement within the country. There is
therefore no evidence that the applicant will have to fill out a form notifying
the authorities if he moves to Cap-Haïtien.
[11]
For the second prong of the test, the RAD found
that it is not objectively unreasonable or too severe to expect the applicant
to move to Cap-Haïtien. The fact of not being able to find an appropriate job
within one’s professional field can invalidate an IFA (Mchedlishvili v.
Canada (Citizenship and Immigration), 2010 FC 630, at
paragraph 16). Yet, the fact that the applicant obtained several diplomas
allowing him to work in various trades suggests that he will be able to earn a
living in Cap-Haïtien and that it is not unreasonable for him to move there.
IV.
Issues in dispute
[12]
Did the RAD err in affirming the RPD’s decision
that the applicant had an IFA in Cap-Haïtien?
V.
Standard of review
[13]
Although the applicant presents no arguments
regarding the standard of review applicable to the RAD’s decision, the
respondent argues that the applicable standard of review is that of
reasonableness. I agree. The parties are in agreement that the RAD’s decision
mainly concerns the question of whether an IFA exists. This Court acknowledged
that this was a question of fact and it is for this reason that the standard of
reasonableness applies (see Verma v. Canada (Citizenship and Immigration),
2016 FC 404, at paragraph 14; Momodu v. Canada (Citizenship
and Immigration), 2015 FC 1365, at paragraph 6).
VI.
Analysis
[14]
Regarding the first prong of the IFA test, I am
of the opinion that the RAD was correct in finding that the applicant had
failed to establish, based on the balance of probabilities, that the
individuals who had threatened him had the desire and the ability to find him
in Cap-Haïtien. This determination is supported by the fact that the applicant
could not identify them. The fact that the applicant’s testimony was credible
did not obligate the RAD to accept everything he had to say regarding these
individuals.
[15]
For the same reason, and despite his statements
to the contrary, the applicant was also unable to establish that the
individuals who threatened him would be able to learn the date and time of his
arrival in Port-au-Prince (before he moved to Cap-Haïtien) in order to do him
harm even before his arrival in Cap-Haïtien.
[16]
Regarding the second prong of the IFA test, I am
of the opinion that the RAD was correct in determining that the applicant would
be able to earn his living without being in competition with the individuals
who had threatened him. The evidence does not support a fear that these
individuals would have an interest in following him to Cap-Haïtien in the
circumstances.
[17]
Furthermore, I agree with the RAD that the
Marotte report is nuanced enough to allow for the conclusion to be drawn that
an IFA can exist in Haiti.
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