Docket: IMM-3714-17
Citation: 2018 FC 466
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 1, 2018
PRESENT: The Honourable Madam Justice Gagné
| BETWEEN:
|
| MARGARETTE DUVERSIN
and JOANNA MICHEL
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
Nature of the case
[1]
Joanna Michel and her mother, Margarette Duversin (the parties have asked that the style of cause be amended in order to correct the spelling of the applicant’s name) are seeking judicial review of a decision by the Refugee Protection Division (RPD or tribunal) rejecting their refugee claim. This case primarily turns on the RPD’s application of the Chairperson’s Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guidelines 4) and the risks of kidnapping and rape incurred by young Haitian women returning to their country.
Facts
[2]
Ms. Michel claims to be a member of the Alternate League for Haitian Progress and Emancipation (ALHPE). Following the presidential elections of November 20, 2016, supporters of the Fanmi Lavalas party wanted to avenge their party’s defeat through violent acts against their political adversaries, including ALHPE members.
[3]
On December 13, 2016, while the applicants were driving, three men on motorcycles began following them, signalling them to stop their vehicle and threatening them with firearms. The applicants were able to get away by heading to an intersection where police were directing traffic. Seeing this, the three men sped up and rode off “straight ahead”
. On December 18, 2016, two men on motorcycles again followed the applicants, who were able to flee once again.
[4]
Shortly after these incidents, the applicants claim they began to receive anonymous phone calls two or three times a month, during which they were threatened with kidnapping, rape and murder.
[5]
On February 27, 2017, around 11:00 p.m., they heard shots outside their residence; some bullets struck the walls of their house. The applicants filed a complaint the next day with a justice of the peace and with the central directorate of the judicial police. From then on, they stopped sleeping at their house, preferring to stay with friends.
[6]
Although they had decided to leave Haiti following the events of February 27, they did not leave until April 10 for the United States, from where they entered Canada and filed their refugee claim.
Impugned decision
[7]
The RPD found that the applicants are not refugees within the meaning of the Convention nor persons in need of protection under the terms of sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA). The main reasons cited by the RPD were the applicants’ lack of credibility, contradictions among the various versions of their account, and behaviour incompatible with what would be reasonable to expect from a person who fears for their life in their country.
[8]
The first contradiction in the applicants’ testimony concerned the December 13, 2016 event. During the hearing on their claim, they said they had escaped three men on motorcycles because the men turned back on seeing the police officers. Instead, in their narrative evidence, they indicated that the three men rode off “straight ahead”
. The applicants were unable to offer an explanation when confronted with this contradiction. The RPD noted that the mother added that there was a demonstration by supporters of the Fanmi Lavalas party that day; her daughter contradicted her. The only explanation provided by Ms. Michel was that her mother was “old and confused”
(Ms. Duversin is 60 years old). The RPD was rather of the view that it could be expected that the applicants would not contradict each other and that their version during the hearing would be the same as in the one provided in their narrative.
[9]
The RPD confronted the applicants about the fact that during their interview at the point of entry into Canada, they were completely silent as to Ms. Michel’s political activities. They stated that they did not know the people who were following them, nor those who fired shots at their house. In their Basis of Claim (BOC) form and during the hearing, they stated that they were persecuted by supporters of the Fanmi Lavalas party because of Ms. Michel’s political activities.
[10]
Ms. Michel’s only explanation was to state that she and her mother were stressed during the initial interview. This explanation did not satisfy the tribunal, which said it expected some consistency when they were asked why they were making a refugee claim. They were expected to provide all the information related to their agents of persecution.
[11]
It was during the hearing that Ms. Michel confirmed for the first time that she had filed a complaint with the authorities on December 18, 2016; the applicants’ narrative completely omitted this fact. Ms. Michel explained that she wanted to limit her narrative to essential information and to complete her testimony at the hearing. Again, this explanation did not satisfy the tribunal, which expected to find such relevant information in the BOC, especially where the question is specifically asked in the form.
[12]
The tribunal also confronted the applicants with the fact that even though they no longer slept in their house after the events of February 27, 2017, they returned there every day and spent the day there. They explained that during the day, they were accompanied by men who acted as a protection squad to deter potential assailants. The tribunal did not accept this explanation because this information was absent from the narrative and such behaviour was incompatible with that of a person who fears for their life.
[13]
The tribunal also found it strange that Ms. Michel did not ask for help from the leaders of her political party and that she did not even inform them of the difficulties encountered. Nor did the tribunal accept the explanation that doing so would have done no good.
[14]
The applicants stated in their narrative that they had decided to leave Haiti after the February 27, 2017 incident. They were confronted with the fact that they did not leave until April 10, 2017. The tribunal noted that a person fearing for their life would normally leave as quickly as possible. During the hearing, the applicants explained that they did not have the means to leave sooner. Instead, in their BOC, they explained that it was because they could not find a flight that suited both of them before that date.
[15]
The tribunal added that the documents filed in support of their claim were not sufficient to make their testimony credible. It should be noted that the police certificate dated March 3, 2017, does not mention the December 13 event nor the shots fired on February 27. The tribunal was also of the view that the excerpts from the minutes of the peace tribunal court and the article from a local newspaper were inconsistent regarding the chronology of events. Yet, at the beginning of the hearing, Ms. Michel stated that the information contained in the documentary evidence was true, complete and accurate and that she had checked the information.
[16]
Finally, the tribunal carried out a brief analysis to determine whether the applicants were facing a serious risk of gender-related persecution in the event of their return to Haiti. It found that the applicants had not demonstrated the possibility of this type of persecution.
Issues and standard of review
[17]
In their memorandum, the applicants raise three issues of which the first two concern an alleged breach of the principles of natural justice based on having interrogated an “elderly person”
, and the admissibility of a letter from a psychologist that was not before the RPD. These first two issues can be framed as follows:
Was there a breach of the principles of procedural fairness?
Is the new psychological evidence concerning Ms. Duversin admissible?
[18]
Nevertheless, during the hearing, the emphasis was instead placed on the third issue raised by the applicants, which is twofold:
Did the RPD properly apply Guidelines 4?
Did the RPD carry out a proper analysis of the risks of kidnapping and rape that would be incurred by Ms. Michel if she were to return to Haiti?
[19]
The judicial review standard that applies to findings made by the RPD on the credibility of a refugee claimant is reasonableness (Kamau v Canada (Citizenship and Immigration), 2016 FC 413 at para 23).
[20]
The standard that applies to the issue of natural justice, which I will analyze summarily, is correctness (Canadian Pacific Railway Company v Canada, 2018 FCA 69 (see paras 36–38 and 56).
Analysis
A.
Was there a breach of the principles of procedural fairness?
[21]
The applicants plead that the RPD should not have questioned Ms. Duversin first since she is an “elderly and vulnerable”
person and she was only accompanying her daughter who is the principal applicant. They add that the RPD should have ceased its questioning when it noticed that Ms. Duversin was contradicting her daughter and when Ms. Michel interrupted to explain that her mother was elderly and confused. They said this amounted to a breach by the RPD of its duty to act fairly.
[22]
First, I am of the view that a person who is 60 years old is not “elderly and vulnerable”
, unless affected by some kind of limitation or illness, which a refugee claimant has the burden of arguing before the RPD.
[23]
Furthermore, Ms. Duversin, like her daughter, is a refugee claimant and a direct witness to all the events at the heart of their refugee claim. The RPD has the power to control the procedure before it and its management of the evidence and it was perfectly permissible for it to begin its questioning with either of the refugee claimants. Indeed, the applicants have no authority to offer to the contrary. Rule 10 of the Refugee Protection Division Rules, SOR/2012-256, and the Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division only refer to the order in which the various intervenors/solicitors can question the refugee claimant(s). The RPD’s Refugee Claimant Guide mentions that witnesses are questioned after the claimant(s). In this case, Ms. Duversin is a refugee claimant and not simply a witness.
[24]
As concerns the criticism of the RPD for not having ceased its questioning when it noticed that the mother was contradicting the daughter, it is true that this Court has already found that the RPD should cease questioning a claimant who is obviously incoherent (FAM v Canada (Citizenship and Immigration), 2013 FC 574). Nevertheless, in FAM, counsel for the applicant had requested, prior to the hearing, procedural accommodation for the applicant given that he was a vulnerable person. The applicant had also been the subject of a psychological evaluation that concluded before his hearing. In this case, no request for accommodation was filed with the tribunal.
[25]
Furthermore, since it is for the RPD to determine the truth of the alleged facts, the credibility of the applicants and the basis of each refugee claim submitted to it, it would be quite incongruous to ask it to halt questioning once it notes contradictions in the evidence.
[26]
Added to this is the fact that it is settled law that where there is a breach of procedural fairness, the issue should be raised at the earliest opportunity. A “failure to object at the hearing amounts to an implied waiver of any perceived breach of procedural fairness or natural justice that may have occurred.”
(Kamara v Canada (Citizenship and Immigration), 2007 FC 448 at para 26). The applicants raised no objection as to the order of questioning by the RPD and they did not ask the tribunal to adjourn the hearing.
[27]
In my view, there was no breach of the principles of procedural fairness.
B. Is the new psychological evidence concerning applicant Duversin admissible?
[28]
In general, the evidentiary record submitted to the Court is limited to that which was before the RPD: “(t)he essential purpose of judicial review is the review of decisions, not the determination, by trial
de novo
, of questions that were not adequately canvassed in evidence at the tribunal or trial court.”
(Gitxsan Treaty Society v Hospital Employees’ Union, [2000] 1 FC 135 (FCA) at pp 144–145, as cited in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19). Some exceptions exist, for example: “where the evidence provides context, is filed to support an allegation of breach of procedural fairness by the decision-maker, or where it is filed to demonstrate the absence of evidence”
(Majdalani v Canada (Citizenship and Immigration), 2015 FC 294 at para 20). Although this is not an exhaustive list, I am not of the view that the applicants’ new evidence is not an exception to the general rule.
[29]
But there is more. Even if the letter from the psychologist who met with the applicants were admitted, its probative value would be very limited. The psychologist basically wrote that the applicants told her about the events underlying their refugee claim and that Ms. Michel mentioned to her that Ms. Duversin was having nightmares and that [translation] “she forgets everything, because of the problems”
. The only opinion stated by the psychologist was that the difficulties identified by the applicants were compatible with post-traumatic stress. This is not proof that the events occurred nor even that Ms. Duversin had any kind of memory problem.
C. Did the RPD properly apply Guidelines 4?
[30]
Guidelines 4 states that, in the case of a gender-based claim, the RPD should be particularly sensitive to female claimants’ difficulty in testifying. However, it is not intended to serve as a cure for all deficiencies in the claimant’s claim or evidence, even if she cites a fear of persecution based on her gender in support of her refugee claim (Karanja v Canada (Citizenship and Immigration), 2006 FC 574 at para 5). The onus is on the claimant to establish her refugee claim. Guidelines 4 does not corroborate gender-based persecution per se (Newton v Minister of Citizenship and Immigration, (2002) 182 FTR 294 (QL) at para 18). It merely imposes the attitude and open-mindedness the immigration officer must display when dealing with such allegations of persecution. In other words, Guidelines 4 was enacted so that administrative decision-makers would consider all the issues in a sympathetic manner.
[31]
I am of the view that in this case, the tribunal took Guidelines 4 into consideration, but that ultimately, it drew several unfavourable conclusions about the credibility of the applicants. It did not believe the account on which their refugee claim is based and, in light of the various contradictions noted, it was permissible for it to find as it did.
D. Did the RPD carry out a proper analysis of the risks of kidnapping and rape that would be incurred by Ms. Michel if she were to return to Haiti?
[32]
During the hearing on the case, counsel for the applicants placed a great deal of emphasis on the fact that the RPD’s analysis of the risk of gender-based persecution that Ms. Michel would incur, if she were to return to Haiti, was insufficient. This issue, which was analyzed by the RPD “in a residual manner”
was the subject of just one paragraph, which I reproduce in full:
[TRANSLATION]
[29] Finally, the tribunal analyzed, in a residual manner, whether the applicants faced a serious risk of persecution due to their gender in the event of their return to Haiti. Still, particularly given that it does not believe their allegations, the tribunal deems that they have not proved the possibility of persecution. They have not faced these kinds of problems in the past and, even though the past does not guarantee the future, the documentary evidence does not state that all Haitian women or women returning to Haiti face a serious risk of persecution. Moreover, nothing shows that the applicants do not benefit from a sufficient entourage in Haiti that could dissuade potential perpetrators from harming them, or at least an entourage that could reduce the possibility of such aggression below the level of serious risk. On the contrary, if one believes the applicants’ testimony and the responses they gave to question 5 of their BOC, they would benefit in particular from an entourage of friends and family members, including several men.
[33]
First, the RPD probably considers this issue to be “residual”
since this reason for persecution is not specifically alleged in support of the applicants’ refugee claim. They claim to fear persecution by political opponents.
[34]
Still, in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada notes, at page 745, that “it is not the duty of a claimant to identify the reasons for the persecution. It is for the examiner to decide whether the Convention definition is met”
(see also Aleaf v Canada (Citizenship and Immigration), 2015 FC 445 at para 37). Since the applicants indicated in question 2 b) of their BOC that they feared being kidnapped, raped and killed by political adversaries and that they filed reliable documentary evidence showing that Haitian women regularly face sexual violence, I am of the view that this analysis should have been conducted by the RPD. The RPD should have considered whether Ms. Michel faced a serious possibility of persecution if she were to return to the country, based on the fact that she is a young single woman who spent a prolonged period of time abroad. This possibility cannot be rejected simply because she herself has not experienced similar persecution in the past (Dezameau v Canada (Citizenship and Immigration), 2010 FC 559 at para 26; Josile v Canada (Citizenship and Immigration), 2011 FC 39 at para 23; Desire v Canada (Citizenship and Immigration), 2013 FC 167 at para 8). It is true that the situation has evolved in Haiti since the January 2010 earthquake—the Court’s decision in Dezameau was delivered just four months after the events—but I am of the view that the RPD failed to complete its analysis in order to determine whether, in Ms. Michel’s case, the risk of kidnapping and rape constituted a serious risk of gender-based persecution under section 96 of the IRPA. This analysis should be separate from the one that allowed the RPD to reject, for lack of credibility, their refugee claim based on section 97 of the same act.
[35]
At the end of the hearing, counsel for the applicants asked the Court to certify the following question:
[TRANSLATION]
Can an assumption of the lack of sexual violence experienced in the past and reflecting gender imbalances be applied in a vacuum in terms of the evidence and the law which show the contrary with respect to conditions in the refugee claimant’s country of nationality?
[36]
First, if I understand the question correctly, it tends to reverse the burden of proof in the context of a refugee claim. The onus is always on the claimant to prove the alleged facts.
[37]
Furthermore, if the only issue is knowing the impact of a lack of past sexual violence experienced by a refugee claimant on an analysis of persecution under section 96 of the IRPA, it has already been answered in the consistent case law of this Court referred to in these reasons.
[38]
Therefore, there is no need to certify the proposed question.
Conclusion
[39]
I would therefore allow the application for judicial review and refer the matter back to the RPD so that it can complete its analysis, under section 96 of the IRPA, of the risk of gender-based persecution that Ms. Michel would incur if she were to return to Haiti. No question of general importance is certified.
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