Date: 20041104
Docket: IMM-1543-04
Citation: 2004 FC 1552
Ottawa, Ontario, the 4th day of November 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
NATACHA OSSÉ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] Natacha Ossé is a national of Haiti. She left that country in July 2001 with the U.S. passport of her friend with whom she was staying. She made an application for refugee status and it was denied by a decision in September 2002. She then underwent a PRRA (Pre-Removal Risk Assessment) and the officer concluded she was not at risk if she was returned to Haiti.
[2] Ms. Ossé feared the police on her return to Haiti. She alleged the latter would imprison her since she had criticized the actions of Sen. Fourel Célestin toward her. She alleged her mother had been imprisoned by the police since September 2002 and that imprisonment was directly related to the fact that she had applied for refugee status in Canada.
[3] She alleged she was sexually assaulted by Sen. Célestin in July 2001.
[4] Because of the new allegation by Ms. Ossé that her mother was being held without warrant or trial, the PRRA officer arranged an interview with her to clarify the situation. The interview was held in person. After the interview, the officer contacted Mr. Prophète (a friend of the mission) by telephone. Ms. Ossé subsequently had another interview by telephone to clarify certain contradictions in her testimony.
IMPUGNED DECISION
[5] The panel concluded that Ms. Ossé was not in danger of being tortured or persecuted when she returned. After examining the evidence submitted and interviewing the applicant, it was held that the inconsistencies in her testimony had an effect on her credibility. Throughout the interview, the applicant was vague and contradictory when she had to answer questions.
POINT AT ISSUE
[6] 1. Did Mr. Prophète's interview vitiate Ms. Ossé's rights conferred by the Privacy Act, R.S.C. 1985, c. P-21?
2. Do the rules of impartiality require that Ms. Ossé should have the right to cross-examine?
APPLICANT'S ARGUMENTS
[7] Ms. Ossé alleged that the PRRA officer made a decision without taking into account all the evidence presented. She further alleged that the officer made an error of law by consulting a third party, Mr. Prophète, about the applicant's case without authorization.
[8] Ms. Ossé also maintained that she was not present when her mother was arrested and so could not give exhaustive details on the arrest, the reasons for the detention or the proceedings taken to have her mother released.
[9] Additionally, Ms. Ossé submitted she had never had an opportunity to cross-examine Mr. Prophète on his testimony.
RESPONDENT'S ARGUMENTS
[10] The respondent maintained that the protection application was considered in accordance with the relevant provisions of the Act and the removal risk assessment made in light of all the evidence presented by the applicant.
[11] The respondent argued that Ms. Ossé should have expected that Mr. Prophète would be questioned, as she had herself filed an affidavit by Mr. Prophète in support of her case.
[12] Additionally, the respondent argued that the officer is in a good position to assess the evidence and give it the necessary weight.
ANALYSIS
[13] Ms. Ossé's argument that the PRRA officer consulted a third party about her case without her written permission, contrary to the spirit of the Privacy Act, is without foundation. It is clear from reading the transcript of the oral testimony during the personal interview with Ms. Ossé that she gave her consent. The officer specifically asked her if she minded if the officer contacted Mr. Prophète after the interview. Ms. Ossé replied that she could call Mr. Prophète and her mother's lawyer in Haiti, Mr. Joseph.
[14] Ms. Ossé relied on AB v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 3, in support of her proposition that the officer infringed the aforesaid statute. O'Keefe J. concluded that the Immigration and Refugee Board was wrong to use the applicant's file in a refugee status claim which seemed similar to her own, after the applicant had clearly objected to its doing so. The aforesaid case involved a situation completely different from the one at bar, as the applicant clearly gave her consent.
[15] In general, the rules of evidence do not apply to administrative tribunals (Canada v. Thanabal (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1548). Additionally, paragraph 170(g) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides:
170. The Refugee Protection Division, in any proceeding before it . . .
(g) is not bound by any legal or technical rules of evidence . . .
The rules are made flexible specifically to allow refugee status claimants to present evidence that would ordinarily not be admissible.
[16] Further, as she said at the interview, the applicant had occasion to contact Mr. Prophète herself. Additionally, the discrepancies between her testimony and that of Mr. Prophète were put to the applicant and she was unable to give any reasonable explanation for them.
[17] Our courts have consistently held that the burden of proof is on an applicant. In the case at bar, the applicant did not discharge that burden. She did not satisfy the PRRA officer that there was a new situation since her refugee status ruling that would prevent her returning to Haiti. This analysis is consistent with the principles set out in paragraph 196 of the Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees (the OUNHCR Handbook), which reads:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
[18] It was agreed that these reasons would be released before I make my order, as under section 74 of the Act an appeal to the Federal Court of Appeal is only admissible if I certify that the case involves a serious question of general importance and I set out that question. I give the applicant until November 10, 2004 to suggest questions for certification. The respondent will have until November 15, 2004 to reply to the applicant.
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"Sean Harrington"
Judge
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Ottawa, Ontario
November 4, 2004
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1543-04
STYLE OF CAUSE: NATACHA OSSÉ
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 27, 2004
REASONS FOR ORDER BY: HARRINGTON J.
DATED: NOVEMBER 4, 2004
APPEARANCES:
Fritz Louis FOR THE APPLICANT
Michel Pépin FOR THE DEFENDANT
SOLICITORS OF RECORD:
Fritz Louis FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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