Date: 20020913
Docket: IMM-3142-01
Neutral citation: 2002 FCT 970
Ottawa, Ontario, the 13th day of September 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MARIE FRANCISE RAYMOND
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Refugee Division) delivered June 4, 2001. Marie Francise Raymond (the respondent) was granted refugee status by the Refugee Division on the basis of a well-founded fear of persecution in her country of origin because of her sex and her membership in a particular social group.
Statement of facts
[2] The respondent is a citizen of Haiti. She met her former husband, by the name of Steve Picard, in 1990 in Haiti while he was operating a lobster export firm with other partners.
[3] The respondent and Steve Picard began living together. At first, their relationship went well. However, beginning in 1996 after the birth of their child, her spouse became more and more violent. In Haiti the police intervened on two occasions but in the end simply advised the respondent and her spouse to sort things out between themselves. The respondent even testified that she had approached the Canadian embassy in Port-au-Prince without success asking the responsible officials to find some means to repatriate her spouse to Canada. At the time, Steve Picard was having some difficulties with his partners. According to the respondent, he was defrauded by them, and lost all his money. He was obsessed with the idea of taking revenge and getting back from them everything that had been stolen from him.
[4] Mr. Picard decided to return to Canada. The respondent decided to accompany him because he had threatened to leave alone with his son and she hoped to obtain greater protection from the Canadian authorities. She also thought things would change with her spouse.
[5] In Canada, after the birth of their second child in 1999, the violence resumed. She was threatened with death by Mr. Picard. Also, pursuant to a court order, he was placed in a psychiatric hospital for a brief period.
[6] On June 27, 2000, the respondent left her spouse and took refuge in a shelter for women fleeing conjugal violence. In February 2001 the Superior Court of Québec granted her legal custody of her two children.
[7] The respondent claimed refugee status, alleging that she was convinced that if she had to return to Haiti her former spouse would find her, since he still had some interests there. She argued that the Haitian authorities could not adequately protect her. She thought she and her children were safer in Canada than in Haiti.
[8] The hearing was held on April 23, 2001, in Montréal.
Decision of the Refugee Division
[9] The panel did not cast any doubt on the testimony of the respondent, who produced a number of documents proving that she was a victim of conjugal violence both in Haiti and in Canada. The panel found that the respondent was credible.
[10] In reviewing the documentary evidence on conjugal violence in Haiti, and especially the protection and remedies available to the victims, the panel found that there is not, at this time, adequate and sufficient protection for helping women who are victims of conjugal violence in Haiti.
[11] The panel continued its analysis concerning the persecuting agent:
[Translation]
It remains to decide the sensitive problem raised by the presence of the persecuting agent in Canada, where the claimant is seeking protection. In other words, the claimant is requesting protection in the place where her former husband, her persecuting agent, is now located. It is patently obvious that people who fear persecution generally tend to flee and elude the danger it may represent. The claimant argues that she feels safer in Canada than she would be in Haiti, where her husband could return at any time.
The claimant did not produce any document on her former husband's work as co-owner of a fishing cooperative, the bankruptcy of that business and the interests he allegedly still has in Haiti. However, she explained that she did not know how to read, that her husband kept all the papers of the couple and the business, and above all that she could not contact him, particularly given her present situation, living to some degree in clandestinity sheltered from any intervention by him, at least in principle.
In these circumstances, we decided to grant her the benefit of the doubt and to find that it continues to be possible if not probable that Steve Picard might contact the claimant at any time if she were to return to Haiti, where he still has some contacts at a number of points in the country and some interests. Thus her former husband could easily track her down, while in Canada she is currently living in complete security.
The Refugee Division concluded:
[Translation] The evidence presented to us is sufficient to establish that the claimant, should she return to Haiti, would have a reasonable possibility of persecution under the terms of the Adjei judgment. For these reasons, the Panel finds that the claimant ... is a "Convention refugee".
Issues
[12] Did the panel commit a reviewable error in finding that the respondent, should she return to Haiti, would have a reasonable fear of persecution by her former husband Steve Picard?
Analysis
[13] The applicant argues that the Refugee Division committed two errors. First, that the panel applied an incorrect standard of proof. Second, that the evidence on file does not support the panel's decision.
(1) Standard of proof
[14] In its reasons, the Refugee Division determined that the respondent had demonstrated the existence of a well-founded fear of persecution by her former husband. The applicant submits that although the panel cited the applicable standard of proof according to Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 7 Imm. L.R. (2d) 169 (C.A.), it applied a quite different standard of proof and thus erred in law.
[15] According to the applicant, this error appears in the following phrase in the Refugee Division's decision: "that it continues to be possible if not probable that Steve Picard might contact the claimant at any time if she were to return to Haiti" (emphasis added). The applicant argues that by using conjunctively the words "possible if not probable" with the word "might", the panel happened to apply a somewhat "watered-down" standard of proof, less than "serious possibility" or reasonable. Consequently, he argues, the Refugee Division did not apply the right standard of proof and thus erred in law.
[16] I do not accept the applicant's submissions. In my opinion, the panel's conjunctive use of the words "possible if not probable" with the word "might" does not lead to a conclusion that the panel to some degree watered down the applicable standard, i.e. "serious" or "reasonable" possibility. In my opinion, the standard as expressed by the Refugee Division falls between the two limits as expressed in Adjei, supra, that is, on the one hand, that there need not be a greater than 50% chance (that is, a probability) and, on the other hand, that there must be more than a minimal possibility.
[17] I am of the opinion, therefore, that the Refugee Division correctly applied the standard of proof under the Adjei decision, supra, which it cited in its reasons.
(2) Does the evidence in the record reasonably support the panel's decision?
[18] The applicant acknowledges that in this case, subjectively, the respondent could have a fear of persecution. However, the applicant argues that the evidence the respondent adduced in support of the objective ingredient of her fear does not reasonably support the panel's decision.
[19] In support of the objective ingredient of the respondent's claim, the Refugee Division cited the following evidence:
- The respondent was a victim of conjugal violence by her former husband both in Haiti and in Canada;
- The respondent would not have effective protection in Haiti;
- The former husband still has some interests in Haiti, including a truck and several contacts in a number of points in the country, and thus could easily find her.
[20] The applicant submits that the Refugee Division's analysis is deficient in regard to the latter evidence: the possibility that the former husband would return to Haiti and easily locate the respondent. That, says the applicant, is fundamental to the respondent's claim given the presence of the persecuting agent, Steve Picard, in Canada.
[21] The applicant argues that there was not sufficient evidence before the Refugee Division to enable the panel to find a serious possibility that Steve Picard would return to Haiti and locate the respondent.
[22] In the first place, the applicant argues, this finding of the Refugee Division does not take into account the evidence in the record, which discloses that in Haiti the respondent's former husband had been defrauded by his former partners and had lost all of his money.
[23] In her testimony, the respondent provided further particulars in this regard and said that she and her former husband had lost their jobs. She further testified that the lobster export business that he co-owned still existed but that owing to the problems he had with his partner, the money was not there, that it had been "seized" and they could not work in Haiti.
[24] The following passages from the hearing transcript are relevant in this regard:
[Translation]
Q.- '97. What were you doing in Haiti before leaving?
A.- Before leaving I was doing nothing, but before I was employed.
Q.- You were?
A.- Before I left, I was doing nothing.
- Yes.
A.- Because we had lost our jobs before I left and came here.
...
Q.- What... does that business still exist, Madam.
A.- That business still exists, but the... the money from that business is not there, it is the money that... He and his partner had a problem for that... money, but the business is still there. I mean, the money is seized here, and we cannot work in Haiti.
Q. Did he go bankrupt, your husband?
A.- Yes.
Q.- Am I to understand that he has no further interest in Haiti?
A.- Now he has some, there is his truck and his business there, he ... All the things are down there to start up business, but he has no money for business.
Q.- There's no money?
A.- No.
Q.- So, when did you leave Haiti, in September 97...
A.- Uh-huh
Q.- ...had your husband ceased....
A.- carrying on.
Q.- any commercial activity?
A.- Yes.
[25] So the panel was not right, says the applicant, in saying that the respondent's former husband had retained some interests in Haiti. The applicant argues that this property is in fact still in Haiti but it was so to speak stolen by his former associates.
[26] Furthermore, the applicant submits that later on in her testimony the respondent stated that she and her former husband came to Canada in 1997 to "arrange" this matter and that they had the intention then of returning at some point to Haiti. According to the applicant, the respondent stated in her testimony that her former husband could not return to Haiti, in fact, that he was prevented from returning, although she did not know why:
[Translation]
Q.- So, if we understand clearly what happened, you intended to come here in order to return to Haiti, both of you?
A.- Yes.
Q.- But something happened here that meant your husband could not return to Haiti?
A.- Yes.
Q.- Is that it?
A.- Yes.
Q.- Fine. What was it that prevented him from returning to Haiti?
A.- I never knew what the obstacle was.
Q.- You don't know if he may still be prevented from going to Haiti?
A.- No.
[27] The applicant says the Refugee Division overlooked this important evidence, which directly challenges the idea that the former husband could easily return to Haiti.
[28] Finally, the applicant argues that even if it were admitted for the purposes of discussion that the former husband had retained some interests and contacts in Haiti, undefined as they are, this fact in itself reveals very little about the actual ability to return and to find the respondent in this country of several million inhabitants. In this case, he says, where it is not evident that her ex-husband could easily find the respondent, the Refugee Division should properly have analyzed the possibility that the respondent could find refuge in some other part of her country. This question was not given any consideration and consequently the Refugee Division erred in overlooking important evidence in the record, and to a large degree relied on conjecture.
[29] I do not accept the applicant's submissions. I am of the opinion that there was sufficient evidence in the record to allow the Refugee Division reasonably to conclude as it did.
[30] As the applicant pointed out, the respondent's testimony contains some evidence that might create some confusion concerning the idea that the former husband could easily return to Haiti. On the one hand, she testified that her ex-husband could not return to Haiti, that there was something standing in the way, but that she "never knew what the obstacle was". Asked if she knew whether her former husband might still be prevented from going to Haiti, she answered in the negative.
[31] These significant disparities between her written account, the Personal Information Form (PIF), and her oral testimony were, however, acknowledged by the Refugee Division. In its reasons it wrote:
[Translation] There are indeed some significant disparities between her written account in the PIF and her oral testimony, but it does not seem unreasonable to attribute them in large part to the stress the claimant was in at the beginning of November 2000, i.e. when she filled out her PIF.
[32] In my opinion, the Refugee Division did not overlook this important evidence, it acknowledged it in its reasons and explained the significant disparities by attributing them in large part to the stress the respondent was in at the time she prepared her PIF.
[33] In this case the respondent was recognized as credible by the Refugee Division. The undisputed evidence accepted by the Refugee Division is that the respondent's former husband had a business in Haiti that went bankrupt; that he retained some interests and contacts in Haiti, undefined as they are; and that, obsessed as he was with the idea of recovering what had been stolen from him, he had every interest in returning to Haiti. I note as well that should the respondent return to Haiti, the two children of the former husband would be there as well. This evidence is not disputed and cannot be considered conjecture.
[34] Although the evidence in the record is not conclusive as to whether or not the respondent's former husband is actually faced with some obstacle in returning to Haiti, there is, in my opinion, enough evidence on file to allow the panel to find that the respondent, should she return to Haiti, would have a "reasonable possibility" of persecution, to use the language of the Adjei decision, supra.
[35] For these reasons, this application for judicial review will be dismissed.
[36] The parties have not proposed certification of a serious question of general interest as contemplated in section 83 of the Immigration Act, R.S.C. 1985, c. I-2. No serious question of general importance will be certified.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-3142-01
STYLE: M.C.I. v. Marie Francise Raymond
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 19, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLANCHARD
DATED: Friday, September 13, 2002
APPEARANCES:
François Joyal FOR THE APPLICANT
Patrick Fernandez FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Federal Department of Justice
Guy Favreau Complex
200 René-Lévesque Blvd. West
East Tower, 5th Floor
Montréal, Quebec H2Z 1X4
Patrick Fernandez FOR THE RESPONDENT
4 Notre-Dame East, Suite 1003
Montréal, Quebec H2Y 1B8
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