Date: 20100827
Docket: IMM-6658-09
Citation: 2010 FC 855
Ottawa, Ontario, August 27, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ELICOIT
LEXINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Elicoit Lexine sought refugee protection in Canada claiming to have a
well-founded fear of persecution in Haïti based upon his perceived political
opinion as the son of a high-ranking member of l’Organisation du Peuple en
Lutte (“OPL”). He also claimed that he would be at risk in that country as a
Haïtian returning from abroad.
[2]
For the reasons that follow, the application for judicial review will be
allowed.
Analysis
[3]
Although M. Lexine has raised a number of different issues, the
application may be disposed of on the basis that the Refugee Protection
Division of the Immigration and Refugee Board erred in ignoring or
misconstruing material evidence.
[4]
M. Lexine says that he attended meetings of the OPL with his father for
many years. The OPL is a political party which opposed the Lavalas governments
of Presidents Aristide and Préval. In 1999, while M. Lexine was studying in
the United States, his father was murdered, allegedly by members of a
pro-Lavalas gang. M. Lexine says that at the time of his father’s death, he
heard from friends and neighbours that the gang was also looking for him and
that they wanted to kill him as well.
[5]
While seemingly accepting that M. Lexine’s father was indeed a
high-ranking member of the OPL and that he was brutally murdered in 1999, the
Board found that it was “speculative” to attribute his murder to his political
enemies. No mention is made by the Board, however, of the evidence that the
father had been threatened by his political enemies on five different occasions
prior to his death. This evidence was obviously highly relevant to the claim,
and the failure of the Board to refer to it suggests that it was overlooked:
see Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at paras.14-17.
[6]
Even more troubling is the failure of the Board to consider the attack
on the family home in 2000. The Board found that even if M. Lexine’s father
was indeed murdered by pro-Lavalas forces, “leur objectif fut atteint en 1999”.
From this it seems that the Board is suggesting that there would be no further
risk to M. Lexine once his father was dead.
[7]
The difficulty with this finding is that there was evidence before the
Board that a group of pro-Lavalas gang members invaded the family home in Port-au-Prince
in June of 2000, specifically looking for M. Lexine. Gang members allegedly
beat M. Lexine’s wife and her siblings and raped one of her sisters.
[8]
While the Board found certain specified aspects of M. Lexine’s evidence
not to be credible, no negative credibility finding was made with respect to
this incident. Although there is recognition in the decision that an incident
occurred in 2000, the nature of the incident is never discussed. Given that the
incident demonstrated the pro-Lavalas gangs’ ongoing interest in finding M.
Lexine after the death of his father, this omission is a serious one.
[9]
M. Lexine produced a photograph purportedly showing the ruins of the
family home after it was destroyed by a fire in 2004. M. Lexine says that the
fire was set by pro-Lavalas gang members who were looking for him, and who thought
that he had returned home when members of his family moved back into the house.
The Board did not accept this evidence, because the source of the photo could
not be verified.
[10]
While it may be open to the Board to discount documentary evidence in
cases where a claimant is found to generally lack credibility, as I understand the
Board’s reasons, its negative credibility findings seem to be limited to
certain specified matters. Moreover, the decision to reject the photograph in
this case is further undermined by the failure of the Board to come to terms
with the evidence of pro-Lavalas gangs’ ongoing interest in M. Lexine.
[11]
This failure is particularly problematic in light of the fact that there
was evidence before the Board that individuals returning to Haïti who had been
previously targeted for persecution would remain at risk upon their return.
Conclusion
[12]
For these reasons, I have concluded that the Board’s decision was
unreasonable and the application for judicial review is allowed.
Certification
[13]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a differently constituted panel for
re-determination; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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