Date: 20101125
Docket: IMM-89-10
Citation: 2010 FC 1165
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, the 25th day of November, 2010
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
LIVELOT PROFÈTE
Applicant
and
MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of a decision dated December 18, 2009, by the Refugee
Protection Division of the Immigration and Refugee Board (the panel), wherein
the panel determined that the applicant was neither a “Convention refugee” nor
a “person in need of protection” within the meaning of sections 96 and 97
respectively of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, and rejected his claim for refugee protection.
[2]
The applicant is a citizen
of Haiti. He was a pastor at the Église de Dieu de
la Rhema, in Port-au-Prince, until 1998. In his sermons, he
denounced crime and injustice, which allegedly drew the attention of the
Lavalas Chimères, a notorious armed gang.
[3]
The applicant alleged
that, on November 19, 1998, about 20 Chimères came to his home with batons
and firearms and tried to enter the house. The applicant stated that he
telephoned the police, who came right away. The Chimères allegedly all escaped,
successfully evading the police.
[4]
The applicant, his wife
and their two children then allegedly hid in the home of the applicant’s sister‑in‑law,
in another district of Port‑au‑Prince. The applicant left Haiti on
December 18, 1998, one month after the incident, for Orlando, Florida. At the time, he had a valid visa for the United States. He claimed that he waited one month before leaving
Haiti to ensure that he would be able to work as a pastor in the United States. The applicant returned to Port‑au‑Prince twice, in June 1999 and September 1999. He
alleged that he had returned to settle the church’s affairs and make sure that
someone would replace him as a pastor.
[5]
The applicant never
sought asylum in the United
States. He applied for
permanent residency through the Horeb Church of God, which had sponsored him as
a pastor, but the application was rejected on December 13, 2005. He remained
illegally in Orlando for nearly two more years.
[6]
The applicant went to
the Canadian border on October 2, 2007, and claimed refugee protection
that same day. He alleged a fear of persecution by the Chimères, both personalized,
by reason of his membership in the “pastors” social group, and because of his
imputed political opinion.
[7]
The panel found that
the applicant had not credibly established the essential elements of his narrative
or a well‑founded subjective fear of persecution. In the panel’s opinion,
the applicant’s behaviour was inconsistent with that of a person who allegedly
feared persecution in Haiti, for three reasons: the applicant waited one month
after the alleged incident to leave Haiti, he returned to Haiti twice, even though
he allegedly feared the Chimères, and he never claimed refugee status in the
United States, a signatory to the United Nations Convention Relating to the
Status of Refugees.
[8]
The panel found the
applicant’s testimony not to be credible because he did not seem to have been
present during the alleged incident, as he had difficulty describing the
details of the incident. In particular, the panel found the applicant’s
testimony to be evasive and ambiguous.
[9]
The standard of review
is reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, paragraph 51, and Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, paragraph 59). The
applicant is challenging the panel’s reasons pertaining to questions of mixed
fact and law; more specifically, he contests the assessment of the evidence, an
aspect that is clearly within the panel’s jurisdiction and regarding which the
Court should not substitute its own view unless the decision were found to be
arbitrary or to lack transparency.
[10]
The applicant raised a
preliminary issue regarding the panel’s treatment of the American authorities’
negative decision on his application for permanent residency in the United States. The applicant claimed that the panel contradicted
itself, since, at paragraph 8 of its reasons, it stated that the applicant
had not submitted a copy of the decision at the hearing, and, at paragraph 15,
it stated that it had subsequently received the decision. The respondent noted,
and I agree, that the applicant’s complaint against the panel on this matter is
unclear. The panel obviously read and addressed the decision. That it mentioned
in passing that the decision had not initially been filed at the hearing along
with the applicant’s other documents and that it was then produced a few hours
later does not mean that the panel contradicted itself.
[11]
The applicant also claimed
that the panel erred in finding that his testimony had been evasive, ambiguous
and not credible. This argument cannot warrant this Court’s interference, since
assessing testimony is at the very heart of the jurisdiction of the panel,
which had the benefit of seeing and hearing the applicant.
[12]
In addition, the
applicant submitted that the panel erred in failing to take into consideration
certain documents that he had filed, that is, testimonials from his spouse and
the pastor who had replaced him. However, it is well established that the panel
does not need to mention every item of evidence submitted or explain why each
item was rejected (Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.)).
The panel in this case stated at the beginning of its reasons that there was
documentary evidence, but it found that there were “[no] objective documents” and
that this documentary evidence therefore had no probative value regarding the
applicant’s credibility (see Arabalidoosti v. Minister of Citizenship and
Immigration, 2006 FC 440, at paragraphs 20 and 21). In my
opinion, when it found that the testimonials were self‑serving and that
it did not believe that the incident had taken place, it was implicit that it
did not believe the testimonials either. Moreover, the new pastor’s testimonial
did not corroborate the incident with the Chimères; it merely addressed the
reasons why the applicant had returned to Haiti,
which was an element that the panel did not question. Therefore, I do not find
that the treatment of the evidence was unreasonable.
[13]
Lastly, the applicant
claimed that the panel had been capricious in finding that there was no subjective
fear of persecution. The applicant simply reiterated the three grounds on which
the panel had found his narrative not to be credible (the delay before leaving
Haiti, the two voluntary returns to the country of persecution and the failure
to claim refugee status in the United
States) and repeated the
explanations given for each of the elements at the hearing. However, these inferences
were fully supported by uncontradicted evidence. Consequently, the panel could
have reasonably drawn these inferences, and it is not for this Court to
substitute its own appreciation of the facts for that of the panel (see Aguebor
v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)). I therefore find that
the panel’s conclusions on the lack of subjective fear and credibility were
reasonable.
[14]
For all of these
reasons, the application for judicial review is dismissed.
[15]
No question is
certified.
JUDGMENT
The application for judicial review of the decision of the
Refugee Protection Division of the Immigration and Refugee Board dated December 18,
2009, is dismissed.
“Yvon Pinard”
Certified true
translation
Tu-Quynh Trinh
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