Date: 20101122
Docket: IMM-217-10
Citation: 2010 FC 1171
Ottawa, Ontario, November 22, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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FABUS DESLANDES
(A.K.A. FABUS DELANDES)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Mr. Deslandes Fabus has claimed refugee
protection in Canada based on his fear of a powerful landowner, Mr. Lucas, in
his native Haiti. Mr. Fabus spoke out against Mr. Lucas for his alleged
involvement in a massacre in 1987. When Mr. Fabus was threatened in 1997, he
fled to another town and then left Haiti for the U.S. in
1999. He arrived in Canada in
2007.
[2]
A panel of the Immigration and Refugee Board
dismissed Mr. Fabus’ claim on the basis that there was no more than a mere
possibility he would be at risk if he returned to Haiti, given the passage of time since the main events underlying his
claim. Mr. Fabus argues that the Board ignored the fact that his home was
burned down in 2004 and that his wife went into hiding as a result. A neighbour
claimed that the landowner, Mr. Lucas, was responsible. Mr. Fabus suggests that
the Board erred in thinking that the risk to him had subsided with time.
[3]
Mr. Fabus asks me to overturn the Board’s
decision and order another panel to reconsider his claim. I can find no basis
for overturning the Board’s decision and must, therefore, dismiss this
application for judicial review.
[4]
The issue is whether the Board’s decision was
unreasonable or if its reasons were inadequate.
II.
The Board’s Decision
[5]
The Board found that Mr. Fabus was a
schoolteacher in the northwest area of Haiti. In addition, Mr. Fabus helped local peasants keep their land. He
also worked as a cashier in a store owned by Mr. Lucas, who owned a lot of
property. When Mr. Lucas was arrested in connection with a peasant massacre,
Mr. Fabus spoke out against him. Members of the Lucas family warned Mr. Fabus
to keep quiet.
[6]
The Board also found that, in 1997, a group of
five individuals stopped Mr. Fabus and threatened him. As a result, he did not
return to his teaching job and stated hiding at a friend’s house. In 1999, he
learned that he was being sought, and so he fled to the United States. He claimed asylum there, but
his claim was dismissed.
[7]
The Board noted that, in 2004, Mr. Fabus’s
spouse barely escaped an attack. Then next day, her house was burned down. She
went into hiding.
[8]
The Board found Mr. Fabus’s testimony to be
credible. However, it concluded that he had not presented evidence that would
support a finding that he was persecuted on political grounds. Mr. Fabus does
not contest that finding. He does, however, dispute the Board’s conclusion that
he would not be at risk of serious mistreatment if he returned to Haiti, given the passage of time.
III.
Was the Board’s Decision Unreasonable or
Inadequately Explained?
[9]
Mr. Fabus argues that the Board’s conclusion
that the passage of time diminished the risk he faced in Haiti was unreasonable and suggests that
its conclusion was inadequately explained. His main argument is that the
Board’s failure, in the context of its analysis of s. 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), to mention the fact that
his spouse’s house had been burned down in 2004 indicates that the Board failed
to appreciate that the risk to him continues to exist. Therefore, he contends
that the Board’s conclusion that he would no longer have any interest in the
applicant was unreasonable or, at least, inadequately explained.
[10]
The Board accepted Mr. Fabus’s testimony about
the massacre in 1987 and Mr. Lucas’s arrest. It noted Mr. Fabus’s concern that
Mr. Lucas continues to be an influential figure in Haiti and that Mr. Fabus continues to be at risk of reprisals from him.
However, the Board went on to find that “[i]t does not seem reasonable or
plausible to imagine that such a powerful person would, today, threaten the
claimant’s life or safety.” Mr. Fabus maintains that the Board’s conclusion
cannot stand given its failure to mention the incident in 2004.
[11]
In my view, the Board’s decision was not
unreasonable. The Board was clearly aware of the 2004 incident having
specifically referred to it in its analysis of s. 96 of IRPA. Further, the 2004
incident does not contradict the Board’s conclusion that Mr. Fabus was probably
no longer at risk from any harm the Lucas family might have wished to cause
him. That incident might have helped establish that Mr. Fabus would still have
been at risk from the Lucas family in 2004, but it did not show that he still
at risk in December 2009, when the Board rendered its decision.
[12]
In addition, the Board’s failure to mention the
2004 incident in its analysis of s. 97 of IRPA did not render its reasons
inadequate. The Board’s reasons must be read as a whole and it is clear that it
was aware of the 2004 incident. Its failure to mention it in one part of the
decision does not necessarily render the reasons deficient when it is mentioned
in another. The purposes of written reasons “are fulfilled if the reasons, read
in context show why the judge decided as he or she did” (R v REM, [2008]
3 SCR 3, at para 17). In this case, the Board’s reasons were sufficient.
IV. Conclusion and Disposition
[13]
The Board’s decision was not unreasonable in light
of the evidence before it; nor were its reasons inadequate. Therefore, I must
dismiss this application for judicial review. Neither party proposed a question
of general importance to be certified, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex “A”
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Immigration and Refugee Protection Act, SC 2001, c 27
Convention
refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of
protection
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
(2) A person in Canada
who is a member of a class of persons prescribed by the regulations as being
in need of protection is also a person in need of protection.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition de «
réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne
peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans
lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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