Date:
20120626
Docket:
IMM-5053-11
Citation:
2012 FC 815
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, June 26, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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SYLVIE
PAUL-LAFOREST,
ALEXA PAUL
TAINA PAUL
KEVIN PAUL
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Applicants
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under section 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
by the Refugee Protection Division of the Immigration and Refugee Board of
Canada (the panel) refusing to grant refugee status to the applicant and her
children.
[2]
For
the reasons that follow, the application for judicial review is dismissed.
BACKGROUND
[3]
The
applicant, Sylvie Paul‑Laforest, is a 37‑year old citizen of
Haiti. She has three children living with her. Her daughter, Alexa Paul, is an
American citizen. Her husband is still living in Haiti. The applicant worked
for the Haitian tax branch from 1995 until June 12, 2009. She became an
inspector at that organization on April 8, 1997.
[4]
On
May 5, 2009, a taxpayer arrived at the applicant’s office to meet with her
colleague, one Solon. Since Solon was not there, the applicant assisted the taxpayer.
In doing so, she realized something fraudulent was going on (some [translation] “thing” that looked like
fraud to use the applicant’s words). She advised her supervisor of the
situation.
[5]
The
next day, Solon expressed his unhappiness with what the applicant had done and told
her that she would regret her actions if they resulted in him losing his job. A
few days later, the applicant learned that Solon had been dismissed.
[6]
The
applicant received an anonymous threatening telephone call on her birthday, May 26,
2009. On June 12, 2009, Solon threatened the applicant in person using the
Haitian expression [translation] “beat
the dog while waiting for its master”. During the night of June 14 to 15,
2009, bandits whom the applicant was unable to identify broke the windows of
her house and killed her dog. The applicant contacted the police but they could
not help her because all the patrols were busy. When this event occurred, the
applicant’s husband was away on business.
[7]
The
applicants left Haiti on July 3, 2009, for New York. They arrived at the
Canadian border on July 4, 2009, and claimed refugee protection.
DECISION UNDER
JUDICIAL REVIEW
[8]
The
panel found that some elements of the applicant’s story were implausible. The
panel stated that it believed that the applicant’s story was fabricated in
order to obtain refugee status. The panel found it implausible that Solon
threatened the applicant in person and anonymously, that Solon told her about
his intentions more than a month before he took action, and that Solon
allegedly wanted to kill the applicant but did not take the opportunity to do
so for over a month.
[9]
The
panel also stated that the documentary evidence showed that the Haitian police were
still experiencing numerous problems but were improving. The panel found that
the applicant’s failure to contact the police with the exception of the last
incident undermined the credibility of the story. The applicant said that the
police had been unable to help her before, but the panel rejected her explanation
because, in the past, she had been unable to identify the criminals whereas
this time she knew his identity. The panel also noted the lack of evidence regarding
her employment and Solon’s dismissal.
[10]
The
panel found that the documentary evidence indicated that the risk of being a
victim of criminal acts was a generalized, not a personalized, risk. The panel
noted that criminal or vengeful acts are not equivalent to persecution under
section 96 of the Act. Victims of such acts are not members of a particular
social group under section 96 of the Act. The panel accepted that the
applicant was suffering from depression and post‑traumatic stress
syndrome but did not accept that her psychological problems were connected to
her alleged persecution.
[11]
The
panel also determined, after consulting the documentary evidence and Guideline
No. 4—“Women Refugee Claimants Fearing Gender‑Related
Persecution”—that the applicant was not a member of the group of women who are at
risk of being attacked in Haiti because she was not a young woman, had never
lived in the slums and had the protection of her husband and father‑in‑law.
[12]
Finally,
the panel stated that there was an internal flight alternative (IFA) for the
applicant in the cities of Jérémie or Cayes because these cities are far from Port‑au‑Prince.
The panel found that the IFA was not unreasonable because the applicant is
educated and has a number of years of work experience. In addition, her husband
often travels for his work, and, therefore, this move would not affect his job.
Also, the applicants are well‑off financially, as shown by their numerous
trips to the United States, including one trip for the birth of their daughter.
The panel noted that, according to the documentary evidence, IFAs are rare in
Haiti but not impossible to find.
ISSUES
[13]
This
application for judicial review raises the following issues:
a. Is
the supplementary evidence submitted by the applicant admissible?
b. Is
the panel’s decision reasonable?
[14]
The
respondent made submissions about the appearance of bias on the part of the
panel in his memorandum of fact and law but abandoned this point at the
hearing.
STANDARD OF
REVIEW
[15]
The
appropriate standard of review for questions of credibility is reasonableness: Ramirez
Bernal v Canada (Minister of Citizenship and Immigration), 2009 FC 1007 at
paragraph 24. This standard also applies to questions of fact and mixed
questions such as the existence of an IFA: Vasquez Cardona v Canada (Minister
of Citizenship and Immigration), 2010 FC 57 at paragraph 4; Kumar v
Canada (Minister of Citizenship and Immigration), 2012 FC 30 at paragraph
16; and Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 53. A
reasonable decision is one that is justified, transparent and intelligible and
that falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law: Dunsmuir, at paragraph 47.
ANALYSIS
Is
the supplementary evidence submitted by the applicant admissible?
[16]
The
respondent is asking this Court to dismiss some evidence that was introduced in
the affidavit of Sylvie Paul‑Laforest, specifically Exhibit B at tab 4 of
the application record. As Justice Noël stated in Ngankoy Isomi v
Canada (Minister of Citizenship and Immigration), 2006 FC 1394 at paragraph
6, a court sitting on judicial review may not consider evidence that was not
before the initial decision‑maker. Certain circumstances may cause a
party to adduce fresh evidence, such as where an applicant is trying to prove
that his or her counsel was incompetent or that the tribunal was biased.
However, in reviewing the record, I do not see the purpose of the evidence
filed by the applicant (documents proving her employment at the taxation
branch) other than to prove facts relating to her refugee claim.
[17]
At
the hearing, the respondent stated that Ms. Paul‑Laforest had the
exhibit in question with her during her hearing before the panel. She simply
did not believe it was appropriate to show the exhibit to the panel because the
panel did not have any questions on this point. This explanation seems
implausible to me particularly because the applicant was represented by counsel
before the panel. In addition, despite the applicant’s allegations about the
incompetence of her former counsel, the applicant did not provide any evidence
to support her statements. Therefore it seems inappropriate to me to consider
this evidence because it was not before the panel and there are no special
circumstances in this case. The exhibit in question is therefore removed from
the record.
Is
the panel’s decision reasonable?
[18]
The
applicant did not provide any grounds upon which this Court could determine
that the decision was unreasonable. The applicant did not advance any argument
criticizing the panel’s decision on her credibility. A negative credibility
finding is fatal to a refugee claim. The panel’s credibility findings are based
on the facts and the documentary evidence. The findings are justified, and the
panel noted a number of implausibilities: see Cooper v Canada (Minister of
Citizenship and Immigration), 2012 FC 118 at paragraph 4; and Ramirez
Bernal, above, at paragraph 19. It is not the function of the Court to
reassess an applicant’s credibility: Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (FCA) at paragraph 4.
[19]
The
applicant alleges that the panel did not use the correct burden of proof with
respect to persecution. However, the applicant does not indicate how the panel
erred or where it erred in its reasoning with the exception of broad statements
during the hearing about the fact that the panel demanded proof beyond a
reasonable doubt. However, the tribunal record does not support the applicant’s
arguments on this point. The panel clearly stated that the documentary evidence
showed that the risks associated with crimes are generalized in Haiti and that these
risks are not the equivalent of persecution under section 96 of the Act if
there is no nexus with a Convention ground. Persons who are victims of criminal
or vengeful acts are not members of a particular social group under
section 96 of the Act. See Asghar v Canada (Minister of Citizenship and
Immigration), 2005 FC 768 at paragraph 25.
[20]
Moreover,
even if the applicant had not relied on this ground in her application, the
panel followed Guideline No. 4—“Women Refugee Claimants Fearing Gender‑Related
Persecution”—and assessed whether the applicant was at risk of gender‑related
persecution in Haiti. Again relying on the documentary evidence and the facts,
the panel determined that, given her social status, the applicant was not at
risk. The applicant said that neither her husband nor her father‑in‑law
could protect her given the employment of the former and the age of the latter.
However, the panel’s findings are based in large part on the fact that the
victims identified in the documentary evidence come from slums, are poor and
are very young. These descriptors do not apply to the applicant. Accordingly, the
panel’s findings are not unreasonable.
[21]
In
addition, it should be noted that membership in a particular social group is
not sufficient; the applicant must also demonstrate that there was more than a
mere possibility that she risked suffering the alleged harm because of her
gender: Ocean v Canada (Minister of Citizenship and Immigration), 2011 FC
796 at paragraphs 15‑16.
[22]
Last,
the applicant does not indicate how the panel erred in its analysis of the IFAs,
the existence of which is sufficient to dispose of the entire claim: Ortegon
Palacios v Canada (Minister of Citizenship and Immigration), 2008 FC 816
at paragraph 11. The panel followed the steps in Thirunavukkarasu v Canada (Minister
of Employment and Immigration), [1994] 1 FC 589 (FCA) and Ranganathan v
Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (FCA).
It suggested two possible cities as IFAs and was not satisfied that it would be
unreasonable for the applicants to move there. The panel stated why it believed
that the move would not be unreasonable: the applicant’s education, experience
and financial situation. It is a finding of fact and therefore the Court cannot
intervene in the absence of an error showing that the panel’s decision was not
based on the facts or that the panel disregarded an important part of the
evidence. The applicant did not argue such errors. The panel’s decision is tenable
with respect to the facts and the law and, consequently, is reasonable.
[23]
Taken
as a whole, the panel’s decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. None of the
arguments advanced support a finding that the decision was unreasonable. The
application is therefore dismissed.
[24]
The
parties did not submit any questions for certification.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard
G. Mosley”
Certified
true translation
Mary
Jo Egan, LLB
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