Date:
20120921
Docket:
IMM-9676-12
Citation:
2012 FC 1105
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 21, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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GENALD SAINTILUS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR
ORDER AND ORDER
[1]
This
decision is in response to a motion to stay a removal order scheduled for
Monday, September 24, 2012.
[2]
The
motion is incidental to the applicant’s application for leave and judicial
review of a decision refusing to grant the applicant a stay.
[3]
In
addition to a political asylum claim being refused in the Unites States, the
case history shows that a political refugee claim (in Canada) was rejected by
the Refugee Protection Division (RPD) further to the exclusion of the applicant
because of his membership in the Forces Armées d’Haïti (FADH) [Armed Forces of
Haiti] and because of his lack of credibility in trying to change his account
with evidence that was previously deemed unacceptable.
[4]
Earlier
proceedings attached no probative value to the documents submitted by the
applicant denying his participation in the FADH.
[5]
Information
with respect to human rights violations were formally confirmed by several
known international organizations such as the United Nations Commission on Human
Rights, Amnesty International and Human Rights Watch. Each of those
organizations confirmed that, between 1991 and 1994—the period when the army
took power in Haiti—the army, or the FADH, was characterized as an organization
directed to a limited, brutal purpose that committed systemic, brutal violations
against the people of Haiti. Those brutal violations included summary
executions, enforced disappearances, body disposals, extortion and even pillaging,
arson and torture, including the raping of women.
[6]
The
decision in Ramirez v Canada (Minister of Employment and Immigration),
[1992] 2 FC 306, [1992] FCJ No 109 (QL/Lexis) (CA) (at paragraph 16), specified
the elements that lead to a presumption of complicity:
. . . where an organization is principally directed
to a limited, brutal purpose, . . . mere membership may by necessity involve
personal and knowing participation in persecutorial acts.
[7]
Presumption
of complicity is verifiable by considering, for analysis purposes, certain key
factors according to the testimony and the evidence of the individual concerned:
(a)
The
applicant voluntarily joined the FADH during the period that was categorized as
brutal towards the people of Haiti;
(b)
The
FADH were defined as an organization directed to a limited, brutal purpose;
(c)
The
applicant’s rank indicates that he was a Corporal;
(d)
Knowledge
of the atrocities could not have been ignored by the applicant, who would have
been a member of the FADH;
(e)
The
evidence shows that the applicant did not leave, but instead remained a member
the FADH during the most problematic period;
(f)
Between
1990 and 1994, the applicant was a member of the FADH when the FADH were considered
an entity directed at a limited, brutal purpose.
[8]
The
following was specified in the prior decision by the pre‑removal risk
assessment (PRRA) officer dated June 20, 2012:
[translation]
Subsection 112(3) IRPA
Furthermore, because the applicant is subject to
Article 1F(a) of the Convention, he is also subject to paragraph 112(3)(c)
IRPA. According to paragraph 113(d) of the IRPA, when an applicant is
subject to subsection 112(3), a PRRA application can only be assessed on the
basis of the elements stated in section 97 of the IRPA.
I note that, on March 2, 2012, a 44 report was issued
and the applicant was inadmissible under A35(1)(a), which reads as
follows:
Subsection 35(1) Violating human or international
rights –
A permanent resident or a foreign national is
inadmissible on grounds of violating human or international rights for:
(a) committing an
act outside Canada that constitutes an offence referred to in sections 4 to 7
of the Crimes Against Humanity and War Crimes Act;
. . .
. . .
The RPD found that the applicant was excluded under
Article 1F(a) of the Convention; consequently, the applicant’s allegations of
risk were not heard. Thus, paragraph 113(a) of the IRPA cannot apply and
all of the evidence submitted on the record will be taken into consideration in
this assessment of section 97 IRPA.
In support of his PRRA application, the claimant
submitted the following documents:
-a document addressed to the Gonaives Trial Court
dated October 11, 2011
-a document from the Haitian National Police
entitled [translation] “Complaint
statement from Ms. Génald Saintilus, née Ludovia Joseph” dated December 18,
2011
-a document from the Haitian National Police entitled
[translation] “Complaint” dated
February 9, 2012
-two medical certificates from Clinique du Bon
Berger dated November 20, 2011
I note that, in the applicant’s written submissions,
his representative raised humanitarian and compassionate considerations (establishment,
ties, etc.) and referred to unusual and underserved or disproportionate
hardship if he were to return to his country of origin. These humanitarian and
compassionate considerations are irrelevant and cannot be assessed in the
context of a PRRA application. Furthermore, the unusual and underserved or
disproportionate hardship test is not the test applied in the assessment of a
PRRA application.
(Respondent’s Reply Record at pages
17-18.)
[9]
With
supporting “new evidence” and a willingness to reopen the RPD file because of
an alleged failure to observe a principle of natural justice, the applicant did
not, nevertheless, rebut the presumptions concerning his complicity within the FADH;
therefore, the record shows that the applicant was heard and that the RPD found
that it had serious reasons to think that the applicant was complicit in crimes
against humanity.
[10]
The
Federal Court of Appeal also specified the following in Wackowski v Canada
(Minister of Citizenship and Immigration), 2004 FC 280, referring to an
excerpt from Serrahina v Canada (Minister of Citizenship and
Immigration), 2003 FCT 477, with which the Court of Appeal agrees:
[12] The Board may reopen the hearing into a
refugee claim where an abandonment hearing was conducted in a manner
inconsistent with the rules of natural justice: Serrahina . . . ; see
also Rule 55 (4) of the Refugee Protection Division Rules, SOR/2002-228.
[11]
As
specified by the respondent concerning the new evidence, the Court agrees with
the following:
[translation]
42. Furthermore, the applicant filed his PRRA
application on January 31, 2012. He had the opportunity, at that time and as
time passed, to submit his “new evidence” in support of his PRRA. In fact, the
evidence in the file shows that, before October 2011, there was only a
Ministry of the Interior and Territorial Communities. It was not until October 18,
2011, that the Minister of the Interior, Territorial Communities and Defence
came to be (28 See Exhibit A at Dominique Toillon’s affidavit).
43. The applicant did not show, since his
arrival in Canada, and since at least October 18, 2011, that is was impossible
for him to obtain the document and that he tried to contact someone in the
Haitian government (for example, a public servant/clerk in the Ministry of the
Interior, Territorial Communities and Defence to obtain that evidence.
(Respondent’s Reply Record, Respondent’s
written submissions.)
[12]
Also,
as a result, further to the applicant’s lack of credibility and the listed factors
that remain, the conjunctive three-part test in Toth v Canada (Minister of
Employment and Immigration) (1988), 86 NR 302 (FCA) was not met for any of
the three accepted criteria. (Moreover, if, as stated in the alleged documents
that “officially” came from Haiti, the applicant was not part of the FADH, he
would not be in danger because of a participation in the FADH that would have never
occurred.)
[13]
Therefore,
for all of these reasons, the Court dismisses the applicant’s motion to stay a
removal order.
ORDER
THE
COURT ORDERS the dismissal of the applicant’s motion to stay a
removal order.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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