Docket: IMM-3178-11
Citation: 2012 FC 341
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, March 22,
2012
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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EMMANUEL DUROSEAU
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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
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision by the
Refugee Protection Division (RPD) with respect to inclusion, dated April 21,
2011, which determined that the applicant was neither a refugee within the
meaning of section 96 of the IRPA, nor a person in need of protection within
the meaning of section 97 of the IRPA.
I. Facts
[2]
The
applicant, Emmanuel Duroseau, is an 80-year-old Haitian citizen. He arrived in Canada from the United
States
on March 28, 2009, and submitted a claim for refugee protection that same day.
[3]
According
to his Personal Information Form (PIF), Mr. Duroseau had allegedly been a
member of the Volontaires de la sécurité nationale (VSN) (also known as the Tontons
Macoutes) from 1968 to 1985. He purportedly left the group because did not like
they way its members behaved, that is to say, the way they arrested, beat and
imprisoned those who opposed the Duvalier regime. Mr. Duroseau claims that he
was subsequently arrested and detained for a day for failing to report for
duty. He then apparently left Haiti by boat in 1987 and applied for asylum in
the United
States.
However, due to an error, his application was apparently never completed and he
was at risk of being deported back to Haiti. It was at that point
that he came to Canada to claim refugee protection.
[4]
In
his PIF, M. Duroseau states that if he were to return to Haiti, he fears
that members of the VSN would pursue him for having betrayed them or that those
who opposed the VSN would pursue him for having been part of that group.
[5]
In
a Notice of Intervention, the Minister of Public Safety and Emergency Preparedness
indicated that if Mr. Duroseau had been a member of the VSN, a group whose
human rights violations are well documented, there would be serious grounds for
believing that he had participated in or had been complicit in the commission
of crimes against humanity or acts contrary to the purposes or principles of
the United Nations within the meaning of the United Nations Convention on
the Status of Refugees. If such were the case, under section 98 of the IRPA,
he cannot be a refugee or a person in need of protection.
[6]
Mr.
Duroseau subsequently sent a response to the Immigration and Refugee Board in
which he explained that his daughter-in-law had written his initial narrative
and that he now realized that she had misinterpreted his statements. He contends
that he had not been a member of the VSN, but was simply a tailor. The local
VSN leader was one of his clients and had allegedly offered him a VSN card in
order to protect himself and his family. However, when that leader died, his
replacement insisted that those who had VSN cards had to put in a few hours of
work at the office. Mr. Duroseau objected and was then beaten and incarcerated
for a day. Fearing persecution, he fled the country by boat to the Bahamas in 1985
before finally arriving in the United States in 1987.
II. Impugned
decision
[7]
The
hearing to review Mr. Duroseau’s refugee protection claim was held on March 30,
2011. In its reasons, the RPD explains that it had invited Mr. Duroseau to
specify what he feared if he were to return to Haiti. He first
stated that he feared Duvalier, the Tontons Macoutes and their supporters. He
then explained that he did not fear all of the Tontons Macoutes, but rather
Fritz Philippe, the one who had replaced the former VSN leader and the one with
whom he had had problems at the time. Questioned as to whether Fritz Philippe
was still in a position of power, the applicant stated that he was not, but
that he was still in Haiti.
[8]
The
RPD noted that the applicant gave no oral testimony nor did he submit
documentary evidence that would establish that he was still sought by Fritz
Philippe or other former VSN members. It further noted that the documentary
evidence regarding country conditions does not in itself establish the
existence of a well-founded fear of persecution or a personalized risk and that
refugee claimants must demonstrate that there is a nexus between that evidence
and their personal situation. In this case, the RPD determined that Mr.
Duroseau had not established that there was a serious possibility or reasonable
chance that he would be persecuted on the basis of his political opinion, nor
had he established that he would likely face a risk to his life or a risk of
torture if he were to have to return to live in Haiti. Mr. Duroseau is
therefore not a refugee or a person in need of protection under section 97 of
the IRPA.
III. Issue
a. Did the RPD
err in finding that the applicant was neither a refugee nor person in need of
protection under section 97 of the IRPA?
IV. Applicable
standard of review
[9]
Given
that the RPD’s findings with regard to Mr. Duroseau’s refugee protection claim
raise questions of mixed fact and law, the Court is obliged to apply a
reasonableness standard (Soimin v Canada (Minister of Citizenship and Immigration),
2009 FC 218, [2009] FCJ No 246). Consequently, the Court will
only intervene if the decision does not fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v
New-Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
V. Analysis
[10]
The
applicant notes that the RPD had remarked that he had not submitted documentary
evidence establishing that he would be persecuted. The applicant is of the view
that it would be very difficult to obtain documents to support his story and
that he did not even know the kinds of documents he was supposed to submit.
However, the RPD had already noted that Mr. Duroseau had not given any oral
testimony establishing that he was still being sought to this day, over a
quarter century after the alleged incidents occurred, by either Fritz Philippe
or by other former VSN members. Without such evidence, it was reasonable for
the RPD to find that he had failed to discharge his burden of establishing that
his claim met the criteria (Kante v Canada (Minister of Employment and Immigration)
(1994) 47 ACWS (3d) 798 at para 8, [1994] FCJ No 525 (Kante)).
[11]
The
applicant emphasizes the fact that the RPD found his testimony to be credible,
but that it did not believe he would be at risk of persecution. The applicant
feels that if the RPD found him to be credible, it should have accepted the fact
that he would be persecuted if he were to return to Haiti and that
there was no reason to doubt that part of his testimony. That statement is
completely inadequate for meeting the criteria. The simple fact that the
applicant claims that he does not want to return to Haiti because of
incidents that occurred over a quarter century ago is insufficient in itself.
The applicant must provide objective evidence of such a fear (Kante, supra,
and Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ 74).
If the applicant fails to demonstrate a personalized risk, he has not
discharged his burden of proof. Therefore, the RPD decision finding that Mr.
Duroseau is neither a refugee within the meaning of section 96 of the IRPA nor
a person in need of protection within the meaning of section 97 of the IRPA is
not unreasonable and the Court’s intervention is not warranted.
[12]
The
parties were invited to submit a question for certification, but none was
submitted.
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