Date: 20090212
Docket: IMM-2654-08
Citation: 2009 FC 145
Ottawa, Ontario, February 12, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
VLADIMIR
YVES DOMERSON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Vladimir
Yves Domerson is a citizen of Haïti, whose refugee claim was rejected by the
Refugee Protection Division of the Immigration and Refugee Board. The Board
found that the risk that Mr. Domerson faced in Haïti arose from generalized
criminality. As such, he was neither a Convention refugee nor a person in need
of protection.
[2]
I am
of the view that the reasons provided by the Board for its decision were
inadequate, as they did not properly address Mr. Domerson’s personal circumstances,
specifically his vulnerability as an individual with a serious mental illness.
As a consequence, the application for judicial review will be allowed.
Background
[3]
Mr.
Domerson is an unmarried 29 year old man. His parents are dead, and none of his
siblings still reside in Haïti. He is also mentally ill, with the psychiatric
evidence before the Board indicating that he suffers from psychotic depression
(“dépression psychotique”), and that he is incoherent.
[4]
Mr.
Domerson’s last remaining sibling left Haïti in February of 2004. Mr. Domerson
remained behind, living on financial support received from family members. Just
a few weeks later, Mr. Domerson was attacked and badly beaten in his home by
robbers. While it is unclear from the record whether Mr. Domerson suffered
from psychological problems prior to this attack, it is evident that his mental
health deteriorated significantly after the attack.
[5]
In
March of 2006, Mr. Domerson came to Canada on a visitor’s visa, which was
granted to allow him to obtain medical treatment in this country. He
subsequently filed a claim for refugee protection, alleging, amongst other
things, that he was at risk of being singled out for both verbal and physical
abuse because he would be perceived as mentally ill (“un fou”).
[6]
Because
of his mental health issues, Mr. Domerson’s sister was appointed as his
designated representative by the Board. While Mr. Domerson attempted to
testify at his hearing, a review of the transcript indicates that he was unable
to do so in a coherent fashion.
Analysis
[7]
While
Mr. Domerson has raised a number of issues in his application for judicial
review, it is only necessary to deal with the issue of the sufficiency of the
Board’s reasons. As this issue involves a question of procedural fairness, it
is unnecessary to carry out a standard of review analysis. Rather, it is for
the Court to determine whether the Board’s reasons were sufficient, in all of
the circumstances.
[8]
The
crux of Mr. Domerson’s claim was his vulnerability as a mentally ill person.
While Mr. Domerson’s refugee claim was originally brought under section 97 of
the Immigration and Refugee Protection Act, as the matter unfolded
before the Board it became apparent that section 96 was also being relied upon
in relation to the claim. That is, the question was whether, as a mentally ill
Haïtian, Mr. Domerson was a member of a particular social group. Indeed, the
presiding member specifically acknowledged in his brief reasons that he was
obliged to consider the claim under both section 96 and 97 of IRPA,
should the evidence before the Board require it.
[9]
The
Board then went on to state that Mr. Domerson had not established that he faced
a serious possibility of persecution on a Convention ground. No explanation
whatsoever was provided for this conclusion, and no consideration was given as
to whether, as a person suffering from a serious mental illness, Mr. Domerson
could in fact be considered to be a member of a particular social group.
[10]
The
respondent argues that no further analysis was required in this case, as there
was no evidence before the Board that mentally ill individuals were
particularly marginalized or vulnerable to abuse in Haïti. While it is true
that no independent documentary evidence was put before the Board on this
point, Mr. Domerson’s Personal Information Form specifically states that those
perceived to be mentally ill are singled out for abuse in Haïti, particularly
by the police.
[11]
Insofar
as the section 97 claim was concerned, the Board found that what Mr. Domerson
faced in Haïti was generalized criminality. There is no discussion whatsoever
in the reasons as to whether Mr. Domerson would face a personalized risk in
Haïti, one not faced by the general population, as a result of his mental
illness.
[12]
Reasons
for a decision serve a number of beneficial purposes. Amongst other things,
they provide the parties with the assurance that their representations have
been considered: see VIA Rail Canada Inc. v. National Transportation Agency,
[2001] 2 F.C. 25 (C.A.).
[13]
In Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
the Supreme
Court of Canada
noted that clear reasons for a decision are especially important where, as
here, the decision has important ramifications for the individual in question.
According to the Court, “It would be unfair for a person subject to a decision
such as this one which is so critical to their future not be told why the
result was reached”: at para. 43.
[14]
The
reasons provided by the Board in this case are clearly inadequate, as they fail
to come to grips with the crux of Mr. Domerson’s claim for protection. As a
consequence, the application for judicial review is allowed.
Certification
[15]
Mr.
Domerson proposes the following question for certification:
Est-ce que les « fous »
en Haïte subissent le risque généralisé comme toutes catégories sociales?
[16]
Given
that the insufficiency of the Board’s reasons was the determinative issue on
this application, it has not been necessary to address the issue identified in
the question proposed by Mr. Domerson. As a result, I decline to certify the
question.
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