Date: 20071207
Docket: IMM-6125-06
Citation: 2007 FC 1283
Ottawa, Ontario, December 7,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
LEONETTE PLANCHER
NERLANDE PLANCHER
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated August 8, 2006. The Board concluded that the applicants were neither
Convention refugees nor persons in need of protection, pursuant to sections 96
and 97 of the Act.
ISSUES
[2]
The
applicants raise two issues in the present application:
a) Did the Board
err in failing to appoint a designated representative?
b)
Did the Board err by
failing to perform a distinct analysis under section 97 of the Act?
[3]
The
application for judicial review shall be dismissed for the following reasons.
FACTUAL BACKGROUND
[4]
The
applicants in this case are Leonette Plancher, born May 30, 1972, and her minor
daughter Nerlande Plancher, born January 1, 1989. Both are citizens of Haiti. They seek
asylum under the Convention on the grounds of membership in a particular social
group and political opinion.
[5]
In
1988, the principal applicant married a man by the name of Romnel Plancher, who
remains in Haiti with the
couple’s son. Her
husband is a member of the “Association des planteurs agricoles du Môle Saint-Nicolas” (APAM),
an organization seeking to bring aid to local farmers. This organization
supported the political party “Organization du peuple en lutte” (OPL), and opposed
the Lavalas government.
[6]
On
January 28, 2003, while her husband was attending a meeting of the APAM and the
principal applicant was working as a merchant in a small business, the “chimères”, an
armed gang working for the Lavalas government, asked her where her husband
was. When she answered that she did not know, she was beaten and sexually
assaulted. The “chimères” stole money from the store where the principal
applicant worked and broke everything in their path.
[7]
On
January 30, 2003, the “chimères” went to her mother’s home to try and find Mr. Plancher.
They beat the principal applicant’s father and set fire to the house.
[8]
The
principal applicant left Haiti for the United States where she
arrived on March 8, 2003. She filed a claim for asylum in November of the same
year. The minor applicant left for the United States on November
28, 2004, claiming that she feared being assaulted by the “chimères” and other
armed groups.
DECISION UNDER REVIEW
[9]
The
Board rejected the applicants’ claim that they have a well founded fear of
persecution. The Board concluded that the applicants were not credible as to
the existence of subjective fear. The Board also concluded that because the
applicants were not credible, there was no risk to their lives or risk of cruel
and unusual treatment or punishment. The following reasons were given in
support of these conclusions:
a) The applicant
provided inconsistent information regarding the date in which she decided to
leave Haiti. First, she
stated that she took the decision on January 28, 2003. Shortly after, she
stated that she took the decision on February 28, 2003.
b) Insufficient
documentation was submitted in support of this claim. The only documents
before the Board were two documents containing requests to the minister for
assistance, and a birth certificate for the principal applicant. No
documentation was included regarding the OPL or the principal applicant’s
husband’s
association with the organization. No information was provided about the
business where the principal applicant worked. The principal applicant
submitted no medical documents or police reports regarding her assault. She
claimed to have sought medical help once in the United States, but
provided no document in support of this allegation.
c) The Board
drew a negative inference from the fact that Mr. Plancher remained in Haiti, despite the
fact that it was his alleged political involvement which was the source of the
family’s problems with the “chimères”.
d) The Board
noted the fact that the applicant made a claim for asylum in the United
States,
but received a negative decision in October 2004. A negative inference was
drawn from the fact that she remained in the United States until
November 28, 2005, despite the negative decision. She explained that her
lawyers advised her to stay until her appeals were exhausted, which they were
in September 2005. However, the additional two months of her stay were not
explained. Further, the asylum decision from the United States also
concluded that the applicant lacked credibility.
e) The risk
faced by the applicants is generalized. There is a serious risk of gang
violence faced by all Haitian citizens. The applicants failed to demonstrate
the existence of personalized risk.
RELEVANT LEGISLATION
[10]
Immigration
and Refugee Protection Act, 2001, c. 27.
|
167.
(2) If a
person who is the subject of proceedings is under 18 years of age or unable,
in the opinion of the applicable Division, to appreciate the nature of the
proceedings, the Division shall designate a person to represent the person.
|
167.
(2) Est
commis d’office un représentant à l’intéressé qui n’a pas dix-huit ans ou
n’est pas, selon la section, en mesure de comprendre la nature de la
procédure.
|
[11]
Refugee
Protection Division Rules, SOR/2002-228.
|
15. (3) To be designated as a
representative, a person must
(a) be 18
years of age or older;
(b) understand
the nature of the proceedings;
(c) be willing
and able to act in the best interests of the claimant or protected person;
and
(d) not have
interests that conflict with those of the claimant or protected person.
|
(3)
Pour être désignée comme représentant, la personne doit :
a)
être âgée de dix-huit ans ou plus;
b)
comprendre la nature de la procédure;
c)
être disposée et apte à agir dans l'intérêt de la personne en cause;
d)
ne pas avoir d'intérêts conflictuels par rapport à ceux de la personne en
cause.
|
ANALYSIS
Standard of Review
[12]
The
issues raised by the applicants are pure questions of law, and I find that both
are reviewable on the standard of correctness.
Did the Board err in
failing to appoint a designated representative?
[13]
The
applicant submits that the Board failed to appoint a designated representative
for the minor applicant, pursuant to section 167(2) of the Act and section 15
of the Refugee Protection Division Rules, SOR/2002-228 (the Rules). The
applicant cites Duale v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 178 (QL), 2004 FC 150, and Stumf v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 590 (QL), 2002 FCA 148,
in support of this position.
[14]
I
find that the Board did not err by failing to appoint a designated
representative. The record reveals that the principal applicant was designated
as the representative of the minor applicant. On January 20, 2006, a letter
was sent to the principal applicant naming her to this role. The letter, which
was also sent to her counsel, stated that she could refuse to assume this role
if she contacted the Refugee Protection Division within ten days of receiving
the letter. There is nothing in the file indicating that this letter was
never received by the principal applicant and her counsel. Since no
evidence is presented indicating the principal applicant’s refusal, I must
conclude that she accepted to act as the minor applicant’s designated
representative.
[15]
The
principal and minor applicants were represented by the same counsel and both
applicants gave evidence at the hearing. The minor applicant was 17 and
no issues with respect to the appointment of a designated representative were
raised in the proceedings (Singh v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No 151 (QL), 2006 FC 134).
Did the Board err by
failing to perform a distinct analysis under section 97 of the Act?
[16]
The
applicant submits that the Court has an absolute obligation to perform a
separate analysis of the applicants’ claim under section 97 of the Act in this
case. While the Court has indeed indicated that in cases where there is
credible evidence it may constitute an error not to perform a separate
analysis, the obligation is not absolute.
[17]
In
the present case, the Board concluded that there was a lack of credibility on
the part of the applicant, and as such, the member did not believe that there
was a serious risk of torture, risk to the applicants’ lives or a risk of cruel
and unusual treatment or punishment if they were to return to Haiti. If a
claimant has been found not credible, the Board is not required to perform a
separate analysis. This was confirmed in Kaur v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 2112 (QL), 2005 FC
1710, at para.16:
With respect to the lack of a distinct
analysis regarding subsection 97(1), the Board was entirely justified not to
undertake that exercise from the moment where it determined that the applicant
was not credible. If the Board was correct on that point, it is clear that the
applicant could not have been considered to be a person in need of protection.
Incidentally, that is what this Court has determined on numerous occasions: Bouaouni
v. Canada (Minister of Citizenship and
Immigration),
[2003] F.C.J. No. 1540; 2003 FC 1211 (QL); Soleimanian v. Canada (Minister
of Citizenship and Immigration), [2004] F.C.J. No. 2013; 2004 FC 1660 (QL);
Brovina v. Canada (Minister of Citizenship and
Immigration),
[2004] F.C.J. No. 771, 2004 FC 635 (QL).
[18]
Here,
the Board indicated why the applicants were not eligible to claim under section
97. The reasons are supported by the findings.
[19]
I
find that the Board did not commit a reviewable error.
[20]
No
question to be certified was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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