Date: 20110106
Docket: IMM-2214-10
[UNREVISED CERTIFIED
ENGLISH TRANSLATION] Citation: 2011
FC 7
Ottawa, Ontario, January 6, 2011
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
DILANO
GILLES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review of a decision of
a member of the Refugee Protection Division (RPD) of the Immigration
and Refugee Board (IRB) under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. (2001), c. 27 (the Act), by Dilano Gilles (the
applicant). The panel determined that the applicant was neither a refugee nor a
person in need of protection and therefore rejected his claim for refugee protection.
* * * * * * * *
[2]
The
applicant is a citizen of Haiti who was born on November 15, 1958. He is a
farmer and has lived in Croix-des-Bouquets his entire life. He is illiterate.
[3]
In
his Personal Information Form, the applicant alleged that armed men had been
looking for him and that he had had to hide at his in-laws’ for two months. He
claimed to fear being attacked by men in the army. He noted the extreme violence
that is rampant in Haiti and claimed he had no other choice but to leave.
[4]
The
applicant’s first hearing before the RPD was held on August 18, 2008, at which
the applicant represented himself, due to the fact that his counsel had
withdrawn at the last minute. The panel proceeded anyway and rejected his claim.
That decision was set aside by this Court, with the consent of both parties, on
September 29, 2009, for breach of natural justice.
[5]
The
applicant was represented at the second hearing, which was held on March 24,
2010, and an oral decision was rendered at the end of it.
* * * * * * *
*
[6]
The
panel took into account the circumstances of the first decision that had been
set aside as well as the applicant’s personal circumstances, including his
illiteracy. The panel expressly stated its intention to make sure the applicant
understood its decision.
[7]
The
panel found the applicant’s testimony to be clear with regard to the point
that, in the end, he did not fear anything if he were to return, other than the
general climate in Haiti and the fact that he would find it difficult to move
back there. When the panel asked him if there were individuals he feared the
applicant replied “no”.
[8]
Without
examining the credibility of the various allegations made by the applicant, the
panel noted that the onus was on him to establish a well-founded fear of
returning to his country of citizenship, which he did not succeed in doing. The
panel also found that the applicant had made no reference to any fear with
regard to the reasons for which he would allegedly be persecuted and that he
had not established that it was more likely than not that his life would be at
risk or that he would be subjected to a danger of torture if he were to return
to Haiti.
* * * * * * *
*
[9]
The
following paragraphs from the Guideline on Procedures with Respect to Vulnerable
Persons Appearing Before the IRB (December 15, 2006), issued by the
Chairperson of the IRB pursuant to paragraph 159(1)(h) of the Act (the
Guideline), are also relevant:
|
Definition
of Vulnerable Persons
2.1 For
the purposes of this Guideline, vulnerable persons are individuals whose
ability to present their cases before the IRB is severely impaired. Such
persons may include, but would not be limited to, the mentally ill, minors,
the elderly, victims of torture, survivors of genocide and crimes against
humanity, and women who have suffered gender-related persecution.
|
|
General
Principles
5.1 A
person may be identified as vulnerable, and procedural accommodations made,
so that the person is not disadvantaged in the presentation of their case.
The identification of vulnerability will usually be made at an early stage,
before the IRB has considered all the evidence in the case and before an
assessment of the person’s credibility has been made.
|
|
Early
identification
7.1 A
person can be identified as vulnerable at any stage of the proceedings. It
is preferable to identify vulnerable persons at the earliest opportunity.
|
|
7.2 In
the course of early review of the file, the IRB may find information which
discloses that the ability of the person to present their case may be
severely impaired. The IRB may initiate early contact with the person, the
designated representative, counsel or any other person to gather evidence
which is relevant to whether the individual should be identified as a
vulnerable person and which is relevant to the types of procedural
accommodations which might be made.
|
|
7.3 Counsel
for a person who may be considered vulnerable is best placed to bring the
vulnerability to the attention of the IRB, and is expected to do so as soon
as possible. Others who are associated with the person or who have
knowledge of facts indicating that the person may be vulnerable (counsel
for the Minister or any other person) are encouraged to do the same.
Wherever it is reasonably possible, independent credible evidence
documenting the vulnerability must be filed with the IRB Registry.
|
|
7.4 Counsel
for a person who wishes to be identified as a vulnerable person must make
an application under the Rules of the Division. The application must specify
the nature of the vulnerability, the type of procedural accommodations
sought and the rationale for the particular accommodations. The IRB will be
sensitive to the barriers that may be created by the formal requirements
related to making applications in the case of unrepresented persons and
other situations and will waive or modify the requirements or time limits
set out in the Rules, as appropriate. The IRB may also act on its own
initiative.
|
|
|
Définition
d’une personne vulnérable
2.1 Pour
l’application des présentes directives, une personne vulnérable s’entend de
la personne dont la capacité de présenter son cas devant la CISR est
grandement diminuée. Elle peut, entre autres, être atteinte d’une maladie
mentale; être mineure ou âgée; avoir été victime de torture; avoir survécu
à un génocide et à des crimes contre l’humanité; il peut aussi s’agir d’une
femme qui a été victime de persécution en raison de son sexe.
|
|
Principes
généraux
5.1 Une
personne peut être identifiée comme étant vulnérable et peut faire l’objet
d’adaptations particulières sur le plan procédural, de manière à ne pas
être désavantagée dans la présentation de son cas. L’identification de la
vulnérabilité est habituellement faite au début du processus, avant que la
CISR ait examiné tous les éléments de preuve du cas et que la crédibilité
de la personne soit évaluée.
|
|
Identification
à la première occasion
7.1 Une
personne peut être identifiée comme étant vulnérable à n’importe quelle
étape des procédures. Il est préférable d’identifier une personne comme
étant vulnérable le plus tôt possible.
|
|
7.2 Lors
de l’examen du dossier en début de processus, la CISR peut trouver de
l’information qui révèle que la capacité de la personne de présenter son
cas peut être grandement diminuée. En début de processus, la CISR peut
amorcer des contacts avec la personne, le représentant désigné, le conseil
ou toute autre personne pour recueillir des éléments de preuve pertinents
en vue de déterminer si la personne devrait être identifiée comme étant
vulnérable de même qu’établir le genre d’adaptations d’ordre procédural qui
pourraient être appliquées.
|
|
7.3 Le
conseil de la personne pouvant être identifiée comme étant vulnérable est
le mieux placé pour porter sa vulnérabilité à l’attention de la CISR, et il
devrait le faire le plus rapidement possible. Les personnes associées à
cette personne ou qui connaissent des faits indiquant qu’elle pourrait être
vulnérable (conseil du ministre ou toute autre personne) sont encouragées à
en faire autant. Lorsque c’est raisonnablement possible, des éléments de
preuve crédibles et indépendants établissant la vulnérabilité doivent être
déposés auprès du greffe de la CISR.
|
|
7.4 Le
conseil d’une personne qui souhaite être identifiée comme étant une personne
vulnérable présente une demande à cet effet en vertu des Règles de la
Section. La demande doit préciser la nature de la vulnérabilité, le genre
d’adaptation d’ordre procédural recherché ainsi que la raison. La CISR est
sensibilisée aux obstacles que peuvent créer les exigences officielles
liées à la présentation de demandes dans le cas de personnes non
représentées et d’autres situations; elle donne une dispense ou modifie les
exigences ou les délais établis dans les Règles, au besoin. La CISR peut également
agir de sa propre initiative.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* * * * * * * *
[10] The only
issue is whether the panel correctly applied this Guideline.
[11] According to Hernandez
v The Minister of Citizenship and Immigration, 2009 FC 106, at paragraph
12, and Sharma v The Minister of Citizenship and Immigration, 2008 FC
908, at paragraphs 14 to 16, this kind of issue, i.e. the application of the
Guideline, is reviewable on a standard of correctness because it is a question
of procedural fairness.
* * * * * * *
*
[12] The applicant
argues that the panel did not correctly apply the Guideline in the case at bar
and that its decision should therefore be set aside. Counsel for the applicant
contends, without being specific, that his client showed all the signs of a vulnerable
person who was mentally troubled and who could not testify calmly. The
applicant’s counsel also argues that the panel should have suggested that the
hearing be postponed in order for the applicant to undergo a psychological
assessment, in accordance with the Guideline, adding that the panel had erred
by not mentioning the Guideline.
[13] For his part,
the respondent argues that, in the first place, the applicant in no way
challenges the RPD’s findings or the facts and elements on which they are
based. On this point, I do not agree since the applicant is alleging that there
was a breach of procedural fairness with regard to the applicant’s testimony on
which the decision was based. In my view, it is implied that the applicant is
challenging the findings that are based on this testimony, which he considers
to be tainted by a lack of procedural fairness.
[14] The
respondent further argues that the applicant’s allegations are gratuitous and
far too general. He submits that the simple fact that the applicant is illiterate
does not make him a “vulnerable” person and that, at any rate, the panel
specifically took the applicant’s illiteracy into consideration when it took
pains to clearly explain the process.
[15] The
respondent adds that if the applicant had any other difficulties, other than
his illiteracy, for which he could be considered to be a vulnerable person, it
was up to his counsel to request that the hearing be postponed in order for him
to undergo a psychological assessment. The respondent specifically cites
paragraphs 7.3 and 7.4 of the Guideline, which note that counsel for the applicant
is best placed to bring his vulnerability to the attention of the panel and is
expected to do so as soon as possible. Paragraph 7.4 sets out that counsel for
the applicant must then make an application under the Rules of the RPD,
specifying the nature of the vulnerability as well as the type of procedural
accommodations sought and the rationale for the particular accommodations. The
respondent notes that counsel for the applicant, who had been representing him
for several months before the hearing, did not mention having made such an
application, even though he was the one who knew the most about his client’s
mental state and illiteracy.
[16] The
respondent also notes that it is apparent from the reasons that, in spite of
the absence of such an application on the part of the applicant, the panel did
consider his personal situation, i.e. his illiteracy and the difficulties he
had had at the first hearing. Lastly, the respondent argues that the applicant
had ample time to tell his story and provide explanations during the proceeding,
and that the applicant in no way indicated how he might have been prevented
from doing so.
[17] I agree with
the respondent on these other issues, particularly given the transcript of the
hearing before the panel. It is apparent from the panel’s reasons that it was
sensitive to the applicant’s limitations at the hearing and that it tried to
take his difficulties into consideration. While the Guideline notes that the
panel may raise the issue of vulnerability on its own initiative, it is clear
that the same Guideline places the greater part of the burden on the
applicant’s counsel, who, in the case at bar, did nothing at the time to raise
the issue of the applicant’s mental condition before the panel. The panel
apparently did not notice anything abnormal about the applicant’s mental state,
and so the burden was on counsel to refer to the Guideline, which he did not do.
In my opinion, there was no error in the case at bar and the panel acted
correctly.
* * * * * * *
*
[18] For the
above-mentioned reasons, the application for judicial review is dismissed.
[19] I agree with
counsel for the parties that there is no question for certification arising
from the matter.
JUDGMENT
The
application for judicial review of the decision of the member of the
Immigration and Refugee Board’s Refugee Protection Division dated March 26,
2010, is dismissed.
“Yvon
Pinard”
Certified true
translation
Sebastian Desbarats,
Translator
Email this Content