Date: 20110726
Docket: IMM-7290-10
[UNREVISED
ENGLISH CERTIFIED TRANSLATION] Citation: 2011 FC 931
Ottawa, Ontario, July 26,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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VEILLOT JASON
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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
ORDER AND ORDER
[1]
This
is a judicial review of a decision by a member of the Refugee Protection
Division of the Immigration and Refugee Board of Canada, with regard to docket MA8-00342,
dated November 22, 2010, that Mr. Jason, a citizen of Haiti, is neither a
Convention refugee nor a person in need of protection.
[2]
The
Board member determined that Mr. Jason is not credible, that he does not face a
personalized risk and that he does not have a subjective fear of persecution.
Facts
[3]
Mr.
Jason fled Haiti in 2006 because
he feared that he would be persecuted by two hoodlums known as Doudou and
Ti-Blanc by virtue of his part-time position as an articling student at
Port-au-Prince’s city hall from 1996 to 2000.
[4]
At
city hall, his work consisted of looking after adoption records and taking
statements when bandits were arrested near city hall.
[5]
In
1996, a known hoodlum named Doudou accosted and threatened Mr. Jason.
[6]
In
2006, Doudou once again accosted and threatened Mr. Jason, this time
accompanied by another known hoodlum named Ti-Blanc. Both of them took up
residence with other members of their gang in the neighbourhood where Mr. Jason
lived.
[7]
The
applicant fled Haiti for Canada because he feared for his
life. He arrived in Montréal on September 16, 2006.
Applicant’s credibility
[8]
The
applicant’s counsel cast doubt on some, but certainly not all, of the Board member’s
findings of fact. The omissions found are not serious enough to warrant
overturning the Board member’s decision.
[9]
It
appears from the decision that the Board member spent an inordinate amount of
time calculating the number of hours Mr. Jason worked per week, a point that is
nonetheless a peripheral detail. In addition, the Board member did not accept
the allegation that the mayor personally arrested bandits. That finding seems
to be the fruit of speculation rather than a reasonable finding based on established
facts.
[10]
However,
in spite of the statements by the applicant’s counsel that Mr. Jason’s
implausible claims could be explained, the fact remains that the applicant was
vague about the number of times he was accosted and threatened and by whom. Was
it only twice, in 1996 and in 2006? Had he been threatened in 1996, 1997, 1998
and 2006? Was it only Doudou and Ti-Blanc who had persecuted him? Were other
members involved?
[11]
It
should be noted that in Stein v. Kathy K (The), [1976] 2 S.C.R. 802,
[1975] S.C.J. No. 104 (QL), even though that case dealt with the findings of a
trial judge as opposed to an administrative tribunal, Justice Ritchie stated:
[7] In
this regard reference may be had to the case of S.S. Honestroom (Owners) v.
S.S. Sagaporack (Owners), [[1927] A.C. 37], where Lord Sumner said, at pp. 47-8:
... not
to have seen the witnesses puts appellate judges in a permanent position of
disadvantage as against the trial judge, and unless it can be shown that he has
failed to use or has palpably misused his advantage, the higher Court ought not
to take the responsibility of reversing conclusions so arrived at, merely on
the result of their own comparisons and criticisms of the witnesses and of
their own view of the probabilities of the case. The course of the trial and
the whole substance of the judgment must be looked at, and the matter does not
depend on the question whether a witness has been cross-examined to credit or
has been pronounced by the judge in terms to be unworthy of it. If his estimate
of the man forms any substantial part of his reasons for his judgment the trial
judge’s conclusion of fact should, as I understand the decisions, be let alone.
In The Julia, (1860) 14 Moo. P.C. 210, 235, Lord Kingsdown says:
They, who
require this Board, under such circumstances, to reverse a decision of the Court
below, upon a point of this description, undertake a task of great and almost
insuperable difficulty ... We must, in order to reverse, not merely entertain
doubts whether the decision is right, but be convinced that it is wrong.
(The
italics are my own).
In the
same case, Lord Sumner adopts the practice laid down by James L.J. in The Sir
Robert Peel, (1880), 4 Asp. M.L.C. 321, at p. 322, where he said:
The Court will not depart from the rule it has
laid down that it will not overrule the decision of the Court below on a
question of fact in which the judge has had the advantage of seeing the
witnesses and observing their demeanour, unless they find some governing fact
which in relation to others has created a wrong impression.
These
passages were expressly adopted by Martland J., when delivering judgment of
this Court in Prudential Trust Co. Ltd. v. Forseth, [[1960] S.C.R. 210.], at pp. 216-7, where he also adopted the following passage
from the judgment of Lord Shaw in Clarke v. Edinburgh Tramways Co. [[1919] S.C.
(H.L.) 35.], at p. 36, which is quoted by Lord Sankey in Powell v. Streatham
Manor Nursing Home, [[1935] A.C. 243.], at p. 250:
"Am I—who sits here without those advantages,
sometimes broad and sometimes subtle, which are the privilege of the Judge who
heard and tried the case—in a position, not having those privileges, to come to
a clear conclusion that the Judge who had them was plainly wrong? If I cannot
be satisfied in my own mind that the Judge with those privileges was plainly
wrong, then it appears to me to be my duty to defer to his judgment."
These
authorities are not to be taken as meaning that the findings of fact made at
trial are immutable, but rather that they are not to be reversed unless it can
be established that the learned trial judge made some palpable and overriding
error which affected his assessment of the facts. While the Court of Appeal is
seized with the duty of re-examining the evidence in order to be satisfied that
no such error occurred, it is not, in my view, part of its function to substitute
its assessment of the balance of probability for the findings of the judge who
presided at the trial.
[12]
In
Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, Justice Evans, then
of the Trial Division of the Federal Court, stated:
It is well established that
section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its
view of the facts for that of the Board, which has the benefit not only of
seeing and hearing the witnesses, but also of the expertise of its members in
assessing evidence relating to facts that are within their area of specialized
expertise. In addition, and more generally, considerations of the efficient
allocation of decision-making resources between administrative agencies and the
courts strongly indicate that the role to be played in fact-finding by the Court
on an application for judicial review should be merely residual. Thus, in order
to attract judicial intervention under section 18.1(4)(d), the applicant must
satisfy the Court, not only that the Board made a palpably erroneous finding of
material fact, but also that the finding was made "without regard to the
evidence"...
[13]
The
Board member’s findings that Mr. Jason was unable to demonstrate the existence
of a personalized risk and that he lacked a subjective fear of persecution are
reasonable.
[14]
He
came to Canada on a visitor’s visa, tried to renew it unsuccessfully and
remained in Canada without
status for a significant period of time before claiming refugee protection at
the inland Citizenship and Immigration Canada office in Montréal, on December
5, 2007. He is an educated man. He is able to submit his application for a
visitor’s visa but is unable to file a claim for refugee protection, at least
until a chance encounter with an old friend on a bus who provided him with the
necessary tools to do so. That is the opposite of common sense.
[15]
When
he is asked why he fears returning to Haiti, instead of talking
about his fear of the hoodlums Doudou and Ti-Blanc, he instead talks about
generalized crime. Such a situation does not give rise to a personalized risk
warranting the protection sought by the applicant.
[16]
It
seems that the reason why Mr. Jason is seeking refugee status is because he
simply wants a better life for himself, and for his spouse and son who are
still in Haiti.
ORDER
FOR THE
FOREGOING REASONS;
THE COURT
ORDERS that the application for judicial review be dismissed. There is
no serious question of general importance to certify.
"Sean Harrington"
Certified true
translation
Sebastian Desbarats,
Translator
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