Date: 20080107
Docket: IMM-406-07
Citation: 2008 FC 1
Ottawa, Ontario, January
7, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
LIGENE
CIUS
Applicant
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 November 20, 2006. The Board concluded that the applicant was neither a
Convention refugee nor a person in need of protection, pursuant to sections 96
and 97 of the Act.
ISSUES
[2]
The
applicant raises five issues in the instant case. I would slightly reframe the
issues as follows:
a)
Did the
Board err by determining that Haitian returnees cannot constitute a particular
social group as required by section 96 of the Act?
b)
Did the
Board err by determining that the applicant did not face a particularized risk
under section 97, and is therefore not a person in need of protection?
c)
Did the
Board err by claiming that he had “specialized knowledge” of the facts?
d)
Did the
Board err by failing to consider any documentary evidence presented to him, or similar
decisions made by fellow Board members?
e)
Did the
Board member’s conduct at the hearing raise a reasonable apprehension of bias?
FACTUAL BACKGROUND
[3]
The
applicant is a citizen of Haiti. In 1992 he became involved in an
organization performing community work called “Coopérative Communautaire de
Dame Marie” (Cocodama), founded in 1987. The applicant also worked as a
cabinet maker, and in 1998 he opened his own store.
[4]
February
21, 1999, members of Cocodama set fire to his store, because the applicant sold
his products for a lower price than the members of the organization. He
therefore left Haiti on February 23, 1999,
and fled to the United
States.
[5]
While
in the United
States,
the applicant claimed refugee status but was rejected in 2001. He learned it
was possible to seek asylum in Canada and came here on May 15, 2006.
[6]
In
addition to his fears based on the incident with Cocodama, the applicant claims
that he fears the Chimères,
armed gangs, and other criminals in Haiti who target Haitians who have been abroad, foreigners,
and anyone who they perceive to have wealth.
DECISION UNDER REVIEW
[7]
The
Board delivered its reasons orally, refusing the applicant’s claim because he
was not found to be credible. The Board made the following negative
credibility findings:
a) The applicant
testified that he was asked by Cocodama to close his shop in March 1998.
However, he also stated that his store did not open until April 1998. He was
unable to explain this contradiction to the satisfaction of the Board.
b) The applicant
stated that his problems began in 1998, while in his U.S. refugee
claim he stated that his problems began in September 1991. Further, the Board
found that the substance of his claim in the United States was different from
the one made in Canada. The Board did not accept his explanation that
the person who filled out the application form on his behalf in the United
States
did not understand Creole well enough. The member did not believe that he
would have allowed the form to be submitted without knowing its contents.
c) The Board did
not believe that the members of Cocodama would pursue the applicant across the
whole country if he sought refuge elsewhere than in Port-de-Paix, where he
brought his family after his business was destroyed. The members of Cocodama
simply wanted him to close his business, and that he could have continued to
work as a cabinet maker elsewhere without the risk if being killed or
threatened. The Board also did not believe that Cocodama would still be
looking for him if he returned to his country of origin.
d) The Board
drew a negative inference from the fact that the applicant withdrew political opinion
as a ground upon which he feared persecution. In essence, the applicant claim
was solely based on the fact that he lived abroad.
[8]
The
Board also rejected the claim on the ground that the applicant was not a member
of a particular social group for the purposes of section 96, and would not be
subject to any particularized risk for the purposes of section 97.
[9]
Before
making an application for judicial review of the case, the applicant sought to
have the hearing reopened, on the grounds that the member’s behaviour at the
hearing had violated his right to natural justice. The applicant objected to the
failure of the Board to follow the decision of the Supreme Court of Canada in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, as well as the Board’s reliance on
“specialized knowledge” without allowing the applicant the opportunity to
present evidence to the contrary.
[10]
The
Board provided written reasons for rejecting the reopening request, stating
that the only reason for which the Board may reopen its enquiry is a violation
of natural justice. No violation was found in the present case.
RELEVANT LEGISLATION
[11]
Immigration
and Refugee Protection Act, 2001, c. 27.
|
170. The Refugee Protection
Division, in any proceeding before it,
(i)
may take notice of any facts that may be judicially noticed, any other
generally recognized facts and any information or opinion that is within its
specialized knowledge.
|
170. Dans toute affaire dont
elle est saisie, la Section de la protection des réfugiés :
i)
peut admettre d’office les faits admissibles en justice et les faits
généralement reconnus et les renseignements ou opinions qui sont du ressort
de sa spécialisation.
|
[12]
Refugee
Protection Division Rules, SOR/2002-228.
|
18. Before using any
information or opinion that is within its specialized knowledge, the Division
must notify the claimant or protected person, and the Minister if the
Minister is present at the hearing, and give them a chance to
(a)
make representations on the reliability and use of the information or
opinion; and
(b)
give evidence in support of their representations.
|
18. Avant d'utiliser un
renseignement ou une opinion qui est du ressort de sa spécialisation, la
Section en avise le demandeur d'asile ou la personne protégée et le ministre
— si celui-ci est présent à l'audience — et leur donne la possibilité de :
a)
faire des observations sur la fiabilité et l'utilisation du renseignement ou
de l'opinion;
b)
fournir des éléments de preuve à l'appui de leurs observations.
|
ANALYSIS
Did
the Board err by determining that Haitian returnees cannot constitute a
particular social group as required by section 96 of the Act?
[13]
Whether
Haitian citizens who return to Haiti after a stay abroad constitute a
particular social group is a pure question of law, and is reviewable on the
standard of correctness (Singh v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 977 (QL), 2007 FC 732
at para. 20.
[14]
The
applicant submits that Haitians returning to their home country are part of a
particular social group, namely Haitian returnees. People returning to Haiti are at
particular risk of kidnapping and other forms of violence because the “Chimères” and street gangs
target people from whom they believe they will successfully extort a ransom. In making
this argument, the applicant relies on the definition of “particular social
group” adopted by the Supreme Court of Canada in Ward, above. The
relevant passage is the following (at para. 70):
The meaning assigned to "particular
social group" in the Act should take into account the general underlying
themes of the defence of human rights and anti-discrimination that form the
basis for the international refugee protection initiative. The tests proposed
in Mayers, supra, Cheung, supra, and Matter of Acosta, supra,
provide a good working rule to achieve this result. They identify three
possible categories:
(1) groups defined by an innate or
unchangeable characteristic;
(2) groups whose members voluntarily
associate for reasons so fundamental to their human dignity that they should
not be forced to forsake the association; and
(3) groups associated by a former
voluntary status, unalterable due to its historical permanence.
The first category would embrace
individuals fearing persecution on such bases as gender, linguistic background
and sexual orientation, while the second would encompass, for example, human
rights activists. The third branch is included more because of historical
intentions, although it is also relevant to the anti-discrimination influences,
in that one's past is an immutable part of the person.
[15]
Counsel
for the applicant relies on the very last sentence of this quote and makes a
persuasive submission that the fact of having travelled or sought asylum in
another country is an immutable part of a person’s past, and therefore the
applicant is part of a group defined by an innate characteristic.
[16]
The
respondent, on the other hand, would simply qualify the proposed group as
people who are perceived to be wealthy.
[17]
While
I appreciate the additional dimension that the applicant has brought to the
submission by arguing that a person’s past cannot be changed, I cannot accept
the applicant’s argument. The passage from Ward, above relied upon by
the applicant, is discussed in the context of social groups being limited and
informed by anti-discrimination notions. The Supreme Court also writes in Ward,
above at para. 64:
[…] In distilling the contents of the
head of "particular social group", therefore, it is appropriate to
find inspiration in discrimination concepts. Hathaway, supra, at pp.
135-36, explains that the anti-discrimination influence in refugee law is
justified on the basis of those sought to be protected thereby:
The early refugee accords did
not articulate this notion of disfranchisement or breakdown of basic membership
rights, since refugees were defined simply by specific national, political, and
religious categories, including anti-Communist Russians, Turkish Armenians,
Jews from Germany, and others. The de facto
uniting criterion, however, was the shared marginalization of the groups in
their states of origin, with consequent inability to vindicate their basic
human rights at home. These early refugees were not merely suffering persons,
but were moreover persons whose position was fundamentally at odds with the
power structure in their home state. It was the lack of a meaningful stake in
the governance of their own society which distinguished them from others, and
which gave legitimacy to their desire to seek protection abroad.
[18]
The
violence to which the applicant might be subject is generalized. It is the
fallout of criminal activity, and not the targeting of a particular group in a
discriminatory fashion. As a group, people who are perceived to be wealthy are
not marginalized in Haiti; rather they are more frequent targets of
criminal activity. The perception of wealth is insufficient to sustain the
position that Haitian returnees constitute a social group.
[19]
The
harm feared is criminal in nature, and has no nexus to the Convention refugee
definition. In a recent decision Étienne v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 99 (QL), 2007 FC 64, Justice Shore dealt
with the argument that wealth constitutes a particular social group:
[15] Mr. Étienne's allegation,
that the Board erred when it determined, that his claim provided no nexus to a
Convention ground as required under section 96 of IRPA, is unfounded. The Board
was justified in concluding that gaining wealth or winning a lottery does not
constitute membership in a particular social group.
[16] In Moali de Sanchez v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 183, [2001] F.C.J. No. 375, Justice Yvon Pinard rejected the extended
interpretation of the concept of a social group:
[6] I also find that the RD's
second conclusion is free of error. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the
Supreme Court of Canada rejected the extended
interpretation of the concept of a social group. The status of a landed
proprietor does not in any way fall within the "general underlying themes
of the defence of human rights and anti-discrimination" (Ward,
supra, at 739) and is not a "characteristic of personhood not
alterable by conscious action and in some cases not alterable except on the
basis of unacceptable costs" (Ward, supra, at 738). The tribunal
also referred to Wilcox v. Canada (Minister of Employment and Immigration), November 2, 1993, [1993]
F.C.J. No. 1157, A-1282-92, in which Reed J. found as follows at paras. [3]:
I interpret the Tribunal's
decision as finding that there was no evidence that the Peruvian upper middle
class is subject to any greater level of (what the Tribunal referred to as)
depredation than others in Peruvian society generally. I interpret the
Tribunal's decision as finding that the Sendero Luminosa are raining terror on
everyone in Peru. While the type of danger
which the applicants fear (extortion) may only be operative against the rich,
this does not mean that the applicants have been or will be subject to
persecution in the convention refugee sense. [Emphasis added]
[20]
It
is clear from the Court’s reference to Ward, above, that the protection
afforded under the Convention is intended to provide protection on the grounds
of human rights and anti-discrimination considerations, and not general
criminality.
[21]
It
is my opinion that the Board did not err on this question, and that people
returning to Haiti after a stay
abroad do not constitute a particular social group within the meaning of
section 96 of the Act.
Did
the Board err by determining that the applicant did not face a particularized
risk under section 97, and is therefore not a person in need of protection?
[22]
Whether
or not the Board erred in determining that the perception of wealth does not
constitute a particularized risk under section 97 of the Act is a pure question
of law, and should, as above be determined according to the standard of
correctness.
[23]
It
is my opinion that the Board did not err by determining that the applicant did
not face a particularized risk upon his return. Because section 97 does not
require a nexus between the fear and Convention grounds, it may appear to be a more
promising route by which the applicant may be granted asylum. However, as
discussed above, the risk faced by the applicant is generalized. The risk of
violence is one which every person in Haiti faces. The documentary
evidence submitted in support of this case indicates that there is a serious
risk to the personal safety of all in Haiti. The United Nations
High Commissioner for Refugees (UNHCR) has recommended the suspension of forced
returns to Haiti.
[24]
The
Travel Reports issued by Foreign Affairs and International Trade Canada, as of May
31, 2006, contained the following warnings:
La situation est dangereuse et
imprévisible. Les enlèvements et les détournements de voiture sont fréquents
en Haïti. La grande majorité des victimes sont des gens d’affaires haïtiens.
Cependant, des ressortissants étrangers, dont des Canadiens, ont été visés,
ainsi que des missionnaires, des travailleurs de l’aide humanitaire et des
enfants. Les personnes ayant des intérêts commerciaux en Haïti semblent
être les principales cibles.
[…]
La criminalité est endémique dans tout le
pays, mais surtout dans les grands centres comme le centre-ville de
Port-au-Prince et de Gonaïves, où sévissent des gangs armés extrêmement
dangereux.
[25]
While
the documentary evidence establishes serious risks associated with living or
traveling in Haiti, the
evidence indicates that the upheaval faced by Haitian citizens is generalized.
There is no mention that there is a particular risk to Haitian returnees, nor
is there mention that Haitian returnees are perceived to possess wealth.
Granted that this premise is unsubstantiated by the applicant, it is my opinion
that there are insufficient grounds to find that Haitian returnees face a
particularized threat of violence.
[26]
In
light of the volatile conditions in Haiti, it is a matter of
government policy to protect Haitian citizens from a general threat of
criminality. Following the Recommendations on the treatment of Haitian asylum-seekers,
issued by UNHCR on February 26, 2004, Citizenship and Immigration Canada has
issued a Temporary Suspension of Removals to Haiti, until
conditions improve.
Did
the Board err by claiming that he had “specialized knowledge” of the facts?
[27]
The
requirements when relying of specialized knowledge are outlined in section 170
of the act and at Rule 18. In the instant case, the applicant submits that the
Board member relied on specialized knowledge without giving required notice,
and that he erred by taking notice of information which could not be treated as
specialized.
[28]
The
objectionable passage reads as follows:
[…] D’autant plus qu’il est de la
connaissance spécialisée de ce tribunal qu’en Haïti on enlève peu importe le
statut social de la personne qui est enlevée. En effet, en Haïti, il y aurait
autant sinon plus d’enlèvements à Cité Soleil que partout ailleurs.
[29]
The
respondent submits that the Board’s finding that individuals of all social
backgrounds are kidnapped in Haiti and the finding that the slum of Cité Soleil is one of the
most dangerous parts of the country are not truly based on specialized
knowledge. The respondent submits that the Board based the statement on
documentary evidence provided by the applicant, and the description of the
knowledge as “specialized” is an unfortunate mischaracterization. In support
of this submission the respondent cites four excerpts from the documentary
evidence contained in the applicant’s record in which Cité Soleil is mentioned,
and characterized by the violent acts which have occurred there. The
respondent cites Qu v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 124
(QL), 2006 FC 107 as a precedent in which the Court found that information was
wrongly labeled to be specialized knowledge, but that the mischaracterization
was immaterial.
[30]
I
agree with the respondent’s submissions on this point. In my opinion, the
reference to specialized knowledge was simply a mischaracterization and the
applicant certainly had the opportunity to take notice of facts which he
submitted himself.
[31]
This
mischaracterization appears to be a result of the lack of precision which can sometimes
result from rendering a decision by means of oral reasons. Justice Martineau recently
warned that decisions rendered orally can sometimes be clumsy (Gutierrez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1192, [2007] F.C.J. No. 1537 (QL)):
[13] En terminant, je note que les
motifs du commissaire Lapommeray ont été prononcés de vive voix à l’audition.
Ceci comporte bien entendu le risque d’un débat éventuel devant cette Cour sur
le sens exact à donner à certaines formulations qui peuvent être quelque peu
boiteuses dans les motifs oraux. […]
[32]
In
any case, the error is immaterial and does not reach the threshold of a reviewable
error.
Did
the Board err by failing to consider any documentary evidence presented to him,
or similar decisions made by fellow Board members?
[33]
The
applicant submits that the reasons made no mention of the documentary
evidence. Generally, failure to consider the evidence constitutes a patently unreasonable
error. However, I can find no indication that the Board failed to consider the
evidence before him. The Board is presumed to have considered all of the
evidence on the record, and is not obligated to address each piece of evidence
in the reasons (Woolaston v. Canada (Minister of Manpower and Immigration),
[1973] S.C.R. 102; Hassan v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 946 (F.C.A.) (QL)). A review
of the documentary evidence, when compared with the conclusions of the Board on
the first two issues, convinces me that the evidence was considered by the
Board.
[34]
The
applicant further submits that the Board erred by failing to consider the
decisions of other Board members on cases with similar facts, which arrived at
opposite conclusions regarding objective conditions. The applicant includes in
the record three previous decisions of the Board in which Haitian claimants are
found to be at risk on the ground that they are returning to Haiti from abroad.
In support of the argument, the applicant cites the recent decision by this
Court in Siddiqui v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 9 (QL), 2007 FC 6, in
which Justice Phelan writes:
[15] In the Board's detailed
reasoning as to why it accepted the Respondent's conclusion of reasonable
grounds to believe and in its review of the documentary evidence, it makes no
reference to the reasoning in the Memon case or explain on what basis it
differed from the Memon case.
. . .
[17] There is no strict legal requirement
that the Board members must follow the factual findings of another member. This
is particularly so where there is one of the "reasonableness"
standards in play -- reasonable people can reasonably disagree.
[18] What undermines the Board's decision
is the failure to address the contradictory finding in the Memon
decision. It may well be that the member disagreed with the findings in Memon
and may have had good sustainable reasons for so doing. However, the Applicant
is entitled, as a matter of fairness and the rendering of a full decision, to
an explanation of why this particular member, reviewing the same documents on
the same issue, could reach a different conclusion.
[19] The failure to explain the basis for
the different conclusion undermines the integrity of Board decisions and gives
them an aura of arbitrariness which is no doubt not intended nor is it
acceptable.
[Emphasis added]
[35]
In
response, the respondent submits that the Board is not bound by decisions made
by another panel. I agree. Although it would have been preferable to
distinguish these cases with the present one, I think that it is for each Board
member to make its decision based on the evidence before her or him. In the
case at bar, the Board assessed the applicant’s story and found him not
credible due to inconsistencies, implausibilities and incoherence in his claim.
[36]
Therefore,
the Board’s failure to make reference to the other decisions is immaterial.
Did
the Board member’s conduct in the hearing raise a reasonable apprehension of
bias?
[37]
Finally
the applicant submits that the conduct of the Board member at the hearing, in
combination with his reasons, raise a reasonable apprehension of bias. The
contentious part of the hearing is reproduced below (the Board member
questioning, and counsel for the applicant responding, Tribunal record, pages
156 and 157):
Q.
Alors, vous
êtes en train de me dire qu’une personne qui… c’est immuable que la personne en
question doit sortir de son pays?
R.
Non non ce
n’est pas ce que j’ai dit. J’ai dit le fait qu’il est sorti de son pays et le
fait qu’il soit déjà sorti de son pays est immuable.
- Ah bon.
R. C’est une caractéristique
maintenant qui fait partie de la personne.
- Ah bon.
Q. Et le, le fait qu’il doit être
remis à son pays est aussi immuable?
[38]
The
applicant submits that by questioning whether it was innate in the
applicant to want to leave Haiti was sarcastic and pejorative. By asking
whether it is innate to the applicant that he is going to be sent back the
Board member showed that he had a closed mind.
[39]
The
respondent submits that by not raising the issue at the hearing, the applicant
has waived his right to argue bias on judicial review. In the alternative, the
respondent submits that the record does not reveal a reasonable apprehension of
bias.
[40]
The
test that must be satisfied in order to establish a reasonable apprehension of
bias is as follows: would an informed person viewing the matter realistically
and practically and having thought the matter through, think it more likely
than not that the decision-maker would unconsciously or consciously decide an
issue unfairly (Newfoundland Telephone Co. v. Newfoundland (Board of
Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 636).
[41]
It
is my opinion that the applicant did not waive his right to raise the question
of apprehension of bias in the instant case. The Court has found that an
apprehension of bias must be raised at the earliest practicable opportunity (Benitez
v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 631 (QL), 2006 FC 461
at paragraph 220; Uppal v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 455 (QL), 2006 FC 338 at paragraph 52; Mohammadian v. Canada (Minister of
Citizenship and Immigration), [2000] 3 F.C. 371 (T.D.) aff'd., [2001] 4
F.C. 85 (C.A.)).
[42]
It
is sufficient that the applicant raised the question of bias before this
Court. It would be overly burdensome to require the applicant to raise the
issue of bias of the Board member at the time of the hearing, which in this
case was under an hour in duration. Further, in Benitez, above, Justice
Mosley writes:
[222] I wish to stress, however, that
the operation of the doctrine of waiver does not preclude an applicant from
arguing that the manner in which the hearing was conducted breached the duty of
fairness by reason of, for example, badgering cross-examination as was found in
Herrera, if that ground is otherwise properly before the Court.
[43]
We
are clearly in the presence of an argument that the duty of fairness was
breached by the manner in which the hearing was conducted.
[44]
I
will therefore proceed to the respondent’s second argument. After having read
the transcript thoroughly, I conclude that there is no reasonable apprehension
of bias in the present case. Without having the audio transcript, it is
difficult for me to say if the comments of the Board member were unprofessional
or inappropriate. Therefore, I am not convinced that they would indicate that
he was unable of deciding the issue fairly. It is always an obligation by the
Board to evaluate each case on its own merits, and avoid making comments that
could so much as be perceived as biased.
[45]
For
the reasons above, the application for judicial review will be dismissed.
[46]
The
applicant proposed the following two questions for certification:
1.
Can a
characteristic which is in part defined by a group’s life experience
be an unchangeable characteristic defining it as a social group?
2.
Does the
principle of collegiality create a reasonable expectation that a member of
the Immigration and Refugee Board, Refugee Protection Division should
consider reasons for decision issued by his colleagues on an issue he is
to determine, if these reasons have been put before him and relied on by
a refugee claimant?
[47]
The
respondent objects to the certification of the proposed questions. I agree
with the respondent. These questions do not raise a serious issue of general
importance and do not transcend the case at bar.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Michel
Beaudry”
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