Docket: IMM-793-13
Citation:
2014 FC 381
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 30, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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EDGARD DEYO
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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 JUDGMENT AND JUDGMENT
I.
Preliminary comments
[1]
The Court is very aware of the fact that major
abuses have been perpetrated against foreign domestic workers in certain
embassies in Canada.
[2]
This is a concern given known cases in which such
abuse has led tribunals to conclude that certain employees, in certain
embassies, were mistreated to such an extent that Canada’s Department of
Foreign Affairs, Trade and Development temporarily prohibited certain embassies
from bringing domestic workers to Canada and issued a news release setting out
the legal rights of domestic workers that must be respected by foreign
embassies in Canada.
[3]
According to the missing evidence, that was not
the situation in this case. The applicant’s record was finalized by the Court
without a conclusion regarding the “investigation” to be held as promised by
the authorities in the applicant’s country of origin. Hopefully, an impartial investigation
will indeed be conducted in fact and in law.
II.
Introduction
[4]
The Court reiterates that administrative
tribunals have a broad discretion when it comes to questions of fact (Aguebor
v Canada (Minister of Employment and Immigration) (1993), 160 NR 315 (FCA)).
It is therefore not the role of this Court to substitute its reasoning for that
of the Refugee Protection Division [RPD] of the Immigration and Refugee Board
[Board] or to reweigh the evidence in this case.
[5]
Justice Michael Phelan clearly stated the
following in Siddiqui v Canada (Minister of Citizenship and Immigration),
2007 FC 6:
[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. [Emphasis
added.]
[6]
This is an application for judicial review of a
decision rendered by the RPD on December 14, 2013, by the RPD in which it
held that the applicant was neither a refugee within the meaning of
section 96 nor a person in need of protection within the meaning of
section 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
III.
Facts
[7]
The applicant, Edgard Deyo, is a citizen of
Benin. His wife and two children are still living in Benin.
[8]
The applicant arrived in Canada on
January 22, 2008, to work in the Embassy of Benin in Canada as a cook.
[9]
From January 22 to June 30, 2009, the
applicant was allegedly subjected to abuse by the Ambassador, and, more
specifically, his spouse, who hit him and threatened him on several occasions.
The applicant describes his experience as one of “slavery”.
[10]
On June 30, 2009, the applicant quit the
Embassy and filed a complaint with Canada’s Department of Foreign Affairs and
International Trade [DFAIT]. A few days later, the applicant made a claim for
refugee protection.
[11]
On May 27, 2012, Benin’s Head of State
allegedly contacted the applicant, through Ms. Dossa, an accountant at the
Embassy, to inform him that she was conducting an investigation into the
complaints filed against the Embassy, and to ask him to come and testify about
his experience at the Embassy. The applicant refused to participate in this
investigation.
[12]
On December 14, 2012, the RPD rendered its
decision, concluding that the applicant was neither a refugee nor a person in
need of protection.
[13]
On January 30, 2013, the applicant filed
this application for judicial review against that decision.
IV.
Decision under review
[14]
The RPD concluded that the applicant was neither
a Convention refugee nor a person in need of protection within the meaning of
section 97 of the IRPA because he had failed to establish that he would be
subjected to a risk of persecution in Benin directly or indirectly by the
Ambassador or his spouse. The evidence submitted by the applicant relating to
corruption in Benin and the mistreatment suffered by its citizens was
considered inadequate, and even non-existent.
[15]
The RPD also found that it was unreasonable of
the applicant to refuse the protection offered by Benin’s Head of State after
filing his complaints with DFAIT. The RPD was of the view that the Beninese
authorities had considered his complaints as serious and important, even
inviting him to participate in an investigation.
V.
Issues
[16]
The issues in this case are as follows:
(a)
Did the RPD err in determining that the
applicant’s objective fear was not well founded?
(b)
Did the RPD ignore the evidence before it?
VI.
Relevant legislative provisions
[17]
Sections 96 and 97 of the IRPA apply in this
case:
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Convention
refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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Définition de « réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays dont elle
a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer
de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de nationalité et se
trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut
ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
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Personne à protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
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(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
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b) soit à
une menace à sa vie ou au risque de traitements ou peines cruels et inusités
dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
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(ii) the risk would be faced by the person
in every part of that country and is not faced generally by other individuals
in or from that country,
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(ii) elle y est exposée en tout lieu de ce pays
alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le
sont généralement pas,
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(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
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(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
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(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du pays
de fournir des soins médicaux ou de santé adéquats.
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Person in need of protection
(2) A person in Canada who is a member of a
class of persons prescribed by the regulations as being in need of protection
is also a person in need of protection.
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Personne à protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VII.
Standard of review
[18]
The standard of review applicable to findings
regarding state protection and the balance of evidence is reasonableness (Ruszo
v Canada (Minister of Citizenship and Immigration), 2013 FC 1004; Canada
(Minister of Citizenship and Immigration) v Carrillo, 2008 FCA 94, [2008] 4
FCR 636; Chaves v Canada (Minister of Citizenship and Immigration), 2005
FC 193; Villicana v Canada (Minister of Citizenship and Immigration),
2009 FC 1205, 357 FTR 139).
VIII.
Positions of the parties
[19]
The applicant submits that the RPD erred in concluding
that he had failed to establish a well-founded objective fear of persecution by
the Beninese authorities. The applicant notes that he filed sufficient
documentary evidence illustrating the corruption and abuse in Benin and that
the RPD should have analyzed this evidence more carefully.
[20]
The applicant submits that the RPD also ignored
two affidavits filed by other employees of the Embassy. The applicant states
that the facts in the case of one of these witnesses before the RPD were very
similar to those in his case and that the RPD should have considered the
decision in that case in reaching its decision.
[21]
Finally, the applicant alleges that the RPD
erred in analyzing the conditions of another country—Haiti—in its decision. The
applicant is basing his argument on the incorrect reference to this country at
paragraph 35 of the decision.
[22]
The respondent submits that the RPD reasonably
concluded that the applicant had failed to establish a well-founded objective
fear of persecution in the event of his return to Benin. The applicant did not
rebut the presumption of state protection; he did not provide clear and
convincing evidence that Benin was unable to protect its citizens.
[23]
The respondent also states that the RPD did not
analyze the conditions of another country. According to the respondent, the RPD
merely made a typographical error that does not justify this Court’s
intervention.
IX.
Analysis
A.
Did the RPD err in determining that the
applicant’s objective fear was not well founded?
[24]
The test to establish fear of persecution is
bipartite: a claimant must subjectively fear persecution and this fear must be
well founded in an objective sense (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689).
[25]
In this case, the RPD accepted that the
applicant had a genuine subjective fear of persecution; however, it held that
it was not well founded in an objective sense because he failed to rebut the
presumption of state protection.
[26]
The Court considers this decision entirely
reasonable.
[27]
It is well established in the relevant case law
that there exists a presumption that the state is capable of protecting its
citizens. To rebut this presumption, a claimant for refugee protection must
adduce relevant, reliable and convincing evidence that demonstrates, on a
balance of probabilities, that the state protection is inadequate (Carrillo,
above, at para 30).
[28]
In this case, the applicant did not adduce
sufficient evidence that the state was unable or unwilling to protect him. In
fact, the only evidence in the record relating to the applicant’s personal
circumstances demonstrates that he was offered protection by the Beninese
authorities, which he refused. It is presumed that this protection will be
offered upon his return to his country of origin; however, this final chapter
has yet to be written and remains to be confirmed by the authorities of his
country of origin.
[29]
Justice Yves de Montigny noted in Navarro
v Canada (Minister of Citizenship and Immigration), 2008 FC 358, that a
state “must at least be offered a real opportunity to intervene before one
can conclude that it is unable to provide the protection required by one of its
citizens” (at para 17). [Emphasis added.]
[30]
The applicant submits that he refused to
participate in the investigation into the complaints against the Embassy
because he was afraid to go to the Embassy to provide his testimony. While it
is plausible that the applicant feared returning to the Embassy, the Court does
not consider this argument sufficient to establish that the state could not
reasonably provide protection, given the status of this Embassy in Canada and
its reputation within diplomatic circles.
[31]
The Court agrees with the RPD that it was
unreasonable for the applicant to refuse to participate in the investigation.
As it pointed out at the hearing and in its decision, the applicant could have
invited a witness, such as a DFAIT staff member, to accompany him to the
Embassy if he were concerned about going by himself.
[32]
The Court is also of the view that the
documentary evidence on Benin in the record is also inadequate to rebut the
presumption of state protection. The documentary evidence shows that Benin has
gained a reputation as being one of the most stable countries in Western Africa
(Applicant’s Record [AR], Tab 17). It reveals that there were no
politically motivated disappearances or murders and no political detainees in
Benin in 2011 (AR, Tab 16). While it is possible that the situation in
Benin is not perfect, the Court is not faced with a situation in which the
state is incapable of protecting its citizens should it wish to do so.
[33]
The Court agrees that the RPD could have said
more about the documentary evidence on Benin in the record, but this alone does
not constitute a reviewable error, particularly given the evidence in the
record that supports its conclusion. According to Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708, a court is not required to make an explicit finding on each
constituent element of its reasoning leading to its final conclusion. On the
whole, the Court finds that the RPD’s decision was clear, legally sound and
supported by the evidence.
[34]
This Court is of the view that the RPD did not
err in analyzing the conditions of another country in its analysis of the
applicant’s application. The reference to Haiti at paragraph 35 of the
decision appears to have been inadvertent. The Court does not accept the
applicant’s submission that this error is comparable to those in Fernandez v
Canada (Minister of Citizenship and Immigration), 2005 FC 536 and Landaverde
Canada (Minister of Citizenship and Immigration), 2005 FC 1665 (also, Earl
v Candaa (Minister of Citizenship and Immigration), 2011 FC 312 at para
25). Unlike in those two cases, there was no confusion regarding the country at
issue. It is clear from a reading of the decision that the RPD was indeed
talking about Benin. In fact, the sole reference to Haiti appears in the
conclusion; the analysis refers only to Benin. This does not invalidate the
decision. In the words of Justice James Russell in Petrova v Canada
(Minister of Citizenship and Immigration), 2004 FC 506, 251 FTR 43: “[w]hen
a mistake is typographical in nature, the Court should not interfere with the
decision, especially if the error does not appear to have been a misunderstanding
of the evidence” (at para 52).
B.
Did the RPD ignore the evidence before it?
[35]
The Court is of the view that the RPD did not
fail to consider the affidavits filed by the two other Embassy employees. The
RPD explicitly dealt with these affidavits at paragraphs 31-34 of the
decision.
[36]
In any case, it seems that what the applicant is
really objecting to is the weight ascribed by the RPD to a decision rendered by
another member of the Board regarding the claim for refugee protection of one
of these employees.
[37]
The Court reiterates that administrative
tribunals have broad discretion in relation to questions of fact (Aguebor,
above). It is therefore not for this Court to substitute its reasoning for that
of the RPD or to reweigh the evidence in this case.
[38]
Justice Phelan clearly set out the
following in Siddiqui, above:
[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. [Emphasis
added.]
[39]
In light of this case law, the Court cannot
conclude that the RPD’s failure to take into account the decision of another
member of the Board constitutes a reviewable error.
X.
Conclusion
[40]
For all the foregoing reasons, the applicant’s
application for judicial review is dismissed.
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