Docket: IMM-100-16
Citation:
2016 FC 708
[ENGLISH
TRANSLATION]
Montréal, Quebec, June 23, 2016
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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MARIE JOCEMINE GAUCHIER
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
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AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This application for judicial review under
section 72 of the Immigration and Refugee Protection Act, S.C. 2001,
chapter 27 (the Act) concerns a decision rendered by the Refugee Appeal
Division (RAD), which, on December 14, 2015, rejected an appeal of the
decision of the Refugee Protection Division (RPD) and concluded that the
applicant is neither a Convention refugee nor a person in need of protection
(sections 96 and 97 of the Act).
I.
Facts
[2]
The applicant is basing her application on three
incidents that she says occurred in her country of origin, Haiti. On
May 13, 2012, she was allegedly attacked on the street by two people. Her
ear was injured, and she had to receive medical care. She says she owned an
auto parts shop in Cabaret, a city to the north of Port-au-Prince. She
apparently filed a complaint the next day and decided to take refuge with her
cousin in Port-au-Prince. She says she stayed away from Cabaret for four
months.
[3]
The applicant visited Canada twice in the second
half of 2014, once in August and once in December. She stayed in Canada
for three weeks each time.
[4]
She was to return to Haiti on December 31,
2014. She went to her shop and met her sister-in-law, who worked there, and she
reportedly left the premises late in the afternoon on December 31, 2014.
About an hour later, two individuals apparently ransacked the shop and left a
note saying they were looking for the applicant. Although the applicant was not
present during this alleged incident, she says she recognized the same two
individuals who assaulted her in 2012 based on her sister-in-law’s
description of them.
[5]
The applicant filed a complaint with the Cabaret
police, but the circumstances of this complaint remain rather unclear. The
applicant also alleges that she was assaulted on February 5, 2015, in
Port-au-Prince. She claims that the same two individuals attempted to kidnap
her by forcing her to get on a motorcycle. The unexpected arrival of the police
apparently made them let go, and they fled with the handbag the applicant was
carrying. She then decided she needed to leave Haiti, and she purchased a plane
ticket for Canada. She arrived in Canada on February 11, 2015, and applied
for refugee protection that same day.
II.
Decision under review
[6]
The RPD rendered its decision on April 13,
2015. The reasons for the RPD’s decision do not need to be reviewed, since the
decision subject to the application for judicial review is the RAD’s decision.
It is enough to say that the RPD concluded based on the contradictions and
explanations, which seemed to change as the questions progressed, that the
application made under sections 96 and 97 of the Act was unfounded.
[7]
Judicial review is sought for the decision
rendered on December 14, 2015, on the appeal of the RPD’s decision.
[8]
Having examined its jurisdiction following
several decisions by this Court, the RAD prudently decided not to act as an
administrative review tribunal but an appellate court. The jurisdiction
exercised by the RAD has not been contested in this case.
[9]
The applicant has three complaints. First, she
alleges that the RAD erred in drawing conclusions about her credibility.
Second, the applicant complains that the RAD did not hold a hearing. Third, she
suggests that, due to the complexity of this case, there should have been
deliberations instead of a decision rendered at the hearing. For the following
reasons, none of these grievances can be accepted.
III.
Standard of review
[10]
In this case, the standard of review is the
standard of reasonableness. The decision of the Federal Court of Appeal in Canada
(Citizenship and Immigration) v. Huruglica, 2016 FCA 93, confirms
that such cases, especially the determination of credibility by the RAD, are
based on the standard of reasonableness.
IV.
Analysis
[11]
When the applicant’s arguments are examined, it
becomes clear that she is simply expressing her disagreement with the RAD’s
assessment. Yet, in my opinion, the RAD’s findings on her credibility, which
are in agreement with the RPD’s findings, are perfectly reasonable. The
sequence of events deserves some attention. The applicant was allegedly
attacked in May 2012. No other incidents happened to her until she
returned from two three-week stays in Canada during the second half of 2014.
The circumstances surrounding the two other alleged incidents, one of them an
assault, are much more nebulous. It is not clear when exactly the
December 31 incident occurred, if it did indeed occur. The applicant
presented a record from the Port-au-Prince police that is a poor match with her
testimony. This record seems to indicate an assault on January 1, 2015, or
January 10, 2015, or even early on December 31. Even more problematic
is the fact that the applicant claims she recognized the people who did the
ransacking even though they wore balaclavas and the only description she had of
them was from her sister-in-law, who was allegedly on the premises when the
incident occurred.
[12]
The February 5, 2015 incident is just as
problematic. The document presented to support the existence of a kidnapping
attempt is a document supposedly prepared by the national police of Haiti. Yet
this document makes no mention of an attempted kidnapping, which in itself is
quite remarkable, given that the attempt was supposedly interrupted by the
unexpected arrival of the police. In addition, the document is nothing more
than a statement that documents were lost, and does not even refer to the
supposed theft of the applicant’s handbag, but states that her purse (“bourse”)
was allegedly lost. I agree with the RAD’s opinion that it is unlikely that the
national police decided not to record the facts on a failed kidnapping and the
theft of a handbag and instead to discuss a lost purse and documents. Without
an explanation for such behaviour, it is certainly permissible to doubt the
existence of the alleged incident, as the RAD did. The RAD clearly states that
it doubted the two incidents in January and February 2015: [translation] “[the]
appellant is not credible as regards the two incidents since which she has
feared for her life. The RAD does not believe they occurred”
(paragraph 64 of the RAD’s decision).
[13]
The applicant has failed to demonstrate to this
Court that the RAD’s decision was unreasonable. As I see it, it is certainly
one of the possible, acceptable outcomes that an administrative tribunal could
arrive at. And not only is it a possible outcome, but the justification of the
decision, its transparency and the intelligibility of the decision-making
process support its reasonableness.
[14]
The applicant also complained that a hearing
should have been held before the RAD. This argument, which was not submitted in
writing, but became the main argument at the hearing, is of no merit.
[15]
In this case, the RAD allowed as evidence
new documents that were not presented to the RPD. These were a tax registration
card for the company Distinction Auto Parts, a tax return for the 2014–2015
taxation year, and a patent certificate. It was generous of the RAD to allow
this evidence after accepting the applicant’s explanation that she lost it in a
suitcase that she found only after the hearing before the RPD. In fact,
subsection 110(4) of the Act states that new evidence is admissible only
if it meets the following conditions:
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110(4) On appeal,
the person who is the subject of the appeal may present only evidence that
arose after the rejection of their claim or that was not reasonably
available, or that the person could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection.
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110(4) Dans le
cadre de l’appel, la personne en cause ne peut présenter que des éléments de
preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement
présentés, dans les circonstances, au moment du rejet.
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[16]
This new evidence was used to demonstrate that
the applicant was involved in an auto parts shop, as she claimed. However, the
RAD declared that it was of the opinion that this did not modify in any way the
RPD’s finding of lack of credibility in terms of the basis for the applicant’s
claim for refugee protection.
[17]
Moreover, this new evidence in no way justified
holding another hearing. Once again, the Act gives the conditions under which a
hearing can be held at the RAD’s discretion:
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110(6) The
Refugee Appeal Division may hold a hearing if, in its opinion, there is
documentary evidence referred to in subsection (3)
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110(6) La
section peut tenir une audience si elle estime qu’il existe des éléments de
preuve documentaire visés au paragraphe (3) qui, à la fois :
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(a) that
raises a serious issue with respect to the credibility of the person who is
the subject of the appeal;
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a) soulèvent
une question importante en ce qui concerne la crédibilité de la personne en
cause;
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(b) that is
central to the decision with respect to the refugee protection claim; and
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b) sont
essentiels pour la prise de la décision relative à la demande d’asile;
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(c) that, if
accepted, would justify allowing or rejecting the refugee protection claim.
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c) à supposer
qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou
refusée, selon le cas.
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[18]
According to the RAD, it was not necessary to
hold such a hearing, and no arguments were presented to support the claim that
this was an error. As we can see, subsection 110(6) requires there to be
new documentary evidence that satisfies the three conditions listed. There is
no such documentary evidence. Furthermore, the RAD notes in paragraph 42
of its decision that [translation]
“the appellant left this question to the discretion of
the RAD.” It is difficult to see how the applicant could complain about
this.
[19]
Lastly, the applicant claims that the oral
decision rendered by the RPD was hasty. This claim was rejected. We can
understand why by examining subsection 10(8) of the Refugee Protection
Division Rules, SOR/2012-256, which states that:
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10 (8) A Division
member must render an oral decision and reasons for the decision at the
hearing unless it is not practicable to do so.
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10 (8) Le
commissaire de la Section rend une décision et donne les motifs de la
décision de vive voix à l’audience, à moins qu’il ne soit pas possible de le
faire.
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[20]
The fact that reasons are rendered orally does
not justify a flagrant lack or insufficiency of reasons. Conversely, oral
reasons are not insufficient simply because they are rendered orally. The Act
states that a decision rendered by the RPD may be appealed on a question of
law, of fact, or of mixed law and fact (subsection 110(1)); of course,
reasons from the RPD justifying the decision are expected. In my opinion, if the
reasons given orally by the RPD are insufficient to explain the decision, there
could be grounds for the RAD to allow the appellant’s appeal
(subsection 111(4)). But that is not the case here. An allegation of a
hasty decision alone does not warrant remedy. In my opinion, there are no more
arguments at this stage concerning what occurred in this case. The RPD’s
decision could be handled by the RAD, which it was.
[21]
Consequently, the application for judicial
review must be dismissed. There are no questions to certify.
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