Docket: IMM-3465-16
Citation:
2017 FC 387
[ENGLISH TRANSLATION]
Montréal, Quebec, April 21, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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DELICAT, JOB
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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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JUDGMENT AND REASONS
I.
Preface
[1]
In reviewing the analysis of a case’s
credibility by a specialized tribunal, inherent logic requires that the Federal
Court examine whether reasonableness led to the specialized tribunal’s
reasoning in a clear, distinct, and comprehensible manner in accordance with Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 [Dunsmuir]; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
[2011] 3 S.C.R. 654, 2011 SCC 61; Newfoundland and Labrador Nurses’ Union v.
Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, 2011 SCC 62,
from the Supreme Court of Canada.
II.
Nature of the Matter
[2]
This involves an application for judicial review
under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c. 27 [IRPA], of a decision made by the Refugee Protection Division [RPD]
dated July 8, 2016, whereby the applicant is neither a refugee within the
meaning of the Convention nor a person in need of protection under sections 96
and 97 of the IRPA.
III.
Facts
[3]
The applicant, age 42, is a Haitian citizen and
a Baptist. He is married and has three children. An engineering assistant by
training, he is also a member of the Organisation des techniciens pour la
reconstruction d’Haïti [OTREH], an organization that meets two to three times a
month to discuss certain issues in the country.
[4]
During his testimony, the applicant stated that
he has been a preacher since the age of 15. In July 2003, he received a
certificate of ordination from the Christian Church of Christ, and in 2015, he
was granted a diploma in theology by the École biblique baptiste Beree des
Gonaïves in Haiti.
[5]
During an OTREH meeting that was held on April
19, 2014, the applicant allegedly denounced the involvement of police in
matters of rape and kidnapping. On April 20, 2014, he was allegedly arrested in
front of his home by two police officers and was reportedly detained thereafter
for ten (10) days at the police station in Gonaïves, during which time he was
allegedly physically assaulted.
[6]
On April 30, 2014, he was reportedly released
for no reason. Three days after his release, two police officers allegedly
showed up at the applicant’s home to make death threats against him.
[7]
Following those events, the applicant stated
that he tried to flee the police from one city to the next across Haiti for one
year: In Cap Haïtien from May to July 2014; in Port-de-Paix from August to
September 2014; on Tortuga in October 2014; on Gonâve Island from November to
December 2014; in Port-au-Prince from January to May 2015. While he was on the
run in those cities, the applicant claims that he continued his pastoral vocation
and preached at his church’s request.
[8]
The applicant maintains that he was tracked down
by the police in every city where he hid. Thus, on April 14, 2015, he submitted
a visa application for the United States, which was subsequently denied. On May
26, 2015, he left Haiti for Fort Lauderdale, in the United States, and he
submitted a refugee claim on July 23, 2015.
[9]
Since he was unable to find a job, he left his
home in the United States on April 30, 2016, and headed to Fort Erie, Ontario,
in Canada. He submitted a refugee claim on May 11, 2016, with an officer of the
Canada Border Service Agency, which accepted the claim under the Safe Third
Country Agreement, given that some of the applicant’s family members lived
in Canada.
IV.
Decision
[10]
The RPD concluded that the applicant was not a
refugee within the meaning of the Convention, nor a person in need of
protection, because he had not discharged his burden of proof to establish the
existence of a serious possibility of persecution for one of the grounds in the
Convention, and he had not shown, on a balance of probabilities, that he would
be personally exposed to a risk of torture or threats to his life, or to a risk
of cruel and unusual treatment or punishment if he were to return to Haiti.
According to the RPD, the determining factor was credibility. It deemed that
the applicant was not credible, highlighting the vague, unclear, contradictory,
and inconsistent nature of his testimony.
[11]
In its decision, the RPD first noted that the
applicant’s testimony on questions related to the identity and misconduct of
the police officers was vague and unclear. The RPD deemed that the applicant’s
responses showed a [TRANSLATION] “lack of spontaneity
and accuracy”.
[12]
The RPD also noted some inconsistencies between
the applicant’s testimony and his statements at the Fort Erie point of entry;
in particular, the fact that he stated during the hearing that he had been
arrested by the police the day after the OTREH meeting, whereas at the point of
entry, he stated that he had been arrested several days after said meeting. The
applicant explained that this contradiction is due to a simple error when he
was telling his story at the point of entry, an explanation that the RPD
rejected.
[13]
The RPD took note of a letter written by the
president of the OTREH on paper with its letterhead. This letter confirmed the
applicant’s membership in the OTREH. Through this letter, the RPD noted that
the president of the organization was not hiding from the authorities and that
he was still in Gonaïves, which did not corroborate that other OTREH members
were persecuted by the police.
[14]
The RPD found other inconsistencies, in
particular the fact that when the applicant stated that he had hid in several
cities for over a year, he publicly advertised his sermons. The RPD concluded
that if the applicant was truly hiding, he would not have agreed to have his
sermons publicly advertised. Furthermore, the panel concluded that the places
where he was preaching did not correspond to the alleged hiding places.
[15]
Finally, the RPD noted the fact that the
applicant went to the Civil Status Office in his community to obtain his
children’s birth certificates. The applicant explained to the RPD that it was
his spouse, not him, who went to request the birth certificates. The RPD
rejected that explanation, as it was written on the birth certificates that it
was “Mr. Job Delicat” who appeared, not his
spouse. The RPD believed that if the applicant was truly hiding from the State,
he would not have gone to the Civil Status Office.
[16]
For these reasons, the RPD concluded that there
were several significant problems that undermined the applicant’s credibility.
As a result, the RPD dismissed his claim.
[17]
Counsel for the applicant, Constance Byrne,
withdrew from the case because she was no longer able to reach her client. Guy
Nephtali took up the case. As of March 23, 2017, he had not submitted an
additional factum. The original factum was argued.
V.
Issues and Standard of Review
[18]
This application for judicial review raises the
question of whether the RPD erred in assessing the applicant’s credibility. The
RPD’s assessment of credibility is a question of fact that stems from the RPD’s
specialized field of expertise; it requires the application of the
reasonableness standard and some deference (Dunsmuir, supra).
VI.
Analysis
[19]
Given the contradictions, omissions, and
implausibilities between the testimony and the notes at the point of entry,
there is a clear inconsistency in the internal logic.
[20]
The inaccuracies regarding the reprehensible
acts reported by the applicant lead the Court to find that the RPD had decided
the case in a reasonable manner given the evidence presented to it. The
applicant’s behaviour shows an incompatibility with his fear of persecution.
VII.
Conclusion
[21]
For these key reasons, the application for
judicial review is dismissed.
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