Date: 20020626
Docket: IMM-3033-01
Montréal, Quebec, June 26, 2002
Before: Lemieux J.
BETWEEN:
GILBERT JEAN-BAPTISTE
MARIE-EMMANUELLE JEAN-BAPTISTE GRÉGOIRE
Plaintiffs
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
For the reasons stated, the application for judicial review is dismissed. No certified question was suggested.
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"François Lemieux"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020626
Docket: IMM-3033-01
Neutral citation: 2002 FCT 709
BETWEEN:
GILBERT JEAN-BAPTISTE
MARIE-EMMANUELLE JEAN-BAPTISTE GRÉGOIRE
Plaintiffs
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
LEMIEUX J.
[1] The plaintiffs Gilbert Jean-Baptiste and his wife Marie-Emmanuelle Jean-Baptiste Grégoire are citizens of Haiti. On May 24, 2001 the Refugee Division ("the tribunal") found that they were not Convention refugees.
[2] The principal applicant is an activist. Since 1992 he has engaged in political activities to inform the public about the current situation in his country. He said over the years, in 1992, 1995 and 1997, he founded political groups, did broadcasting in 1993 and 1994 and founded a socio-political journal in 1996. He allegedly ceased his many activities when there was too much opposition or he no longer felt safe.
[3] In October 1998 the principal applicant allegedly began broadcasting again and continued this activity until May 12, 1999. He said he issued scathing editorials denouncing the government. As a result of these editorials he received many threats at the radio station, at home and at his workplace.
[4] The principal claimant alleged that he decided to leave his country as a result of the threats following one of his editorials. On May 12, 1999 he said he went to his sister's place with his wife and son. On June 28, 1999 the female applicant and the son allegedly left Haiti for Canada. The male applicant joined them in Canada on August 9, 1999.
[5] On September 4, 1999 the applicants and their son tried to enter the U.S. illegally. They were allegedly advised to claim refugee status in that country since they had more chance of being accepted. The son managed to cross the border. The claimants were detained and subsequently decided to return to Canada. On October 6, 1999 they claimed refugee status at the border.
[6] The female applicant holds permanent resident status in Venezuela.
TRIBUNAL'S DECISION
[7] The tribunal found that the evidence was not sufficient to establish that the applicants had a valid fear of persecution. In the tribunal's view, the plaintiffs' evidence contained significant contradictions and improbabilities which undermined their credibility and there was no [TRANSLATION] "reasonable likelihood" of persecution if the applicants went back to live in Haiti.
[8] The tribunal arrived at this conclusion since (1) there are contradictions between the principal claimant's testimony and his PIF about the time he decided to leave the country and the dates the various editorials were broadcast; (2) the improbability that the applicant resumed broadcasting with more scathing material after giving it up for security reasons in 1994; (3) the "country shopping" and the delay in claiming refugee status; and (4) the female applicant was apparently able to leave Haiti for Venezuela before June 28, 1999, especially when she said she had been in danger since 1994.
[9] Further, the tribunal mentioned the fact that the claimant had not submitted any documentation of his editorials which he allegedly broadcast on Radio Plus for the 1998-1999 period.
ANALYSIS
[10] The tribunal concluded that some of the plaintiffs' allegations greatly undermined their credibility and their subjective fear. In the case at bar, this was a decision based on findings of fact. Under s. 18.1(4)(d) of the Federal Court Act, this Court should not intervene unless the tribunal's decision is based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, which amounts to a patently unreasonable finding.
[11] In the Supreme Court of Canada judgment in Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, at 844, L'Heureux-Dubé J. wrote at para. 85:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one . . . Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision . . .
[12] In Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, Décary J.A. ruled at para. 4, speaking for the Federal Court of Appeal:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[13] In Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415, Pratte J.A. mentioned, speaking for the Federal Court of Appeal:
. . . we have not been persuaded that the Board's finding on credibility was either unreasonable or perverse. Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense.
[14] The Federal Court of Appeal said in Mostajelin v. Canada (Minister of Employment and Immigration) (January 15, 1993) A-122-90, per Décary J.A.:
The Board's conclusion that the appellant's evidence was not credible or trustworthy is based upon the appellant's demeanour, the conflict between the Personal Information Form and his oral testimony and a series of inconsistencies and implausibilities in his oral testimony. Such credibility findings are beyond the review of this Court.
[15] There is no question that the principal claimant's credibility was seriously undermined by the answers he gave in his PIF and his oral testimony.
[16] The tribunal found several contradictions. Those contradictions go to the heart of the claim. The claimant alleged that he decided to leave his country after receiving various threats when he broadcast an editorial. However, he contradicted himself on when the editorial was broadcast and which editorial was in question.
[17] At the hearing, the claimant mentioned that he took the decision to leave his country in April 1999, whereas in his PIF he spoke of May. The tribunal found that the confusion about the broadcasting of the editorials undermined the claimant's credibility. The tribunal wrote:
[TRANSLATION]
The claimant said he took his decision in April following threats received, because he did an editorial on the radio "Lavalas and Duvalierists, two Siamese twins who do not agree". However, according to his PIF it was in October 1998. The editorial on the CIMO was allegedly done in April, but at the hearing the claimant spoke of May. In his PIF, in May, he said he asked "When the results of the investigation would be". The claimant was not credible.
[18] It must be borne in mind that the tribunal has jurisdiction to weigh the claimant's credibility. The events he contradicted were of the essence of his claim. The tribunal alleged that [TRANSLATION] "simply saying that he made a mistake is not an adequate explanation". The claimant was confused about the event which prompted his decision to leave his country.
[19] The claimants stated that the tribunal made no reference to certain events which date back to 1992. Nonetheless, in the decision the tribunal reviewed the socio-political involvement of the principal claimant and certain incidents which resulted from that.
[20] Further, the tribunal held that the principal claimant had no subjective fear, since it maintained that it was unlikely the claimant would resume broadcasting with scathing material after leaving a few years earlier for safety reasons:
[TRANSLATION]
The claimant already had experience with radio, which he had left in December 1994 for safety reasons. If he left because he feared for his safety, it is not likely that in such circumstances he would resume his radio work with more scathing material, contrary to what he was doing before, in his journal GAFARD (Exhibit P-8), in which the articles were gentler, less aggressive and more neutral, and he stopped publication for safety reasons. The tribunal does not believe the claimant had any subjective fear because he resumed the same activity voluntarily. [My emphasis.]
[21] On the subjective fear of the female claimant, we must bear in mind that she had permanent residence in Venezuela. The tribunal concluded that she could have left Haiti before June 28, 1999 and that this delay undermined her subjective fear, especially when she alleged she had been unsafe since 1994.
[22] The tribunal concluded that the claimants' conduct at the border greatly undermined their credibility. The claimants tried to enter the U.S. illegally, one month after the principal claimant arrived in Canada. As they did not like the way the U.S. authorities treated them, they preferred to come back to Canada and make a refugee status claim application. It should not be forgotten that the claimant's mother and sister live in the U.S. The "country shopping" undermined the claimants' credibility.
[23] The tribunal's decision was not unreasonable. The contradictions and improbabilities which are the essence of the claim and the claimants' conduct at the border are all points which undermined the claimants' credibility. For these reasons, the tribunal found that the evidence did not suffice to conclude that there was a valid fear of persecution.
[24] This application for judicial review is dismissed. No certified question was suggested.
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"François Lemieux"
Judge |
Montréal, Quebec
June 26, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA TRIAL DIVISION
Date: 20020626
Docket: IMM-3033-01
Between:
GILBERT JEAN-BAPTISTE MARIE-EMMANUELLE JEAN-BAPTISTE GRÉGOIRE
Plaintiffs
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-3033-01
STYLE OF CAUSE: GILBERT JEAN-BAPTISTE
MARIE-EMMANUELLE JEAN-BAPTISTE GRÉGOIRE
Plaintiffs
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 20, 2002
REASONS FOR ORDER: LEMIEUX J.
DATE OF REASONS: June 26, 2002
APPEARANCES:
Luc R. Desmarais FOR THE PLAINTIFF
Diane Lemery FOR THE DEFENDANT
SOLICITORS OF RECORD:
Luc R. Desmarais FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec