Date: 20030718
Docket: IMM-3854-02
Citation: 2003 FC 895
PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU
Between:
PIERRE CESALON
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (hereinafter "the Refugee Division") on July 30, 2002, that the plaintiff is not a Convention refugee or a person in need of protection.
[2] The plaintiff alleged that he had a well-founded fear of persecution for his actual and alleged political opinions. Further, the plaintiff claimed he was a person in need of protection because he was at risk of torture or a threat to his life or of cruel and unusual treatment or punishment.
[3] The plaintiff was born on June 21, 1971. He is a citizen of Haiti.
[4] According to the plaintiff's Personal Information Form (PIF), he was employed in the Ministry of Justice and Public Security at the École de la magistrature. This Ministry deals in particular with the cases of criminal inmates and drug traffickers. The plaintiff alleged that he was a messenger who was responsible for delivering mail at the Ministry.
[5] The plaintiff maintained that on September 11, 2001, when he was carrying mail to the Ministry four police officers assigned to the National Palace asked him for the mail. He refused to give it to them and escaped to the Ministry.
[6] The plaintiff alleged that the following day, on September 12, 2001, a group of armed men came to his home but he refused to open the door. The men allegedly fired shots and the plaintiff fled through a window. As he was running, he said he fractured his right ankle and went to hospital. He claimed these men were looking for him to kill him.
[7] The plaintiff alleged that when he hid himself a friend helped him to take steps to get a visa from the Canadian Embassy. The plaintiff left Haiti on October 13, 2001. He made his application for asylum in Canada on October 15, 2001.
[8] On July 18, 2002, the Refugee Division concluded that the plaintiff was not a refugee nor a person in need of protection and that he had fabricated his story. It based this decision primarily on the fact that the plaintiff lacked credibility in general. In particular, the Refugee Division did not believe that the plaintiff was a messenger in 2001 because he said he was an electrician on a visa application submitted some time before. The Refugee Division rejected as proof of his employment a photocopy of a letter confirming that the plaintiff was a messenger, because the letter [TRANSLATION] "was not up to date", and his identity cards, because they were not dated.
[9] For its conclusion that there was a general lack of credibility, the Refugee Division found that in his PIF the plaintiff said he was separated from his wife, but in his visa application he said he was married. The Refugee Division did not accept the explanation that it was his friend, not the plaintiff himself, who had completed the visa application.
[10] The Refugee Division also noted that the plaintiff did not write in his PIF that he was living with his mother, sister and daughter and that his son was living with his ex-wife. Further, he failed to explain that on September 12, 2001, his sister and daughter escaped from the house with his mother. The Refugee Division did not accept the plaintiff's explanation that he was writing his story, not that of his family.
[11] The Refugee Division attached no evidentiary value to the complaint filed by the plaintiff's mother at the police station, because the facts had not been verified. Further, the plaintiff did not even mention his mother in his reply to question 37 of his PIF. The Refugee Division noted that the plaintiff had also failed to mention that at his meeting with the police officers on September 11, 2001, he was carrying the file on Jean Dominique, the well-known radio journalist and champion of human rights, who was murdered on April 3, 2000.
[12] The Refugee Division did not attach any evidentiary value to the documents and photographs filed in support of the allegation that the plaintiff's mother's house was burnt, an act which the plaintiff said was connected with the aforementioned events.
[13] In the case at bar, the issue is whether the Refugee Division made an error when it concluded that the plaintiff had presented no credible or trustworthy evidence and that the plaintiff's claim lacked a credible basis.
[14] The decision in the case at bar was based in part on the conclusion that there was a lack of credibility. In particular, the Refugee Division concluded that the plaintiff was not a messenger because his visa application contradicted his testimony and his PIF. The plaintiff explained the contradiction by testifying that it was his friend who completed the visa application, not he himself; he submitted that he was working as an electrician and a messenger. As the exhibits filed included a letter and identity card indicating that the plaintiff was working as a messenger as well as an electrician's certificate, I find the Refugee Division's conclusion patently unreasonable.
[15] On the conclusion that there was lack of credibility, the Refugee Division found an alleged contradiction between the plaintiff's PIF, indicating that he was separated from his wife, and the visa application indicating that he was married. During his testimony and at his "front end examination" the plaintiff explained that at the time of the visa application he had not yet initiated divorce proceedings. No contradiction appears from these explanations. It goes without saying that a person may be married and separated at the same time. It is also probable that his friend did not know the details of the plaintiff's personal circumstances. In my opinion, this conclusion by the Refugee Division is patently unreasonable.
[16] Further, the Refugee Division based its conclusion of a lack of credibility in part on several omissions in the PIF. It was noted that the plaintiff did not mention he was living with his mother, sister and daughter and that his daughter and sister escaped with the mother on the night of September 12, 2001. The plaintiff's explanation that in his story he described only his own experiences, not those of his family, seems quite reasonable to me. The Refugee Division gave no valid reason for dismissing this explanation. Further, it is not significant that the plaintiff failed to indicate that one of the files he was delivering when the police officers stopped him was that of the well-known journalist Jean Dominique. The plaintiff explained that he did not realize this information was relevant because he was delivering several files, not just that of Jean Dominique. This explanation is reasonable and so the omission does not justify a conclusion that there was a lack of credibility.
[17] Finally, the Refugee Division's conclusions relating to the evidence filed, in particular the complaint by the plaintiff's mother and the photos of the burnt house, are patently unreasonable. First, I find it unreasonable that the Refugee Division dismissed this evidence simply because the plaintiff did not mention his mother in the account given in his PIF. There is a presumption that a claimant is speaking the truth and this document was filed in support of his account. The burden would be too high if a claimant had to file several different documents in order to verify each fact alleged. Further, as the plaintiff explained, he did not mention the fact that his mother had escaped because he did not think this fact was relevant to his own allegation of persecution. The fact that he did not mention his mother does not justify a conclusion that the complaint was fraudulent.
[18] Second, I find the conclusions regarding the photos patently unreasonable. The fact that the photos of the burnt-out house do not clearly indicate that this house was that of the plaintiff and his mother does not justify a conclusion of a lack of credibility. There is no evidence that these photos were filed in bad faith.
[19] For all these reasons, I consider that the Refugee Division's conclusions that the plaintiff was not a messenger and was not credible are patently incorrect.
[20] The application for judicial review is allowed. The Refugee Division's decision on July 30, 2002, is quashed and the matter is referred back for reconsideration by a panel of different members.
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"P. Rouleau"
Judge |
OTTAWA, Ontario
July 18, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
FILE: IMM-3854-02
STYLE OF CAUSE: PIERRE CESALON
Plaintiff
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 26, 2003
REASONS: ROULEAU J.
DATE OF REASONS: July 18, 2003
APPEARANCES:
Luc R. Desmarais FOR THE PLAINTIFF
Mario Blanchard 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