Ottawa, Ontario, January 25, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] There is certainly no evidence in this case that the Board member was under "top-down" pressure to apply Guideline 7. The issue is whether the presumption that the Guideline is to apply unless there are, to use the language of the Guideline itself, "compelling and exceptional circumstances", fetters the Board member's discretion to decide the most appropriate process, which in turn leads to an unfair hearing.
(Hossain v. Canada (Minister of Citizenship and Immigration), 2006 FC 892, [2006] F.C.J. No. 1131 (QL))
JUDICIAL PROCEDURE
[2] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered on May 10, 2006, wherein it found the Applicant not to be a Convention refugee or a person in need of protection pursuant to s. 96 and s. 97(1) of IRPA.
BACKGROUND
[3] The Applicant, Mr. Jacques Étienne, is a 51 year old male citizen of Haïti. His wife and child have lived in the United States since 1999.
[4] On August 15, 2004, Mr. Étienne won one million Gourdes in a bank lottery. His photo and name, as well as the photos and names of other winners, were published in newspapers.
[5] In September 2004, Mr. Étienne alleges that he started receiving phone calls asking him for money and threatening to kidnap or kill him if he did not comply.
[6] Following this incident, Mr. Étienne obtained a Canadian visitor visa. He entered Canada on January 29, 2005. At the post of entry, he declared to the visa officer that he sought treatment in Canada for a hearing impairment.
[7] On June 29, 2005, Mr. Étienne applied for refugee protection, pursuant to sections 96 and 97 of IRPA, prior to the expiry of his visitor’s visa.
DECISION UNDER REVIEW
[8] The Board determined that Mr. Étienne’s claim provided no nexus to a Convention ground, which is necessary so as to qualify as a refugee under IRPA. According to the Board, acquiring wealth or winning a lottery does not constitute membership in a particular social group. Furthermore, the Board concluded that Mr. Étienne’s removal to Haïti would not subject him personally to a risk to his life or to a risk of torture or cruel and unusual treatment or punishment.
ISSUES
[9] The issues in this case are as follows :
1) Did the Board err in concluding that the Applicant’s claim could not be based on section 96 of IRPA?
2) Did the Board fail to consider the documentary evidence and, as such, was its finding that the Applicant was not at risk pursuant to subsection 97(1) of IRPA patently unreasonable?
3) Did the Board fetter its discretion by conducting the examination of the Applicant’s testimony?
STANDARD OF REVIEW
[10] It is trite law that the Board has a well-established expertise in the determination of questions of facts, particularly in the evaluation of an applicant’s credibility. (Aguebor v. (Canada) Minister of Employment and Immigration (F.C.A.), [1993] F.C.J. No. 732 (QL), at paragraph 4)
[11] Under judicial review, this Court does not intervene in findings of fact reached by the Board unless it is demonstrated that its conclusions are unreasonable or capricious, made in bad faith or not supported by the evidence. (Wen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 907 (QL), at paragraph 2)
[12] As set forward by the Federal Court of Appeal in He v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1107 (QL):
[2] In our view these reasons of the Board establish the kind of "internal contradictions, inconsistencies, and evasions which is the heartland of the discretion of triers of fact."
(Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481 (QL); Khan v. Canada (Minister of Citizenship and Immigration), 2006 FC 839, [2006] F.C.J.
No. 1064 (QL), at paragraph 27)
ANALYSIS
Legislative framework
[13] Section 96 of IRPA reads as follows:
|
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,
(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
(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. |
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 :
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;
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. |
[14] Subsection 97 (1) states the following :
|
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
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
|
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 :
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;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
1) Did the Board err in concluding that the Applicant’s claim could not be based on section 96 of IRPA ?
[15] Mr. Étienne’s allegation, that the Board erred when it determined, that his claim provided no nexus to a Convention ground as required under section 96 of IRPA, is unfounded. The Board was justified in concluding that gaining wealth or winning a lottery does not constitute membership in a particular social group.
[16] In Moali de Sanchez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 183, [2001] F.C.J. No. 375 (QL), Justice Yvon Pinard rejected the extended interpretation of the concept of a social group:
[6] I also find that the RD's second conclusion is free of error. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada rejected the extended interpretation of the concept of a social group. The status of a landed proprietor does not in any way fall within the "general underlying themes of the defence of human rights and anti-discrimination" (Ward, supra, at 739) and is not a "characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs" (Ward, supra, at 738). The tribunal also referred to Wilcox v. Canada (Minister of Employment and Immigration), November 2, 1993, A-1282-92, in which Reed J. found as follows at paras. [3]:
I interpret the Tribunal's decision as finding that there was no evidence that the Peruvian upper middle class is subject to any greater level of (what the Tribunal referred to as) depredation than others in Peruvian society generally. I interpret the Tribunal's decision as finding that the Sendero Luminosa are raining terror on everyone in Peru. While the type of danger which the applicants fear (extortion) may only be operative against the rich, this does not mean that the applicants have been or will be subject to persecution in the convention refugee sense.
[7] For all these reasons, the application for judicial review is dismissed.
[17] In light of these principles, the Board denied Mr. Étienne’s claim on a valid ground, as the Applicant did not establish a well-founded fear of persecution on the basis of “membership to a particular group” pursuant to section 96 of IRPA.
2) Did the Board fail to consider the documentary evidence and, as such, was its finding that the Applicant was not at risk pursuant to subsection 97 (1) of IRPA patently unreasonable?
[18] Mr. Étienne submits that the Board erred in rejecting the idea that rich people in Haïti have greater risk of persecution. The Court disagrees, finding instead that the Board was justified in arriving at such a conclusion.
[19] Firstly, in its reasons, following a thorough examination of the documentary evidence, the Board stated the following:
En vertu du paragraphe 97 (1) de la Loi, pour avoir qualité de « personne à protéger » le demandeur doit démontrer que son renvoi au pays de référence l’exposerait personnellement aux préjudices. Il ne suffit pas que le demandeur établisse que le préjudice en question est infligé dans son pays. Le demandeur doit démontrer qu’il serait personnellement exposé au risque ou au danger eu égard aux circonstances qui lui sont propres ou à celles de personnes dans une situation semblable.
En résumé, en vertu de l’article 97 (1) b) ii) de la Loi, la protection est limitée aux personnes qui sont exposées au risque particulier alors que d’autres personnes originaires du même pays ne le sont généralement pas. Il ne peut donc s’agir d’un risque aléatoire auquel le demandeur et d’autres personnes seraient exposés indistinctement.
Je conclus que le risque ou que le préjudice craint par le demandeur est un risque auquel s’exposent d’autres personnes dans son pays. Je m’explique :
En Haïti, les problèmes d’enlèvements sont épidémiques et ça, peu importe le statut social de l’individu dans ce pays. Pour ce tribunal le fait que le demandeur puisse être ciblé pour avoir gagné à la loterie ne particularise pas le risque. En Haïti, il y a autant d’enlèvements à Cité Soleil que partout ailleurs, sinon plus.
Conséquemment, il est possible que le demandeur puisse être plus ciblé pour le fait qu’il ait plus d’argent mais le fait demeure que peu importe qu’on ait de l’argent ou pas en Haïti, on risque d’être enlevé autrement si on acceptait, on allouerait une plus grande protection aux citoyens de Haïti qui ont plus d’argent au détriment de ceux qui en auraient moins ou pas.
Les enlèvements ne sont pas effectués selon la classe sociale des individus. Accepter ce raisonnement ferait en sorte que les Haïtiens qui ont plus d’argent auraient droit à une plus grande protection selon l’article 97 (1) b) que ceux qui n’en ont pas. Ce n’est certes pas le but recherché par la Loi. [Emphasis added]
(Decision of the Board, at pages 3-4)
[20] In the case at bar, the Board was justified in rejecting Mr. Étienne’s submission that wealth constitutes a personal peril pursuant to subsection 97(1) of IRPA as Mr. Étienne did not demonstrate a subjective fear of persecution in respect of his removal to his country of origin.
[21] Secondly, as it appears in the transcript, the Board noted significant discrepancies in Mr. Étienne’s testimony. For instance, Mr. Étienne first declared to the visa officer, upon entering Canada, that he sought a visitor’s visa for treatment in Canada for a hearing impairment. Thereafter, Mr. Étienne alleged that his problems began when he became the recipient of a lottery win in August of 2004.
[22] Another inconsistency noted by the Board relates to the Applicant’s narrative in regards to his wife claiming refugee status in the United States. Mr. Étienne claims in his oral testimony that his wife had been living in the United States since 1999 and had never claimed refugee status; this in contradiction to the information that Mr. Étienne had provided in his Personal Information Form (PIF) where he stated that his wife had indeed claimed refugee status in the United States. The Applicant’s narrative, in this regard, was thus, seriously weakened. Further to the inconsistency pointed out to the Applicant, he then told the Board that his problems had begun before 1999 when his spouse was still living in Haïti.
[23] The Court agrees with the Minister that the Board rightfully referred to the decision of Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (QL), wherein Justice Max M. Teitelbaum specified that information contained in a PIF should be complete:
[33] It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.
[24] Thirdly, the Commission duly noted in its decision that Mr. Étienne waited more than seven (7) months before claiming refugee status in Canada.
[25] In Niyonkuru v. Canada (Minister of Citizenship and Immigration), 2005 FC 174, [2005] F.C.J. No. 210 (QL), Justice Yves de Montigny substantiated in his reasons consequences which ensue for a claimant who delays in claiming refugee status:
[22] The Board attached considerable importance to the fact that the applicant had let a month go by before claiming refugee status. Clearly this was a relevant point which the panel could take into account in assessing the applicant's credibility, even if it could not be a determinative factor in itself (Huerta v. M.C.I. (1993), 157 N.R. 225, [1993] F.C.J. No. 271 (F.C.A.) (QL); Rahim v. M.C.I., [2005] F.C.J. No. 56 (QL)).
[23] It is true that the applicant had a visa which allowed him to remain in Canada until January 2003. The fact remains that his actions were not those of someone truly fearing for his life if he were to return home. Not only are the reasons he gave for waiting for the end of his training before going to the Immigration Canada office unconvincing, but it was also apparent from the transcripts that he had the time to travel on weekends.
[26] Consequently, in light of all the evidence presented, the Board did not err in concluding that Mr. Étienne had not demonstrated that he would face a serious possibility to a risk to his life or to a risk of torture or cruel and unusual treatment or punishment were he to be returned to Haïti.
3) Did the Board fetter its discretion by conducting the examination of the Applicant’s testimony?
[27] In this case, Mr. Étienne failed to establish that the Board breached the principles of procedural fairness in applying Guideline 7 -- Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division.
[28] The Federal Court has considered the question of whether the application of Guideline 7 is inconsistent with procedural fairness on numerous occasions. In Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL), at paragraphs 45-53, 91-92, Justice Edmond P. Blanchard correctly determined that the duty of fairness does not require that a claimant be questioned by his counsel before any other participant in the context of adjudication of refugee claims.
[29] Furthermore, in Thamotharem, above, at paragraph 135, the Court determined, from the evidence before it, that Guideline 7 fetters the discretion of Board members. Given this conclusion, Justice Blanchard determined that the applicant’s right to procedural fairness was violated because the independence of the decision-maker, due to the application of Guideline 7 was compromised, and, as such, the decision rendered by the Board was unlawful. Having arrived at such a conclusion, it was unnecessary to consider the merits of the Board’s decision in that case.
[30] It should be emphasized that the finding in Thamotharem, above, that Board’s discretion was fettered by the implementation of Guideline 7, turned on the language used in the Guideline and the extrinsic evidence as to how it could be interpreted and applied by the Board members. It was not at all based on the facts of the particular case. It should also be noted that Thamotharem, above, is presently before the Federal Court of Appeal.
[31] In Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (QL), Justice Richard Mosley distinguished Thamotharem, above, and held that based on the evidence presented before him, it was not established that the discretion of the Board members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7:
[171] There is considerably more evidence before me as to the manner in which Guideline 7 is actually being applied by RPD members than there was before my colleague in Thamotharem. On that evidence in these proceedings, I am not satisfied that the applicants have demonstrated that the discretion of RPD members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7.
[32] In this case at hand, there is no evidence that the Commission fettered its discretion. The Board considered Mr. Étienne’s application and exercised its discretion when finding that there were no exceptional circumstances justifying that Mr. Étienne’s counsel should conduct the examination of his client’s testimony. Furthermore, there is no proof that Mr. Étienne’s counsel could not make oral submissions to complete examination. In fact, in reading the Board’s reasons, it is apparent that Mr. Étienne’s narrative was fully understood.
CONCLUSION
[33] Mr. Étienne has not demonstrated that the findings of facts made by the Board are patently unreasonable. The discrepancies found in the Applicant’s oral testimony, itself, and between the testimony and the documentary evidence (i.e. PIF) presented, led the Board to conclude that the Applicant was not credible and, as such, the Board was not convinced that Mr. Étienne was neither a Convention refugee nor a person in need of protection.
[34] Furthermore, given the specific facts of this case, Mr. Étienne did not demonstrate a breach of procedural fairness.
[35] For all of the reasons above, no reviewable error is found to justify the intervention of this Court. Consequently, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No question be certified.
“Michel M.J. Shore”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2771-06
STYLE OF CAUSE: JACQUES ÉTIENNE
v. THE MINSITER OF CITIZENSHIP
AND IMMICATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 16, 2007
APPEARANCES:
|
Mr. Dan Bohbot
|
|
|
Ms. Gretchen Timmins
|
SOLICITORS OF RECORD:
|
DAN BOHBOT, Lawyer Montreal (Quebec)
|
|
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
|