Date: 20050817
Docket: IMM-10649-04
Citation: 2005 FC 1124
Ottawa, Ontario, August 17, 2005
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
MARIE-FRANCE JEUDY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Marie France Jeudy is a 39-year-old Haitian who was not recognized as a Convention refugee or a person in need of protection by the Refugee Protection Division (the panel) in its decision dated October 26, 2004.
[2] The principal issue raised in this application for judicial review is whether there are serious grounds to believe that the applicant, if she were to be removed to Haïti, would be personally subjected to a danger of torture; or to a risk to her life or to a risk of cruel and unusual treatment or punishment, while the risk is generally not faced by other individuals in or from that country.
[3] On February 11, 2004, there was a bloody confrontation between the rebels and the police in St-Marc, Haïti, 15 days before President Aristide was escorted away by American forces. The community of St-Marc had been faced with serious problems since January 29, 2004.
[4] The owner of a well-established business in St-Marc, Ms. Jeudy learned around 1:00 p.m. on the afternoon of February 11, 2004, that her common-law husband, Johnny Pierre, a policeman, had been killed and that the "Chimera" had charred his body.
[5] On the advice of her sister, Myriame, who had told her that she should not return home, she sought refuge in Port-au-Prince and left Haïti on February 18, 2004.
[6] The panel notes that Johnny Pierre was one of several other victims and that there were deaths among both the armed gangs and the police. According to the tribunal, the applicant stated that her husband scarcely worried about the threats he received from the "Chimera" gangs, and that she had never had any particular problems.
[7] In the panel's opinion:
The death of her common-law husband was a result of the armed conflict of February 11, 2004. It was in the line of duty that her friend Johnny Pierre died on February 11, 2004. As for the fact that her business had been looted and burned, the claimant testified that her business was not the only one that was looted and burned; all the other businesses had suffered the same fate as hers. The claimant was not personally targeted by armed gangs wanting to avenge her relationship with a policeman. Once again, the claimant was clear in stating that all shopkeepers in St-Marc had seen their establishments ransacked, broken into and looted on February 11, 2004; and that others, like herself, had fled St-Marc straightaway to go to Port-au-Prince, and gave examples of other shopkeepers who had done as she had. Asked whether the main cause of her misfortune and her problems was February 11, 2004, or the fact that her common-law husband was a police officer, the claimant said that it was indeed February 11, 2004, that was responsible for all her misfortune, and that, had it not been for this confrontation, which had deprived her of her sole source of income and of her husband's support, she would still be in Haiti, the implication being that life would have followed its normal course provided that Johnny Pierre, who had been a police officer since 1998, had continued to serve as a police officer and that their relationship, which had lasted since 1999, had continued.
[Emphasis added.]
[8] According to the panel, in order to qualify as a "Convention refugee" under section 96 or as a "person in need of protection" under section 97 of the Immigration and Refugee Protection Act (the Act) the refugee claimant must be able to establish that their removal to their country of nationality would subject them personally to the feared harm. It is not enough, according to the panel, that the claimant establish that the harm in question was imposed in her country. The claimant must show that she would be personally subjected to the danger and/or to the risk, considering her particular situation or that of a person in a similar situation.
[9] Section 97 of the Act contemplating persons in need of protection reads:
| 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.
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97. (1)A qualitéde 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. [je souligne]
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[10] The panel determined that there is no personal connection between the applicant and the alleged persecution on one of the five grounds set out in the Convention, in this case: membership in a social group-wife of a policeman. The panel considers that the direct cause of the problem and the misfortune of Ms. Jeudy was the event that took place in St-Marc on February 11, 2004, i.e. confrontations resulting in as many victims on one side: the armed gangs: "Chimera" as there were on the other "police and CIMO members".
[11] Ms. Jeudy's counsel is not seriously disputing this finding regarding the application of the Convention in this case. Her argument is focussed on section 97 of the Act.
[12] With respect to the risk of being personally subjected to cruel and unusual treatment or punishment, torture and/or a risk to her life, the panel considers that under subparagraph 97(1)(b)(ii) of the Act, protection is limited to persons who face a particular risk while others, from that same country, generally do not. It therefore cannot be a random risk to which the claimant and other persons would be indiscriminately subjected. For the panel, the harm feared by the claimant is a random risk indiscriminately affecting other persons living in Haïti and who, like her, fled the violence that erupted in St-Marc on February 11, 2004.
[13] According to the panel, the evidence submitted in this case is not sufficient to allow the panel to find that there is a serious possibility that the claimant would be persecuted for one of the five grounds in the Convention. Similarly, the panel considers that the evidence submitted in this case is insufficient to find that there is a serious possibility that the claimant would personally be subject to a risk to her life and/or a risk of cruel and unusual treatment or punishment if she were to return to her country of citizenship.
[14] According to the submissions of the applicant's counsel, the applicant had a specific and personal fear because her husband was a police officer. Such a submission essentially raises a question of fact which must be assessed in accordance with the standard of review stated by Parliament at paragraph 18.1(4)(d), i.e. that the panel's decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it, which amounts to a patently unreasonable decision.
[15] In this case, the Supreme Court of Canada's decision in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, is relevant. At paragraph 85, L'Heureux-Dubé J., writing for the Court, states:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. 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: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[Emphasis added.]
[16] I also refer to paragraph 4 of Décary J.A.'s reasons in Aguebor v. Canada (Minister of employment and Immigration), [1993] 160 N.R. 315 (F.C.A.):
¶ 4 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[17] Counsel contends that the panel misapprehended Ms. Jeudy's testimony. Even though the applicant responded that she personally had never had any problem when Johnny was alive, the panel failed to understand, in counsel's opinion, her testimony to the effect that after Johnny's death, she no longer had any protection from the rebels who came [TRANSLATION] "into my place of business to overwhelm me, to run after me. If I had been there, I would have been killed, too" (stenographer's notes, certified record, page 78).
[18] However, she also testified [TRANSLATION] "that those abusers had it out for all of the shopkeepers" (certified record, page 80) and answered "yes" to the question [TRANSLATION] "Would you say that when there are confrontations between the "Chimera" and the police, that it is then that the looters, thieves, hit the businesses?". There was also her testimony to the effect that she could live in peace in Cayes.
[19] I carefully reviewed the stenographer's notes of Ms. Jeudy's testimony before the panel.
[20] Section 96 of the Act incorporating the provisions of the Convention has no application. Ms. Jeudy, according to her testimony, has no fear on any of the grounds in the Convention.
[21] With respect to section 97 of the Act, the applicant did not persuade me that the panel misapprehended the evidence or that the panel's findings to the effect that she was not personally targeted are reviewable. The evidence in the record could reasonably support the inferences drawn by the panel.
ORDER
For these reasons, this application for judicial review is dismissed. No question was proposed for certification.
"François Lemieux"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10649-04
STYLE OF CAUSE: MARIE-FRANCE JEUDY v. MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: August 3, 2005
REASONS FOR ORDER: Lemieux J.
DATE OF REASONS: August 17, 2005
APPEARANCES:
Évelyne Fiset FOR THE APPLICANT
477 Saint-François Xavier
Suite 308, Montréal, Quebec
H2Y 2T2
Telephone: (514) 904-0048
Facsimile: (514) 904-10281
Edith Savard FOR THE RESPONDENT
Department of Justice Canada
200 René-Lévesque Blvd. West
East Tower, 5th floor, Montréal, Quebec
H2Z 1X4
Telephone: (514) 283-1876
Facsimile: (514) 283-3856
SOLICITORS OF RECORD:
Évelyne Fiset FOR THE APPLICANT
Montréal, Quebec
John H. Sims
Deputy Attorney General of Canada FOR THE RESPONDENT