Date: 20091204
Docket: IMM-2233-09
Citation:
2009 FC 1245
Ottawa,
Ontario, December 4, 2009
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
JOSUE
PETERLEE MESIDOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The Refugee
Protection Division of the Immigration and Refugee
Board (the Board) was validly entitled to rely on the applicant’s conduct at
the hearing in assessing his credibility, as the Federal Court of Appeal
reiterated in Chen v. Canada (Minister of Citizenship
and Immigration) (1999), 240 N.R. 376 (F.C.A.), 87 A.C.W.S. (3d)
1182:
[7] The point here is that the witness
whose credibility was questioned by the Refugee Division was seen and heard
by that body as triers of fact. As other triers of fact, they enjoyed unique
advantages in coming to their findings and especially so in making findings
upon an assessment of the witness's credibility. The peculiar role of triers of
fact in assessing the credibility of a witness has been remarked upon by the
courts through the years. Lord Shaw did so in Clarke v. Edinburgh Tramway
Company as follows:
In Courts of justice in the ordinary case things
are much more evenly divided; witnesses without any conscious bias towards a
conclusion may have in their demeanour, in their manner, in their hesitation,
in the nuance of their expressions, in even the turns of the eyelid, left an
impression upon the man who saw and heard them which can never be reproduced in
the printed page. What in such circumstances, thus psychologically
put, is the duty of an appellate Court? In my opinion, the duty of an appellate
Court in those circumstances is for each Judge of it to put to himself, as I
now do in this case, the question, Am I - who sit here without those
advantages, sometimes broad and sometimes subtle, which are the privilege of
the Judge who heard and tried the case - in a position, not having those
privileges, to come to a clear conclusion that the Judge who had them was
plainly wrong? If I cannot be satisfied in my own mind that the Judge with
those privileges was plainly wrong, then it appears to me to be my duty to
defer to his judgment.
[Emphasis added.]
II. Introduction
[2]
This is an
application for judicial review of a decision by the Board dated April 6, 2009,
that the applicant is not a “Convention refugee” or a “person in need of
protection” under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
III. Facts
[3]
The
applicant, Josue Peterlee Mesidor, is basing his refugee protection claim on
the fact that he was allegedly a friend of Charles David, a soccer coach at the
university he attended, as well as on the fact that he would be perceived as wealthy,
having lived abroad (in the United States and Canada).
[4]
The
incident leading to Mr. Mesidor’s departure purportedly occurred on
February 27, 2004, during which Lavalas’ Chimères allegedly went to Les
Cayes from Port-au-Prince to cause a violent upheaval. They
were purportedly looking for Mr. David. After receiving information on
Mr. Mesidor, they allegedly went to his house, but the Front de Résistance
[resistance force] protecting his neighbourhood apparently saved him.
IV. Impugned decision
[5]
The Board
rejected Mr. Mesidor’s claim after finding that his testimony was not credible.
[6]
The Board
also found that Mr. Mesidor had not established a personalized risk because of
the fact that he could be perceived as being wealthy.
V. Issue
[7]
Is the
Board’s decision reasonable?
VI. Analysis
[8]
The Court
agrees with the respondent that the decision is well-founded in fact and in law
and that Mr. Mesidor’s application for judicial review should be dismissed.
A. Lack of credibility
1) No reasonable explanation
for the applicant’s failure to file a claim in the
United States during his stay from July 19,
2004, to February 2007
[9]
The Board
was entitled to rely on Mr. Mesidor’s failure to claim protection from American
authorities during his long stay in that country.
[10]
In addition,
the Board was entitled to not believe Mr. Mesidor’s explanations that a lawyer
in the United States allegedly told him that he was too young (the applicant
was born on December 18, 1984) to file a claim. Mr. Mesidor could have
validated this information with his close relatives who are American citizens
or check on the Internet.
[11]
In Assadi
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 331
(QL), 70 A.C.W.S. (3d) 892, Justice Max Teitelbaum decided that the failure to
immediately claim international protection can impugn a claimant’s credibility even
with regard to events in his or her country of origin.
[12]
In
addition, the courts have consistently held that a claimant’s delay in filing a
refugee claim can justify the rejection of a refugee claim in a case where this
delay was not satisfactorily explained.
[13]
For example,
in Espinosa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1324, 127 A.C.W.S.
(3d) 329, Justice Paul Rouleau determined the following:
[17] The Board states correctly that while the
delay is generally not a determinative factor in a refugee claim, there are
circumstances where the delay can be such that it assumes a decisive role; what
is fatal to the applicant’s claim is his inability to provide any satisfactory
explanation for the delay.
(Also, Duarte v. Canada (Minister of Citizenship and Immigration), 2003 FC 988, 125 A.C.W.S.
137; Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC
181, 146 A.C.W.S. (3d) 325; Ayub v. Canada (Minister of Citizenship and Immigration), 2004 FC 1411, 134 A.C.W.S. (3d)
485).
[14]
In Singh
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 743, 149 A.C.W.S. (3d) 479, Justice Teitelbaum dismissed the judicial
review on the basis of unexplained delays:
[49] The case law on
the issue of delay is clear. Very recently, i.e. on April 3, 2006, in
Bhandal v. MCI, [2006] F.C.J. No. 527, 2006 FC 426, I decided that a
delay was sufficient to dismiss an application for judicial review, relying on
earlier case law.
. . .
[55] It is not
patently unreasonable that the RPD determined that the applicant was not a
credible witness.
[15]
Recently,
these principles were reiterated in Semextant v. Canada (Minister of Citizenship and
Immigration),
2009 FC 29, [2009] F.C.J. No. 20 (QL):
[23] In the present
case, Ms. Semextant did not provide a reasonable explanation for the delay. The
Board was, therefore, justified to conclude as it did on a lack of subjective
fear (Sainnéus, above).
[24] Consequently, there
was no error on the part of the Board in concluding that Ms. Semextant’s
behaviour, in and of itself, undermined the credibility of her testimony.
[25] The Board,
therefore, was in a position to reject Ms. Semextant’s claim for refugee
protection, simply, on the basis of incompatible conduct with a “subjective
fear”:
[8] There are many
ways to make determinations in matters of credibility. In assessing the
reliability of the applicant’s testimony the Board may consider, for example,
vagueness, hesitation, inconsistencies, contradictions and demeanour (Ezi-Ashi
v. Canada (Secretary of State) [1994] F.C.J. No. 401, at paragraph 4). In El
Balazi v. Canada (Minister of Citizenship and Immigration) 2006 FC 38,
[2006] F.C.J. No. 80, at paragraph 6, Mr. Justice Yvon Pinard states that even
in some circumstances, the applicant’s conduct may be enough to deny a refugee
claim:
The respondent correctly says
that the IRB may take into account a claimant’s conduct when assessing his or
her statements and actions, and that in certain circumstances a claimant’s
conduct may be sufficient, in itself, to dismiss a refugee claim (Huerta v.
Minister of Employment and Immigration (March 17, 1993), A-448-91, Ilie
v. Minister of Citizenship and Immigration (November 22, 1994), IMM-462-94
and Riadinskaia v. Minister of Citizenship and Immigration (January 12,
2001), IMM-4881-99). [Emphasis added].
(Biachi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 589, 152 A.C.W.S. (3d) 498).
2) Conduct at the hearing
[16]
In Gjergo
v. Canada
(Minister
of Citizenship and Immigration), 2004 FC
303, 131 A.C.W.S. (3d) 508, Justice Sean Harrington reiterated the following:
[22] . . . This Court has previously held
that the panel may take into account the demeanor of an applicant during his
testimony. When the witness has difficulty giving adequate and direct answers,
the panel may make a negative credibility finding. . . .
(Also, Tong v. Canada (Secretary of State), [1994] F.C.J.
No. 479 (QL), 47 A.C.W.S. (3d) 678).
3) Fear because of relationship
with Mr. David
[17]
It was not
unreasonable for the Board to find that there was no ground for believing that
Mr. Mesidor, who left Haiti in July 2004, would be
targeted if he returned to Haiti because of his relationship
with Mr. David.
[18]
Mr.
Mesidor claims that he clarified his relationship with Mr. David and that his
testimony was not inconsistent with that of Mr. David’s spouse, Micheline
Lachance, who was found credible by the Board (Applicant’s Memorandum at paragraphs
22 and 23).
[19]
The fact
that the Board found Ms. Lachance’s testimony credible regarding the
circumstances in which she and her spouse purportedly knew Mr. Mesidor is not
sufficient to establish that he would be at risk if he returned to Haiti.
[20]
In his
memorandum, Mr. Mesidor claimed that Ms. Lachance testified that she believed
that he would be targeted if he returned to Haiti because of his relationship with her
spouse. She apparently added that two students had purportedly been targeted
and fled the country (Applicant’s Memorandum at paragraph 12).
[21]
These allegations
by Mr. Mesidor should be disregarded. The reasons for the Board’s decision do
not indicate that Ms. Lachance apparently testified about the danger to Mr. Mesidor
if he returned or the fact that two students had allegedly been targeted.
[22]
Furthermore,
Mr. Mesidor’s affidavit does not mention any of these elements (Applicant’s
Record (AR) at paragraphs 17-19).
[23]
Mr.
Mesidor also alleges that Ms. Lachance also apparently mentioned that her
spouse was still in danger in Haiti and that he ensured his
safety and that of their son with bodyguards and an armoured car (Applicant’s
Memorandum at paragraph 13).
[24]
The
reasons for the Board’s decision indicate the following regarding Mr. David’s
situation in Haiti:
Ms. Lachance testified that her husband
is now the director of the Chambre d’Arbitrage et de Conciliation [arbitration
and conciliation chamber] of Haiti. He never left the country
because he has a prestigious position and earns a very good salary. However, he
required a bodyguard because of the security issues in Haiti. Ms. Lachance mentioned that her 15 year
old son lives with his father and that he is attending high school there.
B. Generalized risk
[25]
The Board
was validly entitled to reject Mr. Mesidor’s submissions that he was afraid of
being kidnapped because he could be considered wealthy after living many years
in the United States and Canada.
[26]
The Board
was entitled to rely on document 14.1 of the National Documentation Package on Haiti as well as on Mr. Mesidor’s particular
situation to find that he would not be personally targeted if he were to return
to Haiti.
[27]
In
accordance with subparagraph 97(1)(b)(ii) of the IRPA, Mr. Mesidor must
present evidence of a personalized risk to himself. Protection is limited to those
who face a specific risk not faced generally by others in the same country.
[28]
Furthermore,
it is well established in the case law that the assessment of the applicant’s
potential risk must be personalized and that the general situation of a country
does not mean there is a risk to a given individual:
[28] That said, the assessment of
the applicant's potential risk of being persecuted if he were sent back to his
country must be individualized. The fact that the documentary evidence shows
that the human rights situation in a country is problematic does not
necessarily mean there is a risk to a given individual. . . .
(Jarada v. Canada (Minister of Citizenship and Immigration, 2005 FC 409, [2005] F.C.J. No.
506 (QL)).
[29]
In Charles
v. Canada (Minister of Citizenship and
Immigration),
2009 FC 233, [2009] F.C.J. No. 277 (QL), the Court determined that the
Board did not commit any error in finding that there was no personalized risk:
[7] Finally, the Court
concludes that the applicants’ claim with regard to them being at greater risk
if returned to Haiti because of a general perception as to their enrichment
upon return from abroad was also reasonably dismissed by the Board since
section 97 requires personalized risk (Carias v. Canada (Minister of
Citizenship and Immigration), 2007 FC 602; Prophète v. Canada (Minister
of Citizenship and Immigration), 2008 FC 331; aff’d 2009 FCA 31).
VII. Conclusion
[30]
Mr.
Mesidor did not demonstrate that the Board’s decision is unreasonable or that
it does not fall as a whole within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[31]
For all of
these reasons, Mr. Mesidor’s application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. the application for judicial review be dismissed;
2. no
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, Reviser
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