Date: 20041028
Docket: IMM-863-04
Citation: 2004 FC 1490
Ottawa, Ontario, the 28th day of October 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
ALBERT JEAN JOSEPH PIERRE
Applicant
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (IRB), dated January 6, 2004, denying the applicant's refugee claim because he was not a Convention refugee or a person in need of protection.
[2] The applicant seeks to have the panel's decision set aside and to have the file referred before a new panel as well as any other order that the Court deems appropriate.
ISSUE
[3] Did the panel err in basing its decision on an erroneous finding of fact, or in acting in a manner contrary to law, in deciding that the applicant was not a Convention refugee or a person in need of protection?
CONCLUSION
[4] For the reasons stated below, there are no grounds warranting the intervention of this Court.
THE FACTS
[5] The applicant, Albert Jean Joseph Pierre (Mr. Pierre, or the applicant), 59 years old, is a citizen of the Republic of Haïti. He arrived in Canada on January 31, 2001, as a permanent resident of Canada. An investigation was initiated by Immigration Canada after information was received alleging that the applicant had married his sister using a false identity, in order to avail himself of the advantages of sponsorship and then obtain a right of landing in Canada. In the interim, the applicant filed a refugee claim on November 1, 2001.
[6] Mr. Pierre says that he was a victim of persecution and harassment because of his past as a communal police officer in Haïti until 1990. Then he worked the land, all the while receiving help from his relatives living abroad. According to him, his situation brought about some jealousy and death threats followed. Mr. Pierre also alleges that, since 1990, certain individuals also tried to enter his home to rob him. Others tried to set fire to his land. He said that his nephew was jealous of his financial situation and alleges that the police were unable to protect him.
IMPUGNED DECISION
[7] The panel found that Mr. Pierre has access to an internal flight alternative (IFA) in Haïti in the capital of Port-au-Prince and that, for that reason, he was not a Convention refugee:
The evidence on record indicates that Port-au-Prince is an accessible IFA for the claimant and that there is little serious possibility that he would be persecuted in that city. Moreover, the claimant's objections against carrying out this IFA essentially centred on economic and social considerations. Thus, it is true to say that it was easier for him to earn a living in farming, but refugees do not have an inalienable right to practice a particular profession or trade. The claimant could relocate, and nothing indicates that the financial assistance from his family would have thus ceased.
Also, there is no serious possibility that his agents of persecution would follow him to Port-au-Prince. In addition, by the claimant's own admission, the capital would provide him with safety, which he did not have in Cailles.
For these reasons, the panel finds that the claimant had a viable IFA that he has refused, omitted or neglected to look into because of a frivolous whim
[8] Since there is a viable IFA in Haïti, the panel determined that the applicant was not a "person in need of protection" under paragraph 97(1)(b) of the Act and the refugee claim was therefore denied.
SUBMISSIONS OF THE PARTIES
The applicant
[9] The applicant claims that the panel's decision is unreasonable because he would be in danger everywhere in Haïti because he could not count on the State's protection. The applicant believes that the police will not protect him and that there is reason to fear the police officers because corruption is pervasive in Haïti.
[10] The applicant states that a large part of the population does not recognize the government in power and that this explains in part why there is social chaos and why disorder prevails. The applicant states that the IRB's documentation package on Haïti contains a series of documents establishing the State's ineffectiveness in protecting its citizens.
[11] The applicant also says that his land in Cailles is his only means to support his needs and that he does not have other income except the money sent to him by his family living in Canada. Further, he does not know anyone in Port-au-Prince and has no way to support himself in that city. Forcing him to relocate to Port-au-Prince would be unreasonable.
The respondent
[12] The respondent argues that the decision is entirely reasonable: it is based on the evidence presented and the arguments raised by the applicant do not warrant the intervention of the Court. The applicant had to establish, on a balance of probabilities, that there is a serious possibility that he will be persecuted everywhere in the country, including Port-au-Prince. According to the applicant, the respondent did not meet his burden of proof.
[13] The respondent submits that the applicant did not make any argument in his memorandum to challenge the panel's finding regarding the IFA in his country. The panel did not address Sate protection, since it did not have to do so given the facts of the case, and accordingly, the applicant's arguments on that point are not relevant.
ANALYSIS
The standard of review
[14] Generally, the standard of review in such a case, where the panel has determined that there is a viable IFA, is that of patent unreasonableness, since it is essentially a question of fact. However, the standard of correctness applies to the question of whether the absence of relatives in the place of refuge is relevant for the purpose of determining if it is reasonable for claimants to seek protection without availing themselves of that IFA, since this analysis involves setting boundaries to the definition of a refugee: Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.).
[15] Therefore, first one must examine whether the panel was correct in deciding that the applicant would be safe in Port-au-Prince, and then examine whether the panel was correct in deciding that it was reasonable for the applicant to relocate to Port-au-Prince.
Analysis
[16] A patently unreasonable decision is one that, "in the main, is not supported by any reasons that can stand up to a somewhat probing examination;" i.e. that there is nothing in the decision to explain how the panel made its determination given the evidence before it: Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56.
[17] In this case, the panel had evidence that the applicant was persecuted by certain individuals in the region of Cailles. However, there was no indication that the applicant would not be safe in Port-au-Prince. On this point, the applicant admitted that he would be safe in Port-au-Prince. Given the fact that the applicant had admitted that he had been persecuted in Cailles by people who lived there, it was not unreasonable for the panel to find that Mr. Pierre would be safe in Port-au-Prince. It was perfectly logical for the panel to find that there was an IFA in the circumstances.
[18] Moreover, claiming that forcing Mr. Pierre to relocate is unreasonable in light of the facts in evidence, i.e. that he knew few people in Port-au-Prince and that he depended on his land to survive, does not meet the test set out by the Federal Court of Appeal in Thirunavukka - Rasu (M.E.I.) [1994] 1 F.C. 589 at paragraph 13:
It is not a question of whether in normal times the refugee claimant would, on balance, choose to move to a different, safer part of the country after balancing the pros and cons of such a move to see if it is reasonable. Nor is it a matter of whether the other, safer part of the country is more or less appealing to the claimant than a new country. Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad? [Emphasis added.]
[19] Under this test, it is not unreasonable that Mr. Pierre be relocated to Port-au-Prince. If an IFA exists and it is viable, it should therefore be used. It is true that it will not be comparable to Canada but considering the situation in Haïti, the IFA is acceptable under the circumstances. Moreover, if we examine this issue pursuant to the correctness standard, the IFA is reasonable because the applicant in fact admitted that he knew people in Port-au-Prince and that he could continue to receive money from his family even if he no longer lived in Cailles.
[20] Counsel were invited to submit questions for certification but declined the invitation.
ORDER
THE COURT ORDERS THAT:
This application for judicial review is dismissed and no question is certified.
"Simon Noël"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-863-04
STYLE OF CAUSE: ALBERT JEAN JOSEPH PIERRE
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 19, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Simon Noël
DATED: October 28, 2004
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
ISABELLE BROCHU FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
MONTRÉAL, QUEBEC