Ottawa, Ontario, November 2, 2006
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
MARIE KERLINE CHAMBLAIN HAZELL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review, filed under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division (RPD) dated March 7, 2006, which found that Marie Kerline Chamblain Hazell (the applicant) is neither a refugee within the meaning of section 96 of the IRPA nor a person in need of protection within the meaning of section 97 of the IRPA.
I. Facts
[2] The applicant is a citizen of Haiti and of St. Vincent. She left her country of origin, Haiti, in 1990 to settle in the Dominican Republic where she gave birth to three children who still live there. During her stay in the Dominican Republic, the applicant met Kelvin Lewis Hazell, a citizen of St. Vincent.
[3] The applicant decided to follow Mr. Hazell to St. Vincent in April 2001. In May 2001, the applicant and Mr. Hazell were married. Following the marriage, the applicant obtained St. Vincent citizenship.
[4] Mr. Hazell, following his marriage to the applicant, became an indifferent, impatient, ill-tempered and violent man. The applicant tried unsuccessfully to obtain protection from her husband from the St. Vincent police.
[5] Since the St. Vincent police were unable to protect the applicant from her husband, the applicant fled St. Vincent for Canada on April 1, 2005. Before coming to Canada, the applicant went to Haiti where she stayed for 2 weeks in or around the month of February 2005.
[6] On June 17, 2005, the applicant filed a claim for refugee protection in Canada.
II. Issues
(1) Can the applicant introduce fresh documentary evidence during judicial review proceedings?
(2) What is the appropriate standard of review with respect to RPD decisions?
(3) Did the RPD err in finding that the applicant is neither a “Convention refugee” nor a “person in need of protection” because she could seek state protection in Haiti?
III. Analysis
(1) Can the applicant introduce fresh documentary evidence during judicial review proceedings?
[7] At pages 26 to 31 of her memorandum, the applicant introduced fresh documentary evidence concerning the Haiti national police, the Haitian judicial system, and the status of women in Haiti, specifically with respect to violence against women. These excerpts were included to support the applicant’s argument that the RPD should have taken into account, in its analysis, the protection offered in Haiti.
[8] It is clear that no documentary evidence was introduced before the RPD concerning the situation in Haiti or the inability of that state to protect the applicant. The respondent’s memorandum states the following:
[TRANSLATION]
It should be noted that no document was filed on Haiti by the refugee protection officer or by the consultant representing the applicant. . . .
(Applicant’s Record, Respondent’s Memorandum, at page 24)
In addition, the applicant noted the following in her affidavit:
[TRANSLATION]
The consultant who represented me, Alam Monsoor, did not introduce any evidence on Haiti, nor did the protection officer. . . .
(Applicant’s Record, Applicant’s Affidavit, at paragraph 5)
[9] In the case law, this Court has clearly held that, during judicial review proceedings, the Court may consider only the evidence available to the initial decision-maker (Lemiecha (Litigation guardian of) v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49, at paragraph 4; Wood v. Canada (A.G.) 2001, 199 F.T.R. 133, at paragraph 34; Han v. Canada (Minister of Citizenship and Immigration), 2006 FC 432, at paragraph 11). In this regard, Kelen J. in Gallardo v. Canada (Minister of Citizenship and Immigration), 2003 FCT 45, stated the following at paragraphs 7 and 8:
It is trite law that judicial review of a decision should proceed only on the basis of the evidence before the decision-maker.
The Court cannot weigh new evidence and substitute its decision for that of the immigration officer. The Court does not decide H & C applications [applications on humanitarian and compassionate grounds]. The Court judicially reviews such decisions to ensure they are made in accordance with the law.
[10] Consequently, all the evidence in the applicant’s record that was not before the RPD is withdrawn from this record, including pages 26 to 31 of the applicant’s memorandum.
(2) What is the appropriate standard of review with respect to RPD decisions?
[11] In Williams v. Canada (Minister of Citizenship and Immigration), 2005 FCA 126, the Federal Court of Appeal ruled that a decision to deny refugee status on the basis that a person had the option of seeking protection in another country is a question of law, as such a decision requires the RPD to interpret section 96 of the IRPA. Thus, the appropriate standard of review with respect to such a decision is that of correctness. Décary J. in Williams, supra, explained the appropriate standard of review as follows:
Whether the existence of an option to seek protection in Uganda is a valid cause for the denial of the refugee status is a question which requires the interpretation of section 96 of the IRPA. This is a question of law. It is well settled that on questions of law of such nature, the standard of review is correctness. The Board could not afford to be wrong. Nor could the applications Judge.
(3) Did the RPD err in finding that the applicant is neither a “Convention refugee” nor a “person in need of protection” because she could seek state protection in Haiti?
[12] With regard to refugee law, the basic principle is that international protection serves as surrogate protection (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at paragraph 18). In addition, the case law is well settled: refugees must seek protection in their countries of nationality before claiming refugee protection in Canada (Ward v. Attorney General, supra, at paragraph 89). These principles are clearly set out in section 96 of the IRPA:
|
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, |
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) 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 |
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) 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. |
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. |
|
[Emphasis added] |
[Je souligne] |
[13] In Roncagliolo v. Canada (Minister of Citizenship and Immigration), 2005 FC 1024, at paragraph 16, Blanchard J. explains the RPD’s responsibility when it determines whether it is possible for a person claiming refugee protection in Canada to claim nationality from another country:
First, the Board must determine whether the refugee claimant can obtain citizenship from another country and, if so, whether there is a fear of persecution in that country. Should the evidence fail to establish a fear of persecution, the principle of surrogate international protection comes into play, which means that the claimant is precluded from seeking refugee status.
This position reflects the Federal Court of Appeal’s position in Williams, supra, concerning the duty of a person claiming refugee protection to demonstrate a fear of persecution in relation to each country of citizenship before the person can seek asylum in a country of which he or she is not a national. At paragraphs 19-20 of Williams, supra, Décary J. explains this duty as follows:
It is common ground between counsel that refugee protection will be denied where it is shown that an applicant, at the time of the hearing, is entitled to acquire by mere formalities the citizenship (or nationality, both words being used interchangeably in this context) of a particular country with respect to which he has no well-founded fear of persecution.
This principle flows from a long line of jurisprudence starting with the decisions of our Court in Canada (Attorney General) v. Ward, [1990] 2 F.C. 667 (C.A.), and in Canada (Minister of Employment and Immigration) v. Akl (1990), 140 N.R. 323 (F.C.A.), where it was held that, if an applicant has citizenship in more than one country, he must demonstrate a well-founded fear of persecution in relation to each country of citizenship before he can seek asylum in a country of which he is not a national. Our ruling in Ward was confirmed by the Supreme Court of Canada (at paragraph 12 of these reasons) and the principle eventually made its way into the IRPA, section 96 referring to "each of their countries of nationality."
[14] In the case at bar, the fact that the applicant had citizenship in another country, namely, Haiti, is undisputed. Therefore, the RPD had only to determine whether the applicant had a fear of persecution or a personalized risk if she were sent back to Haiti. The transcript of the hearing clearly shows that the RPD asked the applicant questions concerning her situation in Haiti, including whether she had a personalized fear of persecution. At the end of the hearing, the applicant declared that she had assessed her opportunities in Haiti but had decided against going there because of the widespread insecurity in the country:
[TRANSLATION]
R. When I went to Haiti, I wanted to stay in my country.
…
R. I wanted to stay. But when I saw what the situation was, the insecurity, I couldn’t go out to get something to eat, I couldn’t, I couldn’t do anything. . . .
…
Q. But why did you go to Haiti?
…
R. I wanted to go. . . I wanted to leave him, I wanted to stay in Haiti.
…
R. . . . But the situation in Haiti was such that I couldn’t stay. The insecurity, government problems, problems for women, no safety in the streets. I couldn’t even go out in the street. I couldn’t. I was too afraid, I was too afraid. Traumatized. I can no longer, I no longer want to go back.
(RPD Record, Transcript of the Hearing of Marie Kerline Chamblain Hazell, at pages 23-25)
In addition, the applicant explained the following in support of her claim for refugee protection in Canada:
[TRANSLATION]
R. My situation in St. Vincent was critical because I was like a slave, I didn’t know what to do. The problem in Haiti is a problem of insecurity, political problems. I know that that will disturb me even more than the problems with my husband. Because the situation in Haiti is very delicate at the moment. It’s my country, I would like to stay. . . .
(RPD Record, Transcript of the Hearing of Marie Kerline Chamblain Hazell, at page 34)
[15] From my reading of the transcript of the hearing, it appears that the applicant did not establish that she would face a personalized risk if she returned to Haiti. According to this Court’s jurisprudence, a person claiming refugee protection must provide the evidentiary elements he or she considers necessary to prove that his or her claim is well-founded. In this regard, Nadon J. in Rahmatizadeh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 578 (Q.L.), at paragraph 9, noted the following:
I would like to repeat what I have said in other cases. Applicants must not rely on the members of the Division or on the hearing officer to "prove their case". It is up to them, and them alone, to introduce into evidence all the material that they consider to be essential to establish that their claim is well-founded.
This was recently repeated by Snider J. in Kovacs v. Canada (Minister of Citizenship and Immigration), 2005 FC 1473, at paragraph 33, where she stated:
In the refugee claim, the onus was on the applicants to supply evidence that supports their claim (Rahmatizadeh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 578 (T.D.) (QL), at paragraphs 9-10; Kante v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 525 (T.D.) (QL), at paragraph 8).
[16] The fact that the applicant alleges that she does not want to return to Haiti because of the general insecurity in the country is not sufficient to find her to be a refugee under section 96 of the IRPA or a person in need of protection under section 97 of the IRPA. If the personalized risk is not shown by the applicant, she has not discharged her burden and, consequently, the RPD is not required to analyze the situation in Haiti. Therefore, the RPD’s decision that Marie Kerline Chamblain Hazell is neither a refugee within the meaning of section 96 of the IRPA nor a person in need of protection within the meaning of section 97 of the IRPA is correct and the intervention of this Court is not warranted.
[17] The parties were asked to submit questions for certification but no question was submitted.
JUDGMENT
THE COURT ORDERS THAT:
- The application for judicial review be dismissed.
- No question will be certified.
Certified true translation
Susan Deichert, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1701-06
STYLE OF CAUSE: MARIE KERLINE CHAMBLAIN HAZELL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal
DATE OF HEARING: October 24, 2006
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Simon Noël
DATED: November 2, 2006
APPEARANCES:
Éveline Fiset FOR THE APPLICANT
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset FOR THE APPLICANT
Montréal, Quebec
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
Montréal, Quebec