Federal Court |
|
Cour fédérale |
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 13, 2009
PRESENT: The Honourable Mr. Justice Orville Frenette
BETWEEN:
Applicant
and
THE MINISTER OF IMMIGRATION
AND CITIZENSHIP
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
[1] The applicant filed an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), against a decision made on July 15, 2008 by the delegate of the Minister of Citizenship and Immigration, who rejected the applicant’s claim for protection under subsection 112(3) of the IRPA as a person who is inadmissible due to serious criminality and who is a danger to Canada.
Summary of facts and proceedings
[2] The applicant, a Haitian citizen who was born in that country, arrived in Canada on August 14, 1983, at age 20.
[3] In Canada, he was found guilty of 44 criminal offences that were committed between 1986 and 2005.
[4] On November 16, 2007, in response to an application for a pre-removal risk assessment (PRRA), the officer found that the applicant’s life would be at risk or he could suffer cruel and unusual treatment or punishment if he were returned to Haiti.
[5] On July 15, 2008, the delegate of the Minister rejected the applicant’s claim for protection under subsection 112(3) of the IRPA.
[6] In a well-reasoned decision, the delegate analyzed the applicant’s history and criminal record and the publicly available international documentation cited by the PRRA officer in her decision from November 16, 2007. The delegate of the Minister considered the documentation filed by counsel for the applicant on the situation in Haiti, including the updates on that situation that she sent on March 27, June 19, and June 20, 2008. The delegate also accessed other documents that are publicly accessible to everyone, covering the period from 2001 to 2008.
The issue
[7] On July 15, 2008, the delegate of the Minister, in a reasoned 33-page decision, detailed the reasons that showed why the applicant’s application was rejected as a person who is inadmissible due to serious criminality. According to the balance of probabilities and despite the applicant’s criminal record, the delegate decided that if the applicant were to return to Haiti, he would not be subject to torture or exposed to a risk to his life or to a risk of cruel and unusual treatment or punishment. He also found that the applicant was a current and future danger to the public safety of Canada. The delegate of the Minister considered various public documents, including a report from the U.S. Department of State, published on March 11, 2008.
[8] On July 22, 2008, the applicant filed an application for leave and judicial review against the aforementioned decision. The hearing was set for April 15, 2009.
[9] On April 14, 2009, counsel for the applicant sent the Court a missive accompanied by a document, which she described as “new evidence”: a report that she had ordered in another case (that of Nicolas Joseph), prepared on March 23, 2009 by Ms. Michelle Karshan, a citizen of the United States who spent nine years in Haiti (until 2004). She describes herself as an “expert” and heads a non-profit organization dedicated to helping criminalized persons who are deported to Haiti.
[10] Counsel for the respondent vigorously attacked the filing and consideration of that document for various basic and procedural reasons.
The legislation
[11] The relevant sections of the IRPA are as follows:
The conditions for accepting new evidence
[12] Right from the start, it should be remembered that in order to reverse administrative decision, case law states that the Court may only examine the evidence that was adduced before the initial decision-maker (Isomi v. Minister of Citizenship and Immigration, 2006 FC 1394; OAA (Ontario Association of Architects) v. AATO (Assn. of Architectural Technologists of Ontario), [2003] 1 F.C. 331 (F.C.A.)).
[13] New or extrinsic evidence can be allowed when the tribunal has committed a jurisdictional error or violated the rules of procedural fairness (McFadyen v. Canada (Attorney General), 2005 FCA 360, 341 N.R. 345).
[14] The conditions for accepting new evidence result from the application of section 113 of the IRPA (above). Case law has stated the conditions that can justify re-opening a debate due to such new evidence (Raza v. Minister of Citizenship and Immigration, 2007 FCA 385; Her Majesty the Queen v. Canadian Council for Refugees et al., 2008 FCA 171; Mujib v. Minister for Citizenship and Immigration, 2008 FC 1027; Yansane v. Minister of Citizenship and Immigration, 2008 FC 1213).
[15] According to Sharlow J.A. in Raza, above, the most important conditions are: 1) the relevance of the evidence. Is the evidence relevant for establishing or denying an essential fact to be considered in the decision? 2) the credibility of the evidence. Is the evidence credible, considering its source and the circumstances in which it came into existence? 3) the newness of the evidence. Did the evidence exist before the decision? 4) the diligence of the parties in presenting evidence. Were the parties diligent in obtaining and presenting evidence before the decision? And 5), the materiality of the evidence: would the presence of such evidence have supported a different decision?
The relevance of the evidence
[16] In a case such as the one before us, regarding the risk of returning to Haiti, does the evidence depict a different situation than what the tribunal had during its decision? In its decision, the delegate of the Minister referred to the PRRA officer’s decision and to the documentation on file that shows the situation and the risk of returning to Haiti: the report from Alternative Chance, an organization established in the United States that works for persons deported to Haiti (2007) and the two documents from the U.S. Department of State filed by counsel for the applicant: 2006 Country Reports on Human Rights Practices – Haiti (March 6, 2007) and 2007 Country Reports on Human Rights Practices – Haiti (March 11, 2008). Those documents show the serious problems that exist in Haiti and particularly those facing Haitians with lengthy criminal records when they return to their country of origin, including arrest and detention. Those reports indicate that the United Nations, the Red Cross and other international organizations help criminals who are deported to Haiti and that conditions improved somewhat in 2008. The delegate of the Minister discussed the arguments from counsel for the applicant, along with the documentation that she cited (pages 16 to 19 of the decision) and the general documentation (pages 19 to 26).
[17] In particular, he referred to Country Reports from 2007, which stated that repatriated citizens with criminal records are generally detained for a period lasting up to two weeks. The 2008 report, which was published on February 25, 2009, repeated that same finding.
[18] In my view, the “report” at issue that bears the date March 23, 2009 shows that Ms. Karshan reported and commented on the situation in Haiti for the same periods that are covered by the documentation that the delegate of the Minister considered during his decision. She writes that she investigated matters regarding Haiti in 2006-2007 and until January 2008. She refers to the situation in Haiti as revealed by the documentation and her investigation since 2001. Ms. Karshan concluded her report in the following terms:
Further, Mr. Joseph will be at risk of execution because of the intense campaign waged by the Haitian Government, without basis, which targets Criminal Deportees and puts Mr. Joseph at risk of being lynched once in the community.
Further, I believe based on my various meetings, observations and research, as well as my meeting with the Police Chief who is a member of the three member commission overseeing Criminal Deportees and is charged with processing and detaining Criminal Deportees upon arrival, that the police will receive and review files, including the criminal history of respondent and the original police complaint and the original indictment, and that the police will also access and view various database information online relating to Mr. Joseph. Further, I believe that Mr. Joseph will be held in illegal police custody.
Therefore, it is my opinion that if Mr. Joseph is deported to Haiti he will more likely than not be subjected to severe physical and mental pain and suffering that will be intentionally inflicted by Haiti’s police and government officials, and at the very least acquiesced to and consented to by administrators of the Government of Haiti such as in the Ministry of Justice, Ministry of Interior, the Immigration department, and the police etc. who would have custody and physical control of Respondent (said custody being illegal under Haitian law and ruled as illegal by Haiti’s own courts in 2006) and that said torture will be for the purpose of making conditions particularly harsh and inhumane in order to further a pervasive and widespread extortion campaign to extract an illegally gotten sum of U.S. monies from the Respondent in exchange for a promise for liberation from a police station holding cell.
I believe for all the aforesaid reasons that Mr. Joseph, if placed in police custody in a police station holding cell, will be more vulnerable and more threatened and more likely than not will suffer gross persecution, mental and life-threatening physical harm or death because of his serious medical conditions.
Finally, I believe that Mr. Joseph will specifically be targeted and be more vulnerable to torture and extortion efforts because the Haitian government will intentionally withhold medical care or medications and will deliberately seek to exploit his grave medical condition by making his condition in illegal detention worse in an effort to gain monies through extortion.
I believe that based on all the above stated reasons, Mr. Joseph’s applications for relief from removal to Haiti should be granted.
[19] An analysis of the documents at issue reveals that this is a partial or non-objective opinion, like that of a lawyer’s arguments in a litigation. It does not add anything new to the debate that has not already been considered by the delegate of the Minister based on the evidence and the general documentation for the period ending July 15, 2008.
[20] In addition, this type of document does not meet the essential conditions that are required for being considered as new evidence and considered after the decision that was made, because 1) the document does not have any new facts regarding conditions in Haiti and the return of citizens with a criminal record to the country; 2) there was no valid explanation that justified not filing the document before the decision; 3) the document does not have an objective and impartial opinion; and 4) it does not meet the credibility and materiality criteria (see Mustafa v. Minister of Citizenship and Immigration, 2009 FC 361, at paragraphs 22 to 24).
Conclusion
[21] For all of those reasons, the Court orders that the report by Ms. Karshan, from March 23, 2009 and submitted on record in this case, is inadmissible as evidence and must be set aside in the analysis of the decision that was made.
ORDER
The respondent’s objection to the production and consideration of the report by Ms. Michelle Karshan on March 23, 2009, is allowed and the document must be rejected from the record.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3257-08
STYLE OF CAUSE: Charles Gérard PLACIDE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 15, 2009
AND ORDER: The Honourable Mr. Justice Orville Frenette, Deputy Judge
APPEARANCES:
Marie-Hélène Giroux FOR THE APPLICANT
Claudia Gagnon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Monterosso Giroux, s.e.n.c. FOR THE APPLICANT
Montréal, Quebec
John H. Sims, QC FOR THE RESPONDENT
Deputy Attorney General of Canada