Date: 20000728 Docket: IMM-273-99
BETWEEN:
JOEL ST-GERMAIN
Plaintiff
- and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
LUTFY A.C.J.
[1] The plaintiff, a national of Haiti, is challenging a decision of the Refugee Division which refused to grant him refugee status, concluding that his testimony was not credible.
[2] At the hearing in this Court, counsel for the parties dealt with each of the paragraphs which were part of the analysis of the evidence in the tribunal's decision. I propose to consider these paragraphs in turn.
Page: 2 [3] First, the tribunal began its analysis with comments of a general nature about the plaintiff's testimony:
[TRANSLATION]
His testimony was general: his counsel had to ask him several times to be specific in his testimony, despite the fact that his counsel insisted on repeating to him the contents of his PIF and the tribunal also stressed that he should not repeat the PIF word for word.
It is conceivable that the tribunal concluded that some of the plaintiff's replies were rather vague.
However, that is not true for all of his testimony.
[4] Further, the transcript in no way indicates that the plaintiff repeated the content of his personal information form word for word. It can be seen that counsel for the plaintiff, as it would appear was his right, wanted to put certain questions at the start of his examination in order to indicate to the tribunal the background to the incidents which were the subject of the claim. After counsel for the plaintiff challenged the interruptions by members of the panel, especially at the start of the hearing, the plaintiff elientually succeeded in providing a background to the agrarian reform in Haiti and the part he played in the Prime Minister's Cabinet and the Institut national de la réforme agraire ('`INARA").The tribunal's suggestion that the plaintiff repeated the content of his personal information form word for word is not supported by the evidence.
[5] Second, the tribunal sought to identify a contradiction in the plaintiff's testimony with respect to his role in INARA. It said the following:
Page: 3
[TRANSLATION]
Whereas at the hearing of July 21, 1998 the claimant described himself as being chiefly responsible for the investigations, on October 7, 1998 his task was allegedly limited to preparing questionnaires, having them completed by villagers and proceeding to analyse the information. The distribution of parcels of land was allegedly done by engineers and the titles verified by lawyers.
[6] Counsel for the defendant noted the following passages from the transcript in support of the tribunal's statement:
(a) at the hearing of July 21, 1998:
[TRANSLATION]
So, when I was going to conduct the investigation directly with the peasants, and after the seizure of the information and my analysis, I gave the list of people who should benefit from distribution of land
Well, I was responsible for the investigation. However, the problem was that there was a conflict between the director general of INARA and the regional supervisor, who was my friend. So the director general's objective was to indicate to my friend, who was the regional director, that he can do nothing, that he could nothing.
So, I came, my objective was to do something. So I was the first who began with the distribution of land to Dunes (phonetic), Dunes. [My emphasis.]
(b) At the hearing of October 7. 1998:
[TRANSLATION]
Q. Yes. You conducted investigations; the other people: what was their occupation, what did they do on the land?
A. No, no, no, it was not me, I was there to, to organize the investigation. Sometimes I did - I also filled out questionnaires - but the other people - it was they who were in charge and who filled out the questionnaires.
Page: 4
Q. Well, for example, who decided what land would go to whom?
A. No, I, it was not at my level, it was the director general of INARA who was responsible for those lands, the papers, for checking title, something like that.
I was told they were going to - they were going to distribute such land. In a meeting it was stated that they would distribute, for example, Trois Bornes. I was told that Trois Bornes was surrounded by this zone and that zone, so I began ... my work was to go to the land, to see who the people were on the land before organizing the investigation, to get the information and prepare a list of - of people who would receive land.
Q. But the division of land into various parcels: how was that done?
A. No, it was done by an engineer. There were engineers who did that. [My emphasis.]
[?? With respect, I see no discrepancy in the description given by the plaintiff of his duties at the time of the implementation of the agrarian reform. At both hearings he clearly indicated he was responsible for organizing "the investigation". If there was a contradiction, it was neither apparent nor substantial.
[8] Third, the tribunal focussed on certain details of the plaintiff's curriculum vitae:
[TRANSLATION;
Some dates were not clarified to the tribunal's satisfaction: according to his PIF, the claimant was in the P~ime Minister's office between December 1996 and October 1997. His chargé de mission card for the Prime Minister's office was issued on vtarch 13, 1997. In his statement in reply 37, the date on which he worked for INARA is missing. The INARA card entered in evidence expired on September 1, 1997. Although his curriculum vitae is very detailed, and each position held is accompanied by a description of duties, it does not mention his work f or INARA: these facts lead the tribunal to doubt that he really was involved with INARA.
Counsel for the defendant admitted that this paragraph raised nothing that seriously cast doubt on the
plaintiffs credibility. In his testimony the plaintiff indicated that the card issued by the Prime
Page: 5 Minister's office on March 13, 1997 was a replacement of the original. The expiry date of his identity card for INARA is consistent with the dates indicated in his curriculum vitae. In my opinion, questioning the plaintiff's involvement in INARA because he described his duties simply with the words [TRANSLATION] "responsible for the investigation" in his curriculum vitae does not take account of his testimony, which is corroborated by three letters from public servants describing his duties with that organization.
[9] Fourth, in its decision the tribunal noted a contradiction between the plaintiffs testimony and the documentary evidence about the number of Haitians who benefited from the agrarian reform in the Artibonite region. The tribunal said the following:
[TRANSLATION]
Although the claimant testified that there was a distribution of parcels of a half hectare to about ten people, the documentation indicated that in February 1997 2,400 hectares of land, the ownership title to which was disputed, were distributed to 1,600 farmers in the village of Peyten. When questioned about this, the claimant stated that the information was wrong, and this reply again affected his credibility. The tribunal attaches greater weight to neutral sources consulted by the Immigration and Rafugce Division's Research Directorate than to the claimant's testimony on this point.
[10] T'le tribunal relied on the following passage from the reply to the information request
provided by the Immigration and Refugee Board's Research Directorate:
[TRANSLATION]
In February 1997 INARA allocated 2,400 hectares of land, the ownership title to which was disputed, to 1,600 farmers in the village of Peyen in the Artibonite valley (The Christian Science Monitor, March 26, 1997).
Page: 6
The record in this Court did not contain the article from the Christian Science Monitor.
[11] The refugee claims officer put this first series of questions to the plaintiff:
[TRANSLATION]
Q. Then who was it - who was it that did the distribution?
A. Well, it was, it was the President himself, René Préval, who took people and put them on the land.
Then what did he distribute?
A. The land to the peasants.
Q. What land: how much land?
A. He did this for, I believe, ten people.
Q. Ten people?
A. Yes, but it was, it was half a hectare, 0.5 hectare per person.
Q. A.
So, on February 7 he distributed 0.5 hectare to ten persons?
A symbolic distribution, yes. Yes, but it was - it was 0.5 hectare per person that was distributed to everyone.
So ten persons: then after this, the next distribution was in March and it was to the Dunes.
A. In March, pes, yes. Yes.
[12] The refugee claims officer subsequently again put another series of questions on the same point:
Page: 7
[TRANSLATION]
Q.
Further, just about the distribution, the answer indicates that in February, in fact, "in February 1997, INARA allocated 2,400 hectares of land, the ownership title to which was disputed, to 1,600 farmers in the village of Peyen in the Artibonite valley". So we are talking about a distribution of 2,400 hectares to 1,600 farmers in February.
A. No, no. Two thousand four hundred hectares - when you say 2,400 hectares in INARA's distribution this meant ... well, you take part of it to make channels and that sort of thing, yes. If you - if you take 2,400, you would say, well, 2,400 hectares, you will give perhaps 4,800 people land.
But there is a large part of the land for ... for channels and roads and all that.
So the information was wrong, is that right?
A. Well, perhaps there were 2,400 hectares ... sometimes it is - it is an estimate. Yes, but in actual fact, when you - when you go to work, it changes.
Q. But you were speaking about ten people in February, and now we are hearing about 1,600 farmers.
A. No, it was - it was the newspaper ... the President might say he would give 1,000, ten persons, it was a symbolic distribution, there was not - you could not really give 1,600 persons in February. It was in March that it really began.
[l3 ] In my opinion a review of the transcript clearly indicates that land was distributed to 1.600 farmers. According to the plaintiff, this process began in March 1997 with the symbolic distribution to ten persons by the President of Haiti. if there is a contradiction between the documentary evidence and the plaintiffs testimony. it is limited to whether the distribution began in February or March 1997. The documentary evidence is limited to an article published in The Christian Science Monitor on March 26,1997. In my view, the tribunal could not conclude that the plaintiff believed that the information in the documentary evidence was wrong. Once again, the tribunal found a contradiction without having regard to the plaintiff's evidence as a whole.
Page: 8 [14] Fifth, the tribunal concluded that there was another discrepancy in the plaintiffs testimony when he described an ambush at two meetings:
[TRANSLATION]
The ambush, which according to his testimony of July 21 was directed and planned solely against him, according to his testimony of October 7 proved to be an ambush without any connection to his role as a statistician for INARA. He was passing the premises at the time of this ambush and the police officer affected by the ambush was not one of those working for INARA. Once again, the claimant tried to expand his story.[My emphasis.]
[ 5] Once again, we have ze compare the plaintiffs replies at the two hearings. The relevant passages are the following:
(a) at the hearing of July 21, 1998:
[TRANSLATION]
Q. Against whom was the attack directed, do you think?
A. Well, well, I ... since we have - there were, there were three of us on the road. the police officer and myself in the agrarian reform. and there was a private car -well, perhaps I escaped, I escaped but I did not think ...perhaps it was me. Perhaps. [l\Iy emphasis.]
(b) at the hearing of October 7, 1998:
[TRANSLATION]
Q.
You are speaking of an incident where someone fired at your pickup; you are speaking of a police officer who died. Who was this police officer?
Page: 9
A. He was - it was not an INARA police officer, it was a police officer - a police officer working for the administration in Port-au-Prince.
Q. How did he come to be with you?
A. No, I was - we were in the same group but he was not with me.
Q. He was in - he was in the same car as yourself?
A. No, no. No, no. [My emphasis.]
[16] In his personal information form the plaintiff clearly indicated that [TRANSLATION] "an inspector of the Haitian national police was killed" in this ambush. The tribunal's conclusion that the ambush was directed [TRANSLATION] "solely" against the latter does not take into account what he wrote quite clearly in his personal information form and does not do justice to his replies at the two hearings.
[17] Sixth, the tribunal questioned the plaintiffs credibility on the threats made by a certain mercenary. The tribunal said the following:
[TRANSLATION]
The claimant said he was accompanied by two police officers when he went to obtain his information. Despite this protection, he said he did not tell them of the threats made by the mercenary. The tribunal considers this part of the claimant's testimony to be improbable: for a "bloodthirsty" mercenary as described by the claimant to tell him he had been paid to kill him is improbable; a mercenary certainly does not inform his future victim; moreover, the latter was allegedly sought by the [TRANSLATION] "peace and justice commission" for crimes committed, a further reason not to inform his future victim and create the possibility of arrest. The claimant also did not inform the Prime Minister's office. He tried to explain this fact inter alia by the division in the Lavallas party, an explanation which was unrelated to the question asked.
Page: 10 Although it is not this Court's function to rule on the accuracy of the facts in the case at bar, I agree with counsel for the defendant that the tribunal could reasonably question whether these allegations were probable.
[18] Finally, the tribunal concluded that the circumstances which led the plaintiff to leave Haiti were not those of a person who feared for his life:
[TRANSLATION]
Finally, the tribunal considers that the claimant, in leaving his country to attend a seminar in the U.S. and visit friends in Canada in June and July 1997, returning to Haiti for nearly three months and taking a month to claim refugee status when he returned to Canada (October 27 to November 18, 1997), was contrary to the behaviour of a person who said he feared for his life.
When questioned about this the claimant explained the delay by saying that he wanted to see if the situation in Haiti would improve. The tribunal also notes the explanation that it was not the events involving INARA which led him to leave Haiti but the shooting at the house, which is an act of a criminal nature unrelated to the Convention.
[19] Counsel for the defendant submitted that the tribunal could take into account the plaintiff's return to Haiti after his visit to the U.S. and Canada in the summer of 1997. However, it is harder to understand the tribunal's statement that [TRANSLATION] "it was not the events involving INARA which led him to leave Haiti but the shooting at the house, which is an act of a criminal nature unrelated to the Convention". In his testimony, the plaintiff established a connection between this incident, which occurred on October 23, 1997, and the following factors: the role he played in INARA until June 1997 and the perception that he was perhaps still advising that organization.
Page: 11 [20] In its reasons the tribunal did not question the truth of the attack on the plaintiff's house on October 23, 1997, but concluded that it was [TRANSLATION] "an act of a criminal nature unrelated to the Convention". However, the tribunal did not agree that this incident could support a finding that the plaintiff had reason to fear persecution with a subjective and objective basis, in view of his intention to return to Haiti in July 1997. If the tribunal was of that opinion, it should have said so clearly and in unambiguous language. It did not do so. Further, the tribunal made no reference to any part of the evidence supporting its finding that the incident of October 23, 1997 was the result of a criminal act.
[21 ] In short, the analysis the tribunal made of the evidence discloses significant errors of assessment. Further, the tribunal did not explain clearly and unambiguously its refusal to believe important aspects of the plaintiff's testimony. Finally, the tribunal made an error in not taking into account the documented assassination of Chenel Gracien, one of the plaintiff's colleagues in INARA, which occurred on May 5, 1998. The tribunal did not mention this incident in its reasons and did not comment on the plaintiff's testimony that he knew Mr. Gracierl very well.
Page: 12 [22] Consequently, the application for judicial review is allowed, the decision of the Refugee Division is quashed and the matter is referred back to a panel of different members of the Refugee Division for re-hearing. There is no basis for certifying a serious question of general importance.
Allan Lutfy
A.C.J.
Ottawa, Ontario July 28, 2000
Certified true translation
~i artine Brunet, LL. B.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-273-99
STYLE OF CAUSE: JOEL ST-GERMAIN v.
MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: JULY 18, 2000
REASONS FOR ORDER BY: LUTFY A.C.J.
DATED: JULY 28. 2000
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWARD ISTVANFFY FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada