CHARLES GRACIA STERLING Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2019 FC 901

Date: 20190708 Docket: IMM-6006-18 Citation: 2019 FC 901 [UNREVISED CERTIFIED ENGLISH TRANSLATION] Ottawa, Ontario, July 8, 2019 PRESENT: The Honourable Mr. Justice Shore BETWEEN: CHARLES GRACIA STERLING Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I.

Nature of the matter [ 1 ] This is an application for judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada, made on November 1, 2018, in which the RAD upheld the decision of the Refugee Protection Division [RPD] determining that the applicant is neither a refugee within the meaning of the United Nations’ Convention Relating to the Status of Refugees nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. II.

Facts [ 2 ] The applicant is a 41-year-old Haitian citizen. He is claiming protection in Canada because he fears that bandits will target him since he has worked as a humanitarian worker in the past. [ 3 ] According to the information originally provided by the applicant, he was a humanitarian worker in Haiti from 2003 to 2007 under contracts with various non-governmental organizations (NGOs). [ 4 ] The applicant alleges that bandits associated with the Lavalas party attacked him in the past.

More specifically, the applicant reported that in 2004 he was held with other employees for three or four hours by heavily armed bandits. [ 5 ] He alleges that, in 2006, he learned from a friend that Lavalas bandits were engaged in undercover operations to locate all those who were working or had worked with social programs. These bandits monitored aid workers because they believed that they were giving information about the bandits to the authorities.

According to the applicant, he decided to live in seclusion when his contract ended in 2007, until his departure from Haiti in May 2017. [ 6 ] After leaving Haiti, the applicant first travelled to the United States. He arrived in Canada on August 11, 2017, and claimed refugee protection on September 7, 2017. [ 7 ] At the hearing before the RPD, the applicant stated that he had accepted additional contracts with NGOs until 2010. The last contract required him to be in Port-au-Prince to help Haitians following the earthquake. III. RPD and RAD decisions A.

RPD decision [ 8 ] The RPD Member issued a negative decision against the applicant, mainly because he found that the applicant lacked credibility. The RPD Member relied on the following omission and contradictions to come to this negative assessment: The applicant stated that there was no reason why the bandits would hurt him in particular, which contradicted his alleged fears based on his involvement in humanitarian work. The applicant stated that he stopped his humanitarian work in 2007 and then lived in seclusion.

However, he then admitted that he had completed one project in 2008, accepted another in 2009 and a further one in 2010. Concerning the last contract, when the applicant disclosed that he had worked in Port-au-Prince in 2010, he originally claimed that he had worked for Save the Children. However, the photos submitted as evidence to demonstrate his humanitarian work contradicted this information. They indicate instead that the applicant worked for two organizations: Coordination Nationale pour

la Sécurité Alimentaire and Action Against Hunger. [9] The RPD Member therefore determined that, by resuming the work he claims resulted in retaliation from bandits, the applicant didnot engage in the conduct of a person fearing persecution. The RPD Member found a lack of credibility and rejected the applicant’sclaim for refugee protection. B. RAD decision [10] The RAD Member upheld the RPD’s decision that the applicant is not a Convention refugee or a person in need of protection. TheRAD Member conducted an independent analysis of the evidence and applied the standard of correctness, including to assess thecredibility of the applicant’s oral evidence, unless otherwise indicated. In

summary, the RAD’s decision is as follows: With respect to the issue of procedural fairness, specifically that the applicant was not sworn in when he provided information thathe subsequently contradicted, the applicant was in fact sworn in at that time and therefore this issue was unfounded. With respect to the applicant’s allegation that the RPD asked him biased questions, the RAD first determined that the RPD couldask questions about objective documentation, but that in any event, the RPD’s credibility conclusions were not based on theanswers to these questions.

The RAD agreed with the majority of the elements that led the RPD to conclude that there was a lack of credibility. However, itdetermined that the RPD erred in rejecting the applicant’s response when he explained why he replied that he did not believe hewas personally targeted by bandits, when this is the very basis of his claim. On this point, the RAD accepted the applicant’sexplanation that he had not fully understood the question. The RAD confirmed the other elements of the applicant’s lack ofcredibility. The RAD noted that the applicant did not act in a manner consistent with his alleged fears.

In particular, the applicant agreed towork in Port-au-Prince in 2010. In addition, he obtained a passport in 2012, with which he travelled to the United States and theDominican Republic in 2014, 2015 and 2016. Each time he returned to Haiti. The RAD conducted a prospective risk analysis and concluded that humanitarian workers are targeted by crime in the same way asthe rest of the Haitian population.

The RAD confirmed "“that [the applicant] would not face a serious possibility of persecution, a risk to his life or a risk of cruel andunusual treatment or punishment because he worked for NGOs”", dismissing the appeal and upholding the RPD’s decision. IV.

Issues [11] The issues are the following: 1) Was there a breach of procedural fairness? 2) Was the RAD Member’s decision reasonable? [12] The issue of a possible breach of procedural fairness will be reviewed according to the standard of correctness (Canada (Citizenshipand Immigration) v Khosa, 2009 SCC 12 , [2009] 1 SCR 339, and Zaqout v Canada (Citizenship and Immigration), 2019 FC779 at para 14). [13] The RAD’s decision on the assessment of the applicant’s evidence and credibility will be reviewed according to the standard ofreasonableness (Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 35, and Konate v Canada (Citizenship andImmigration), 2019 FC 170 at para 5).

V. Relevant provisions [14] The following provisions of the IRPA are relevant: "Convention refugee " "Définition de « réfugié » ""96"" A Convention refugee is a person who,by reason of a well-founded fear ofpersecution for reasons of race, religion,nationality, membership in a particular socialgroup or political opinion, " "96 A qualité de réfugié au sens de laConvention — le réfugié — la personne qui,craignant avec raison d’être persécutée du faitde sa race, de sa religion, de sa nationalité, deson appartenance à un groupe social ou de sesopinions politiques : ""(

a) is outside each of their countries ofnationality and is unable or, by reason of thatfear, unwilling to avail themself of theprotection of each of those countries; or " "

a) soit se trouve hors de tout pays dont elle ala nationalité et ne peut ou, du fait de cettecrainte, ne veut se réclamer de la protectionde chacun de ces pays; ""(

b) not having a country of nationality, isoutside the country of their former habitualresidence and is unable or, by reason of thatfear, unwilling to return to that country. " "

b) soit, si elle n’a pas de nationalité et setrouve hors du pays dans lequel elle avait sarésidence habituelle, ne peut ni, du fait decette crainte, ne veut y retourner. "

"Person in need of protection " "Personne à protéger ""97""

(1) A person in need of protection is aperson in Canada whose removal to theircountry or countries of nationality or, if theydo not have a country of nationality, theircountry of former habitual residence, wouldsubject them personally " "97

(1) A qualité de personne à protéger lapersonne qui se trouve au Canada et seraitpersonnellement, par son renvoi vers toutpays dont elle a la nationalité ou, si elle n’apas de nationalité, dans lequel elle avait sarésidence habituelle, exposée : ""(

a) to a danger, believed on substantialgrounds to exist, of torture within themeaning of

Article 1 of the ConventionAgainst Torture; or " "

a) soit au risque, s’il y a des motifs sérieuxde le croire, d’être soumise à la torture ausens de l’article premier de la Conventioncontre la torture; ""(

b) to a risk to their life or to a risk of crueland unusual treatment or punishment if " "

b) soit à une menace à sa vie ou au risque detraitements ou peines cruels et inusités dansle cas suivant : ""(

i) the person is unable or, because of thatrisk, unwilling to avail themself of theprotection of that country, " "(

i) elle ne peut ou, de ce fait, ne veut seréclamer de la protection de ce pays, " "(ii) the risk would be faced by the person inevery part of that country and is not facedgenerally by other individuals in or from thatcountry, " "(ii) elle y est exposée en tout lieu de ce paysalors que d’autres personnes originaires de cepays ou qui s’y trouvent ne le sontgénéralement pas, ""(iii) the risk is not inherent or incidental tolawful sanctions, unless imposed in disregardof accepted international standards, and " "(iii) la menace ou le risque ne résulte pas desanctions légitimes — sauf celles infligées aumépris des normes internationales — etinhérents à celles-ci ou occasionnés par elles,""(iv) the risk is not caused by the inability ofthat country to provide adequate health ormedical care.

" "(iv) la menace ou le risque ne résulte pas del’incapacité du pays de fournir des soinsmédicaux ou de santé adéquats. ""

(2) A person in Canada who is a member ofa class of persons prescribed by theregulations as being in need of protection isalso a person in need of protection. " "

(2) A également qualité de personne àprotéger la personne qui se trouve au Canadaet fait

partie d’une catégorie de personnesauxquelles est reconnu par règlement lebesoin de protection. " VI. Analysis A. Was there a breach of procedural fairness? [15] The applicant submits that the RPD Member asked him questions about photos submitted as evidence at the hearing and that he hadnot yet been sworn in at that time.

Considering that the swearing-in took place a few minutes before the hearing and that the questionabout the photos was first asked a few minutes after the hearing began, the RAD was correct in concluding that this question isunfounded. [16] Since the applicant has not challenged the RPD Member’s allegation of bias before this Court, the RAD’s decision on this issue willnot be considered by the Court. B.

Was the RAD Member’s decision reasonable? [17] The applicant’s argument can be summarized as follows: since the RAD found that the RPD was wrong to conclude that there was alack of credibility on the first point, which was whether there were reasons why the bandits would want to personally attack theapplicant, the rest of the credibility analysis should have been disregarded automatically. [18] The respondent argues that, since the applicant has failed to establish the existence of a prospective risk, his claim must bedismissed.

This conclusion is based on the fact that the documentary evidence does not confirm that current or former humanitarianworkers are particularly targeted by criminal groups. He further points out that the RAD also determined that the applicant lackedcredibility, particularly with respect to the applicant’s conduct, which was found to be clearly incompatible with that of a person whofears retaliation from bandits. He therefore argues that the RAD’s decision was reasonable. [19] The RAD stated that it conducted its own assessment of the applicant’s file, including his credibility.

Contrary to the applicant’sclaims, the RAD could determine that the applicant lacked credibility on the other aspects of his claim and conclude that thisundermined his credibility enough for the RPD to reject his claim.

Each element analyzed first by the RPD, and then by the RAD, couldexist on its own; the applicant’s argument that all aspects of his credibility that received an adverse assessment must be ignored cannotbe accepted. [20] Upon reading the RAD’s decision, it is clear that the RAD Member took the time to read the entire record, listen to the RPDhearing, conduct her own analysis and conclude that there was a lack of credibility (see Mobil Oil Canada Ltd. v Canada-NewfoundlandOffshore Petroleum Board, (SCC), [1994] 1 SCR 202 at pp 228 and 229). Overall, the decision is written in a clear andlogical manner.

[ 21 ] Since no errors requiring the intervention of this Court have been detected, the application for judicial review is dismissed. VII. Conclusion [ 22 ] For the reasons mentioned above, the application for judicial review is dismissed. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There are no questions of general importance to certify. “Michel M.J.

Shore” Judge Certified true translation Johanna Kratz, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6006-18 STYLE OF CAUSE: CHARLES GRACIA STERLING v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, QuEbec DATE OF HEARING: JUNE 26, 2019 JUDGMENT AND REASONS: SHORE J. DATED: JULY 8, 2019 APPEARANCES : Aristide Koudiatou FOR THE APPLICANT Mario Blanchard FOR THE RESPONDENT SOLICITORS OF RECORD : Aristide Koudiatou Montréal, Quebec FOR THE APPLICANT Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT