Date: 20011102
Docket: IMM-3747-00
Neutral Citation: 2001 FCT 1200
BETWEEN:
NIXON VALÈRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] This is an application for judicial review of the June 14, 2000 decision of the Convention Refugee Determination Division (CRDD) wherein the applicant was found not to be a Convention refugee.
[2] Counsel for the Minister participated at the hearing and argued that the applicant should be excluded from the definition of Convention refugee by reason of Article 1F(a) of the Convention. The CRDD found there was insufficient evidence to establish that there were serious reasons for considering the applicant was complicit in crimes against humanity. The Minister did not bring an application for judicial review of this decision.
Background
[3] The applicant is a citizen of Haiti. The applicant states he fears persecution at the hands of drug traffickers, corrupt police officers, or both acting in collusion. After completing his secondary school education, he worked in business, then as a teacher, and finally from 1996 to 1999 as a police officer in the Haitian National Police (HNP). The applicant asserts he was an honest police officer in a force filled with corruption. He states his fellow police officers harboured negative thoughts about him. He believes he was transferred out of certain duties because he was unwilling to participate in corrupt activities or to turn a blind eye to drug deals and bribes.
[4] Within a few weeks of his first assignment to the Port-au-Prince airport, the applicant had a number of conflicts with fellow officers and his superiors. The applicant's written complaint to a supervisor regarding the excessive force used by another officer while arresting a candy vendor brought no result. In another incident, the applicant was involved in a verbal dispute with a fellow officer over the inspection of a suitcase the applicant suspected contained drugs. A supervisor refused to order an inspection and the suitcase disappeared. Shortly after this incident, the applicant was transferred to l'Isle de la Gonâve. The applicant's appeal of the transfer was dismissed.
[5] The applicant states that in December 1996 he was shot by drug dealers while he was trying to arrest them. Following his recovery, he was assigned to the personnel department of the HNP where the applicant again found himself in conflict with his superiors. In the spring of 1997, the applicant was appointed chef de poste in the Cité Soleil neighbourhood of the Delmas district, an area reputed to be the most dangerous in the country. The problem of the extensive drug dealing in the area was compounded by the corruption among HNP officers and the collusion between police officers and drug dealers. The applicant testified that he was thought of negatively by his fellow officers because of his anti-corruption stance and was warned by them that he would be killed because of his refusal to cooperate with the drug dealers. Again, the applicant wrote a letter of complaint about the conduct of his fellow officers. He did not receive a response to his letter.
[6] At the detachment in Delmas, two other officers, friends of the applicant, were also known for their refusal to accept bribes and their public stance against corruption. One of these officers was killed in March 1997. The second officer was shot and killed in a house close to the applicant's home on March 3, 1999. After this last shooting, the applicant states he received anonymous threatening telephone calls at his home warning him that he was "next". As well, he received warnings from his sources in the community that he was at risk. The applicant testified that as a result of the death of his friend on March 3, 1999 combined with the threats and warnings he had received, he was fearful for his life and decided to leave Haiti. The applicant also states that after he received the threatening telephone calls he "effectively" went into hiding for three weeks prior to his departure for Canada on March 31, 1999.
CRDD Decision
[7] Relying on the reasons of the Federal Court of Appeal in Klinko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 228, the CRDD found that the applicant's stance against corrupt officials constituted a political opinion and established the requisite nexus between the applicant's fear of persecution and the Convention.
[8] The CRDD considered the circumstances surrounding the applicant's transfers to the various posts, his conflicts with other police officers and superiors, and the shooting incident. The CRDD found that none of these were persecutory in nature.
[9] The panel also noted that while the applicant was posted in Cité Soleil ample opportunity existed for drug dealers or corrupt police officers to kill him or force him to leave the HNP yet nothing happened. Regarding the telephone threats, the CRDD stated:
... The victimization the claimant feared would result from a combination of motive and opportunity. The opportunity existed, thus I am drawn to the conclusion that, since nothing substantial happened, the motive did not. This is another way of saying that the claimant was not truly threatened by anyone. The alleged telephone threats, in this context, appear, if they did at all occur, to be an effort in intimidation, nothing more. They do however contribute to be claimant's subjective fear of persecution.
As I have observed above, no harm befell the claimant in Delmas despite the great opportunity for any of his prospective agents of persecution to do him harm. This undermines the objective basis of his fear...
[10] The CRDD concluded the applicant would not face more than a mere possibility of persecution should he return to Haiti.
Issues
[11] The applicant raised the following three issues:
1. The CRDD erred by failing to state in clear terms its reasons for doubting the applicant's credibility;
2. The CRDD erred in finding that if the threats were made they were not genuine threats but merely attempts at intimidation; and
3. The CRDD erred in law in reaching the conclusion that the applicant's fear of persecution was not well-founded.
[12] The respondent maintains the CRDD fully considered the applicant's evidence concerning his experiences as a member of the HNP. Even if the CRDD did not advert to all of the evidence, it does not mean the evidence was not taken into account in arriving at the decision. Further, even if the CRDD did ignore certain evidence, having regard to all of the evidence the decision is reasonable.
Analysis
[13] The applicant submits that in stating "[t]he alleged telephone threats, in this context, if they did at all occur" the CRDD indirectly impugned the applicant's credibility. The applicant argues that when an applicant swears to the truth of certain facts, they are presumed to be true in the absence of a valid reason to doubt the veracity of the testimony. In this case, the applicant submits the CRDD erred in failing to state its negative credibility finding in clear terms and in failing to give its reasons for the finding.
[14] It is well settled in the jurisprudence that where a refugee claim is rejected on the basis of a negative credibility finding, the tribunal must clearly articulate the finding and give reasons for its negative credibility assessment. While the reasons in the present case indicate the CRDD doubted the veracity of the applicant's evidence regarding the existence of the telephone calls, the CRDD's subsequent statement that the threatening telephone calls supported the applicant's subjective fear of persecution leads me to the conclusion that the applicant's evidence was believed. Accordingly, this aspect of the applicant's argument fails.
[15] The applicant also submits the CRDD's finding that the telephone calls were not genuine threats but merely attempts at intimidation is conjecture and not an inference which can be reasonably drawn from the evidence. The applicant states he received warnings from the community that he was at risk in addition to the threatening telephone calls, however, the panel ignored this evidence. The applicant also submits the CRDD failed to take into account his evidence that he "effectively" went into hiding for the three weeks following the threats prior to his departure for Canada which provides a logical explanation for the fact no harm resulted from the threats.
[16] Counsel for the applicant referred the Court to the often cited passage from Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45 (H.L.) where Lord Macmillan explained the difference between conjecture and inference as follows:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is , I take it, always a matter of inference.
[17] The applicant maintains the only reason given by the CRDD for finding that the threats were no more than an attempt at intimidation was the fact that nothing happened to him following the threats. This assertion is partially correct. It was the existence of the ample opportunity to harm the applicant together with the absence of harm that led the CRDD to infer there was no motive to do so. Having found there was no motive, the CRDD concluded the threats were not genuine.
[18] In my view, the CRDD's reasoning with respect to the lack of motive is flawed. Although harm stems from opportunity and motive, it does not necessarily follow that an absence of harm in circumstances where opportunity exists equates to an absence of motive. While a lack of motive in these circumstances may be plausible, the fact the applicant remained unharmed for a period of three weeks is insufficient by itself to take the finding beyond mere conjecture.
[19] The CRDD also concluded that the fact no harm came to the applicant following the threats undermined the objective basis of his fear of persecution. It is well established that a claimant is not required to show past persecution in order to establish a well-founded fear of persecution. In the present case, there was extensive documentary evidence with respect to the problem of corruption within the HNP and the significant risk faced by police officers serving in the force. Having accepted the applicant's evidence that he received the threats, the failure to consider this evidence together with the relevant documentary evidence to ascertain whether the applicant was objectively at risk should he return to Haiti. Although the respondent maintains the CRDD took into account the documentary evidence in reaching its decision, I note that all of the references in the reasons to the documentary evidence are within the context of the CRDD's consideration of the question of exclusion pursuant to Article 1F(a) of the Convention. I am not persuaded the CRDD considered the documentary evidence in the context of an assessment of the well- foundedness of the applicant's fear of persecution.
[20] For these reasons, the application for judicial review is allowed, the June 14, 2000 decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
November 2 , 2001