Date: 20050224
Docket: IMM-6893-04
Citation: 2005 FC 274
Ottawa, Ontario, the 24th day of February, 2005
PRESENT: THE HONOURABLE MR. JUSTICE SEAN HARRINGTON
BETWEEN:
MARIE CARMELLE MARIUS GOURDET
EDVARD MARIUS
MELISSA MARIUS
ALAIN MARIUS
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Gourdet is a citizen of Haiti. She worked as an official in the Direction générale des impôts (DGI) [tax branch] as a tax auditor and later as an accounting administrator for a private company in the Autorité portuaire national (APN) [national port authority] zone. Ms. Gourdet was very active in politics and was a member of an opposition party, the Confédération-unité démocratique (KID) party, and the group Justice pour femmes [justice for women].
[2] Since her employment and voicing of her political opinions put her in the public eye, she became a target for the deadly hatred of the armed Chimères Lavalas [pro-Lavalas gang]. She was regularly harassed by the Chimères and by Ronald Cadavre, a notorious killer, from 1993 until her departure.
[3] The event that caused Ms. Gourdet and her family to flee Haiti for Canada occurred on June 28, 2002. This incident was reported by the monthly magazine l'Ordre Nouveau in July 2002:
[TRANSLATION]
While our reporter was covering events at APN headquarters, he spotted influential OP members (Chimères lavalassiens), who for several years have apparently been hounding an opposition activist, Ms. Gourdet, who is very active in the democratic struggles against impunity.
The Chimères appeared that day at her workplace, a small private company, armed with iron bars, firearms, tires, gasoline cans, stones, etc. This is their method when they want to physically eliminate a champion of democracy or when they want to physically assault, necklace or torture the person.
[4] The article goes on to confirm what Ms. Gourdet had alleged, that the Chimères had come to kill her since she had been championing democracy for years and continued to refuse to be tortured by the Chimères. The article also corroborates what the Panel found to be implausible, namely, that she escaped through a hole in the back of the office.
[5] The refugee claim of Ms. Gourdet and her family was rejected for reasons of credibility. Among other things, the Panel drew adverse inferences from the fact that she neglected to mention the group Justice pour femmes in her Personal Information Form (PIF), that the delay in leaving Haiti did not demonstrate a fear of persecution and that the events of June 28, 2002, were implausible.
[6] This application for judicial review should be allowed for the following reasons.
[7] Although most of the findings involved are findings of fact, and this Court can intervene only if the decision is patently unreasonable, there must be a limit beyond which the errors would lead the Court to reject the findings because they are patently unreasonable: Canada (M.E.I.) v. Dan-Ash (1988), 93 N.R. 33; [1988] F.C.J. No. 571. In the case at bar, it is impossible to argue that this limit has not been reached.
[8] First, the respondent confirmed that the Panel erred in saying that Ms. Gourdet had contradicted her own testimony when she answered that she did not claim asylum in the United States in 1995, 1998, 2001 and 2002 because she had no fear in those years. In fact, Ms. Gourdet did not contradict her testimony in any way. She answered that although she had been threatened by the Chimères, she did not fear for her life before the incident of June 28, 2002.
[9] Second, the Panel found that the one-month delay before leaving Haiti was proof that she did not really fear for her life. Taking into account the fact that Ms. Gourdet had a husband and four children, one with a disability, and that Haiti was in a state of insurrection so that obtaining a plane ticket was not so easy for citizens of Haiti, the Court is not satisfied that it was implausible for it to have taken a month to leave the country.
[10] Third, the Panel's finding that Ms. Gourdet made no mention of the group Justice pour femmes in her PIF is unreasonable, considering the fact that Ms. Gourdet clearly indicated that she belonged to a union in her PIF and that in her testimony Ms. Gourdet explained that this union was indeed the group Justice pour femmes.
[11] Finally, the Panel did not consider the Haitian article in l'Ordre Nouveau, supra, which corroborates the applicant's allegations. Although a panel must be assumed to have considered all of the documentary evidence (Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (C.A.)(QL)), this presumption is rebuttable (Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425 (T.D.)(QL)) when the evidence is important. In this case, it is clear that the article should have been mentioned, as well as the reasons for discounting it, since it corroborates all of the allegations that the Panel found implausible.
[12] For these reasons, the decision cannot stand.
ORDER
The application for judicial review is allowed and the matter is referred back to a differently constituted panel of the Refugee Protection Division for rehearing.
"Sean Harrington"
Judge
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6893-04
STYLE OF CAUSE: MARIE CARMELLE MARIUS GOURDET, EDVARD MARIUS, MELISSA MARIUS, ALAIN MARIUS
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: FEBRUARY 16, 2005
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATED: FEBRUARY 24, 2005
APPEARANCES:
Séverin Ndema-Moussa FOR THE APPLICANTS
Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ndema-Moussa Law Office
Ottawa, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT