Date: 20100218
Docket: IMM-3910-09
Citation: 2010 FC 178
Toronto, Ontario, February 18,
2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ROBINSON SAINT HILAIRE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada dated July
2, 2009, wherein it was determined that the applicant was not a Convention
refugee and not a person in need of protection. These are my reasons for
dismissing the application.
Background
[2]
Mr.
Robinson Saint-Hilaire, the applicant, is a citizen of Haiti. As a
successful business man, perceived to be part of the Haitian Diaspora, the
applicant alleges that he fears persecution in Haiti at the hands
of people belonging to the resistance group known as the “Lavalas.” His
problems with them began in the early 1990s when he owned a transportation
service in Port-au-Prince which
included buses and a food distribution centre. He claims that he was harassed
and threatened and victimized by extortion which forced him first to relocate
within Haiti and then to
leave in 1996 for the United States leaving his wife and
children behind.
[3]
Shortly
after his arrival in the United States, the applicant met and
married a woman who was an American citizen, thinking that she would sponsor
him. The marriage broke down and the applicant and his wife divorced in March
2001. At that point, the applicant says that he believed that too much time
had passed since his arrival in the United States to qualify for refugee
status and to make a claim for political asylum. He sought refugee protection
on arrival in Canada from the United States on March 26, 2007.
[4]
The
applicant believes that, since he was abroad for many years, he will be identified
and targeted by the Lavalas as soon as he arrives at the airport. Mr.
Saint-Hilaire fears a return to Haiti as he says that he will
be perceived as someone who has accumulated wealth or has access to wealth
because he would be returning from the United States and Canada.
Decision Under Review
Section
96 Claim
[5]
The
panel determined that the applicant did not demonstrate that he was a person
who had a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular group or political opinion. Being a
successful business man who is perceived to be rich by members of the Lavalas
group who want his money, does not constitute political opinion nor membership
in a particular social group as defined in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, [1993] S.C.J. No. 74. Accordingly, no Convention grounds
were applicable in this case.
Section 97 Claim
[6]
The
panel concluded that the applicant was subject to the same generalized risk as
the rest of the Haitian population, considering the high rate of criminality in
that country and the reality that criminal gangs target all classes of Haitians
and not only the rich or those perceived to be rich individuals.
[7]
The
panel based its finding of generalised risk on Justice Danièle Tremblay-Lamer’s
decision in Prophète v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, [2008] F.C.J. No. 415, and
in particular, her comments at paragraph 23:
23 …
The risk of all forms of criminality is general and felt by all Haitians. While
a specific number of individuals may be targeted more frequently because of
their wealth, all Haitians are at risk of becoming the victims of violence.
[8]
The
panel also based its findings on other Federal Court decisions which have held
that rich individuals in Haiti do not face a higher risk of persecution than
other Haitians: Étienne v. Canada (Minister of Citizenship and Immigration),
2007 FC 64, [2007] F.C.J. No. 99; Cius v. Canada (Minister of Citizenship
and Immigration), 2008 FC 1, [2008] F.C.J. No. 9. Accordingly, the panel
rejected Mr. Saint-Hilaire’s claim under paragraph 97(1)(b) of the IRPA.
Paragraph 97(1)(a) was not in issue as there was no allegation of persecution
by the state or its agents.
Issues
[9]
The
sole issue is whether the panel erred in finding that the applicant was not a
person in need of protection.
[10]
The
applicant takes issue with (1) the panel’s assessment of the evidence; (2) the
panel’s reasons; and (3) the panel’s interpretation of the relevant case law.
Analysis
[11]
In
Prophète, above, Justice Tremblay-Lamer held that under section 97 the
applicant must demonstrate a "personal" risk of persecution. This
was confirmed by the Federal Court of Appeal in Prophète v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 31, [2009] F.C.J. No. 143.
[12]
At
paragraph 10 of his reasons in Gabriel v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1170, [2009] F.C.J. No. 1545,
Justice Yvon Pinard described the appropriate standard of review of a section
97 analysis in these terms, which I adopt:
10 In Prophète v. Minister of Citizenship and
Immigration, 2008 FC 331, this Court, at paragraph 11, held that
interpretation of section 97 of the Act is a pure question of law, reviewable
on the standard of correctness. However, the question certified in that decision
was declined by the Federal Court of Appeal on the basis that "[t]he
examination of a claim under subsection 97(1) of the Act necessitates an
individualized inquiry" (Prophète
v. Minister of Citizenship and Immigration, 2009 FCA 31, at paragraph 7). This reason has since been
interpreted by my colleague Justice Johanne Gauthier as "clearly"
indicative that the inquiry under 97 is not one of pure law (Acosta v. Minister of Citizenship and
Immigration, 2009 FC 213). Accordingly, the appropriate standard of
review is reasonableness because the issue is one of mixed fact and law (Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, at paragraph 53). Thus,
if the decision falls within a range of possible, acceptable outcomes that are
defensible in respect of the facts and law it is reasonable (Dunsmuir, at paragraph
47). [My Emphasis]
[13]
In the case of Mr. Saint-Hilaire, the documentary evidence
available to the panel indicated that any heightened risk that a person will be
targeted for crime is related not solely to their perceived wealth but also to
their political activity. The record does not indicate that Mr. Saint-Hilaire
took part in political activities. Rather, Mr. Saint-Hilaire is part of the
very large group of wealthy or perceived to be wealthy Haitians who could be
the target of crime like all other Haitians.
[14]
I disagree with the applicant that the panel’s reliance on Cius v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1, [2008] F.C.J. No. 9, was
misplaced. As in Cius, at paras. 23 and 25, the evidence before the
panel in the present case did not establish that the applicant faces a
particularized risk upon his return to Haiti but rather that the risk faced by the applicant
is generalized.
[15]
I
accept the respondent’s submission that the applicant speaks Creole fluently, as he
requested an interpreter who spoke Creole for the purpose of the hearing. As a
result, I am not persuaded that the applicant established that he would be more
readily targeted as a member of the Diaspora by reason of his language, after
several years in the U.S. and Canada.
[16]
If
Mr. Saint-Hilaire is an individual who may have a personalized risk of being
targeted by the Lavalas, it is a risk that is borne by a large segment of the
Haitian population: Prophète, above, at para. 18.
[17]
I
find that the harm feared by the applicant in this case is criminal in nature.
The panel was justified in concluding that the applicant’s wealth (or perceived
wealth) associated with his past successful business ventures in the transportation
sector and food distribution does not constitute membership in a particular social group
or the expression of a political opinion: Étienne
v. Canada (Minister of Citizenship and Immigration), 2007 FC 64, [2007] F.C.J. No. 99, at para. 15.
[18]
In my view, the panel also provided sufficient reasons for its conclusions
that the application failed to show a connection to a refugee ground and
demonstrated only a generalized rather than personalized risk in clear and
unmistakable terms: VIA Rail Canada Inc. v. National Transportation Agency (C.A.),
[2001] 2 F.C. 25, [2000] F.C.J. No. 1685, at para. 21; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008]
S.C.J. No. 23, at para. 46.
[19]
I am
unable to find that the panel misconstrued or ignored evidence in this case. The
panel accepted that Mr. Saint-Hilaire might be
perceived as being wealthy by criminal elements in Haiti as a member
of the Diaspora. The panel did not specifically mention all of the documentary
evidence supporting its conclusion but nor is it required to do so. There is a
presumption that the panel has considered all the evidence: Gabriel, above,
at para. 25; citing Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), (1998), 157 F.T.R. 35, [1998]
F.C.J. No. 1425.
[20]
It
was reasonable and within the range of possible, acceptable outcomes for the
panel to conclude in this case that (1) Mr. Saint-Hilaire fears criminals in Haiti who are driven
by financial gain; (2) the risk is generalized and not only for persons with
money or who are perceived as such; (3) the principle that a section 97 risk must
be personalized was established by Justice Tremblay-Lamer in Prophète, above,
and confirmed by the Federal Court of Appeal; and that (4) the jurisprudence
has confirmed that wealthy people in Haiti do not face a heightened risk as
compared to other Haitians: Prophète (2008 FC 331), above, at para. 23; Prophète (2009 FCA 31),
above, at para. 10; Dunsmuir, above, at para. 47.
[21]
I also find that the
process adopted by the panel and its outcome fits comfortably with the
principles of justification, transparency and intelligibility. Accordingly, it
is not open to this Court to substitute its own view of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, at
para. 59.
[22]
Neither party
proposed questions for certification.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the
application is dismissed. There are no questions to certify.
“Richard
G. Mosley”
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