Date: 20100413
Docket: IMM‑5100‑09
Citation: 2010 FC 394
Ottawa, Ontario, April 13, 2010
PRESENT: The Honourable Mr. Justice
Boivin
BETWEEN:
MARIE SOLANGE GUERILUS
NADEGE
OSNE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), of a decision made by the Refugee
Protection Division of the Immigration and Refugee Board on September 21, 2009,
determining that the applicants are not Convention refugees or persons in need
of protection.
Factual background
[2]
The principal
applicant, Marie Solange Guerilus, and her daughter, Nadège Osne, are both
citizens of Haiti. They are claiming refugee protection in Canada. The principal applicant alleges that she and her
daughter would be persecuted in their country because her deceased husband was
a political supporter of President Aristide.
[3]
The principal applicant
also submits that her husband was involved in political activities. Between
1991 and 1999, he was beaten many times by opponents of Aristide, who also
threatened her husband and family members on account of her husband’s activism.
[4]
The family house was burned
down on October 1, 1999. The applicant’s husband and their two sons fled for Gonave Island. The applicant, who was not at the house at the time of the fire, left Haiti on October 10, 1999.
[5]
The applicant was then
informed that her husband had gone missing after the ship he had set off in sank.
[6]
The applicant and her
daughter applied for asylum in the United States on
December 12, 1999, but their asylum claims were denied. The applicants remained
in the United States until October 23, 2007, when they arrived in Canada and claimed refugee protection, fearing that they
would be deported to Haiti.
Impugned decision
[7]
The panel concluded
that the applicants failed to meet their burden of proof (Hernandez v.
Canada (Citizenship and Immigration), 2008 FC 1126, [2008] F.C.J. No. 1397
(QL); Valenzuela Del Real v. Canada (Minister of Citizenship and Immigration), 2008 FC 140, 168 A.C.W.S. (3d) 368) and
determined that they are not Convention refugees or persons in need of
protection. According to the panel, the risks listed by the applicants are
generalized, not personalized. The panel also concluded that an internal flight
alternative in Haiti is available to the applicants.
Issues
[8]
This application sets
out the following issues:
1. Did the panel err in
concluding that the applicants were not subjected to a personalized risk in Haiti?
2. Did the panel err in
concluding that there is an internal flight alternative (IFA) available to the
applicants?
Standard of review
[9]
The review of a claim
made under subsection 97(1) of the Act calls for an individualized inquiry (Prophète
v. Canada (Minister of Citizenship and Immigration), 2009 FCA 31, 387 N.R. 149 at paragraph 7
(Prophète (FCA)). Accordingly, the appropriate standard of review is
reasonableness (Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190; Gabriel v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1170, [2009] F.C.J. No. 1545 (QL) at paragraph 10; Parada
v. Canada (Minister of Citizenship and Immigration), 2009 FC 845, [2009] F.C.J. No. 1021
(QL)).
[10]
The standard of review
applicable to issues relating to an internal flight alternative (IFA) was
patent unreasonableness (Khan v. Canada (Minister of Citizenship and Immigration), 2005 FC 44, 136 A.C.W.S. (3d) 912; Chorny
v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, 238 F.T.R. 289). Following Dunsmuir,
the Court must continue to exercise deference with regard to the determination
of an IFA. Consequently, the Court will only intervene if the decision does not
fall within “a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law” (Dunsmuir, above at paragraph 47). The
reasonableness of a decision is concerned with the existence of justification,
transparency and intelligibility within the decision‑making process
1. Did the panel err in concluding that the applicants were
not subjected to a personalized risk in Haiti?
[11]
Paragraph 97(1)(b)
of the Act requires that the applicants be subjected to a personalized risk, not
a generalized risk affecting other persons in the country.
[12]
It is known that the
risk of all forms of crime is a general risk experienced by all Haitians. Case
law has consistently reiterated that safety is a situation affecting the entire
population of Haiti. This risk, faced by the entire
population, does not meet the criteria of sections 96 and 97 of the Act (Prophète
v. Canada (Minister of Citizenship and Immigration), 2008 FC 331, 167
A.C.W.S. (3d) 151 (Prophète (FC)); Cius v. Canada (Minister of Citizenship and Immigration), 2008 FC 1, 164 A.C.W.S. (3d) 142)).
[13]
In this case, the principal
applicant testified fearing the persons who persecuted her husband 10 years
ago. However, when the panel asked her whether specific and identifiable
persons could potentially represent a danger to her, the applicant was unable
to answer (stenographer’s notes at paragraphs 146–150) and did not establish
that she would face a personalized risk if she returned to Haiti. Upon reading the file, this Court is of the opinion
that, on a balance of probabilities, the applicant has failed to show the
objective and subjective components of her fear of persecution.
[14]
It is well established
that refugee claimants must provide the evidence that they consider to be
necessary to show that their refugee protection claim is well founded (Rahmatizadeh
v. Canada (Minister of Employment and Immigration), 48 A.C.W.S. (3d) 1427,
[1994] F.C.J. No. 578 (QL) at paragraph 9). Refugee protection claimants have
the burden of proof to demonstrate that it would be unreasonable for them to
seek refuge in another part of the country or to prove that there are in fact conditions
which would prevent them from relocating elsewhere (Ramirez
v. Canada (Minister of Citizenship and Immigration),
2008 FC 1214, [2008] F.C.J. No. 1533 (QL); Palacios v. Canada (Minister of
Citizenship and Immigration), 2008 FC 816, 169 A.C.W.S. (3d) 619 at paragraph
9). As noted in Kovacs v. Canada (Minister of Citizenship and Immigration), 2005 FC 1473, [2006] 2 F.C.R. 455 at paragraph 33:
In the refugee
claim, the onus was on the applicants to supply evidence that supports their
claim (Rahmatizadeh v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 578 (T.D.) (QL), at paragraphs 9–10; Kante v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 525 (T.D.)
(QL), at paragraph 8) …
[15]
The fact that the
principal applicant alleged many times that she does not want to return to
Haiti because the country is generally unsafe is insufficient for her to be
considered a refugee under section 96 of the Act or a person in need of
protection under section 97 of the Act. The assessment of the applicants’ fear
must be made in concreto, and not from an abstract and general
perspective (Ahmad v. Canada (Minister
of Citizenship and Immigration), 2004 FC 808, 134 A.C.W.S. (3d) 493 at paragraph 22). With regard to the
evidence in the record, the applicant has failed to meet her burden of proof to
show that she would experience a personalized risk. The panel’s conclusion on
this point is therefore reasonable.
2. Did the panel err in concluding that there is an internal
flight alternative (IFA) available to the applicants?
[16]
According to the
principal applicant, it was unreasonable for the panel to conclude that there
is an internal flight alternative, taking into account the unreasonableness of
that alternative and considering her particular situation (Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, 163
N.R. 232 (F.C.A.) at paragraph 12).
[17]
The applicant had the
burden of showing that she had no internal flight alternative to another part
of her country. The onus was on her to demonstrate that there was a serious
possibility of her being persecuted everywhere in Haiti
and that it was objectively unreasonable for her to avail herself of an
internal flight alternative (Thirunavukkarasu, Rasaratnam v. Canada (Minister of Employment and Immigration, [1992] 1 F.C. 706, 140 N.R. 138).
[18]
There are two
components to consider in establishing an IFA: first, the panel must be
satisfied on a balance of probabilities that there is no serious possibility of
the applicants being persecuted at the location proposed to the applicants;
and, second, the conditions at the proposed location must be such that it would
not be unreasonable for the applicants to seek refuge there (Thirunavukkarasu).
[19]
For the first component
of the analysis, the panel concluded there was no serious possibility of the
applicant being persecuted by her alleged persecutors. The applicant failed to
demonstrate that the risk which she would face would be personalized because
she was unable to provide the exact identities of her persecutors
(stenographer’s notes at pages 148–150. Consequently, the applicants were
unable to show that the risk is personalized and did not submit any evidence showing
that they would be unable to relocate to another part of the country.
[20]
The applicants had the
onus of demonstrating why, on a balance of probabilities, there is a serious
possibility that they would be persecuted in another part of the country where an
internal flight alternative might be available (Thirunavukkarasu). The
applicants must meet a very high threshold in order to show that the IFA is
unreasonable. As explained in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, 266 N.R. 380 (F.C.A.)
below at paragraph 15,
… It requires
nothing less than the existence of conditions which would jeopardize the life
and safety of a claimant in travelling or temporarily relocating to a safe
area. In addition, it requires actual and concrete evidence of such conditions.
The absence of relatives in a safe place, whether taken alone or in conjunction
with other factors, can only amount to such condition if it meets that threshold,
that is to say if it establishes that, as a result, a claimant's life or safety
would be jeopardized …
[21]
The applicants have
failed to satisfy this Court that the internal flight alternative is
unreasonable and that the panel committed an error warranting this Court’s
intervention.
[22]
Therefore, this
application for judicial review is dismissed. No question for certification was
submitted by the parties.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review is
dismissed. No question is certified.
“Richard Boivin”
Certified true
translation
Sarah Burns
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