Date: 20100510
Docket: IMM-5280-09
Citation: 2010 FC 505
Ottawa, Ontario, May 10, 2010
PRESENT: The
Honourable Frederick E. Gibson
BETWEEN:
VIOLET MAUD WALCOTT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
Introduction
[1]
These
reasons follow the hearing at Toronto on the 28TH of April, 2010, of
an application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board, dated the 29th
of September, 2009, wherein the RPD determined the Applicant, Violet Maud
Walcott, not to be a Convention refugee and not to be a person in need of
Convention refugee-like protection.
Background
[2]
The
Applicant is a female citizen of Jamaica, single and the mother
of a now thirteen year old daughter who is a citizen of Canada. The
Applicant is well educated. Before fleeing to Canada on a visitor’s visa and
with her daughter, she had been employed for some years as a teacher and later
as manager of the Small Fry Nursery and Learning Center in Kingston, Jamaica. She also
held other employments and appointments.
[3]
In
November, 2005 and February, 2006, the Applicant was, on the first occasion,
assaulted following an automobile accident and on the second occasion, physically
assaulted and had her handbag and car keys stolen. Both incidents were
reported to the police who reacted without sympathy and provided the Applicant
with no satisfaction.
[4]
On
the 28th of April, 2006, while the Applicant was in her office at
her principal place of employment, she received a sealed envelope addressed to
her and a wreath in the shape of a cross. The envelope and wreath had
apparently been delivered to her place of employment in a white van and, coincidentally,
a white van had been involved in the two earlier incidents. The sealed
envelope contained the following brief message written in red ink:
Violet, this is a special gift for
you, Special wishes comes your way today with special gift. Your
next gift will be six feet, 6 ft. 6 inches in Hanover very very soon !!!
[underlining in the original]
The Applicant understood that such a note
accompanied by such a wreath was a normal indicator in Jamaica when one is
marked to be murdered.
[5]
The
police were called immediately. They attended at the Applicant’s place of
employment. They took the note and wreath to police premises and accompanied
the Applicant and her daughter,
in the Applicant’s car driven by a police
officer, to the same police premises. The police took a statement from the
Applicant. A female police officer advised the Applicant to dispose of the
wreath and note in a garbage bin.
[6]
Private
security was arranged for the Applicant. A private security officer described
the wreath and note as “crucial evidence” and instructed that they should not
be destroyed. The Applicant and her daughter continued to rely on private
security 24 hours a day. The Applicant ceased to drive her own car. Only a
security guard drove for her and for her daughter.
[7]
The
Applicant diligently pursued her situation with the police. She received no
satisfaction whatsoever.
[8]
Unknown
persons enquired after the Applicant at her principal place of work. When one
of them was questioned, he gave false information to the questioner.
[9]
The
Applicant and her daughter lived in a home in a gated community. On the 11th
of June, 2006, in the course of the night, the Applicant and her daughter heard
strange noises from the roof of their home. They saw a man jump down from the
roof. They shouted for help. The security guard who was in their home with
them frightened the man away.
[10]
Following
the incident on the 11th of June, the Applicant determined to move
away from her home. She concluded that nowhere would be safe for her in
Jamaica since the note that she had received focused on the parish of Hanover where she
had grown up and which is relatively remote from Kingston. She
concluded the person or persons threatening her knew all about her personal
history and daily routine.
[11]
On
the 18th of June, 2006, the Applicant, who already had a Canadian
visitor’s visa and a passport, together with her daughter, fled to Canada. The
Applicant claimed Convention refugee status some six months later, after
applying for an extension of her visitor’s visa but without waiting for a
decision on that application.
The Decision Under
Review
[12]
The
RPD accepted the Applicant’s identity. It wrote:
The claimant’s [here the Applicant’s]
testimony was forthright and there was no attempt to embellish her claim.
There were no contradictions or inconsistencies and the Board found her to be
very credible.
It found the Applicant’s explanations
regarding the delay between the time of her arrival in Canada and the
filing of her claim to be reasonable. It found her to be a victim of crime
with no link between her fear and a Convention ground, those being race,
religion, nationality, membership ina particular social group and political
opinion, and thus summarily rejected her claim to Convention refugee status.
[13]
The
RPD then turned to an examination of the Applicant’s claim to be a person in
need of protection as described in section 97 of the Immigration and Refugee
Protection Act.
[14]
The RPD wrote:
The claimant cannot identify her perpetrator.
In fact, she does not know if there is more than one perpetrator. She thinks
he may live on a certain street, however, is unsure of the motive. Her best
guess is that it is an individual who is a part of a gang, who demanded a
percentage of her income in February, 2006, several months before the incident
which has lead [sic] to her fears. The claimant indicated to the Board
that, in situations where business people are successful, gangs will extort
money from these individuals. The claimant had refused to accede to the
demands.
Upon further questioning, the claimant
indicated that she was in a job which could invoke envy or jealousy. She is
passionate in her endeavours in the field of childhood education. According to
the claimant, she has worked hard to reach her goals. When asked how the
claimant’s perpetrator/s would know of her success, she testified that this
would be known through her school and other activities which she was involved
in, sometimes appearing on television.
The onus is on the claimant to provide
evidence to the Board that she is being targeted and that in the particular
circumstances of her case, the target is individualized.
In fact, the time-lag
between the extortion demand in February of 2006 and the delivery of the death
threat against the Applicant was only about two months.
[15]
The
RPD then went on to refer briefly to documentary evidence before it regarding
the extensive operations of criminal gangs in Jamaica and the
extraordinary level of violence in that country. It then briefly concluded:
... the risk that the claimant faces
would be exempted pursuant to section 97(1)(b)(ii) of the IRPA as her fear of
crime as a successful business person is a risk faced generally by others in Jamaica.
The relevant portions of subsection 97(1)
of the Immigration and Refugee Protection Act read as follows:
|
97. (1) A person in
need of protection is a person in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
...
(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
...
(ii) the risk
would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
...
|
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
…
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
…
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
…
|
The Issues
[16]
In
the Memorandum of Fact and Law filed on behalf of the Applicant, the issues on
this application for judicial review are identified in the following terms:
First, did the Board
Member err in failing to consider the Applicant’s gender based risk? Secondly,
did the Board Member err by ignoring facts and evidence before her and thereby
failing to conduct an individualized risk assessment in accordance with section
97 of the Immigration and Refugee Protection Act; and finally, did the
Board Member err by failing to adequately consider the grounds of persecution
that may have given rise to a protection pursuant to section 96 of the Immigration
and Refugee Protection Act?
[17]
As
with all applications for judicial review before this Court, the issue of
standard of review arises here. I will deal with that issue first.
Analysis
Standard of
Review
[18]
Since
the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, it
is trite to say that the standard of review on an application such as this
where a pure error of law or a breach of natural justice or procedural fairness
is alleged, is “correctness”, but that where an error in the evaluation of the
evidence properly before a tribunal such as the Refugee Protection Division,
whether alone or in relation to a provision of law within the ambit of the
Tribunal’s expertise, it is “reasonableness” and that, where the reasonableness
standard applies, the analysis will be concerned with:
... the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law ...
(Dunsmuir v. New
Brunswick,
at para. 47)
Gender
Based Risk
[19]
In what follows, I will examine the RPD’s summary dismissal
of the Applicant’s Convention refugee claim on the basis that it found no nexus
between a Convention ground and the Applicant’s claim and its reasoning in its
brief section 97 analysis leading to its conclusion that the Applicant faced
only a generalized risk in Jamaica and not an individualized risk.
[20]
Gender can, of course, be a very significant factor in
identification of a “particular social group”, it being long settled that women
who are victims of gender violence can constitute a particular social group.
[21]
While counsel for the Applicant acknowledged before the
Court that the Applicant’s claim was not pursued as a gender based claim, the
evidence before the RPD was clear that the Applicant is a woman and the mother
of a young daughter and that her fear was not only for herself but for her
daughter.
[22]
Counsel for the Applicant referred the Court to Frejuste
v. Canada (Minister of
Citizenship and Immigration) where Justice O’Keefe wrote at paragraph 34 of his reasons:
Given the applicant’s
framing of the issue in terms of her status as a returnee who happens to be
female, rather than as a returnee and also as a woman in Haiti, it is
perhaps not surprising that the Board did not undertake a separate analysis on
gender-based grounds. Nonetheless, a separate analysis was warranted. As the
documentary evidence reveals, the risk of sexual violence is one widely
faced by women in Haiti, irrespective of whether or not they are returnees. ...
[emphasis added]
Justice O’Keefe
concludes at paragraph 37 of his reasons:
I am of the opinion
that the Board erred in failing to include in her reasons a gender-based
analysis taking into account the evidence of violence directed at women in Haiti. ...
[23]
The Tribunal Record here before the Court clearly reflects
that a high level of violence is directed at women in Jamaica as well and
further, that women are less likely to receive the protection of the law in
Jamaica than are men. That being said, as noted by Justice O’Keefe in
the first paragraph
quoted from his reasons in Frejuste above, it is here also not
surprising that the RPD did not undertake a separate analysis on gender-based
grounds given the way the issues were here framed. Further, the Applicant here
did not fear gender-based violence but rather death by reason of what she
assumed might be her failure to submit to extortion which arose not out of her
gender, but by reason of her successful career.
[24]
Counsel for the Respondent referred the Court to an
exchange between counsel for the Applicant and the presiding member of the RPD
during closing argument at the hearing of the Applicant’s refugee claim.
Counsel acknowledged that the Applicant’s claim was as a victim of crime which
she urged was personalized rather than generalized but certainly not gender
related.
[25]
In all of the circumstances of this matter I am satisfied that
Justice O’Keefe’s conclusion in Frejuste is entirely distinguishable and
that the RPD, against a standard of review of reasonableness, made no
reviewable error in its determination that there was no link between the
Applicant’s claim for protection and a Convention ground or in its failure to
place special emphasis on the Applicant’s gender in its section 97 analysis.
Ignoring Facts and
Evidence and Thereby Failing to Conduct an
Individualized Risk
Assessment in Accordance with Section 97
[26]
Counsel for the Applicant took me to Pineda v. Canada (Minister of Citizenship and
Immigration), where Justice de Montigny wrote at paragraph 15 of his reasons:
... It cannot be
accepted, by implication at least, that the applicant had been threatened by a
well-organized gang that was terrorizing the entire country, according to the
documentary evidence, and in the same breath surmise that this same applicant
would not be exposed to a personalized risk if he were to return to El
Salvador. It could very well be that the Maras Salvatruchas recruit from the
general population; the fact remains that Mr. Pineda, if his testimony is to be
believed, had been specifically targeted and was subjected to repeated threats
and attacks. On that basis, he was subjected to a greater risk than the risk
faced by the population in general.
[27]
Justice de Montigny continued at paragraph 17 of his
reasons:
... The applicant alleged
that he had been personally targeted on more than one occasion, and over quite
a long period of time. Unless we question the truthfulness of his story, which
the RPD did not do, we have no doubt that he will be personally in danger if he
were to return to El Salvador. In the particular circumstances of
this matter, to find the opposite amounts to a patently unreasonable error.
[28]
I am satisfied that Justice de Montigny’s analysis can be distinguished.
First, the Applicant here had no idea by whom, or by how many, she was
threatened. She certainly made no claim that she was targeted by a
“well-organized gang that was terrorizing the entire country”. While she was
personally targeted, and the evidence leaves no doubt about that, the evidence
does not come close to establishing that she was personally targeted but
rather, based on the Applicant’s own assumptions, she was targeted as a member
of remarkably ill-defined group, that being business people who had achieved a
degree of success and notoriety that potentially exposed them to extortion,
that were extorted and refused to succumb to the extortion. And even this was
only surmised. It was unsupported by any documentary evidence.
[29]
In the foregoing circumstances, I am satisfied that it was
open to the RPD, against the standard of review of reasonableness, to conclude
as it did that the Applicant’s “... fear of crime as a successful business
person is a risk faced generally by others in Jamaica.” That group of persons,
“successful persons in Jamaica” does not meet the test for a “particular social group” under section 96
of the Immigration and Refugee Protection Act, nor does it meet the onus
on the Applicant to provide evidence that her situation is individualized for
the purposes of section 97 of the Immigration and Refugee Protection Act.
Conclusion
[30]
For the foregoing reasons, and with regret, this application
for judicial review must be dismissed.
Certification
of a Question
[31]
These Reasons will issue without an Order giving effect to
the reasons, at this time. Counsel for the Applicant will have seven (7) days
from the date these Reasons are issued to file and serve on the Respondent any
submissions that she considers justified on certification of a question.
Thereafter, counsel for the Respondent will have seven (7) days to file and
serve on counsel for the Applicant submissions in response. Once again
thereafter, counsel for the Applicant will have four (4) days to file and serve
any reply submissions. Only thereafter will an Order issue giving effect to
these Reasons and taking into account any submissions.
“Frederick
E. Gibson”
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