Date: 20100527
Docket: IMM-4396-09
Citation: 2010 FC 559
Ottawa, Ontario, this 27th
day of May 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Elmancia DEZAMEAU
Germa MALIVERT
Geraldine MALIVERT
Alex MALIVERT
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of a decision of
Michael Hamelin, a member of the Refugee Protection Division of the Immigration
and Refugee Board (the “Board”), dated July 10, 2009, wherein the Board
refused to grant the applicants protected status pursuant to sections 96 and 97
of the Act.
[2]
The
principal refugee claimant is Ms. Elmancia Dezameau (the “applicant”), a
citizen of Haiti. Her
children’s claims are dependent on hers. Her two younger children, Germa and
Alex Malivert, are citizens of the United States whereas her oldest child, Geraldine
Malivert, is a citizen of Haiti. Since arriving in Canada, the
applicant has had a fourth daughter who is now two years old.
[3]
The
applicant alleged that she feared persecution in Haiti on the basis of her
political opinion and/or the fact that both she and her daughters “would be
targets of criminal gangs, kidnappers and potential rapists as a result of the
fact that they are women and more particularly those who have lived outside the
country for a period of time”.
* * * * * * *
* * *
[4]
First,
the Board found that the applicant did not provide credible or trustworthy
evidence to substantiate a political involvement between the years of 1991 and
1994 such as would “lead her to be a target of potential political opponents
today”.
[5]
This
conclusion was based on the Board’s doubt that she had ever been active
politically. The Board found that the applicant portrayed a “seeming lack of
knowledge” during the hearing regarding the political situation in her country.
For example, the Board noted that the applicant did not correctly identify who
was in power in Haiti in 1992 and did not “spontaneously remember the
return of Jean-Bertrand Aristide in September 2004”.
[6]
The
Board dismissed counsel’s argument that the applicant’s lack of detail in her
testimony was a result of her psychological condition, having accorded little
weight to the medical and psychological reports. In its reasons, the Board
stated that the reports “rely exclusively on the facts as alleged by the
claimant”.
[7]
Furthermore,
the Board was not satisfied with the applicant’s explanation as to why she did
not return to Haiti in 1994 when
Aristide returned. In the Board’s view, it was not logical for a political
activist not to return and assist in the political changeover in her country
when her party assumed power.
[8]
The
Board also made a finding with respect to whether her fear was well-founded.
The Board determined that since there had been much political change in Haiti since she
left, the applicant would not be a target should she be returned to Haiti today.
[9]
With
respect to the applicant’s claim of gender-based persecution, specifically
“violence, kidnapping and rape”, the Board pointed out that the applicant had
never been “a victim of any attack related to her status as a woman”. An
absence of past personal persecution, the Board asserted, is a factor in
assessing the claim. The Board then noted that the documentary evidence “as
outlined by counsel does speak of violence against women being a problem in Haiti” as well as
a general lack of recourses to combat crime. In addition, the Board found that
Haiti has enacted laws against rape and there are organizations seeking “to
promote the interest of women in Haiti”.
[10]
Notably,
the Board highlighted the following information as relevant to its assessment
of the objective quality of the applicant’s fear: 1) the Prime Minister of
Haiti is a woman; and 2) half of Haiti’s population of 8
million are women. Directly following these facts, the Board found that the
risk the applicant fears is one rooted in a general problem of criminality in
that country. And, that fearing the risk of rape is not from gender, but
“rather [it is] a risk that is faced by all Haitian citizens as a result of the
violence in their country”. In conclusion, the Board stated: “[t]he
jurisprudence has held that victims of generalized violence or potential
victims of generalized violence such as the claimants are not afforded refugee
protection.”
[11]
The
Board dismissed the applicant’s refugee claim and that of the minor applicants
under section 96 in addition to rejecting their claims for protection under
section 97.
* * * * * * *
* * *
[12]
In
his Further Memorandum of Argument, the respondent Minister raises a
preliminary issue: whether the affidavit provided by Professor Elizabeth Sheehy,
sworn February 5, 2010, should be struck.
[13]
This
affidavit was not before the Board. I agree with the respondent that it should,
therefore, not be considered by this Court. This is in keeping with the Court’s role as
a court of review and not a forum for a de novo appeal. The scope of
evidence on an application for judicial review is restricted to the material
that was before the decision-maker (Lemiecha et al. v. Canada (M.E.I.)
(1993), 72 F.T.R. 49 at 51; see also, Walker v. Randall (1999), 173
F.T.R. 161). Additional evidence may be submitted on issues of procedural
fairness and jurisdiction according to Ontario Assn. of Architects v. Assn.
of Architectural Technologists of Ontario, [2003] 1 F.C. 331 (C.A.), leave
to appeal to the Supreme Court of Canada, refused.
* * * * * * * * * *
[14]
The
applicant based her claim for refugee status on two grounds: 1) her political
opinion, and 2) her membership in a social group, namely Haitian women
returning to Haiti from North
America after a prolonged absence from that country.
[15]
With
regard to the first basis of her refugee claim, the applicant asserted that her
past political activism had made and would continue to make her a target of
persecution in Haiti. The Board found that the witness was not
credible and that country conditions had changed sufficiently so as to render
her fear not well-founded today.
[16]
I
agree with the applicant that the Board ought to have engaged in a meaningful
discussion of the weight it was giving to the medical reports and ought not to
have dismissed them. The problems with the applicant’s spontaneous recall could
have been explained by the symptoms of post-traumatic stress disorder (“PTSD”).
The medical finding of PTSD is not “exclusively” based on her narrative of past
persecution. Therefore, the report cannot be dismissed for the reasons stated
by the Board member.
[17]
However,
the finding that the Board erred in its use of psychological and medical
evidence is not determinative. The Board also found that based on the passage of
time, the applicant’s fear of persecution on the basis of political opinion was
no longer well-founded. This finding was open to the Board on the facts of the
record and, therefore, this Court should not intervene.
[18]
With
regard to the second basis of the applicant’s refugee claim, there is recent jurisprudence
from this Court supporting a finding of a reviewable error where the Board
fails to include a gender-based analysis in its assessment of the evidence of
violence directed at women in Haiti (see Michel v. Minister of
Citizenship and Immigration, 2010 FC 159, at
paragraphs 31 to 42, and Frejuste v. Minister of Citizenship and Immigration,
2009 FC 586, wherein the Court held that the Board’s failure to address the 70 pages of
documentary evidence demonstrating the widespread gender-based violence in
Haiti constituted a reviewable error).
[19]
Since
the applicant claimed that she feared that as a woman she would be targeted for
rape in Haiti, the Board
is expected to have considered the evidence with respect to her membership in a
particular social group, namely women in Haiti or more specifically, Haitian
women returning to Haiti from abroad. Failure to evaluate the evidence
in this way constitutes a reviewable error: Bastien v. Minister of
Citizenship and Immigration, 2008 FC 982. In Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, at paragraph 70, the Supreme Court of
Canada explicitly recognized that gender can provide the basis for a “social
group”.
[20]
In
Bastien, supra, the Court overturned a decision of the Board
because the member failed to consider the applicant’s claim in light of her
membership in a particular group, namely, “her status as a Haitian woman and as
an individual returning to Haiti from abroad”. The Board had ended the
inquiry after determining that the applicant’s allegation of past persecution
was not credible. The Court analyzed the Board’s reasons as follows:
[11] Given that there is no dispute about the
fact that Ms. Bastien is indeed a Haitian woman, or that she would in fact
be returning from abroad if she went back to Haiti,
the question for the Board at this juncture in its analysis was not whether her
story of past persecution was credible.
[12] Rather,
the questions that the Board ought to have addressed in relation to this aspect
of Ms. Bastien’s claim included determining whether there was documentary
or other evidence before it as to the generalized persecution of women in Haiti. In addition, the Board ought to have considered whether
women in Haiti generally, as well as those returning to
Haiti from abroad, constituted particular
social groups.
[21]
The
respondent points out that Deputy Justice Maurice E. Lagacé upheld a decision
wherein the Board had considered the evidence before it and determined that
women in Haiti returning from abroad do not form a particular social group: Soimin
v. Minister of Citizenship and Immigration, 2009 FC 218. The respondent
asserts that this case supports the Board’s analysis. I disagree.
[22]
The
issue in the case at bar is not whether the Board was reasonable in determining
that the applicant is not a member of a particular social group; in fact, as I
read the decision, the Board seems to have accepted that the applicant was a
member of a social group. Rather, the question in the case at bar is whether
the Board’s finding that the applicant faced a risk of general criminality such
that there is no nexus between her risk and her social group is defensible in
law or in fact. It is also noteworthy that the Board considered the documentary
evidence and did not rely on its credibility finding as in the case cited by
the applicant. In light of the foregoing therefore, neither of the cases cited
by the parties is directly on point.
[23]
In
my opinion, the error of the Board was to use its finding of widespread risk of
violence to rebut the assertion that there is a nexus between the applicant’s
social group and the risk of rape. Contrary to the respondent’s submissions, a
finding of generality does not prohibit a finding of persecution on the basis
of one of the Convention grounds.
[24]
This
is explicitly set out in the Chairperson’s Guideline 4, Women Refugee
Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board
of Canada:
The fact that violence, including sexual
violence and domestic violence, against women is universal is irrelevant
when determining whether rape, and other gender-specific crimes constitute
forms of persecution. The real issues are whether the violence – experienced
or feared – is a serious violation of a fundamental human right for a
Convention ground and in what circumstances can the risk of that violence be
said to result from a failure of state protection.
[Emphasis
in original.]
[25]
While
the Board is not bound to the Gender Guidelines, its analysis is contrary to
the express guidance which it purports to have considered.
[26]
Furthermore,
a gender-related crime cannot be rejected because women face general oppression
and the applicant’s fear of persecution is not supported by an individualized
set of facts (see the Federal Court of Appeal’s decision in Salibian v. Canada (Minister of
Employment and Immigration), [1990] 3 F.C. 250 (Salibian)). Where the
applicant has not, herself, experienced the type of persecution she fears, the
applicant can use evidence of similarly-situated persons to demonstrate the
risk and the unwillingness or inability of the state to protect. This is also
expressly set out in the Gender Guidelines.
[27]
At pages
258 and 259, the Court in Salibian summarized the following key legal
principles:
It
can be said in light of earlier decisions by this Court on claims to Convention
refugee status that
(1)
the applicant does not have to show that he had himself been persecuted in
the past or would himself be persecuted in the future;
(2)
the applicant can show that the fear he had resulted not from reprehensible
acts committed or likely to be committed directly against him but from
reprehensible acts committed or likely to be committed against members of a
group to which he belonged;
(3)
a situation of civil war in a given country is not an obstacle to a claim
provided the fear felt is not that felt indiscriminately by all citizens as a
consequence of the civil war, but that felt by the applicant himself, by a
group with which he is associated, or, even, by all citizens on account of a
risk of persecution based on one of the reasons stated in the definition; and
(4)
the fear felt is that of a reasonable possibility that the applicant will be
persecuted if he returns to his country of origin (see Seifu v. Immigration
Appeal Board, A-277-82, Pratte J.A., judgment dated 12/1/83, F.C.A., not
reported, cited in Adjei v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 680 (C.A.), at page 683; Darwich v. Minister of Manpower and
Immigration, [1979] 1 F.C. 365 (C.A.); Rajudeen v. Minister of
Employment and Immigration (1984), 55 N.R. 129 (C.A.), at pages 133 and
134).
The
impugned decision falls squarely within the line of authority described by
Prof. Hathaway as follows:
In
view of the probative value of the experiences of persons similarly situated to
a refugee claimant, it is ironic that Canadian courts historically have shown a
marked reluctance to recognize the claims of persons whose apprehension of risk
is borne out in the suffering of large numbers of their fellow citizens. Rather
than looking to the fate of other members of the claimant’s racial, social, or
other group as the best indicator of possible harm, decision makers have
routinely disfranchised refugees whose concerns are based on generalized
group-defined oppression.
and
I adopt this description of the applicable law to be found at the end of the
aforementioned article:
In
sum, while modern refugee law is concerned to recognize the protection needs of
particular claimants, the best evidence that an individual faces a serious
chance of persecution is usually the treatment afforded similarly situated
persons in the country of origin. In the context of claims derived from
situations of generalized oppression, therefore, the issue is not whether the
claimant is more at risk than anyone else in her country, but rather whether
the broadly based harassment or abuse is sufficiently serious to substantiate a
claim to refugee status. If persons like the applicant may face serious
harm for which the state is accountable, and if that risk is grounded in their
civil or political status, then she is properly considered to be a Convention
refugee.
[My
emphasis, footnote omitted.]
[28]
In
contrast, evidence of a generalized risk precludes a finding of
particularized risk as required by section 97 of the Act. My recent
decision in Gabriel v. Minister of Citizenship and Immigration, 2009 FC 1170, discusses
this requirement in more detail. It is of note that the Board’s analysis is
with respect to section 96; the Board did not conduct a separate section 97
analysis.
[29]
This
is not to say that membership in a particular social group is sufficient to
result in a finding of persecution. The evidence provided by the applicant must
still satisfy the Board that there is a risk of harm that is sufficiently
serious and whose occurrence is “more than a mere possibility”.
[30]
I
note that the Board understood the applicant to fear being “a target of
violence, kidnapping and rape, given the current situation for all women in Haiti” and made
the following two findings. First, that the risks the applicant fears arise
from general criminality:
. . . The current Prime Minister of Haiti
is a woman. According to the available documentary evidence, out of Haiti’s population of 8 million, half are
women. The risk that the claimant believes that she is running in her
situation for both herself and her children in the panel’s mind relates in a
much global term to the overall criminal situation in the country.
[My
emphasis.]
Second, that the risk is not related to
her gender:
. . . Here, however, the
claimant’s risk is not a risk based upon her gender but rather a risk that is
faced by all Haitian citizens as a result of the violence in their country.
[My
emphasis.]
[31]
As
mentioned before, a general risk faced by a particular social group does not
preclude a finding of persecution. In other words, a finding that a risk is
universally experienced by a social group does not foreclose the inquiry under
section 96. The Board foreclosed a proper inquiry into this claim by making an
erroneous finding that the risk of violence, specifically rape, is a risk of
generalized criminality that all Haitians face.
[32]
Certainly,
the Board is assumed to have considered all the evidence. However, this
presumption is rebutted if it fails to discuss contradictory evidence to its
findings (see Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35).
[33]
There
was evidence before the Board that contradicted its finding that risk of rape
is generalized:
-
In “U.S.
Department of State: 2008 Human Rights Report: Haiti” the authors suggest that Haitian women
are specifically targeted for rape and this is violence that exists in the
context of pervasive discrimination against women (sexual harassment, domestic
violence, indifference by the judiciary and the police to the violence which is
directed to them). This document discusses the ineffectiveness of the legal
prohibition of rape.
-
An update
provided by the “Amnesty International Report 2007: Haiti” identified the risk of rape as specific
to women: “women and girls continued to be tortured, rape and killed by illegal
armed groups and individuals”.
-
A news
report authored by Andrew Buncombe, “Police and political groups linked to Haiti sex attacks”, September 2006, reports on
a survey of sexual violence published by the Lancet. It correlates the
existence of civil unrest in the two years following Aristide’s forced exile
from Haiti with high incidence of rape.
Between February 2004 and December 2005, 35,000 women were sexually assaulted
in Haiti’s capital and 90% of those
assaults were rape:
“both the report’s authors and other
human rights workers said they believe the level of rape is directly linked to
a high level of general violence and lawlessness – conditions that existed in
abundance during the interim government period.”
This evidence supports a finding that
women are targeted for rape in the capital city and the event of political
instability coincided with a heightened risk of rape. This information does not
undermine a finding that rape is a gender-related crime. It can be interpreted
as supporting the assertion that rape is a weapon used to gain social control.
-
In an
update from Doctors Without Borders, “Treating Sexual Violence in Haiti: Doctors Without Borders”, October 30, 2007,
it is clear that the incidence of rape remains high, although self-reporting
rates to either hospitals or the police is low. Specialized medical facilities
are required to deal with the trauma of rape.
[34]
I
note that it is well-established in Canadian law that rape, and other forms of
sexual assault, are crimes grounded in the status of women in society. In R.
v. Osolin, [1993] 4 S.C.R. 595, Justice Cory writing for the majority held
at page 669:
.
. . It cannot be forgotten that a sexual assault is very different from other
assaults. It is true that it, like all the other forms of assault, is an act of
violence. Yet it is something more than a simple act of violence. Sexual
assault is in the vast majority of cases gender based. It is an assault upon
human dignity and constitutes a denial of any concept of equality for women.
Also in R. v. Seaboyer, [1991] 2
S.C.R. 577, L’Heureux-Dubé J. (dissenting in part) framed her legal analysis of
the constitutionality of the “rape-shield” provisions in the Criminal Code
around the fact that “[s]exual assault is not like any other crime”.
[35]
The
notion that rape can be merely motivated by common criminal intent or desire,
without regard to gender or the status of females in a society is wrong
according to Canadian law (see also R. v. Lavallee, [1990] 1 S.C.R.
852). In addition, rape is referred to as a “gender-specific” crime in the Gender
Guidelines.
[36]
The
Board’s finding that rape is part of general criminality in Haitian society was
also contradicted by the documentary evidence provided by the applicant.
Historically, rape in Haiti is gender-specific and not random.
[37]
In
July 1994, Human Rights Watch, National Coalition for Haitian Refugees,
produced a report documenting harrowing stories of rape and the purpose of
rape. This document explicitly connects the violence of rape to oppression of
women in Haiti’s recent
history:
. . . Like men, women have been killed,
arrested for their actual or imputed political views, beaten while in
detention, forced into internal hiding (called marronage), disappeared,
and denied the most basic civil and political rights to political expression,
humane treatment and due process.
Reports
from women’s rights groups in Haiti reveal that women also are targeted for abuse in ways and
for reasons that men are not. Uniformed military personnel and their civilian allies
have threatened and attacked women’s organizations for their work in defense of
women’s rights and have subjected women to sex-specific abuse ranging form
bludgeoning women’s breasts to rape. Rape also is a part of apparently random
violence committed by bands of zenglendos. Social unrest, which is both
fostered and exploited by the military authorities in order to repress
opposition to their rule, has contributed to increased levels of seemingly
random violence.
[My
emphasis.]
[38]
This
document does not provide evidence of the current risk of rape for women in Haiti. It provides
a historical social context which describes Haitian women as specific targets
by the military, and civilian armed gangs. This clearly contradicts the Board’s
assertion that rape is an act of violence faced generally by all Haitians.
[39]
Had
the Board member accepted that a risk of rape is grounded in the applicant’s
membership in a particular social group - albeit a risk generally faced by
members of that social group - then the inquiry should have resulted in a
determination of whether there is “more than a mere possibility” that the
applicant risks suffering this harm in Haiti. Inherent in this next step of the
analysis is a determination as to whether adequate state protection is
available to the applicant.
[40]
Without
explicitly completing a state protection analysis, the Board referenced the
existence of laws which define rape as a crime in Haiti. I note that
there was documentary evidence which directly contradicted the Board’s implicit
assumption that state protection for people who fear violence in Haiti is adequate.
The Report of the Secretary-General on the United Nations Stabilization Mission
in Haiti and the Policy Briefing, authored by the International Crisis Group, Haiti:
Security and the Reintegration of the State, Port-au-Prince/Brussels, 30
October 2006, explicitly discusses the instability of the state (as of 2006)
and the specific incapacities of the state to police its citizens in a
meaningful way.
* * * * * * *
* * *
[41]
For
all the above reasons, I find that the Board erred in law finding that a general
risk of harm precluded the applicant’s claim of persecution. The Board further
erred, in law and with respect to the facts, in finding that rape is not a
gender-related risk in Haiti or that rape is a general risk faced by
all Haitians. Finally, the Board did not consider the applicant’s risk of rape
due to her membership in the social group she alleged: women returning to Haiti
from North
America.
[42]
Accordingly,
the application for judicial review is granted, the decision of Board member
Michael Hamelin is quashed, and the matter is sent back to a differently
constituted Board for redetermination.
[43]
At
the request of counsel for the applicants, the following question is certified:
Can an assumption that rape is not a
crime predicated on gender and reflecting gender imbalances be applied in an
evidentiary vacuum, without regard to evidence demonstrating the contrary with
respect to conditions in a refugee claimant’s country of nationality?
JUDGMENT
The application for judicial
review is allowed. The decision of Michael Hamelin, a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”), dated
July 10, 2009, is quashed and the matter is sent back for redetermination
by a differently constituted Board.
At the request of
counsel for the applicants, the following question is certified:
Can an assumption that rape is not a
crime predicated on gender and reflecting gender imbalances be applied in an
evidentiary vacuum, without regard to evidence demonstrating the contrary with
respect to conditions in a refugee claimant’s country of nationality?
“Yvon
Pinard”
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