Date: 20100225
Docket: IMM-3772-09
Citation: 2010 FC 220
Ottawa, Ontario, February 25,
2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
EVENS
FREDERIC
Applicant
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
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated June 18, 2009, wherein the Board determined the applicant was not
a Convention refugee or a person in need of protection.
Factual Background
[2]
The
applicant, Evens Frederic, is a citizen of Haiti who left Haiti for
financial reasons on June 6, 1998. The applicant travelled to the United
States,
where he applied for asylum. His request was denied.
[3]
The
applicant then married an American citizen who sponsored him. The applicant was
told he would have to return to Haiti to obtain an immigration visa from the
American consulate in Port-au-Prince, which he refused to do
out of fear.
[4]
The
applicant arrived in Canada in June 2007 and claimed refugee
protection upon arrival. He stated that he had been poorly advised on what to
say to the immigration office and he falsely declared that he had problems in Haiti owing to his
political involvement.
[5]
The
applicant eventually claimed he was fearful of the chimeras or armed groups,
who would assume that he had accumulated considerable wealth because he lived
in North
America
for many years. The applicant feared being kidnapped or otherwise targeted by
these groups.
Impugned Decision
[6]
The
Board found the applicant failed to establish a nexus to a Convention ground.
The Board found the evidence did not demonstrate that the applicant would be
exposed to a danger of torture under Article 1 of the Convention Against
Torture, as stipulated in paragraph 97(1)(a) of the Act.
[7]
The
Board determined that the applicant feared a generalized risk and not a
personalized risk. The Board also determined the evidence established that the applicant
might be a victim of crime instead of persecution. The Board noted in Karpounin
v. Canada (Minister of
Employment and Immigration), (1995), 92 F.T.R. 219, 54 A.C.W.S. (3d) 139,
that victims of crime do not belong to a particular social group.
[8]
The
Board held that the applicant also failed to establish that he faced any
greater likelihood of being a victim of crime than the rest of the population. The
Board recognized that the violence in Haiti was, unfortunately,
widespread.
[9]
Before
the Board, the applicant argued he feared returning to Haiti because he was
afraid of being kidnapped or otherwise targeted by the chimeras or armed
groups, who would assume he was rich because he lived in North
America
for many years. The applicant noted not everyone in Haiti has money, and those
who have lived in North America are automatically perceived to be wealthy.
Consequently, he would be at a greater risk of being targeted by criminal
groups.
[10]
The
Board rejected the applicant’s statement since the documentary evidence (particularly
the National Documentation Package on Haiti, March 16, 2009, HTI103017.FE and
other documents) indicates that kidnappings are endemic in Haiti, regardless
of a person’s social class.
[11]
Furthermore,
the Board noted that Tab 1.8 of the National Documentation Package states that
individuals from the middle or business class are targeted by criminals, while
those who have lived abroad are not systematically targeted. The Board thus held
that nothing in the evidence submitted would demonstrate that the applicant
would be exposed to a risk that is any different from that faced by the
country’s entire population. Also, the Board found that nothing in the evidence
submitted demonstrates that the applicant or a member of his family has been
specifically targeted, owing to the fact that the applicant has been living
abroad for several years and that he could be perceived as being wealthy.
[12]
The
Board added that, according to the jurisprudence, the perception of a person’s
wealth, which could increase the likelihood of that person being a victim of
crime such as theft or kidnapping for ransom, constitutes a generalized risk if
the evidence proves that the entire population generally faces the same risk.
Accordingly, the Board concluded that the applicant would face a generalized risk
as opposed to a personalized one.
Issues
[13]
The
applicant raises the following issues:
1. Did the
Board err in fact and in law in rejecting the applicant’s claim for refugee
protection as a “person in need of protection” when it concluded that the applicant
would face a generalized, and not a personalized, risk if returned to Haiti?
2. Did the
Board member err by failing to address the finding of another Board member on
the same issue?
Analysis
[14]
The
examination of a claim under subsection 97(1) of the Act necessitates an
individualized inquiry (Prophète v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 31, 387 N.R. 149 at par. 7 (Prophète
(FCA))). Accordingly, the appropriate standard of review of this issue of mixed
fact and law is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190; Gabriel at par. 10; Parada v. Canada (Minister of
Citizenship and Immigration), 2009 FC 845, [2009] F.C.J. No. 1021 at
par. 19).
[15]
The
applicant’s allegation that the Board erred in determining his claim provided
no nexus to a Convention ground as required under section 96 of the Act is
unfounded. On the basis of the jurisprudence, the Board was justified in
concluding that gaining wealth or living in a wealthy country does not
constitute membership in a particular social group (Étienne v. Canada
(Minister of Citizenship and Immigration), 2007 FC 64, 308 F.T.R. 76; Prophète
v. Canada (Minister of Citizenship and Immigration), 2008 FC 331, 167 A.C.W.S.
(3d) 151 (Prophète (FC)); Moali de Sanchez v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 183, 107 A.C.W.S. (3d) 848).
[16]
The
Court also finds that the Board was justified in concluding that wealthy people
do not have a greater risk of persecution. The Board did not err in concluding that
the applicant had not demonstrated he would face a serious possibility to a
risk to his life or to a risk of torture or cruel and unusual treatment or
punishment were he to return to Haiti.
[17]
Subsection
97(1)(b) of the Act requires that the risk be one the applicant faces
“personally”, but not one that is faced “generally” by other persons in that
country. The Court finds that the evidence demonstrates that 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.
[18]
The
applicant also raised that the Surajnarain v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1165, 336 F.T.R. case was applied in
another decision of the Board on another Haitian refugee claimant (TA7-06842),
which had been entered into evidence at the applicant’s hearing. In that specific
decision, the Board found that the risks of Haitian returnees being kidnapped
or killed by armed criminal gangs is not a generalized risk, but is
particularized in the case of Haitians who have lived abroad for a number of
years.
[19]
As
noted by the respondent, and the Court agrees, the factual context of the other
Board decision relied upon by the applicant (TA7-06842) is different from the
one in the case at bar. The claimant in TA7-06842 had previously been a victim
of crime in Haiti and he had
additional reasons for fearing a return to his country. On the facts of this
case, the applicant was not previously a victim of crime and hence, the same
reasoning cannot apply. As noted in the National Documentation Package: Tab
1.8: HTI103017.F (p. 39 of the Tribunal Record):
Question 10: est-il raisonnable de déduire de votre exposé qu’un
demandeur d’asile débouté qui retourne en Haïti après trois ou quatre ans,
ayant épuisé tous ses recours, serait ou sera ciblé à son retour en
Haïti ?
Les personnes qui ont séjourné à l’étranger peuvent être
ciblées, mais elles ne le sont pas de façon systématique. Les personnes
qui ont quitté Haïti parce qu’elles étaient précisément persécutées seront
attendues à leur retour.
[Translation]
Question 10: Is it reasonable to infer,
from your arguments, that an unsuccessful refugee status claimant who returns
to Haiti after three or four years, having exhausted all of his remedies, might
be or would be targeted upon his return in Haiti ?
Individuals who have lived abroad may be
targeted, but not in a systematic way. Individuals who have left Haiti precisely because they were being
persecuted will be spotted upon their return.
[Emphasis added]
[20]
As
such, the Board’s decision not to rely on that decision in the applicant’s case
was reasonable.
[21]
Furthermore,
the approach taken in Surajnarain is a departure from the dominant
interpretation of section 97 of the Act. This Court has recently reiterated that
according to the appropriate approach, the risk must be particularized to the
personal circumstances of the applicant (Gabriel at par. 23).
[22]
A
review of the transcript of the hearing before the Board indicates that the applicant
did not fear any particular persecutors (pp. 156-157 of the Tribunal Record). The
applicant was unable to identify the particular risk he faces in returning to Haiti:
Q: If you have to return to Haiti, sir, who do you fear?
A: I am afraid of
armed groups, Shimaz (ph), kidnappers, people that are killing people in Haiti.
Q: Do you fear anyone
in particular, sir?
A: No.
Q: Once again please
speak loud. You might think you speak loud but honestly we don’t hear very loud
here, okay? And what do you think can happen to you if you have to return?
A: After President
Aristeed (ph) have left the country in February ’04 there are groups of armed
gangs, Shimaz, people that are killing people until today. Especially people
that were living in North American that are going back to Haiti.
So the gangs, the
kidnappers and the Shimaz in Haiti they know that those people return to Haiti, have money and they are rich.
Q: You are perceived as
being rich, is this what you mean?
A: Anyone that is
returning to Haiti is perceived as having money
and is perceived as being rich.
Q: So what do you think
that can happen to you, sir, do you mean that you fear to be killed or
kidnapped, is that what you mean?
A: Yes. If I go back
to Haiti those groups, those
kidnappers, gangs, they will kidnap me and they could kill me and that’s why I
don’t want to go back to Haiti nowadays.
Q: Do you fear to
return to your country, sir, for any other reason that you just mentioned?
A: No.
[23]
The
Court notes that the documentary evidence, particularly the National
Documentation Package, HTI102506.F (p. 61 of the Tribunal Record), explains that
the applicant is not at greater risk of violence of kidnapping because of his
perceived wealth or the fact he was outside the country for a length of time:
Groupes ciblés par les kidnappeurs
Des sources soulignent que les auteurs d’enlèvements contre
rançon en Haïti agissent généralement par opportunisme. Toute personne qui
semble être riche risque d’être victime d’un enlèvement contre rançon.
Toutefois, bien qu’en 2004, toutes les victimes d’enlèvement contre rançon
signalées par les Country Reports on Human Rights Practices for 2004
étaient des personnes riches, les victimes d’enlèvement contre rançon
venaient de toutes les couches de la société en 2005 et en 2006. Selon le Washington
Post, la menace d’enlèvement plane aussi sur les marchands ambulants.
[Translation]
Groups targeted by kidnappers
According to some sources, criminals who
engage in kidnapping for a ransom in Haiti
generally do so for opportunistic motives. Any person who appears to be rich
runs the risk of being kidnapped for a ransom. In the year 2004, all persons
kidnapped for a ransom mentioned in Country Reports on Human Rights
Practices for 2004 were rich; however, in the years 2005 and 2006, all
persons kidnapped for a ransom belonged to all economic classes of society.
According to the Washington Post, the threat of kidnapping is also
looming for street vendors.
[Footnotes
omitted.]
[Emphasis
added]
In Michaud v. Canada (Minister of
Citizenship and Immigration), 2009 FC 886, [2009] F.C.J. No. 1112 (QL) this
Court also found that Haitian returnees face the same risk of violence and
crime as other Haitians perceived to be wealthy. As such, the Board’s decision
was reasonable.
[24]
For
these reasons, the application for judicial review is thus dismissed. The
Court’s intervention is not warranted in this case. This case does not raise a
serious question of general importance which ought to be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard
Boivin”
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