Date: 20100819
Docket: IMM-5950-09
Citation: 2010 FC 826
Ottawa, Ontario, August 19,
2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
MARIE
CLAUDE LUC
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant is seeking judicial review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
(the Act) of a decision by the Refugee Protection Division of the Immigration
and Refugee Board (the Board), dated November 9, 2009, wherein the Board
refused to grant the applicant refugee protection status pursuant to sections
96 and 97 of the Act.
Factual Background
[2]
The
applicant is a young woman who is a citizen of Haiti. She made an
asylum claim in the United States, which was denied in 2005 and then
subsequently made a refugee claim in Canada based on her membership to a
particular group, namely that of women from Haiti who have been raped and who
have reported the rape to the authorities. The applicant also claimed to be a
person in need of protection as she claims to face a risk to her life or cruel
and unusual punishment should she be returned to Haiti.
[3]
In
2003, the applicant’s mother’s home business was robbed. Five days later, the
perpetrators came back, demanded more money and gang raped the applicant.
[4]
The
applicant denounced the perpetrators to the Justice of the Peace for her
Commune. Afterwards, the applicant went into hiding until her mother met a
smuggler who organized her passage to the United States. The United
States
denied her claim for asylum in 2005. The applicant entered Canada in 2007 and made
a claim for protection.
Impugned decision
[5]
Although
the Board member accepted the applicant’s identity and found that she was
sexually assaulted in 2003, the Board refused the application on the grounds that
the applicant’s story was not credible, that no personalized risk of harm was
established and that the applicant did not face a well-founded fear of persecution.
[6]
The
Board member noted several inconsistencies in the evidence before it, which
affected the applicant’s credibility. First, the Board was sceptical that the
applicant had really seen her attacker on the street in a major city located 45
minutes away, a few days after her attack and that her friend identified him to
her.
[7]
Secondly,
the Board member found it was unclear if the applicant went into hiding after
the assault and for how long, since the assault occurred on August 2, 2003. The
applicant arrived in the United States by boat on August 8,
2003. The Board member suggested that the boat ride is a few days at a minimum.
[8]
Thirdly,
the Board member found it was peculiar that the applicant recognized her
attacker and identified him to the police, but that his name was never
mentioned in the police report. Furthermore, the Board member found the
applicant to be evasive and vague in the way she described the events. However,
the Board member noted in her decision that she considered the Chairperson’s Gender
Guidelines and found them very instructive with respect to the reluctance
of victims of sexual assault to offer accurate and detailed testimony.
[9]
In
the Board member’s view, the applicant was the victim of a brutal crime, but
there was insufficient evidence that the perpetrators would remember the
applicant, pursue her and harm her once more, if she would return to Haiti.
[10]
The
Board member also noted that the applicant’s mother and sister remained in
their house in the same town in which the applicant was assaulted and that
neither had been victimized since her departure or questioned about her
whereabouts.
[11]
The
Board member recognized that the documentary evidence regarding the country’s
conditions confirms that gang activity, kidnappings, assault and rape, among
other crimes, are rampant. However, the Board concluded that the applicant did
not face a more personalized risk than any other Haitian who has been
victimized.
[12]
The
Board member also referred to the decision Soimin v. Canada (Minister of Citizenship
and Immigration), 2009 FC 218, [2009] F.C.J. No. 246, in which
the Federal Court determined that women facing sexual violence in Haiti did not
qualify for protection because their fear or risk is shared by everyone in the
country.
[13]
Finally,
the Board member referred to the case Prophète v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, [2008] F.C.J. No. 415,
at para. 23, in which this Court decided that all Haitians are at risk of
becoming victims of violence in addition to making a distinction between
personalized risk and generalized risk. The Board member consequently concluded
that the applicant was facing a generalized risk and refused the application.
Issues
[14]
The
following issues are raised in this application:
a.
Did
the Board err in failing to consider that the applicant is part of a particular
social group, namely that of women from Haiti who have been raped and who have
reported the rape to the authorities, thereby failing to properly analyze her
claim under s. 96 of the Act?
b.
Did
the Board provide an adequate analysis and reasons to support its decision?
c.
Did
the Board fail to analyze whether the applicant’s "brutal" and
"harrowing ordeal" amounted to compelling reasons as defined under s.
108 (4) of the Act?
Relevant provisions
[15]
The following provisions of the Act are applicable in these
proceedings:
|
Convention refugee
96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
|
Person in need of protection
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
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(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,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
Person in need of protection
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection
Rejection
108. (1) A claim for refugee protection shall
be rejected, and a person is not a Convention refugee or a person in need of protection,
in any of the following circumstances:
…
(e) the reasons for which the person
sought refugee protection
have ceased to exist.
…
Exception
(4) Paragraph (1)(e) does not apply to a person who establishes that there
are compelling reasons arising out of previous persecution, torture,
treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside
of which they remained, due to such previous persecution, torture, treatment
or punishment.
|
Personne à protéger
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 :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
(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,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
Rejet
108.
(1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
[…]
e)
les raisons qui lui ont fait demander l’asile n’existent plus.
[…]
Exception
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des
raisons impérieuses, tenant à des persécutions, à la torture ou à des
traitements ou peines antérieurs, de refuser de se réclamer de la protection
du pays qu’il a quitté ou hors duquel il est demeuré.
|
Standard of review
[16]
Prior
to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the standard of patent unreasonableness was applied to credibility
findings: Mejia v. Canada (Minister of
Citizenship and Immigration), 2009 FC 354, [2009] F.C.J. No. 438 (Q.L.) at para. 24, see
also Perera v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1069, [2005]
F.C.J. No. 1337. The
Court will only intervene with a credibility finding if the Board based its
decision on an erroneous finding of fact made in a perverse or capricious
manner or if it made its decision without regard to the material before it (Aguebor
v. Canada (Minister of Employment and Immigration) (F.C.A.), (1993) F.C.J.
No. 732, 160 N.R. 315, 42 A.C.W.S. (3d) 886).
[17]
In
light of Dunsmuir, the Court in Mejia, supra, concluded
that the appropriate standard of review for credibility findings is
reasonableness. According to the Supreme Court of Canada, when reviewing a
decision on the reasonableness standard, the Court should be concerned with
justification, transparency and intelligibility within the decision-making
process. The outcome must be defensible in respect of the facts and the law,
and should fall within a range of possible and acceptable outcomes (Dunsmuir
at para. 47).
[18]
In
Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, the Supreme Court of Canada found that
considerable deference is owed to a tribunal’s findings and that it is not the
role of the Court to re-weigh the evidence where Parliament has granted the
authority to make a decision on a salient issue to the tribunal.
[19]
Concerning the first
question, this Court determined in Vaval v. Canada (Minister of Citizenship and Immigration), 2007 FC 160, [2007] F.C.J. No. 227, at para. 7, that « …The existence
of a nexus between the alleged persecution and one of the five grounds listed
in the definition of "Convention refugee" under section 96 of the
IRPA [Immigration and Refugee Protection Act] is principally a question
of mixed fact and law…». This issue is therefore reviewable on the standard of
reasonableness.
[20]
As
for the second question, it is well established that the issue of whether
reasons are adequate is an issue of procedural fairness reviewable on a standard
of correctness (Andryanov v. Canada (Minister of Citizenship and
Immigration) 2007 FC 186, [2007] F.C.J. No. 272, at
para. 15; Jang v. Canada (Minister of Citizenship and Immigration, 2004 FC 486, [2004] F.C.J. No. 600, at
para. 9; Adu v. Canada (Minister of Citizenship and Immigration), 2005
FC 565, [2005] F.C.J. No. 693, at para. 9), Level (litigation guardian) v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 227, [2008]
F.C.J. 297 at para. 9.
[21]
In addition, oral decisions are not in and of themselves
problematic. Procedural fairness requires that decision-makers provide adequate
reasons to justify their decisions. In VIA Rail Canada Inc. v. National
Transportation Agency et al., (C.A.), [2001] 2 F.C. 25, [2000] F.C.J. No. 1685, the Federal Court of Appeal explained the obligation to provide adequate
reasons at para. 22:
[22] The obligation to provide adequate reasons
is not satisfied by merely reciting the submissions and evidence of the parties
and stating a conclusion. Rather, the decision-maker must set out its findings
of fact and the principal evidence upon which those findings were based. The
reasons must address the major points in issue. The reasoning process followed
by the decision-maker must be set out and must reflect consideration of the
main relevant factors.
[22]
Finally, with respect to the third question as to whether
the Board erred by failing to consider the “compelling reasons” exception, this Court
decided in Decka v. Canada (Minister of Citizenship and Immigration), 2005 FC 822,
[2005] F.C.J. No. 1029, at para. 5, that:
[5] … the
appropriate standard of review when considering whether a Board should have
applied the compelling reasons analysis is correctness. Review of the content
of the analysis, had it occurred, would have been on the standard of
reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817;
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
Analysis
a.
Did
the Board err in failing to consider that the applicant is part of a particular
social group, namely that of women from Haiti who have been raped and who have
reported the rape to the authorities, thereby failing to properly analyze her
claim under s. 96 of the Act?
[23]
With
regards to the 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.
Canada (Minister of Citizenship and Immigration), 2010 FC 159, [2010] F.C.J. No. 184, from
paras. 31 to 42, and Frejuste v. Canada (Minister of
Citizenship and Immigration), 2009 FC 586, [2009] F.C.J. No. 831, at para. 37, 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).
[24]
In
the case at bar, the applicant argues that the Board appeared to dismiss the
claim on lack of nexus. The issue in the present case is not whether the Board
was reasonable in determining that the applicant was not a member of a
particular social group. In fact, the Board accepted that the applicant was a
member of a social group by acknowledging that she had been brutally sexually
assaulted and that she had reported it to the authorities. Rather, the issue in
this case is whether the Board erred by considering that the applicant did not
have a well-founded fear of persecution and was rather facing a risk of general
criminality.
[25]
While
it has been established that "a finding of generality does not prohibit a
finding of persecution on the basis of one of the Convention grounds" (see
Dezameau v. Canada (Minister of Citizenship and Immigration) 2010 FC
559, [2010] F.C.J. No. 710, at para. 23), in the case at bar, the Board member
did in fact analyze the evidence related to a nexus, but came to the conclusion
that there was insufficient evidence as to a well-founded fear of persecution.
[26]
Indeed,
it is not quite clear what the applicant fears. The Court believes it was
reasonable for the Board to note that her mother and sister remained in the
same house after the assault and have never been victimized or threatened or approached
since. The Board also mentioned that there is no evidence to suggest that the
perpetrators would remember the applicant, that they would be interested in
pursuing her or wish to harm her again. In fact, they would not be aware that
she reported them since the police report does not mention any names. The Board
then concluded that she was not being personally persecuted and therefore, the
only thing she could fear is the general criminality and violence in Haiti. In fact,
the applicant admitted this herself in her PIF when she mentions the following:
In
fact, since Aristide was forced into exile on February 29, 2004, the country
has been dominated by ruthless, lawless people: they kidnap people and demand
ransoms. I would undoubtedly be targeted by them should I return to Haiti after being away for more than four years.
(Applicant’s Record at p. 98)
[27]
In
addition, the Board member was sensitive to the applicant’s situation. The
Board member recognized the applicant as being a victim of a very brutal crime.
However, victims of crime do not automatically qualify as having a well-founded
fear of persecution. Consequently, it was reasonable for the Board, in these
circumstances, to refer to the Soimin decision.
[28]
Thus,
given the lack of evidence pertaining to her alleged fear of persecution, this
Court is of the opinion that the Board’s decision is reasonable.
b. Did the Board provide an
adequate analysis and reasons to support its decision?
[29]
The
applicant alleges that the Board did not provide an adequate analysis and
reasons to support its decision. This Court does not agree with the applicant. In
fact, the Board made a separate legal analysis of s. 96 and s. 97 as it was required
to do so. In Kandiah v. Canada (Minister of
Citizenship and Immigration), 2005 FC 181, [2005] F.C.J. No. 275, at
para. 18, this Court examined the legal tests required for both sections:
[18] …The elements required to establish a claim under section 97
of the Act differ from those required under section 96 of the Act where a
well-founded fear of persecution tied to a Convention ground must be
established. Although the evidentiary basis may well be the same for both
claims, it is essential that both claims be considered separately. A claim
under section 97 of the Act requires that the Board apply a different test,
namely whether a claimant's removal would subject him personally to the dangers
and risks stipulated in paragraphs 97(1)(a) and (b) of the Act.
[30]
More
particularly, the Board analyzed, from para. 7 to 11 of the decision, the
evidence and the testimony before it to determine if the applicant had a
well-founded fear of persecution (s. 96 of the Act). From para. 12 to 15, the
Board consequently did the same in order to determine if the applicant would
face a risk of danger, torture or cruel treatment if she would return to Haiti (s. 97 of
the Act).
[31]
The
Court therefore agrees with the respondent and concludes that there was no
breach of procedural fairness by the Board.
c.
Did
the Board fail to analyze whether the applicant’s "brutal" and
"harrowing ordeal" amounted to compelling reasons as defined under s.
108 (4) of the Act?
[32]
Section
108(4) of the Act allows the Board to grant refugee protection in cases where
the applicant faced appalling past persecution despite the fact that the original
reasons for seeking protection no longer exist. However, this is limited to a
small minority of claimants. Case law regarding this issue have determined that
two conditions must be met before the Board is required to consider whether
there are sufficient compelling reasons to grant refugee status: 1) the
claimant must establish that, at some point in time, they would have met the
decision of a Convention refugee or a person in need of protection; and 2)
there must be a determination that the person no longer meets the definition of
a Convention refugee or a person in need of protection because of a change in
circumstances (see Brovina
v. Canada (Minister of Citizenship and Immigration.), 2004 FC 635, [2004] F.C.J. No. 771; Nadjat v. Canada (Minister of Citizenship and
Immigration), 2006 FC 302, [2006]
F.C.J. No. 478); Decka v. Canada (Minister of Citizenship and
Immigration), 2005 FC 822, [2005] F.C.J. No.
1029).
[33]
Despite
the applicant’s arguments, the Court is of the opinion that the Board was not required
to consider whether there were compelling reasons to grant refugee protection
according to this exception provision because the Board never found that the
applicant was a Convention refugee or a person in need of protection, therefore
not
fulfilling the two conditions required.
[34]
Thus,
the Court does not believe that the Board erred by failing to consider whether
there were sufficient compelling reasons to grant the applicant refugee
protection in light of the absence of past persecution and change of
circumstances.
[35]
For
these reasons, the application for judicial review is denied.
[36]
Counsel for the applicant suggested the two following proposed questions
for certification :
1. “ Is the Refugee
Protection Division of the Immigration and Refugee Board required to conduct an
independent analysis pursuant to section 108(4) once evidence is adduced
indicating the claimant suffered previous persecution, torture, treatment or
punishment that is compelling or otherwise analogous or synonymous with
treatment that can be characterized as “brutal”, “atrocious”, or “appalling” ?
2.
“Is
a refugee claimant required to expressly request the RPD’s consideration
pursuant to s. 108(4) to benefit from the “compelling reasons” provision in the
Act?”
[37]
The law is clear on the issue raised by the applicant’s two
proposed certified questions and it has been determined that two conditions
must be met before the Board is required to consider whether there are
sufficient compelling reasons to grant refugee status: the applicant must
establish that, at some point, she would have been found to be a Convention
refugee or a person in need of protection and a determination that she no
longer meets the definition of a Convention refugee or a person in need of
protection because of a change in circumstances (Decka, Nadjat).
[38]
With
respect to the applicant’s second proposed question for certification, it is
clear that it is not a dispositive issue in the case at bar. Absent evidence
that the applicant met the definition of a Convention refugee or a person in
need of protection and that there was a change in circumstances, there was no
requirement in the case at bar for the Board to consider s. 108(4), whether
raised or not by the applicant.
[39]
This
Court is therefore of the view that the questions proposed for certification do
not raise any issues of general importance. Accordingly, they shall not be
certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This judicial
review be denied.
2. No serious
question of general importance is certified.
“Richard
Boivin
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