Date:
201200920
Docket:
IMM-8307-11
Citation:
2012 FC 1101
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 20, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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RENICE BRAZIER
PAUL HERSKIN DAY
MATT DAY
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Renice
Brazier, as well as her spouse, Paul Herskin Day, are citizens of the Republic of Haiti. Their minor son, Hendrick Matt Day, is a citizen of the United State s. They are challenging the decision rendered on October 27, 2011, by Ruth
Delisle of the Refugee Protection Division (the panel) that the applicants are
neither Convention refugees nor persons in need of protection.
[2]
The
applicants fled Haiti after the earthquake on January 12, 2010. They
had been living in Port-au-Prince; the male applicant was a teacher and the
female applicant, a merchant. During the earthquake, the applicants’ house was
destroyed, the female applicant’s store was looted Mr. Day lost his employment
when the school where he worked collapsed. In the days following the
earthquake, the family put up a tent in the yard of their home. Mr. Day was
able to leave Haiti on January 19, 2010, and headed to the United States with their minor son. Ms. Brazier left her country of birth armed with a U.S. visa on February 10, 2010. All three of them arrived together at the Canadian
border on February 19, 2010 to claim refugee protection here.
[3]
A
first Personal Information Form (PIF) was submitted on March 18, 2010 in
which Ms. Brazier expressed fear for their health and safety because prisons
had been destroyed by the earthquake and, as a consequence, armed kidnappers
now roamed about freely. She wrote: [translation]
“my family and I cannot return to Haiti, because we have lost everything” and
their only recourse and hope for survival was to seek refuge in Canada.
[4]
On
May 2, 2011, their PIF was rewritten. Ms. Brazier declared:
a.
Having
had to leave after the earthquake [translation]
“given the humanitarian crisis that ensued, but also as a result of the growing
insecurity cased by the crisis”;
b.
Having
been in an enviable position in light of Haiti’s socio-economic context as a
merchant selling fabrics, cosmetics and cleaning products while her spouse was
a teacher. The family’s home was protected by a fence surrounding the yard and
was monitored by private security at all times.
c.
Even
before the earthquake the family had already had to take certain measures to
ensure their safety, for example, out of fear of the sexual violence [translation] “that was prevalent in
Haiti” her spouse went to pick her up at the end of the days when she closed
her store and her cousin had already been kidnapped and held for ransom.
d.
She
had travelled to the United States regularly from 2007 to 2010 to visit
her relatives; her child was born there in 2008.
e.
The
family lived in a dangerous neighbourhood, an area rife with supporters of Aristide.
f.
The
family’s profile – middle-class merchant, travelled regularly to the United
States where members of her family lived along with a U.S. child, perceived as
not supporting the populist Lavalas movement and as being pro-American; in the
Haitian context such prejudices [translation]
“could endanger our lives”.
g.
She
acknowledges [translation] “that
she was fortunate, until the earthquake, not to have personally experienced
violence, other than her cousin’s kidnapping. Their safety net was destroyed in
the earthquake; the walls of their home collapsed as well as those of the
prisons, resulting in a flood of Aristide supporters escaping and venturing
into neighbourhoods like theirs. One of the escaped convicts threatened their
guard.
h.
Following
the crisis and growing insecurity, the family fled Haiti, fearing a resurgence
in sexual violence with the return of many supporters of the Fanmi Lavalas
party to the poorer neighbourhoods.
i.
Ms.
Brazier concludes [translation] “our
fear is not only based on our membership in a particular social group, namely
that of middle-class persons able to afford a secure house and trips to the
United States, but also on the basis of political opinions ascribed to them by
Lavalas supporters based on this membership in that particular social group .
[Emphasis added.]
II. Impugned
decision
[5]
The
panel’s decision does not recognize the applicants as refugees under sections
96 and 97 of the Immigration and Refugee Protection Act (S.C. 2001, c.
27) (IRPA). With respect to section 96, the panel relied upon the following
factors:
a.
The
existence of an internal flight alternative. The panel
wrote at paragraph 15 of its decision:
Considering that they had left their relatives to
come to Canada, and that they had done the same thing by leaving Gonaïves to
settle in Port-au-Prince, the panel asked the claimants whether they could
settle in Cap-Haïtien, if they were to return to their country of citizenship.
In this regard, the female claimant submitted that her parents had sold
everything they had in Gonaïves to settle in Port-au-Prince. The claimants also
submitted that the situation was not good outside the capital and that, in ten
years, it had not improved. Since the male claimant testified that his father
was living in Cap-Haïtien, the panel asked him why he could live there but
they could not. The male applicant avoided answering the question by stating
that his mother was not in touch with his father. They stated that they
could not settle in their province of origin, Gonaïves, either, because they
have no relatives or friends and because there is no business there because of tornadoes
that swept through.
[Emphasis added.]
b.
The
panel was aware that Port-au-Prince had been ravaged by the earthquake and that
life outside the capital was not ideal. It ruled, at paragraph 25:
However, with the exception of the insecurity they
alluded to, nothing in the evidence submitted showed that the female claimant
would be unable to settle with her family in Gonaïves, their place of origin,
or in Cap-Haïtien, where they have close family, if they were to return to Haiti.
The panel determines that the female claimant failed to establish that there
is a “serious possibility” of gender-related persecution if she were to
return to Gonaïves or Cap-Haïtien or that it would be objectively unreasonable
to settle there, considering her particular circumstances.
[Emphasis added.]
c.
The
applicants’ lack of subjective fear. The panel
wrote at paragraph 21:
It has been established in the case law that a
delay in leaving the country of persecution, a failure to claim refugee
protection in a country that is a signatory to the Convention or a
return to the country of persecution significantly undermines a refugee
protection claimant’s subjective fear. It must be noted that the female
claimant did not see fit to leave her country of citizenship permanently,
though she had the travel documents that would have enabled her to leave,
despite the unenviable situation already present before the earthquake. In
fact, the female claimant has an American visa, issued on July 30, 2007, and
valid for five years, and she made several trips to the USA before the
earthquake. The panel notes the absence of subjective fear in this regard,
and is of the opinion that this behaviour is inconsistent with that of a person
who fears gender-related persecution and who fears for her life in the Republic
of Haiti, because she is perceived to be pro-American.
[Emphasis added.]
d.
Possibility
of being raped [Emphasis added.] In the panel’s opinion, Ms.
Brazier had not demonstrated that there was more than a mere possibility that
she would face a risk of being raped. She had also not convinced the panel that
there was a risk of harm that was sufficiently serious and whose occurrence was
more than a mere possibility. The panel was of the following view:
[26] While the panel is very sympathetic to the victims
of this natural disaster, the female claimant’s situation is not comparable
to that of a vulnerable woman who is alone under a tent in Haiti and who
could, because of her particular circumstances, face gender-related
persecution.
[27] The female applicant and her husband submitted
that they fear returning to Haiti because of the insecurity there, which has no
nexus to one of the Convention grounds. In fact, the claimants stressed that
they are more targeted than their fellow citizens because of their social
status, which is higher than that of other citizens of their country.
[28] It has been established in the case law that
wealthy people or those who are perceived as being wealthy do not constitute a
particular social group within the meaning of section 96 of the IRPA. The same
holds true for the Haitian diaspora, which does not constitute a particular
social group within the meaning of section 96 of the IRPA.
[29] In this case, the evidence revealed that the
claimants fear the ongoing crime that is raging in Haiti. It is well
established in the case law that being a victim of a criminal act does not
constitute a persecution ground under section 96 of the IRPA.
[Emphasis added.]
[6]
As
to the application of section 97 of the IRPA, the panel was of the view that
the applicants’ alleged fear was based on the generalized risk in Haiti that is
faced generally and indiscriminately by everybody living in that country. The
evidence did not show that the applicants would be subject to a risk that is
different from that faced by their fellow citizens. The panel added, at
paragraph 29:
It is well established that a generalized risk of
criminality, shared by the entire population of a country, does not satisfy the
criteria in subsection 97(1) of the IRPA, despite the fact that some
individuals may be targeted more often because of their wealth or because they
are perceived as being wealthy. The exception under subparagraph 97(1)(b)(ii)
therefore does not apply to them. The claimants’ guard may have been stopped by
an individual who demanded five dollars from him, but the panel is of the
opinion that this incident does not personalize their risk of return in their
country of citizenship. The same applies to the kidnapping of the female
claimant’s cousin in 2003, considering that the claimants did not have any
problems after this incident, and nor have the female claimant’s parents or the
other members of her extended family who have remained in Haiti experienced any
problems up to now.
III. The
applicants’ arguments
[7]
The
applicants argue that:
a.
The
panel’s finding that there was an IFA is unreasonable because (i) it
ignores a number of Refugee Protection Division (RPD) decisions in which it was
determined that, given the current circumstances affecting Haiti, there is no
internal flight alternative in that country, and (ii) the panel’s finding is
based on a poor assessment of the evidence.
b.
The
panel erred in law by failing to rule on one of the grounds of persecution
cited, namely, imputed political opinion.
c.
Given
that the panel had not found that the applicant’s testimony was not credible,
its finding that there was a lack of subjective fear on the part of the
principal applicant was wrong.
d.
The
panel’s finding with regard to Ms. Brazier’s objective fear, which was based on
gender-related persecution, was unreasonable in light of the documentary
evidence.
IV. Analysis
and conclusions
[8]
Failure
to consider a ground for protection is reviewable on a standard of correctness:
Woldesellasie v Canada (Citizenship and Immigration) 2011 FC 522 at paragraph
34.
[9]
Alternately,
issues involving the determination of facts are reviewable on a standard of
reasonableness.
[10]
I
have read the transcript of the hearing and considered the submissions of the
parties. I will deal with the IFA issue first, as it is determinative according
to two decisions of the Federal Court of Appeal, namely, Rasaratnam v Canada (Minister of Employment and Immigration), 1992 1 FC 706 in which Justice Mahoney
wrote:
In my opinion, in finding the IFA, the Board was
required to be satisfied, on a balance of probabilities, that there was no
serious possibility of the appellant being persecuted in Colombo and that, in
all the circumstances including circumstances particular to him, conditions in
Colombo were such that it would not be unreasonable for the appellant to seek
refuge there.
[Emphasis added.]
[11]
There
is also Justice Linden’s decision in Thirunavukkarasu v Canada (minister of Employment and Immigration), 1994 1 FC 589 in which he stated the following
at paragraphs 13 and 14:
Let me elaborate. It is not a question of whether in
normal times the refugee claimant would, on balance, choose to move to a
different, safer part of the country after balancing the pros and cons of such
a move to see if it is reasonable. Nor is it a matter of whether the other,
safer part of the country is more or less appealing to the claimant than a new
country. Rather, the question is whether, given the persecution in the
claimant's part of the country, it is objectively reasonable to expect him or
her to seek safety in a different part of that country before seeking a haven
in Canada or elsewhere. Stated another way for clarity, the question to be
answered is, would it be unduly harsh to expect this person, who is being
persecuted in one part of his country, to move to another less hostile part of
the country before seeking refugee status abroad?
An IFA cannot be speculative or theoretical only; it
must be a realistic, attainable option. Essentially, this means that the
alternative place of safety must be realistically accessible to the claimant.
Any barriers to getting there should be reasonably surmountable. The claimant
cannot be required to encounter great physical danger or to undergo undue
hardship in travelling there or in staying there. For example, claimants should
not be required to cross battle lines where fighting is going on at great risk
to their lives in order to reach a place of safety. Similarly, claimants should
not be compelled to hide out in an isolated region of their country, like a
cave in the mountains, or in a desert or a jungle, if those are the only areas
of internal safety available. But neither is it enough for refugee claimants to
say that they do not like the weather in a safe area, or that they have no
friends or relatives there, or that they may not be able to find suitable work
there. If it is objectively reasonable in these latter cases to live in these
places, without fear of persecution, then IFA exists and the claimant is not a
refugee.
[12]
The
transcript of the hearing clearly shows that the panel’s finding was entirely
reasonable with regard to the inadequacy of the applicants’ reasons for their
unwillingness to move to Cap-Haïtien. The fact that in other cases the RPD
determined that there was no IFA in Haiti is not persuasive. Each case must be
examined individually. The facts in the two cases cited by the applicants’
counsel (single female claimants) have no bearing on this case, nor does the
fact that a UN group had left Cap-Haïtien. The documentary evidence shows that
the reasons for that move were quite different from those claimed by the
applicants. Although it is not necessary to address the other grounds raised by
the applicants, I shall deal with these briefly.
[13]
The
panel’s finding of a lack of subjective fear was not related to the applicants’
credibility. It was based on independent facts: the female applicant’s delay in
leaving Haiti after the earthquake and that fact that she had returned to her
native country after her frequent trips to the United States.
[14]
The
panel did not fail to consider one of the Convention grounds, that is to say,
imputed political opinion (see paragraphs 7, 21 and 22).
[15]
Lastly,
the panel’s finding with respect to Ms. Brazier facing a serious possibility of
gender-based persecution was related to her return to Cap-Haïtien or Gonaïves.
The panel did not make a general finding in that regard.
[16]
For
all these reasons, this application for judicial review is dismissed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed. No question of importance was proposed.
“François Lemieux”
Certified true
translation
Sebastian
Desbarats, Translator
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