Date: 20101108
Docket: IMM-675-10
Citation: 2010 FC 1077
Ottawa, Ontario, November 8, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ROSE HERVIE CYRIAQUE
YVES-ANDREE LORY CYRIAQUE
(A.K.A YVES-ANDREE CRIAQUE)
AND ROSERLIE ANGIE CYRIAQUE
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 the
Refugee Protection Division (the Board), dated January 14, 2010, where Rose Hervie
Cyriaque (the applicant), Yves-Andree Lory Cyriaque, and Roserlie Angie
Cyriaque (the minor applicants) were found not to be Convention refugees or
persons in need of protection.
[2]
The
application for judicial review shall be dismissed for the following reasons.
[3]
The
applicant is a 30-year old citizen of Haiti and is the mother of the two minor
applicants who are both citizens of the United States (the US).
[4]
In
November 2001, she moved to the U S. While in the U.S., the
principal applicant did not file a claim for asylum. She alleges that Lavalas
robbed her home in Haiti after she left and beat her brother Marc. She contends
that the Lavalas partisans were after her documents and notes from the Lavalas
meetings she had attended over the years.
[5]
On
November 12, 2007, the applicants entered Canada and made
claims for protection. However, at the hearing, counsel for the minor applicants
withdrew their claim for refugee protection.
[6]
The
Board found that the determining factor was that the applicant did not
demonstrate that she faced persecution in Haiti. The Board
found that her stated fear was from criminal elements and as such, she is
subject to the same risks faced generally by other individuals in or from Haiti.
[7]
In
coming to its decision, the Board considered the Chairperson’s Guideline 4
(Women Refugee Claimants Fearing Gender-Related Persecution).
[8]
The
Board found that on a balance of probabilities, there was no evidence that the
applicant’s subjective fear was based on her gender. Furthermore, she did not
give any reasons for why the Lavalas partisans would still be interested in her
if they were indeed the cause of the incidents attributed to them.
[9]
The
applicants rely on Dezameau v. Canada (Citizenship
and Immigration), 2010 FC 559, where Justice Pinard states at paras 19 and
20 that:
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.
[10]
The
Board’s consideration of evidence is a matter of fact which attracts a
deferential standard (Villicana v. Canada (Citizenship
and Immigration), 2009 FC 1205, 357 F.T.R. 139 at paras 35 to 39). When the
question is whether the oral and documentary evidence points to particularized
or generalized risk, then the standard of review is reasonableness, since this
is a question of mixed fact and law (De Parada v. Canada (Citizenship and
Immigration), 2009 FC 845, [2009] F.C.J. No. 1021 (QL) at para. 19). Accordingly,
the Court will only intervene if the decision does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para 47).
[11]
The
applicant here is claiming refugee status based on two different grounds:
first, she alleges that she fears persecution based on her political beliefs or
perceived beliefs. Second, she alleges that she fears persecution as a part of
the social group of Haitian woman, or as a Haitian woman coming from abroad.
[12]
With
regards to her political beliefs, I find that it was reasonable for the Board
to conclude that based on the evidence, the harm feared is not a result of
political opinion, but rather, that it was criminal in nature. The Board’s
reasons being, the gap in time (9 years) between the first incident, and the
second string of incidents, which were more harassment than persecution, as
well as the fact that there was no evidence that the local Lavalas would still
be interested in her after the passage of time.
[13]
Regarding
the applicant’s fear as a Haitian woman or as a Haitian woman returning to
Haiti, the Board referred to Cius v. Canada (Citizenship and Immigration),
2008 FC 1, and Prophète v. Canada (Citizenship and Immigration), 2008 FC
331, 70 Imm. L.R. (3d) 128 and concluded in the present case there was no
evidence that her subjective fear was based on her gender. It was of criminal
gangs that she believed may attack her.
[14]
After
having read the transcript, the Court is of the opinion that such a conclusion
was open to the Board.
[15]
As
a result, the Court’s intervention is not warranted.
[16]
The applicant proposed the following question for certification:
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?
[17]
The
respondent opposes such a question because the claim in the present case is not
about rape but about political opinion. I agree.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Email this Content