Date: 20091210
Docket: IMM-2220-09
Citation:
2009 FC 1261
Ottawa, Ontario, December 10, 2009
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
MARTINE
JEAN-BAPTISTE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
jurisprudence of this Court has established that the Board may draw adverse
inferences from the discrepancies between an applicant’s testimony, the
narrative in his or her Personal Information Form (PIF) and the port of entry
notes (Singh v. Canada (Minister of Citizenship and Immigration),
2008 FC 453, [2008] F.C.J. No. 574 (QL) at para. 17; Singh v. Canada (Minister
of Citizenship and Immigration), 2006 FC 669, 160 A.C.W.S. (3d) 851).
II. Introduction
[2]
This
is an application for judicial review of a decision by the Immigration and
Refugee Board (Board) dated April 8, 2009, refusing the applicant’s refugee
claim based on the lack of credibility of the allegations and the finding that
the alleged risk was a generalized risk.
III. Facts
[3]
The
applicant, Ms. Martine Jean-Baptiste, is from Haiti. She claims
to have a well-founded fear of persecution in her country because of criminals
who targeted her and threatened her family, believing that they had a lot of
money.
[4]
Ms.
Jean-Baptiste says that her mother sold cosmetic products at the market and
that she helped in her mother’s business.
[5]
On
December 24, 2004, two armed men purportedly robbed the store and beat Ms. Jean‑Baptiste.
[6]
In
February 2005, Ms. Jean-Baptiste and her nephew received death threats from
three armed men who tried to attack them as they left school. She and her
nephew managed to get away.
[7]
Ms.
Jean-Baptiste went home and told her parents that she could not continue to
live in Haiti.
[8]
She
left her country in December 2005 for St. Thomas and filed a refugee claim in
the United
States.
The claim was denied.
[9]
Fearing
deportation, she arrived in Canada on November 24, 2007, and asked for asylum.
[10]
Based
on a number of implausibilities and inconsistencies in the evidence, the Board determined
that Ms. Jean-Baptiste was not credible with respect to central elements of her
claim. The Board also found that even if Ms. Jean-Baptiste had been credible,
her alleged fear of being a victim of crime is a generalized risk for the whole
of the Haitian population.
IV. Issues
[11]
(1)
Did the Board err in its analysis of section 96 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA)?
(2)
Did the Board err in its analysis of section 97 of the IRPA?
V. Analysis
A. Standard of review
[12]
The
Board’s assessment and interpretation of the evidence adduced by Ms.
Jean-Baptiste and the inferences it drew from the evidence and on which it based
its non-credibility finding are questions of fact.
[13]
It
is settled law that where the question is a question of fact or of mixed fact
and law, the standard of review is reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, 2008 SCC 9).
[14]
Decisions
reviewable against the reasonableness standard require curial deference (Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
[15]
In
the recent decision in Acosta v. Canada (Minister of Citizenship and
Immigration), 2009 FC 213, [2009] F.C.J. No. 270 (QL), Madam Justice
Johanne Gauthier analyzed the jurisprudence of the Federal Court and the
Federal Court of Appeal in Prophète v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, 167 A.C.W.S. (3d) 151, affirmed
by 2009 FCA 31, 78 Imm. L.R. (3d) 163, and determined that the application of
paragraph 97(1)(b) of the IRPA to the specific facts of a refugee claim
is a question of mixed fact and law reviewable on the standard of reasonableness
(Acosta, above, at para. 9; Gudino v. Canada (Minister of Citizenship
and Immigration), 2009 FC 457, [2009] F.C.J. No. 560 QL).
[16]
In
this case, the Board’s decision is supported by the evidence in the record and falls
within a range of possible acceptable outcomes that are defensible in respect
of the facts and law.
B. The Board did not err in
its analysis of section 96 of the IRPA
[17]
According
to the argument at paragraphs 29 and 30 of Ms. Jean-Baptiste’s memorandum, the
Board should have recognized that she was a member of a particular social
group, i.e., [translation], “merchants
perceived as wealthy”.
[18]
The
decision in Étienne v. Canada (Minister of Citizenship and Immigration),
2007 FC 64, 308 F.T.R. 76, concluded that being wealthy (or being perceived as wealthy)
does not constitute membership in a particular social group under section 96 of
the IRPA:
[15] Mr. Étienne’s
allegation, that the Board erred when it determined that his claim provided no
nexus to a Convention ground as required under section 96 of IRPA, is
unfounded. The Board was justified in concluding that gaining wealth or
winning a lottery does not constitute membership in a particular social group.
[16] In Moali de Sanchez v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 183, [2001] F.C.J. No. 375 (QL), Justice Yvon Pinard rejected the extended
interpretation of the concept of a social group:
[6] I also find that the RD's
second conclusion is free of error. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the
Supreme Court of Canada rejected the extended
interpretation of the concept of a social group. The status of a landed
proprietor does not in any way fall within the “general underlying themes of
the defence of human rights and anti-discrimination” (Ward, supra, at
739) and is not a “characteristic of personhood not alterable by conscious
action and in some cases not alterable except on the basis of unacceptable
costs” (Ward, supra, at 738). The tribunal also referred to Wilcox
v. Canada (Minister of Employment and
Immigration),
November 2, 1993, A-1282-92, in which Reed J. found as follows at para. [3]:
I interpret the Tribunal's decision as
finding that there was no evidence that the Peruvian upper middle class is
subject to any greater level of (what the Tribunal referred to as) depredation
than others in Peruvian society generally. I interpret the Tribunal's decision
as finding that the Sendero Luminosa are raining terror on everyone in Peru. While the type of danger which the
applicants fear (extortion) may only be operative against the wealthy, this
does not mean that the applicants have been or will be subject to persecution
in the convention refugee sense. (Emphasis added).
[19]
The
Court agrees with the respondent. The Board properly found that Ms.
Jean-Baptiste had been a victim of crime not persecution.
[20]
Victims
of criminal activity are not members of a particular social group (Karpounin
v. Canada (Minister of Employment and Immigration) (1995), 92 F.T.R. 219,
54 A.C.W.S. (3d) 139; Suvorova v. Canada (Minister of Citizenship and
Immigration), 2009 FC 373, [2009] F.C.J. No. 443 (QL) at para. 42 and 59).
[21]
In
accordance with the jurisprudence of this Court, the Board correctly found that
Ms. Jean‑Baptiste in this case did not meet the criteria to be
recognized as a Convention refugee under section 96 of the IRPA.
C. The Board did not err in
its analysis of section 97 of the IRPA
(i) Lack of
credibility of the allegations
[22]
Ms.
Jean-Baptiste contends that she is more at risk than the general Haitian population
because she is a member of a storekeeper’s family and would therefore be
perceived as having more significant financial means than the norm.
[23]
The
issue of whether the removal of Ms. Jean-Baptiste would subject her personally
to the risks and threats set out in section 97 of the IRPA must be based on an
assessment of her personal situation.
[24]
This
is exactly what the Board did here.
[25]
It
is important to note that the Board did not believe Ms. Jean-Baptiste’s
allegations that she had been targeted by criminals on two different occasions before
she left Haiti.
[26]
On
this issue, the Board noted significant inconsistencies in the various pieces
of evidence that she filed in support of her application and the lack of a
reasonable explanation for those inconsistencies.
[27]
For
example, the Board pointed to the fact that the refugee claim that Ms.
Jean-Baptiste filed in the United States was based on a story of persecution for
political reasons, which was not alleged in the application she submitted in Canada
(Decision at para. 14).
[28]
Ms.
Jean-Baptiste’s explanation was that her application in the United
States
had not been translated for her and that she did not know what was in it. The
Board noted that this explanation was contradicted by the document itself,
which indicated that the application was translated for her by one Rolnor Charlite
Desire and that Ms. Jean-Baptiste had signed it, confirming the information
contained therein (Decision at para. 13-14).
[29]
Ms.
Jean-Baptiste also provided inconsistent information at her port of entry
interview. She stated at that time that she feared returning to Haiti because she
was the aunt of her nephew, Joseph Junior Philistin. She said that her
sister sent provisions to her nephew and that therefore the family was
perceived as being wealthy (Decision at para. 16-18).
[30]
When
asked to explain this important discrepancy pertaining to the central issue of
her claim, Ms. Jean-Baptiste tried to allege that she had provided a completely
different version of the facts at the interview because she was pregnant, not
feeling well, and was stressed and emotional (Decision at para. 16-18).
[31]
In
this case, Ms. Jean-Baptiste’s explanation that she is a person with limited
intellectual abilities and that she could not provide consistent information at
the time because of her pregnancy is completely absurd (Applicant’s Memorandum
at para. 14 and 28).
[32]
It
is important to note that this was not a mere omission or inconsistency but a
major contradiction pertaining to the central issue of her claim.
[33]
The
Board considered the circumstances described by Ms. Jean-Baptiste and relied on
reason and common sense in determining that this explanation was implausible (Moualek
v. Canada (Minister of Citizenship and Immigration), 2009 FC 539, [2009] F.C.J.
No. 631, citing Singh v. Canada (Minister of Citizenship and Immigration),
2007 FC 62, 159 A.C.W.S. (3d) 568; Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.); Alizadeh
v. Canada (Minister of Employment and Immigration) (1993), 38 A.C.W.S. (3d)
361, [1993] F.C.J. No. 11 (QL) (F.C.A.); Shahamati v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 415 (QL) (F.C.A.)).
[34]
Ms.
Jean-Baptiste’s credibility was also undermined with respect to the attacks she
said she experienced. Based on the inconsistencies between her testimony and
her written narrative, the Board concluded that she was exaggerating (Decision at
para. 11).
[35]
The
totality of the major discrepancies pertaining to the central element of her
claim and the unreasonable explanations for these discrepancies led the Board to
conclude that Ms. Jean-Baptiste did not provide any credible evidence showing
that she or her family had been targeted because they owned a business and were
perceived as wealthy.
[36]
It
is for the Board, not Ms. Jean-Baptiste, to assess the various pieces of evidence
and to draw inferences from it that the Board believes are appropriate and
reasonable. The role of this Court is not to substitute its judgment for the
Board’s on findings of fact relating to Ms. Jean‑Baptiste’s
credibility (Singh v. Canada (Minister of Citizenship and Immigration),
2006 FC 181, 146 A.C.W.S. (3d) 325 at para. 36; Mavi v. Canada (Minister of
Citizenship and Immigration) (2001), 104 A.C.W.S. (3d) 925, [2001] F.C.J. No.
1 (QL)).
[37]
As
for Ms. Jean-Baptiste’s submission that the Board erred by failing to assess
all the evidence, it is settled law that, unless the contrary is shown, the
Board is assumed to have weighed and considered all the evidence presented (Lai
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125, 139
A.C.W.S. (3d) 113 (F.C.A.) at para. 90; Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (QL) (F.C.A.)). The fact
that the Board did not summarize in its decision all the evidence in the record
is not a reviewable error of law (Woolaston v. Canada (Minister of Manpower
and Immigration), [1973] S.C.R. 102 at p. 108; Hassan v. Canada
(Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S.
(3d) 635).
(ii) Generalized
risk
[38]
Even
if Ms. Jean-Baptiste had been credible, the Board found that she could not be
recognized as a person in need of protection because the risk she alleged was a
generalized risk.
[39]
On
this point, the Board first noted that Ms. Jean-Baptiste claimed, on the one
hand, that she was specifically targeted because her family owned a business
and was perceived as wealthy. On the other hand, she testified that the crime
rate in her neighbourhood was high and that merchants were frequently victims
of crime (Decision at para. 22).
[40]
It
is evident from the decision that the Board analyzed the documentary evidence on
the difficult situation in Haiti (Decision at para. 22) and the recent
jurisprudence of this Court (Decision at para. 23) and determined that, even
though persons perceived to be wealthy were more likely to be subjected to
criminal acts, the risk of being the victim of a criminal act was a risk
incurred by the Haitian population as a whole. Therefore, it was a generalized
risk.
[41]
This
finding is consistent with the jurisprudence of this Court (Prophète, above;
Étienne, above).
[42]
In
Prophète, 2008 FC 331, a Haitian citizen claimed he was targeted by
criminals because he was a well-known businessman and therefore perceived as
wealthy. He maintained that kidnappings were generalized in Haiti but that
businessmen are particularly at risk because the goal of kidnapping for ransom is
to obtain money. According to Ms. Jean-Baptiste in this case, since most Haitians
are poor, those who have money or are perceived to have money face a higher
risk than the population in general.
[43]
Madam
Justice Danièle Tremblay-Lamer concluded in Prophète, above, that while
a specific number of individuals may be targeted more frequently because of
their wealth, all Haitians are at risk of becoming victims of crime.
[44]
The
Prophète decision, above, was appealed. In Prophète, 2009 FCA 31,
above, the Federal Court of Appeal declined to answer the certified question in
this case and reiterated the finding of the applications judge, Justice Tremblay-Lamer:
[10] In the case at bar (Prophete
v. Canada (Citizenship and Immigration), 2008 FC 331), there was
evidence on record allowing the Applications Judge to conclude:
[23] . . . that the applicant does not face a
personalized risk that is not faced generally by other individuals in or from Haiti. 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. (Emphasis
added).
[45]
Similarly,
in the Étienne decision, above, winning a lottery and having one’s name
and photo published in the newspapers was not sufficient to personalize the
risk.
[46]
The
same reasoning applies to Ms. Jean-Baptiste’s situation. Being a member of a
shopkeeper’s family does not make the alleged risk a personalized risk, since
all Haitian citizens face the risk of being victims of crime.
[47]
It
was reasonable for the Board to find that the risk alleged by Ms. Jean-Baptiste
was not a personalized risk.
[48]
To
warrant the intervention of this Court, Ms. Jean-Baptiste must do more than
substitute her opinion for the Board’s. She must establish that the Board’s
conclusion is not reasonable having regard to all the evidence, which was not
demonstrated in this case.
[49]
Although
Ms. Jean-Baptiste does not agree with the determination the Board made based on
the evidence and would have preferred an interpretation favourable to her, she
has not demonstrated that the Board’s decision was unreasonable.
VI. Conclusion
[50]
In
light of the foregoing, the documents filed by Ms. Jean-Baptiste to support her
application for judicial review do not show any substantial basis for this
Court to intervene in this case to set aside the Board’s decision.
[51]
For
all these reasons, Ms. Jean-Baptiste’s application for judicial review is
dismissed.
JUDGMENT
THE COURT ORDERS that
1. the application for judicial
review is dismissed;
2. no
serious question of general importance is certified.
“Michel M.J. Shore”
Certified true
translation
Mary Jo Egan, LLB
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