Date: 20090422
Docket: IMM-3930-08
Citation: 2009 FC 403
Toronto, Ontario, April 22, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ESDRAS OCTAVE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
BORN
TOO SOON;
that is Mr. Octave’s sad refrain. Had he but been born a few months later he
could have taken advantage of a Haitian amnesty program which would have
allowed him to join his father in the United States. He arrived in the United States from Haiti just prior to his twenty-first birthday
but, by the time his application was processed, he was too old to benefit from
the program. He came to Canada and filed a claim for refugee
status which he admitted at his hearing was completely bogus. He had never been
persecuted in Haiti.
[2]
However,
the alternate approach he took from the outset, and at his hearing before the
Refugee Protection Division of the Immigration and Refugee Board, was that
since he had lived abroad for many years and had become “Americanized”, he was
part of the Haitian diaspora. As such, and as indeed set out in the Board’s own
Response to Information Request issued in October 2007, the diaspora was a
group apart and more likely to be targeted by kidnappers.
[3]
The RPD
erred, he says, by not focussing on his particular situation.
[4]
The
essence of the RPD’s decision dismissing his claim is as follows:
[12] The panel does accept the fact that
the situation in Haiti has deteriorated since his
departure in 2004. The claimant cannot identify any particular group or
particular individual that would cause him harm. Thus, the claimant’s fear is
of a generalized violence in his country. This is a risk that all Haitians face
in the current situation in their country, as a victim of a generalized
violence the claimant cannot take the benefit of refugee protection.
[5]
This is
the judicial review of that decision.
[6]
Mr. Octave
submits that the RPD erred in law by focussing on his inability to identify any
particular criminal element which would search him out. Rather, the question
which should have been asked is whether Mr. Octave possesses certain attributes
which put him at risk over and above the population at large. I cannot agree.
[7]
The
instances Mr. Octave gave during his hearing, apart from credibility issues,
all pertain to Haitian nationals who had not left Haiti.
[8]
The
authorities are thoroughly reviewed by Mr. Justice Beaudry in Cius v. Canada (Minister of Citizenship
and Immigration), 2008 FC 1, [2008] F.C.J No. 9 (QL). He rejected the
argument that people returning to Haiti formed part of a “particular social
group” as defined by the Supreme Court of Canada in Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85. Thus, Mr. Octave
cannot be considered a refugee within the meaning of section 96 of the Immigration
and Refugee Protection Act.
[9]
He is at
best a potential victim of violence. The RPD’s decision that he had not made
out a case under s. 97 was within the range of reasonable outcomes (Dunsmuir
v. New
Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190).
[10]
In Prophète
v. Canada (Minister of Citizenship
and Immigration), 2008 FC 331, 70 Imm. L.R. (3d) 128, Madam Justice Tremblay-Lamer
dealt with a businessman returning to Haiti.
He argued that, as such, he was especially at risk because of an appearance of
wealth. However, it was held that his risk was also faced by the general
Haitian population and therefore was not personalized. Although declining to
answer a certified question, the Court of Appeal maintained that decision (2009
FCA 31, 2009 F.C.J No. 143 (QL)). See also the decision of Mr. Justice
Martineau in Charles v. Canada
(Minister of Citizenship and Immigration), 2009 FC 233, 2009 F.C.J. No.
277 (QL).
ORDER
THIS COURT ORDERS that for reasons given,
the application for judicial review is dismissed. There is no question to
certify.
“Sean
Harrington”
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