Date: 20090604
Docket: IMM-3068-08
Citation: 2009 FC 586
Ottawa, Ontario, June 4,
2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MOLBERDEENE
FREJUSTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Immigration and Refugee Board’s Refugee Protection Division
(RPD or Board), dated May 16, 2008, wherein the applicant was determined to be
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the decision be set aside and the matter referred to a
newly constituted panel for redetermination.
Background
[3]
Molberdeene
Frejuste (the applicant) is a citizen of Haiti who alleges
that she cannot return to her country of origin because (1) she will be harmed
by bandits who have previously targeted her due to her association with a
former government employee, Martine, and (2) she would be targeted as a single
female returnee because of her perceived wealth.
[4]
According
to the applicant, she met Martine in 1999 when she was a high school student at
Métropolitain d’Haïti. Martine worked for the Bureau des contributions in Port-au-Prince and had a
“nice car” that she used to drive the applicant to school.
[5]
In
March 2002, a group of armed bandits ambushed the two women while they were in
Martine’s car. They were able to escape because policemen were doing their
rounds nearby. After the incident, the applicant never again saw Martine.
[6]
Shortly
thereafter in April 2002, two men who identified her as Martine’s niece
approached the applicant and threatened her. The applicant again managed to
escape, this time because a United Nations helicopter intervened. The applicant
did not attend school for the 2003 school year out of fear. In August 2003, she
fled Haiti to the United
States.
[7]
On
July 12, 2006, the applicant entered Canada, where she made a
refugee claim. Her hearing before the RPD took place on January 31, 2008. In a
decision dated May 16, 2008, her application was denied.
Decision under Review
[8]
The
RPD found that the applicant’s claim was full of inconsistencies and
implausibilities for which the applicant could offer no reasonable explanation.
[9]
The
first inconsistency pointed to by the Board was the applicant’s relationship
with Martine, who was variously described as her friend and her cousin. At the
hearing, the applicant stumbled when attempting to explain whether Martine was
a cousin through her mother or her father, and could offer very little information
about Martine’s family. Second, the Board noted that no reference is made in
the port of entry notes to the two incidents in 2002 described in the
applicant’s Personal Information Form (PIF). This was found to be problematic,
given that it is precisely these incidents that seem to have been pivotal in
her decision to flee Haiti. The Board also noted that the armed
individuals who allegedly approached the applicant in April 2002 were described
at different times as men wearing black, bandits and political agents. The
applicant could offer, in the Board’s view, “virtually no details” about her
aggressors, nor could she explain the details of her escape with Martine in the
first incident.
[10]
The
Board also observed that although the applicant claimed that Martine had
disappeared, she was unable to offer any explanation for the family’s failure to
contact the police, except to say that the police were corrupt. As to the year
the applicant allegedly did not attend classes due to fear, in the port of entry
notes it is indicated that she attended classes until August 2003, contrary to
her PIF. At page three of the decision, the officer writes:
In one version the claimant fled Haiti because political people were seeking
out her friend Martine. In another version bandits attacked the claimant and
her cousin Martine, who disappeared without a trace while nobody made any
effort to look for her.
The inconsistencies and implausibilities
in the claimant’s evidence were countless and no reasonable explanations were
offered. The panel finds none of these events occurred.
[11]
The
Board also noted that the applicant did not apply for asylum while in the U.S. The
applicant explained that she had received advice not to apply in the U.S.; she was,
however, unable to provide the name of the person who advised her. The
applicant could not give the name of the town in Haiti to which she
fled before leaving the country or the name of place where she allegedly
stayed.
[12]
Finally,
the applicant was unable to provide details of how she left Haiti. She claimed
that she had travelled to Miami smuggled in a boat, but could not say from
which beach she left, to which port she arrived, or recall the name of the
boat. Her explanation that she was not paying attention was found to be
implausible. She could not describe the length of the voyage, estimating at the
hearing that it might have taken eight to ten days, but declaring in the port
of entry notes that she arrived in the U.S. on August 16, the day after leaving
Haiti. The Board
concluded at page 4 of the decision:
The panel finds that the claimant was not
in La Gonave in hiding and that she did not travel to the United States from La Gonave smuggled
inside a boat.
The panel finds that it does not have
before it any credible or trustworthy evidence in support of the claimant’s
claim. The panel finds the claimant failed to establish the subjective element
of her claim.
[13]
The
RPD then turned to consider the applicant’s claim under subparagraph
97(1)(b)(ii) of the Act that she was a person in need of protection. The Board
took into account the brief report of a UN Consultant, Dr. Cecile Marotte
(Marotte Report), regarding the risks faced by Haitians returning after having
lived in the North America. While acknowledging the “rampant violence that
seems to have taken over Haiti”, and that “killings and general crime is
on the rise”, the Board nonetheless concludes:
In relation to the claimant, the panel
does not find that a two-year absence from her country has transformed her to
such an extent that she would no longer blend into Haitian society. The
claimant has family in Haiti who are there to greet her at
the airport and take the necessary precautions. She would be returning to her
family home, to the same neighbourhood and environment, and would not be
returning to an unfamiliar area.
[14]
The
Board identified jurisprudence of this Court holding that the perception of
wealth does not constitute a particularized risk under section 97 of the Act,
nor does it demarcate a particular social group under section 96.
Issues
[15]
The
applicant raises the following issues:
1. Did the Board err in
finding that the applicant did not face an objective risk on account of her
personal profile?
2. Did the Board err in
finding that the applicant was not credible?
3. Did the Board member
err in law by contradicting her own decision in another Haitian refugee claim,
rendered less than four months earlier, without providing reasons for the
change in her analysis?
Applicant’s Submissions
[16]
The
applicant’s chief criticism of the Board’s decision is its failure, in her
view, to explicitly consider the gender element of the claim. In this regard,
the applicant argues that the Board made “four fatal errors” in:
1. Failing to address
the 70 pages of documentary evidence demonstrating the widespread gender-based
violence in Haiti and the fact
that sexual violence in Haiti is “not just a random crime” but a
“deliberate weapon of political and social oppression” whose victims are
predominantly single women;
2. Failing to provide
any reasons for her finding that the applicant does not face personalized risk
as a “young, middle-class woman”;
3. Overlooking a key
element of the applicant’s profile, namely the fact that she is a single young
woman; and
4. Applying the wrong
legal test under section 96, finding that there was insufficient evidence that
the applicant “will” be personally targeted, rather than considering whether
there was a “serious possibility” or “reasonable chance” that she would be
targeted.
Heightened Fear as a
Returnee
[17]
The
applicant argues that the she would face a heightened risk as a returnee,
basing her argument primarily on her own interpretation of the Marotte Report,
which she believes the Board misconstrued. The applicant argues that the Board
erred in failing to distinguish Cius v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 9, wherein the Court upheld the RPD’s
decision to reject a Haitian man who feared persecution as a returnee because
there was insufficient evidence of particularized risk. The applicant contends
that the Marotte Report, which presents evidence of particularized risk,
dispels the Court’s concern in Cius above. Moreover, she emphasizes that
the applicant in the present instance, in contrast to Cius above, is
female.
[18]
The
applicant also raises a number of other objections. For instance, in answer to
the Board’s statement that the applicant could offer few details about the
first attack, the applicant points to her statements at the hearing and argues
that the Board appears to have misremembered her testimony. Insufficient
attention was also paid to her testimony explaining her failure to approach the
authorities after her cousin’s disappearance. The applicant further notes that
the Board found that she did not send money back to Haiti to her
family. This question was never, however, asked of the applicant and it is
therefore not, she contends, based on the evidence.
[19]
The
applicant notes that the Board erred in stating that she had been away for two
years when she was in fact away for five years. This time frame was repeated
more than once in the decision and therefore, it is argued, was an important
factor in the decision.
Credibility
[20]
The
applicant observes that the Board doubted her seemingly contradictory claims
that Martine was her cousin and her friend. In fact, Martine was both: she was
a cousin who the applicant met at a party in 1999 and befriended.
[21]
In
addressing the apparent inconsistencies, the applicant underscores the fact
that the point of entry notes were filled out by an immigration officer, and
the PIF was drafted by the applicant herself, without the aid of counsel.
[22]
The
applicant also points out that she was penalized by the RPD for failing to
remember facts linked to events that took place five years earlier, such as the
name of the boat she travelled on when she left Haiti and the name
of the exact location to which she fled after the 2002 incidents. At paragraph
45 of her memorandum, the applicant argues:
It is submitted that the Applicant
provided reasonable explanations for each of these alleged difficulties with
her evidence. It is submitted, with respect, that the Member has rejected the
Applicant’s testimony on these points because, having come to doubt the
Applicant’s credibility for the reasons disputed above, she came to view all of
her evidence as tainted. In addition, and regardless, even if the Court were to
find that some aspects of Ms. Frejuste’s testimony were problematic, it is
submitted that given the Member’s many errors the Court cannot be certain that
she would have reached the same conclusion had she considered the Applicant’s
evidence properly.
Respondent’s Submissions
[23]
The
respondent contends that the determinative issue for the RPD in relation to the
section 96 claim was the applicant’s lack of credibility, based on
contradictions on key elements of her claim as well as implausibilities. The
decision therefore warrants deference.
[24]
With
respect to the section 97 claim, the respondent argues that the fact that some
types of crimes are mainly perpetrated against women does not make them
personalized risks. In any event, it is submitted, the RPD specifically
considered the situation of women in Haiti, and observed that the applicant’s single
mother and sisters live safely there.
[25]
According
to the respondent, the RPD also considered the documentary evidence regarding
risk factors faced by returnees to Haiti, but concluded that she did not fit the profile
of someone at risk, based on the Marotte Report.
Applicant’s Reply
[26]
In her
reply, the applicant observes that the respondent fails in the submissions to
directly address a large majority of her arguments:
She
rejects that respondent’s assertion, made without citing any authority, that
the fact that some types of crimes are mainly perpetrated against women does
not constitute personalized risk; on the contrary, rape and sexual violence
more generally have long been recognized as forms of gender-based persecution.
[27]
The
applicant notes that she does not share the same profile with her mother and
sisters; unlike them, she is a single female returnee. This undermines the
analogy drawn by the Board, which seems to suggest that their apparent safety
is an indication of her risk.
Applicant’s Further
Memorandum of Argument
[28]
In
her further memorandum of argument, the applicant raises a third issue based on
the affidavit of Raoul Boulakia. Annexed to the affidavit is a transcription of
an oral judgment rendered by the same Board member on March 4, 2008 in a case
also involving a single female Haitian returnee.
[29]
In
that earlier case, the Board member concluded that the claimant was a person in
need of protection because she faced a risk of kidnapping and sexual violence
if returned to Haiti. At paragraph 7, the applicant writes:
In the present case, the Member in a very
short time reversed herself on a central question of fact and law. The
Applicant has previous [sic] submitted that the Member’s reasons on this
issue – consisting entirely of the one sentence cited above – are entirely
insufficient. In addition, in light of her previous decision, it was
particularly incumbent on the Member to explain her reasoning. It is
respectfully submitted that without such an explanation, the decision in the
current case has “an aura of arbitrariness” that amounts to a breach of
procedural fairness and that constitutes an error of law.
Analysis and Decision
[30]
Issue
1
Did the Board err in finding
that the applicant did not face an objective risk on account of her personal profile?
The applicant
claims that the Board erred in its evaluation of the objective risk she would
face in Haiti, by failing
to take sufficient account of her profile as a single female returnee.
In Bouaouni v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. 1540, 2003 FC 1211, Mr. Justice
Blanchard explained the nature of the test to be applied under section 97:
41
A
claim under section 97 must be evaluated with respect to all the relevant
considerations and with a view to the country's human rights record. While the
Board must assess the applicant's claim objectively, the analysis must still be
individualized. I am satisfied that this interpretation is not only
consistent with the United Nations CAT decisions considered above, but is also
supported by the wording of paragraph 97(1)(a) of the Act, which refers to
persons, "...whose removal ... would subject them personally...".
There may well be instances where a refugee claimant, whose identity is not
disputed, is found to be not credible with respect to his subjective fear of
persecution, but the country conditions are such that the claimant's particular
circumstances, make him/her a person in need of protection. It follows that a
negative credibility determination, which may be determinative of a refugee
claim under s. 96 of the Act, is not necessarily determinative of a claim under
subsection 97(1) of the Act. The elements required to establish a claim under
section 97 differ from those required under section 96 of the Act where a
well-founder fear of persecution 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 as separate. 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. . . .
[My emphasis]
[31]
There
are, in my view, essentially two separate categories of risk underlying the applicant’s
section 97 claim, although she frames then within a single profile: the risk
associated with being a returnee who has spent time in North America and is
therefore perceived as a person of wealth, and the risk of being a single woman
in Haiti. I wish to
first deal with the issue of the risk of being a single woman in Haiti.
[32]
The applicant’s second argument is that the Board failed to take
sufficient account that the applicant is a single female returnee. In
other words, there is a specific gender dimension to the risk she would face
upon return, one that, it is argued, would considerably heighten that risk.
[33]
In her decision, the Board member appears to address the gender
issue and the returnee issue simultaneously:
The panel has considered the claimant’s gender, her age, her
socio-economic status, the situation of her family who remains in Haiti and the number of years the
claimant has been away.
The claimant’s mother and two sisters remain in Haiti and no evidence was advanced
that they face any problems. The claimant testified that her father is also
there, although her parents separated when she was small. The claimant
testified that her mother was a businesswoman who sold furniture and house
wares wholesale. Although she did not live with her father, the claimant was
able to confirm that he was a tailor (couturier).
The panel finds that the claimant comes from a middle class family
who are not members of the diaspora.
. . .
In relation to the claimant, the panel does not find that a two-year
absence from her country has transformed her to such an extent that she would
no longer blend into Haitian society. The claimant has family in Haiti who are there to greet her
at the airport and take the necessary precautions. She would be returning to
her family home, to the same neighbourhood and environment, and would not be returning
to an unfamiliar area.
. . .
The claimant’s profile as a young, middle-class Haitian woman, in
and of itself, is not sufficient to conclude that she will be personally
targeted in her country.
[34]
Given the applicant’s framing of the issue in terms of her status
as a returnee who happens to be female, rather than as a returnee and also as a
woman in Haiti, it is perhaps not surprising that the Board did not undertake a
separate analysis on gender-based grounds. Nonetheless, a separate analysis was
warranted. As the documentary evidence reveals, the risk of sexual violence is
one widely faced by woman in Haiti, irrespective of whether or not
they are returnees. In other words, it is a risk that exists independently of a
woman’s returnee status, and in this case may have been obscured by the
applicant’s emphasis on her risk as a returnee who might be targeted because of
her perceived wealth.
[35]
However, at the hearing the applicant’s lawyer explicitly pointed
the Board to evidence in the record treating the subject of violence against
women, including sexual violence, referring, among others, to a Relief Web
article from December 2006 entitled Violence and Rape Common in Haiti,
and an article in the Miami Herald from May 2004 entitled “In Haiti’s
Chaos, Rape Without Punishment Was Norm”. The evidence is replete with examples
of the violence confronting Haitian women. According to one report:
In a country where poverty and political instability allow rapists
to escape punishment, sexual assault has long been not just a random crime but
also a deliberate weapon of political and social oppression.
[. . . ]
In recent years, in the absence of law and order in Haiti, women and girls have become
easy targets for the gangs that rule the street. “They are terrorizing the
population, using rape as a way of regulating communities,” says Nadine
Puechguirbal, the U.N.’s senior gender advisor to its stabilization mission in Haiti. Gangs have moved into
female-headed households where they won’t be challenged.
[36]
Another article from 2005 entitled “Haitian soldiers, police
accused of mass rape” claims that to “punish and terrorize Haitians who speak
out for democracy, gang rape is becoming more common”. Amnesty International
reports that in 2007 “[w]omen and girls continued to be tortured, raped and
killed by illegal armed groups and by individuals”.
[37]
I
am of the opinion that the Board erred in failing to include in her reasons a
gender-based analysis taking into account the evidence of violence directed at
women in Haiti. The
application for judicial review must therefore be allowed. The decision of the
Board is set aside and the matter is referred to a different panel of the Board
for redetermination.
[38]
Because
of my finding on these issues, I need not deal with the remaining issues.
[39]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[40]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The following provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 are pertinent.
|
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.
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.
(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.
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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.
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.
(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.
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