Date: 20090731
Docket: IMM-5507-08
Citation: 2009 FC 770
Montréal, Quebec,
July 31, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
MURIELLE
LOZANDIER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicant is seeking, under subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), judicial
review of the decision dated November 19, 2008, by the Refugee Protection Division (RPD) of the
Immigration and Refugee Board,
refusing to recognize her as a “refugee” or a “person in need of protection” in
accordance with sections 96 and 97 of the IRPA, and consequently denying her
refugee claim because it was not based on any Convention grounds and because
her fear was not founded on gender but rather on a generalized risk in Haiti.
II. Facts
[2]
A
citizen of Haiti, the applicant allegedly sewed a garment for a client in July
2001. After having requested her money several times, the applicant allegedly
went to her client’s home, in September 2001, to again demand the amount owing
to her, but her client purportedly threatened her and stated: [translation] “If you talk to me like
that, I’ll send you someone to pay you”. That same evening, the applicant was
attacked at home by two individuals, one of whom was her client’s husband.
[3]
Following
this attack, and fearing the situation of general insecurity in Haiti and the crime
that is rampant there, the applicant left in October 2001 for the United States,
where she filed a claim for asylum, which was finally rejected on appeal in June
2005.
[4]
The
applicant entered Canada on August 9, 2007, and claimed refugee status that
same day, alleging that she feared those who persecuted her in the past.
III. Impugned
decision
[5]
In
its decision, the RPD dismissed the applicant’s allegations:
[8] . . . that [she] fears
persecution, under section 96 of the IRPA, based on her membership in a
particular social group—women—because she has been [translation] “attacked and raped”
in the past.
[6]
It
also emphasized the following:
[9] Although our jurisprudence
has recognized women as a particular social group a number of times, the panel
cannot agree that the claimant’s fear of persecution is based on her gender in
the present case. The primary source of the claimant’s fear is not the fact
that the claimant is a woman, but the insecurity that is rampant in Haiti,
which is caused by endemic crime throughout the country.
[10] This conclusion on the
part of the panel is based on all of the documentary evidence on record showing
that criminal offences in Haiti do not exclusively affect women; men and
children are actually just as likely as women to become victims of criminal
gangs in Haiti. This means that, in Haiti, where crime assumes a number
of forms, everyone living in the country, whether citizen or foreigner, is
liable to be a potential victim. Regardless of the gender or origin of their
victims, criminals steal, kidnap, kill and traffic in anything that might be
lucrative. Their sole goal is to make money.
[Reference omitted.]
[7]
The
RPD found that the applicant’s “initial source of the fear” is crime in Haiti and
the fact that she had been attacked by criminals in the past and, consequently,
[27] . . . as there is no evidence
on record in this case showing that the claimant could be personally subjected
to a risk to her life due to special circumstances other than the fact that she
could be more easily identifiable as a member of the diaspora, [the RPD]
concludes that the risk alleged by the claimant that she might fall victim to
crime is a random risk faced indiscriminately by everybody living in the
country. This risk affecting the claimant is not a personal or particular risk,
and it is not solely limited to people who, as is the claimant’s case, return
to live in Haiti after spending time abroad. This case is therefore covered by
the exception stipulated in subparagraph 97(1)(b)(ii)
of the IRPA. The claimant is not a person in need of protection.
IV. Issue
[8]
In
the case at bar, the Court is called upon to respond only to the following
question:
Did the RPD
commit an unreasonable error in finding that the applicant was not a “person in
need of protection” under the IRPA?
V. Analysis
A. Standard of review
[9]
The
issue addresses the interpretation of the IRPA and its application to the facts.
This is therefore a question of mixed fact and law; the standard of review that
applies is thus reasonableness
(Dunsmuir v. New Brunswick, 2008 SCC 9). Considerable
deference is required.
B. Social group as defined
in the Convention
[10]
In
her memorandum, the applicant maintains that in Haiti [translation] “the situation of criminal insecurity, which is
said to be at the root of the rape [that she] experienced . . . , does not eliminate
. . . the rape in itself as a fear of persecution”. Furthermore, she
maintains [translation] “that this
uncontradicted evidence was improperly assessed”, since the RPD [translation] “should have considered .
. . that the applicant was part of the social group of raped . . . Haitian
women.”
[11]
According
to the applicant, the fact that the RPD connected her fear to the situation of
general crime prevalent in Haiti constitutes an error that warrants the intervention
of this Court. However, since the applicant herself alleged, in support of her
refugee claim, that she fears crime and the people who allegedly attacked her so
that she would not demand the amount owed to her, this is an approach that the
RPD could legitimately take, even if it is unfavourable for the applicant. It is
the RPD’s responsibility to determine whether the applicant’s claim for
protection is in any way connected to the definition of Convention refugee; it
is not the Court’s role to make such a determination, as the applicant is
asking it to do.
[12]
The
RPD properly analyzed and understood the applicant’s allegations on this aspect
of her claim even if, in this case, it was not able to find that the
applicant’s fear of persecution was a result of her gender. The primary source of the applicant’s
alleged fear is
not the fact that she is a woman but rather the situation of insecurity that prevails
in Haiti: crime is rampant across the country.
[13]
In
Haiti, women are not the only ones who are the subject of criminal acts. On the
contrary, in this country where crime is rampant, both women and men are susceptible
to being victims of crime.
[14]
The
applicant’s fear of violence is a result of generalized criminal activity in Haiti:
women in particular are not targeted. All of this has no connection to the
definition of refugee in the Convention. The risk to which the population of a
country in general is exposed has to be distinguished from an individual’s
situation-specific risk.
[15]
The case
law is clear: victims of crimes are not a social group as defined in the Convention
(see Rizkallah v. Canada (Minister of Employment and Immigration) (1992),
156 N.R. 1 (F.C.A.)).
[16]
The
applicant is alleging that the RPD committed an error in finding that her fear was
not a result of her status as a woman because she had been raped. However, the
applicant clearly stated that she fears the individuals who attacked her, not
because she is a woman, but rather in retaliation for the fact that she demanded
the money owed to her for her services as a seamstress.
[17]
The question
of the existence of a connection between the alleged persecution and one of the
Convention grounds is mostly a question of fact that therefore falls within the
RPD’s expertise (Rizkallah, above; Pour-Shariati v. Canada (Minister of
Employment and Immigration) (1997), 215 N.R. 174 (F.C.A.)). Consequently,
the RPD was entitled to find that the applicant’s fear was not a result of her
gender but a result of the fact that she had been the victim of a crime, and it
was therefore entitled to deny her claim under section 96 of the IRPA.
C. Fear according to
section 97 of the IRPA
[18]
The RPD
found it improbable that the individuals who attacked the applicant would
threaten her again. The RPD could reasonably make such a finding because more
than 8 years had elapsed since the reported events, not to mention that no one
in the applicant’s immediate circle has allegedly been bothered since.
[19]
Moreover,
the applicant did not challenge this finding as such. She even stated that she
does not know where her assailants are, or what would happen if she saw them
again. The applicant had to demonstrate a personal fear, and not simply allege
a fear resulting from the general situation in Haiti (Ahmad v. Canada (Minister
of Citizenship and Immigration), [2004] F.C.J. No. 995 (F.C.) (QL); Rahim
v. Canada (Minister
of Citizenship and Immigration), 2005 FC 18).
D. General situation in
Haiti
[20]
The
applicant indicated that she fears the general situation in Haiti because she
is claiming that she is part of the Haitian diaspora and would be perceived as
being more fortunate than the majority of Haitians. The independent documentary
evidence consulted by the RPD clearly indicates that the diaspora does not constitute
a group that is more at risk than others. Not only does the applicant not dispute
this finding, but the RPD was entitled to refer to this documentary evidence
and give more weight to it than to the applicant’s allegations to the contrary
(Zhou v. Canada (Minister
of Employment and Immigration), [1994] F.C.J. No. 1087
(F.C.A.)(QL); Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J.
No. 114 (F.C.A.) (QL)).
[21]
In
short, the risk that the applicant is alleging is a random risk faced generally
and indiscriminately by everybody living in her country; it does not target the
applicant personally or specifically. The situation that the applicant fears
being exposed to does not differ from that of other people living in her
country; she is therefore not a person in need of protection, as defined in subparagraph
97(1)(b)(ii) of the IRPA.
[22]
Such
a situation does not give rise to a personal risk justifying the protection sought
by the applicant. The RPD found that the alleged harm was criminal in nature
without any connection to the definition of Convention refugee, and this was a
finding that it could legitimately make (Jeudy v. Canada (Minister of Citizenship and Immigration), 2005 FC 1124;
Cius v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1).
[23]
The Court, after analyzing the facts and the impugned decision,
finds that the RPD was correct in deciding that the applicant did not establish
that she was a person in need of protection under sections 96 and 97 of the
IRPA, when this burden of proof was hers to discharge. The Court must
therefore respect the RPD’s decision.
VI. Conclusion
[24]
Consequently,
the impugned decision was justified with respect to both the facts and the
applicable law; it was therefore reasonable. The application for judicial
review must be dismissed.
[25]
No
question of general importance was proposed or merits being proposed; consequently,
no question will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified
true translation
Janine
Anderson, Translator
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