Date: 20110106
Docket: IMM-2411-10
[UNREVISED CERTIFIED ENGLISH
TRANSLATION] Citation: 2011 FC 6
Ottawa, Ontario, January 6, 2011
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
WILNER
JOACHIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review of a decision of
a member of the Immigration and Refugee Board’s Refugee Protection Division
(the panel) under subsection 72(1) of the Immigration and Refugee Protection
Act, S.C. (2001), c. 27, (the Act), by Wilner Joachim (the applicant). The
panel determined that the applicant was neither a refugee nor a person in need
of protection and therefore rejected his claim for refugee protection.
[2]
The applicant is a 65-year-old citizen of Haiti. For 29 years,
he worked as a truck driver for a non-governmental organization called Service
Chrétien d’Haïti, which delivered goods to the stricken Gonaïves area. His
spouse, who is currently in Haiti, is a merchant. All of his relatives are
Jehovah’s Witnesses.
[3]
The
applicant claims to have been attacked on two occasions while he was driving
his truck and again while he was waiting for a bus. It appears that each time
the assailants were different and that he was beaten and robbed by them. He
claims that the first time he was attacked it was because he was transporting
goods, and that the assailants made off with these goods. During the second
incident, the assailants allegedly identified him as the husband of a merchant
who had refused to pay protection money. During the incident near the bus stop,
the assailants allegedly stole his wallet.
[4]
In
his claim for refugee protection, the applicant had stated that he was targeted
for his political opinion. At the hearing before the panel, all of the parties
seemed to agree on the fact that the applicant had never been actively involved
in politics because this was prohibited by his religion and that, accordingly,
this part of his claim was no longer relevant.
[5]
The
applicant claims he did not know any of the bandits and could not identify
them, but that they were people who used to be known as the Chimères or the
Zinglindos.
[6]
The
applicant’s boss allegedly told him that he could not protect him. The applicant
arrived in Canada on May 9,
2007, and claimed refugee protection on May 24, 2007.
[7]
The
panel noted that the applicant stated that he had not been targeted for
political views he may have expressed or which may have been attributed to him.
Accordingly, the panel determined that the applicant was not a refugee within
the meaning of section 96 of the Act.
[8]
Furthermore,
with regard to section 97 of the Act, the panel noted that the applicant
testified that there was such chaos in Haiti that people
did whatever they wanted. The panel took the view that when he was robbed of
his wallet, and at least one of the times his truck was robbed, the bandits had
probably identified the applicant not as a truck driver for a non-governmental
organization but as a business owner who refused to pay them the protection
money they demanded. Thus, the panel determined that the applicant was not
persecuted because of his employment. The panel determined that the alleged
risk was a random and generalized risk indiscriminately faced by the entire
Haitian population, according to the applicant’s own statements. The panel
found that the applicant had not discharged his burden of showing that he was
personally targeted and that the risk he claimed to be facing was different
from the risk faced by others living in his country. The panel therefore
determined that the claim fell under the exception in subparagraph 97(1)(b)(ii),
and that the applicant was not a person in need of protection.
[9]
Originally,
the applicant had raised two issues in this matter:
a)
Was the
decision supported by sufficient reasons with regard to section 97 of the Act?
b) Was the decision unreasonable?
[10] At the
hearing before me, the applicant’s counsel abandoned the first issue,
acknowledging that adequate reasons for the application of section 97 had in
fact been provided. However, the applicant’s counsel indicated that he was
still challenging the reasonableness of the decision. In this regard, in Innocent
v The Minister of Citizenship and Immigration, 2009 FC 1019, Justice Robert
Mainville, at paragraph 36, summarized the case law regarding subparagraph
97(1)(b)(ii) and determined that the applicable standard of review was
reasonableness.
[11] The applicant
is essentially arguing that he testified that he had been targeted because of
the job he had at the time, i.e. as a truck driver for a non-governmental
organization. He claims to have demonstrated that he was therefore personally
targeted by his assailants.
[12] The
respondent, for his part, submits, and I concur, that the applicant made an
error in this regard, given the following excerpts from the transcript of the
hearing:
[translation]
Q: So, why did those people stop you on
those roads?
A: The political situation was so
terrible at the time, therefore people were checking everyone who was passing
through. And they stopped you and took whatever they wanted and then they beat
you. [Tribunal Record, page 197.]
Q: Were they people who were after you
personally?
A: No. . . . [Tribunal Record, page 197.]
Q: So. And why do you say that you were
persecuted or could be persecuted for your political opinion?
A: No, I did not say that they were
persecuting me because of my political opinion. I thought that the people who
were persecuting us were doing it because my wife owned a business. And when
they came to get money, they – they didn’t find any. [Tribunal Record, page 199.]
Q: O.K. Let’s go step by step. When they
attacked you on the road, what did you think was going on?
A: Given that I knew the country was in
turmoil, I didn’t think they were specifically after me. I thought it was a
crowd attacking me and taking what they wanted to take. . . .
Q : O.K. Therefore, for you, if I
understand you correctly, these individuals wanted to get their hands on the
goods you were transporting.
A: Yes, yes. [Tribunal Record, pages 199-200.]
Q: When you arrived here, you told immigration
officers that you were afraid of the Chimères and the Zinglindos.
A: Yes.
Q: Is that right?
A: Yes. Because back then it was the
Chimères and the Zinglindos.
Q: But today, who are you afraid of? Is
it…
A: In 2010, I don’t know, but those
groups are still around. [Tribunal Record, page 203.]
[13] The
respondent submits that these excerpts show that the attacks suffered by the
applicant did not target him personally and that the bandits had
indiscriminately chosen the applicant to rob him. The respondent adds that
there is nothing in the applicant’s testimony to suggest that he had been
specifically targeted because of his relationship with the non-governmental
organization. I agree. The culprits were not always the same and the applicant
testified at the hearing that he [translation]
“didn’t think they were specifically after [him]”.
[14] The following
two decisions of this Court support the panel’s determination that the risk set
out in subsection 97(1) of the Act must be a personalized risk and that
indiscriminate victims of crime cannot be recognized as persons in need of
protection: Lozandier v The Minister of Citizenship and Immigration,
2009 FC 770, at paragraphs 21 and 22, and Prophète v The Minister of Citizenship
and Immigration, 2008 FC 331, at paragraphs 22 and 23. In that last
decision, Justice Danièle Tremblay-Lamer wrote the following with regard to the
issue:
[23] Based
on the recent jurisprudence of this Court, I am of the view 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. . . .
[15] The panel
arrived at a similar finding in the case at bar. I find that, by reason of his
own testimony, the applicant failed to demonstrate why this finding was
unreasonable.
[16] For the
above-mentioned reasons, the application for judicial review is dismissed.
[17] I agree with
counsel for the parties that no questions for certification arise from the
matter.
JUDGMENT
The
application for judicial review of the decision rendered by the Immigration and
Refugee Board’s Refugee Protection Division dated April 6, 2010, is dismissed.
“Yvon
Pinard”
Certified
true translation
Sebastian
Desbarats, Translator
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