Date: 20110117
Docket: IMM-3623-10
Citation: 2011 FC 39
Ottawa, Ontario, January 17, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
|
|
DULEINE JOSILE
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is a judicial review of a decision made by the Immigration and Refugee Board,
Refugee Protection Division (the Board), dated May 25, 2010, wherein the
applicant was determined to be neither a Convention refugee nor a person in
need of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2]
The
factual background leading to the impugned decision is not challenged.
[3]
The
applicant is a female Haitian national born in 1980. She left Haiti in 2005 and had
her refugee claim rejected by the United States the same year. In 2007,
she made her Canadian refugee claim based on political opinion and membership
in a particular social group (Haitian women) or other social group (family).
[4]
The
applicant alleged that her father, a minor government official in a small
village in Haiti, was beaten
by gang members in 2004 and threatened again by armed men in 2005 as a result
of his providing information to the police about the identities of the murderers
of a local pastor in 2003. She also feared to go back because there is sexual
abuse and violence against women in Haiti and the state is not
protecting them.
[5]
The
Board determined that the applicant was not credible regarding her description
of the alleged gang attacks on her father in 2004 and 2005. The applicant’s
argument based on membership in a social group (family) was rejected.
[6]
The
Board found that the gang which the applicant claimed to fear was an organized
criminal entity. Although the evidence showed that in Haiti organized
criminal entities were, at one point in history, very closed affiliated with
political parties or the military, they no longer have political affiliations.
The applicant’s claim based on political opinion was thus rejected.
[7]
Finally,
the Board accepted that Haitian women do constitute a particular social group, but
they do not face persecution because of their membership therein. While Haitian
women face violence and rape, these dangers are generally faced by the
population, men and women alike. Moreover, the Board noted that perpetrators of
rape in Haiti are mostly
poor, young, uneducated males who are not pursuing a political agenda.
[8]
The
applicant does not contest the Board’s credibility findings. However, she
strongly contests the correctness of the Board’s legal approach and reasonableness
of its analysis of the evidence regarding the political nature of gang violence
in Haiti and the gender-targeted nature of rape in Haiti. The standard
of review for questions of fact and questions of mixed fact and law is
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, at
paragraph 51). However, the Board’s legal interpretation of sections 96 and 97
of the Act, including key elements inherent in the Refugee definition (i.e.
persecution and nexus), is reviewable under a correctness standard.
[9]
First,
the Court finds that the Board’s conclusions of fact as to the apolitical
nature of organized criminal groups are reasonable. Even if one accepts that
political motive can coexist with non-Convention grounds, the evidence before
the Board was highly speculative and virtually untied to political involvement (or
leading to an inference that political motive could constitute a secondary
ground). This part of the Board’s decision is entirely supported by the
evidence and thus the Court has no grounds to interfere.
[10]
This
brings us to the applicant’s claim for protection because of her membership in
a particular social group, here Haitian women.
[11]
The
situation of sexual abuse and violence against women in Haiti has recently
come to the attention of the Federal Court: Soimin v. Canada (Minister of
Citizenship and Immigration), 2009 FC 218 (Soimin); Frejuste v. Canada (Citizenship
and Immigration), 2009 FC 586 (Frejuste); and Dezameau v. Canada (Minister of
Citizenship and Immigration), 2010 FC 559 (Dezameau). In this
regard, the Court has cautioned the Board not to import into the definition of
a Convention refugee, legal requirements which are specific to section 97 when
the Board is assessing whether the fear of persecution is based on a Convention
ground in light of section 96 of the Act.
[12]
The
claimant in Soimin, above, feared that she would be kidnapped, raped and
tortured should she return to Haiti because of the general crime and violence
in her country of origin, since she had travelled abroad and would therefore be
perceived as being wealthy. The finding that “[t]he violence feared by the
applicant arises from general criminal activity in Haiti, and not the
discriminatory targeting of women in particular” (Soimin, above, at
paragraph 14) was not seriously challenged by the claimant.
[13]
In
dismissing the judicial review application, the Court in Soimin, above, simply
accepted that in light of section 97 of the Act, the claimant was not a “person
in need of protection”. Apparently, her risk of being kidnapped and raped was
no different from that faced by other individuals from her country, but in the
Court’s decision, there was no specific mention or analysis of the documentary
evidence. Moreover, there was no analysis by the Court of relevant legal
principles or case law with respect to gender-related claims under section 96
of the Act.
[14]
In
contrast, the Court stated in Frejuste, above, that “as the documentary
evidence reveals, the risk of sexual violence is one widely faced by women in
Haiti, irrespective of whether or not they are returnees” (Frejuste,
above, at paragraph 34). The Court further noted that there were two separate
categories of risk underlying the claimant’s section 97 claim: 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.
[15]
In
allowing the judicial review application, the Court noted in Frejuste,
above, that the Board had addressed the gender issue and the returnee issue
simultaneously and that “this case may have been obscured by the applicant’s
emphasis on a risk as a returnee who might be targeted because of her perceived
wealth”. That being said, there was no discussion regarding the application of
section 96 of the Act in the context of a gender-related claim.
[16]
In
Frederic v. Canada (Minister of Citizenship and Immigration), 2010 FC
1100, the Court was tasked with evaluating whether the Board’s conclusion that
fear of sexual assault cannot give rise to refugee protection because it
amounts to a general fear of crime which affects the entire population of
Haiti, and not a particular social group, was reasonable. Justice O’Reilly of
this Court dismissed the application, but explicitly stated at paragraph 11 that:
… while the issues raised in this case
are difficult and merit, in appropriate circumstances, serious scrutiny both by
the Board and this Court, this is not an apt case to analyze them thoroughly.
As mentioned, the proposition that a woman’s fear of sexual violence could form
the basis of a refugee claim was not the main thrust of Ms. Frederic’s
application. Accordingly, the evidence before the Board was not as extensive as
one might otherwise have expected, and the submissions on the point were not as
detailed as they might have been in a case in which the issue was central to
the claim.
[17]
The
same cannot be said for the present case, in which the claim based on gender
was expressly made and is well-supported by the evidence.
[18]
Even
more telling is Dezameau, above, a case very similar to the present one.
There, the claimant was a Haitian woman fearing persecution on the basis of her
political opinion, as well as her membership in a social group, Haitian women.
With regard to the second ground, the Court acknowledged that the Board’s failure
to include a gender-based analysis in its assessment of the evidence of violence
directed at women in Haiti constitutes a reviewable error.
[19]
That
being said, in Dezameau, above, it appears that the Board had dismissed the
claim on the basis that the Prime Minister of Haiti was a woman and half of Haiti’s population
were women. The Board’s conclusion was that the risk of rape is not due to gender
but, rather, a risk that all Haitians face as a result of generalized crime and
as such, it cannot support a refugee claim.
[20]
Disagreeing
with the respondent’s assertion that the judgment in Soimin, above, was
determinative, the Court stated in Dezameau, above, at paragraph 22,
that the question “is whether the Board’s finding that the applicant faced a
risk of general criminality such that there is no nexus between her risk and
her social group is defensible in law or in fact”. In allowing the judicial
review application, the Court concluded that “the error of the Board was to use
its finding of widespread risk of violence to rebut the assertion that there is
a nexus between the applicant’s social group and the risk of rape” (Dezameau,
above, at paragraph 23).
[21]
The
Court in Dezameau, above, at paragraph 24, referred expressly to the
Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related
Persecution, Immigration and Refugee Board of Canada (Guideline 4):
The fact that
violence, including sexual violence and domestic violence, against women is
universal is irrelevant when determining whether rape, and other
gender-specific crimes constitute forms of persecution. The real issues are
whether the violence – experienced or feared – is a serious violation of
a fundamental human right for a Convention ground and in what circumstances
can the risk of that violence be said to result from a failure of state
protection.
(Emphasis
in original.)
[22]
Indeed,
a gender-specific claim cannot be rejected simply because the group in question
or its members face general oppression and the claimant’s fear of persecution
is not supported by an individualized set of facts. Where the claimant has not,
himself or herself, experienced the type of persecution, he or she fears, the
claimant can use evidence of similarly-situated persons to demonstrate the risk
and the unwillingness or inability of the state to protect (Dezameau,
above, at paragraph 26; Salibian v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 250 at pages 258 and 259).
[23]
My
colleague Justice Pinard, who rendered the judgment of the Court in Dezameau,
above, also noted at paragraphs 29 and 31:
This is not to say
that membership in a particular social group is sufficient to result in a
finding of persecution. The evidence provided by the applicant must still
satisfy the Board that there is a risk of harm that is sufficiently serious and
whose occurrence is “more than a mere possibility”.
…
As mentioned before, a
general risk faced by a particular social group does not preclude a finding of
persecution. In other words, a finding that a risk is universally experienced
by a social group does not foreclose the inquiry under section 96. The Board
foreclosed a proper inquiry into this claim by making an erroneous finding that
the risk of violence, specifically rape, is a risk of generalized criminality
that all Haitians face.
[24]
With
respect to the establishment of nexus, the Court in Dezameau, above, at
paragraphs 34 and 35, notes that “it is well established in Canadian law that
rape, and other forms of sexual assaults, are grounded in the status of women
in society”, and adds to this effect that “[t]he notion that rape can be merely
motivated by common criminal intent or desire, without regard to gender or the
status of females in a society is wrong according to Canadian law”.
[25]
Canadian
jurisprudence is also emphatic on the point. For example, in R. v. Osolin,
[1993] 4 S.C.R. 595, Justice Cory for the majority of the Supreme Court of
Canada stated that “it cannot be forgotten that a sexual assault is very
different from other assaults. It is true that it, like all the other forms of
assault, is an act of violence. Yet it is something more than a simple act of
violence. Sexual assault is in the vast majority of cases gender based. It is
an assault upon human dignity and constitutes a denial of any concept of
equality for women” (Osolin, above, at paragraph 165).
[26]
Indeed,
rape is referred to as a “gender-specific” crime in Guideline 4. The latter
specifically categorizes rape as a gender-specific crime:
The fact that violence, including sexual
and domestic violence, against women is universal is irrelevant when determining
whether rape, and other gender-specific crimes constitute forms of
persecution.
(My
emphasis.)
[27]
Consequently,
I entirely agree with the approach taken by the Court in Dezameau,
above.
[28]
The
Board, as well as the parties before the Court, accept that Haitian women can
constitute a particular social group for the purpose of applying section 96 of
the Act. Indeed, the Supreme Court of Canada has already recognized that the
definition of a Convention refugee embraces “individuals fearing persecution on
such bases as gender …” (Ward v. Canada (Attorney General), [1993] 2
S.C.R. 689, at page 739 (Ward)).
[29]
Indeed,
Canadian scholar and practitioner, Lorne Waldman holds that women, at large,
should be recognized as a particular social group, provided that the evidence
proves that they are subject to severe violations of their fundamental human
rights because of their gender (Lorne Waldman, The Definition of Convention
Refugee (Buttersworth: Markham, Ontario, 2001) at §8.288). In my opinion,
such an approach is the correct one and flows from Ward, above.
[30]
This
conclusion is also in accordance with the human rights purpose of the
Convention and is in line with other decisions of the Board, where women without
male protection and adequate state protection who are persecuted in certain
countries (e.g. Pakistan and Somalia) were found to be Convention refugees by
reason of their membership in that group (G.L.U. (Re), [2000] C.R.D.D.
No. 69; E.U.C. (Re), [2001] C.R.D.D. No. 253).
[31]
Thus,
the real test is whether the claimant is subject to persecution by reason of
his or her membership in that particular social group. In the case at hand, the
Board has generally found that Haitian women do not face persecution in the
form of violence and sexual abuse because of their membership in that group:
“Women in Haiti are not
targeted qua women. They, like all others in Haiti, including
men and boys are subject to endemic violence and as a result all kinds
including rape. They are victims, as is everyone else, of chronic state
breakdown and ubiquitous crime and violence”. This conclusion is untenable in
this case.
[32]
The
applicant cited Professor Lise Gotell, a professor in the Women’s Studies
Programme at the University of Alberta as stating that rape is never a
genderless crime. This assertion was discarded by the Board, but it is amply
supported by Guideline 4. In addition, the documentary evidence before the
Board clearly demonstrates that women and girls in Haiti face an
elevated risk of violence and rape, a risk that is not similarly experienced by
men and boys, even though men and boys can also be victims of rape. Moreover, the
number of women raped in Haiti has constantly been increasing over the
past months. Many of the victims are single women. Most sexual attacks are
committed by men. Moreover, almost half of the women kidnapped are raped. While
nearly 50 percent of cases involve minors less than 18 years of age, the
Doctors Without Borders Clinic in Port-au-Prince reported that of their
500 rape victims, over half were between 19 and 45 years old.
[33]
Thus,
the Board’s findings and general conclusion that nexus has not been established
is unreasonable, as it goes directly against the legal principles already
discussed above and is not based on the documentary evidence. More
particularly, the Board erred or otherwise acted unreasonably in finding that
rape is not a gender-related risk in Haiti or that only “some
female Haitians under the age of 18 may be at risk of gender-related
persecution”. The fact that much of the sexual violence against girls, and
women in general, in Haiti occurs in a domestic or family context
does not excuse or lift the persecutory nature of gender-related abuses against
women in Haiti who are
kidnapped by gangs or raped in camps since the earthquake of January 12, 2010.
[34]
Therefore,
the suggestion made by the Board that women are randomly raped in Haiti by criminals
is not supported by the evidence; while women are targeted for kidnapping just
like men, they are raped because they are women. Likewise, young boys may be abused
because they are part of a vulnerable social group. The fact that there has
been “horrific sexual abuse of young boys by UN peace keeping forces from Sri Lanka” does not
help to sustain the reasonableness of the Board’s general conclusion. Again, the
real issue is whether such violence is a serious violation of a fundamental
human right for a Convention ground and the Board’s analysis in this regard is
perfunctory and biased.
[35]
The
fact that the applicant “is a married 30 year old not an under 18 year old,
single female” has strongly influenced the dismissal of this claim. The Court
is also appalled by certain gratuitous statements of the Board, such as “rape
is not the motive for criminal violence against women”, “[g]ender is not a
variable in such a calculation” (in the case of kidnapped women who are raped),
““genderless” is a rather meaningless word”, and “the perpetrators of rape in
Haiti…[are] mostly poor, young, uneducated, males”. Such a stereotypical view further
confirms that the Board member did not have an open mind or otherwise suggests
a pernicious form of bias which severely taints the reasonableness of the
result.
[36]
In
light of Canadian law and the evidence before the Board, the conclusion that as
a Haitian woman, the applicant does not have reasonable fear of persecution
because of her membership in that group is unreasonable. Had the Board accepted
that a risk of rape is grounded in the applicant’s membership in a particular
social group, then the inquiry should have resulted in a determination of
whether there is “more than a mere possibility” that the applicant risks
suffering this harm in Haiti. The particular circumstances and situation of the
applicant in the case of return to Haiti have not been
thoroughly considered and analyzed. The next step of the failed analysis would
have been to determine whether in the alleged absence of male protection in her
particular case, adequate state protection is available to the applicant.
[37]
The
application is allowed and the impugned decision is set aside. There should be
a new hearing and redetermination by a different panel of the Board in
accordance with the guidance given by the Court and the following directions.
[38]
The
impugned decision was made on May 25, 2010, that is only four months after the earthquake
of January 12, 2010 in Haiti. Before this Court, the applicant alleges
that “[t]here is a rape epidemic in Haiti, exacerbated by the
earthquake”. It would appear that since the earthquake, some 1.5 million
persons have been displaced and are living in close proximity in camps or
elsewhere in extreme conditions and without adequate protection, as the case
may be. Considering that fear of persecution is forward-looking, the Court
expects that there will be a complete and objective evaluation of the most
up-to-date documentation with respect to rape and sexual abuse committed
against women and children in Haiti in light of the particular situation of the
applicant and increasingly worsening country conditions.
[39]
In
particular, the Board should notably examine whether there is a rape epidemic
in Haiti and whether there are serious violations of fundamental human rights
against women for a Convention ground, taking into account these present
reasons for judgment, the present political turmoil in Haiti and the climate of
ongoing violence by different groups following the legislative elections and
the first round of the presidential election of November 28, 2010. The issue of
adequate state protection in the absence of male protection, as the case may
be, should be fully considered and analyzed by the Board. Naturally, the
geographical location (whether outside of Port-au-Prince or areas not affected
by the earthquake) and the applicant’s personal situation (whether she will be
accompanied by a spouse or living with family) if returned to Haiti are relevant
factors to consider.
[40]
The
respondent has not proposed any general question of importance for
certification.
[41]
In
the present instance, there has been no serious attack made by the respondent
against the legal reasoning of my colleague Justice Pinard in Dezameau,
above, and which I have fully endorsed. Incidentally, the following question
was certified in Dezameau, above:
Can an assumption that rape is not a
crime predicated on gender and reflecting gender imbalances be applied in an
evidentiary vacuum, without regard to evidence demonstrating the contrary with
respect to conditions in a refugee claimant’s country of nationality?
[42]
In
this respect, I note that no appeal was made by the respondent against the former
judgment.
[43]
Accordingly,
no question is certified by this Court.
JUDGMENT
THE COURT
ADJUGES AND ORDERS:
1.
The
application for judicial review is granted.
2.
The
decision made on May 25, 2010 by the Board is set aside and the applicant’s
claim is referred back for a new hearing and
redetermination by a different panel of the Board, in accordance with the
reasons for judgment and the directions issued by the Court in same.
3.
No
question is certified.
“Luc
Martineau”
Email this Content