Date: 20110509
Docket: IMM-6269-10
Citation: 2011 FC 535
Ottawa, Ontario, May 9, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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NESLY OLTIME, ELIANISE
OLTIME, NADINE GERANDA OLTIME
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Background
[1]
The
Applicants are citizens of Haiti who seek protection in Canada. The Principal Applicant is
Ms. Elianise Oltimé. Nesley Oltimé and Nadine Oltimé are the Principal
Applicant’s sister and brother. The Applicants have not lived in Haiti since
1998, having spent several years in the Bahamas and the United States. They allegedly fear returning to Haiti
because of the political opinions of their mother, because of their gender and
because of the risk of kidnapping and persecution of Haitian exiles returning
to Haiti.
[2]
In a
decision dated October 6, 2010, a panel of the Immigration and Refugee Board,
Refugee Protection Division (the Board) determined that the Applicants were
neither Convention refugees, pursuant to s. 96 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), nor persons in need of
protection pursuant to s. 97 of IRPA. Briefly stated, the Board found that:
·
the
Principal Applicant’s allegation of rape in 1998 and her sister’s allegation of
“sexual touching” were not credible;
·
the
Applicants did not establish a subjective component of their fear, based on
their failure to claim protection in the United States during a lengthy stay in that country;
and
·
the
Applicants do not face a personalized risk of torture or to life or cruel and
unusual treatment or punishment upon return to Haiti.
II. Issues
[3]
The
Applicants argue that the decision should be quashed, raising the following
issues:
1.
Did the
Board err by failing to properly consider the Applicants’ claims under section
96 of the IRPA?
2.
Did the
Board err in concluding that the Applicants lacked subjective fear?
3.
Did the
Board err in concluding that the Applicants were not persons in need of
protection?
III. Standard of Review
[4]
The
Applicants are questioning the findings of the Board. The applicable standard
of review for each of the issues raised by the Applicants is reasonableness.
IV. Analysis
[5]
Either of
the Board’s findings in respect of the s. 96 claim - lack of credibility and
lack of subjective fear - is, if reasonable, determinative of the s. 96 aspect
of the Applicants’ claim. It is well-established in the case law that questions
of credibility and subjective fear are determinative of a claim under s. 96. In
Ghasemian v Canada (Minister of Citizenship and
Immigration),
2003 FC 1266, the Court clearly stated:
The
absence of a subjective fear is fatal to a claim under s. 96 of the Act. Once
the Board found that the applicant had failed to establish such a fear, there
was no need for it to comment on the evidence presented to establish the
objective element of her claim for that reason.
[6]
Moreover,
a central issue in determining the existence of subjective fear may be the
claimants’ delay in claiming, or failure to claim, refugee status either in Canada or elsewhere.
[7]
In the
present case, only the two female applicants alleged incidents of past
persecution and the Board assessed these claims and concluded that the
allegations were not credible. The male applicant relied on the incidents of
persecution experienced by his sisters to give credence to his own claim. Once
the Board concluded that the incidents alleged by the female applicants were
not credible, there was no basis upon which any of the claims under s. 96 could
stand. Since the Board did not believe that the incidents occurred, there was
no basis upon which the female applicants could assert that they experienced
gender persecution. Similarly, if the incidents did not occur, there was no
evidence to establish that any of the applicants were at risk because of their
relationship to their mother, nor was there evidence to establish that the male
applicant would be persecuted as the brother of his sisters. Thus, the Board’s
credibility finding went to the heart of the s. 96 claim of all three
applicants, and this finding was determinative of the claim.
[8]
The
question that remains is whether the Board’s finding of lack of credibility was
reasonable. In my view, it was. During oral testimony, neither the Principal
Applicant nor her sister was able to provide further details about the alleged
sexual assaults. There was no medical or psychological evidence. Even
considering the gender-related aspect of their allegations and the ages of the
Applicants, the lack of credibility finding was reasonably open to the Board on
the record before it.
[9]
Despite
the fact that credibility would have been determinative, the Board also found
that the Applicants had not demonstrated subjective fear. The Board noted the
Applicants’ failure to claim in the United States during the lengthy times that they were there. The Board
also considered their explanations for failing to claim in the United States. In my view, the Board’s conclusion
that the Applicants had not provided a satisfactory explanation for the delay
was reasonable.
[10]
As part of
their s. 97 claim, the Applicants submitted, in their amended Personal
Information Forms (PIFs) and during their oral testimony that they were at risk
of kidnapping as returning members of the “Haitian Diaspora”. Further, the
female Applicants claim that, as women, they face an increased risk of gender
violence.
[11]
The
Applicants assert that the Board did not consider all aspects of the s. 97 risk
that they would face if returned to Haiti.
Specifically, the Applicants submit that the Board failed to consider the risk
to the Applicants from the association with their mother (who had allegedly
been an outspoken critic of the political regime, at one time) or the risk to
the female Applicants because of their gender.
[12]
In my
view, the Board did not ignore the claimed risks.
[13]
With
respect to the risk as members of the Haitian Diaspora, the Board referred to
credible documentary evidence that the risks to persons returning to Haiti depended on their political past or
other activities. The Board then explained why the Applicants did not fit such
a profile. In that explanation, the Board considered the situation of the
mother. As noted by the Board, their mother has not lived or been seen in Haiti since 1998. Any risk because of this
past association is highly speculative.
[14]
With
respect to the risk of the two female Applicants, the Board referred to
documentary evidence that stated that “an equal proportion of men and women are
victims of attack”. While this is small comfort to those who must live in Haiti, the point is that the Board was not
unreasonable in concluding that the risk faced by the Applicants, in this case,
did not meet the requirements of s. 97. Specifically, the fear faced by all
three of the Applicants is one that is faced generally by individuals in Haiti.
V. Conclusion
[15]
For these
reasons, the application for judicial review will be dismissed.
[16]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that :
1.
The application for
judicial review is dismissed; and
2.
No question of
general importance is certified.
“Judith
A. Snider”
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