Date: 20110629
Docket: IMM-5528-10
Citation: 2011 FC 796
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, June 29,
2011
PRESENT: The Honourable
Mr. Justice Lemieux
BETWEEN:
Marie Nicole OCEAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
This is an application for judicial review, submitted in
accordance with subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), by
Marie Nicole Ocean (applicant), who is seeking to have the decision dated
August 18, 2010, by the Refugee Protection Division of the Immigration and
Refugee Board
(panel) set aside. The panel found that the applicant, a citizen of Haiti, is
not a Convention refugee or a person in need of protection under sections 96 and
97 of the Act. Her refugee claim was based on her political opinion and her
membership in a particular social group.
[2]
Counsel
for the applicant raises one ground only against the panel’s decision. He
argues that it erred in law in its analysis of section 96 by attaching to this
section elements specific to section 97. He cited before the panel the
recent decision of the Justice Yvon Pinard in Dezameau v. Canada (Minister
of Citizenship and Immigration), 2010 FC 559, to convince it that the
applicant met the requirements of the Convention, since she had a reasonable
fear of persecution in Haiti as a member of a particular social group: women
returning to Haiti after a prolonged absence abroad and fearing being raped by
Haitian men. Before this Court, counsel for the applicant adds the recent
decision by Justice Luc Martineau in Josile v. Canada (Minister of
Citizenship and Immigration), 2011 FC 39.
II. Panel’s decision
[3]
The
panel found the applicant to be credible except on an issue of no significance in
this case, that is, the date of her departure for the United States in fear of members
of the Corps d’intervention et du maintien de l’ordre (CIMO) [response and
public order force]. She lived in that country from August 8, 1999, to March 6,
2008, the date she arrived in Canada.
[4]
After
questioning the applicant on the nature of her fear of the CIMO members, the
panel found that her testimony “shows that the claimant’s fear is based on crime,
pure and simple” and reiterated that the case law “has consistently established that crime
victims do not constitute a particular social group”, relying
on the Federal Court of Appeal’s decision in Klinko v. Canada (Minister of
Citizenship and Immigration), [2000] 3 F.C. 327.
[5]
In
reply to the panel’s question on what she would fear if she were to return to
Haiti today, the applicant stated the following:
. . . the situation in Haiti has gone from bad to
worse since she left. Women receive no protection, they are raped, and
should she return, people would know that she was not from Haiti and could
demand money from her. She stated that she is afraid of what happens in the
street and added that there is no sanitation and that people are living in
tents on the street. She stated that her children, who were living in
luxury—these are her own words—could not get used to living without
electricity, without doctors and without good schools. The panel pointed
out to her that people are not living in tents in every part of the country,
for example in Jérémie. The claimant stated that she does not know that place,
but that everyone sleeps in tents because they are afraid there will be another
earthquake.
[Emphasis added.]
[6]
In
this testimony, the panel determined the following:
. . . her
claim, as she has expressed it, cannot reasonably be said to have any
nexus to the Convention, and what she is demanding cannot make her a person in
need of protection; the insecurity, the lack of infrastructure and the lack of
electricity are the predominant characteristics of the generalized,
indiscriminate poverty that the most disadvantaged members of that society are
subjected to, as are some groups that could be considered relatively affluent.
Considering the reasons raised by the
applicant, the panel found that they could not be considered persecution within
the meaning of Adjei v. Canada (Minister of Employment
and Immigration), [1989] 2 F.C. 680 (C.A.).
[7]
The
panel then moved on to its analysis of section 97 of the Act, which is
unnecessary to summarize here because the applicant has not challenged the
panel’s findings in that respect.
[8]
The
panel examined the argument before it concerning Dezameau, above, which,
according to the panel:
. . . states that Haitian
women who allege a fear of persecution because of the violence in the country
are members of a particular social group within the meaning of section 96
of the IRPA because rape, within the meaning of Canadian case law, is a gender‑based
crime. While setting out this principle in his decision,
Justice Pinard specified the following at paragraph 29:
This is not to say that membership in a
particular social group is sufficient to result in a finding of persecution.
[Emphasis
added.]
[9]
The
panel therefore continued with its analysis as follows:
[18] In the panel’s opinion, this makes it
clear that mere membership in a particular social group cannot by itself result
in a finding of persecution within the meaning of Adjei [footnote
omitted]. It is therefore clearly the claimant’s responsibility to provide
evidence that there are serious reasons for considering that she could be
persecuted within the meaning of section 96 of the IRPA on a Convention
ground. The Honourable Justice also added the following, at paragraph 29
of Dezameau:
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”.
[10] In applying Dezameau,
the panel specified and found the following:
. . . the
claimant was very clear in establishing her fear of persecution: she stated
explicitly that she fears everyone—the people in the streets—and also the CIMO
members . . . . She further stated that she did not want
her children to endure hardships that they are not used to, unlike in their
current living arrangements
. . . .
[20] Consequently, the panel is of the opinion
that, notwithstanding the arguments raised by counsel for the claimant, the
claimant did not credibly establish in her testimony that she has a fear of
persecution based on the violence against women in Haiti. She mainly expressed
a fear of returning to the country because of the difficult living conditions
stemming from the poverty and underdevelopment of Haiti, conditions that are
faced by all levels of society in third‑world countries like Haiti.
III. Analysis
[11] It is settled
case law that (1) a panel’s interpretation of sections 96 and 97 of the Act is subject
to the standard of correctness and (2) for questions of fact and questions of
mixed fact and law, the standard is reasonableness.
[12] I concur with
the approach of Justice Pinard in Dezameau, above, and Justice Martineau
in Josile, above. In these two cases, like the one before the Court, the
issue was whether the panel had erred in law in its consideration of section 96 of the Act.
[13] In Dezameau, the
social group identified was Haitian women returning to Haiti after a prolonged
absence from that country and fearing becoming a target for criminal gangs,
kidnappers and potential rapists because of their gender. At paragraph 41, Justice Pinard
stated the following:
For all the above reasons, I
find that the Board erred in law finding that a general risk of harm precluded
the applicant’s claim of persecution. The Board further erred, in law and with
respect to the facts, in finding that rape is not a gender-related risk in Haiti or that rape is a general risk faced by
all Haitians. Finally, the Board did not consider the applicant’s risk of rape
due to her membership in the social group she alleged: women returning to Haiti
from North
America.
[14] In other
words, the panel used its finding on the existence of a widespread risk of
violence to rebut the statement that there is a nexus between the social group
to which the applicant belongs and the risk of rape.
[15] Justice Pinard also
stated the following:
[29] 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 ”.
[16] Justice Martineau stated
the following at paragraph 36 of Josile:
. . . 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.
If the response had been “yes”, the next step
would have been to determine whether the state was able to protect her.
[17] Counsel for the
respondent claims that the argument raised by the applicant is moot in that
there was no basis in the evidence before the panel to support the claims made
before this Court. I agree with her for the following reasons.
[18] In this case, the panel
did not err in law like those in Dezimeau and Josile. The panel
accepted the principles stated in these two judgments. More specifically, it
did not transfer its reasoning concerning section 97 to section 96. What the
panel found was that the basis or the heart of the applicant’s claim under
section 96 was not her fear of persecution because she belongs to a particular
social group, that of Haitian women returning to that country after a prolonged
absence and fearing being raped because of their gender. The basis of her fear
of return concerned a fear of a different nature. My reading of the hearing
transcript in this case confirms that the panel’s decision on this point was
reasonable.
[19] I believe that the
panel’s finding is similar to that which was before Justice James O’Reilly
in Frederic v. Canada (Minister of Citizenship and Immigration), 2010 FC
1100, in which he held the following, at paragraph 11:
I would also note 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.
[20] For the above-mentioned
reasons, this application for judicial review is dismissed.
[21] No question of general
importance was proposed.
JUDGMENT
The
application for judicial review of the decision dated August 18, 2010, by the
Refugee Protection Division of the Immigration and Refugee Board is dismissed.
“François
Lemieux”
Certified true translation
Janine Anderson, Translator
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