Date:
20130215
Docket:
IMM-1197-12
Citation:
2013 FC 167
Ottawa, Ontario,
February 15, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
|
|
MONTCAMENE DESIRE
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a citizen of Haiti. She left Haiti in 1997 and lived for a number
of years in the United States, both before and after her claim for refugee
status was denied in that country. She then came to Canada in 2009 and made a
refugee claim upon arrival. As a single woman, she claims to fear being raped
if she were to be returned to Haiti, due to the prevalence of sexual violence
against women in that country.
[2]
In
a decision dated January 12, 2012 the Refugee Protection Division of the
Immigration and Refugee Board [the RPD or the Board] rejected the applicant’s
claim, finding that she was neither a refugee, within the meaning of section 96
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
IRPA or the Act], nor a person in need of protection within the meaning of
section 97 of the Act. In the present application for judicial review, the
applicant seeks to have the Board’s decision set aside.
[3]
The
applicant raises three separate errors on the part of the Board. She argues
first that the Board erred in finding her to not fit the profile of those at
risk for rape. She asserts that at least some of the documentary evidence
established that all women are at risk of rape in Haiti and that the Board
erred in confining its analysis to a review of the more recent country
documentation, some of which indicated that such risk is prevalent for those
who are young and living in a tent or a refugee camp. Second, she asserts that
the Board erred in failing to mention and apply Guideline 4: Women Refugee
Claimants Fearing Gender-Related Persecution, Guidelines issued by the
Chairperson pursuant to Section 65(3) of the Immigration Act [the Gender
Guidelines]. Finally, she argues that the Board’s findings were perverse
because it found the applicant to possibly face a heightened risk of kidnapping
and assault, but neglected to consider that the country documentation
recognizes that women who are kidnapped are often raped. In this regard, the
most recent U.S. Department of State for Human Rights Report before the RPD
stated that “kidnappers often raped their female abductees” and a newspaper
article before the Board also indicated that “almost half of women kidnapped
had been raped”.
[4]
The
respondent, for its part, argues that there was evidence before the Board which
supported its determination that the applicant did not fit the profile of those
at risk of rape: the applicant is a middle-aged woman of some means, with
family, and could live with her family in Fonds-Parisien and thus would not be
forced to live in a tent or a refugee camp. The respondent argues that the
RPD’s finding on this point is accordingly reasonable. With respect to the
applicant’s second argument, the respondent submits that, contrary to what the
applicant asserts, the Board was sensitive to the requirements of the Gender
Guidelines and did recognize that rape constitutes gender-related persecution
under section 96 of the IRPA but simply found that the applicant had not established
that there was an objective basis for her fear of rape as she lacked the
profile of those for whom rape is more than a mere possibility in Haiti. The
respondent asserts in this regard that it is not necessary for the Board to
specifically mention the Gender Guidelines in a decision as long as it applies
the principles mandated by the Guidelines. Finally, the respondent argues that
the finding that the applicant is at risk of kidnapping and assault does not
conflict with the finding that the applicant lacks the profile of a woman who
might be at risk of rape. The respondent relies on Soimin v Canada, 2009 FC 218 in support of the argument that a woman who fears kidnapping in Haiti does not meet the definition of a Convention Refugee as the risk of kidnapping is one
of general criminality.
[5]
While
the first and second grounds advanced by the applicant do not warrant
intervention, I agree with the applicant that the Board’s findings regarding
the risk of kidnapping and characterization of this risk as one of mere
criminality constitutes a reviewable error warranting intervention.
[6]
In
this regard, the Board first recognised in its decision that rape constitutes
gender-based persecution, within the meaning of s. 96 of the IRPA. This
recognition is in accordance with several decisions of this Court, including,
notably, three relatively recent cases involving Haiti: Josile v Canada
(Minister of Citizenship and Immigration), 2011 FC 39 at para 33 [Josile];
Dezameau v Canada (Minister of Citizenship and Immigration), 2010 FC 559
at paras 23, 26 [Dezameau]; and Frejuste v Canada (Minister of
Citizenship and Immigration), 2009 FC 586 at paras 34-37. The recognition
of rape as a gender-based crime is likewise mandated by the decision of the
Supreme Court of Canada in R v Osolin, [1993] 4 S.C.R. 595, [1993] SCJ No
135 where Justice Cory, in majority, stated:
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.
[7]
After
recognizing that the probability of being raped amounts to persecution under
section 96 of the IRPA, and determining that the applicant did not face such
risk, the RPD went on to qualify her risk as being one of “the possibility of
assault and kidnapping.” It then continued by stating, “the jurisprudence holds
that this does not constitute a ‘personalized risk’” and dismissed the risk of
kidnapping under section 97 of the IRPA as a generalized risk.
[8]
What
the RPD failed to do, however, was to assess whether or not the risk of
kidnapping might constitute gender-based persecution under section 96 of the
Act. This analysis was necessary on the facts of this case because there was
evidence before the Board which indicated that women are disproportionately at
risk of rape if kidnapped in Haiti, including documents submitted by the
applicant in her submissions to the Board. In my view, it was necessary for the
Board to assess this evidence, and weigh it along with the other evidence
regarding risk of rape in its analysis. This does not necessarily mean,
however, that the applicant's claim must succeed. Rather, the Board must
properly assess it. In light of the evidence before the RPD, its finding that
the applicant was not at risk of rape but was at risk of being kidnapped cannot
live together, and its conclusion, without further explanation, is therefore
perverse. It is the evidence of the link between rape and kidnapping which
distinguishes this case from Soimin as there, unlike here, there does
not appear to have been evidence regarding the likelihood of kidnapping victims
being raped.
[9]
Thus,
for these reasons, the Board’s decision must be set aside and the matter
remitted for reconsideration. No question for certification arises in this
matter, as my decision turns squarely on the reasoning advanced by the Board in
this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review of the RPD’s Decision is granted;
2.
The
RPD’s Decision is set aside;
3.
The
applicant’s refugee claim is remitted to the RPD for re-determination
by a differently constituted panel of the Board;
4.
No
question of general importance is certified; and
5.
There
is no order as to costs.
"Mary J.L.
Gleason"
Email this Content