Date:
20090204
Docket: A-168-08
Citation: 2009 FCA 31
CORAM: LÉTOURNEAU J.A.
BLAIS J.A.
TRUDEL J.A.
BETWEEN:
RALPH
PROPHÈTE
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
Heard at Montréal, Quebec, on February 4, 2009.
Judgment delivered from the Bench at Montréal, Quebec, on February 4, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL
J.A.
Date:
20090204
Docket:
A-168-08
Citation:
2009 FCA 31
CORAM: LÉTOURNEAU
J.A.
BLAIS
J.A.
TRUDEL
J.A.
BETWEEN:
RALPH
PROPHÈTE
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Montréal, Quebec, on February 4, 2009)
TRUDEL J.A.
[1]
This is an
appeal of an application to answer the following question :
Where the population
of a country faces a generalized risk of crime, does the limitation of section
97 (1)(b)(ii) of the IRPA apply to a subgroup of individuals who face a
significantly heightened risk of such crime?
[2]
The
appellant was found by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) not to be a Convention refugee within the meaning of
section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (the Act) nor a "person in need of protection" within the meaning
of section 97 of the Act.
[3]
To be a
person in need of protection, the appellant had to show the Board, on a balance
of probabilities, that his removal to Haiti would subject him personally,
in every part of that country, to a risk to his life or to a risk of cruel and
unusual treatment that is not faced generally by other individuals in or
from Haiti (emphasis added) (the relevant legislation is annexed to these
reasons).
[4]
The
certified question correlates with the appellant’s position. Mr. Prophète, a
citizen of Haiti, sought asylum in Canada
alleging persecution in the form of vandalism, extortion and threats of
kidnapping. Although the appellant recognized the upheaval faced generally by
Haitian citizens, he submitted that being a businessman put him and other
business persons especially at risk because those with money or those perceived
to have money were at greater risk than the general population which, for the
most part, lived in poverty. According to the appellant, as soon as a significantly
heightened risk is not faced by the rest of the population, that risk is
not captured by the exclusion of subparagraph 97(1)(b)(ii) of the Act
because that risk is no longer a risk faced generally by other individuals in
or from a given country (appellant’s memorandum of fact and law at paragraph
90).
[5]
For the
following reasons, the appeal will be dismissed.
[6]
Unlike
section 96 of the Act, section 97 is meant to afford protection to an
individual whose claim “is not predicated on the individual demonstrating that
he or she is [at risk] … for any of the enumerated grounds of section 96” (Li
v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 1, [2005] 3 F.C.R. 239 at paragraph 33).
[7]
The
examination of a claim under subsection 97(1) of the Act necessitates an
individualized inquiry, which is to be conducted on the basis of the evidence
adduced by a claimant “in the context of a present or prospective
risk” for him (Sanchez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 99 at paragraph 15)
(emphasis in the original). As drafted, the certified question is too broad.
[8]
Taking
into consideration the broader federal scheme of which section 97 is a part,
answering the certified question in a factual vacuum would, depending on the circumstances
of each case, result in unduly narrowing or widening the scope of subparagraph
97(1)(b)(ii) of the Act.
[9]
For these
reasons, we decline to answer the certified question.
[10]
In the
case at bar (Prophete v. Canada (Citizenship and Immigration), 2008 FC 331), there was evidence on
record allowing the Applications Judge to conclude:
[23] …
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. While
a specific number of individuals may be targeted more frequently because of
their wealth, all Haitians are at risk of becoming the victims of violence.
[11]
Therefore,
this appeal will be dismissed without costs.
"Johanne Trudel"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-168-08
STYLE OF CAUSE: Ralph
Prophète v. MCI
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: February 4, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: LÉTOURNEAU J.A.
BLAIS J.A.
TRUDEL
J.A.
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
PETER SHAMS
|
FOR
THE APPELLANT
|
|
MICHÈLE JOUBERT
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
SAINT-PIERRE,
GRENIER
Montréal,
Quebec
|
FOR THE APPELLANT
|
|
John H. Sims Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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