Date: 20101116
Docket: IMM‑1116‑10
Citation: 2010 FC 1140
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 16, 2010
PRESENT: The Honourable Mr. Justice
Beaudry
BETWEEN:
M. C. E.,
SHAWNLEY,
JEHOVANY
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), of a negative
decision of the Immigration and Refugee Board (the IRB) dated December 9,
2009, determining that M.C.E. (the applicant) and her two children, Shawnley
and Jehovany (minor children) are not refugees under section 96 or persons
in need of protection under subsection 97(1) of the IRPA.
[2]
At the hearing, the
applicant made a verbal request that she and her children be identified
according to the style of cause above. Given the respondent’s consent, the
Court granted the request.
[3]
After having analyzed the documents submitted by
the parties, the Court finds that the application for judicial review will be
dismissed for the following reasons.
[4]
The applicant is a citizen of Haiti, and her
minor children are citizens of the United States.
[5]
The applicant submits that she left her country
of origin in 1998 at the age of 16. Her parents sent her to live with her aunt
and uncle, since they were unable to provide for her because of the large
number of children that they had had together.
[6]
According to the applicant, she became a restavek
(a Creole word meaning “stay‑with”, a term used for child slaves in Haiti)
when she was five years old. She had to do chores such as cleaning the house,
fetching water, washing the dishes, making the beds, doing the laundry, etc.
Her living conditions were deplorable. She was beaten, touched inappropriately
and not allowed to play with the other children.
[7]
Eventually, her mother sent her to live with one
of her cousins in the United States. However, her living conditions remained
the same, and she was still treated as a restavek. When she was in New
York, she met a man whom she married, and they had two children.
[8]
The applicant fears that if she were to return
to Haiti, she would be persecuted as a restavek woman by her aunt, her
cousins and her husband’s family.
[9]
The IRB concluded that there was no connection
to the Convention because, instead, this is a case of discrimination. It also
concluded that the applicant’s childhood fears are no longer pertinent. In
addition, the IRB noted that if the applicant had to return to Haiti, she has
no obligation to live with her aunt or cousins and does not need help from
anyone to take care of herself.
[10]
After consulting the documentary evidence, the
IRB also found that the risks that the applicant would face would not be
different from those faced by the Haitian population.
[11]
The standard of review in such cases is the
reasonableness standard (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190).
[12]
Although it is very sympathetic to victims who endured
the plight of restaveks, the Court must agree with the IRB’s conclusion
that now that the applicant has become an adult, the fears she had as a child
are no longer relevant.
[13]
With regard to the objective fear, the applicant
herself admits that there is no documentary evidence concerning children forced
to live as restaveks who have returned to Haiti as adults.
[14]
It was therefore reasonable for the IRB to
determine, referring to Soimin v. Canada (Citizenship and Immigration),
2009 FC 218, [2009] F.C.J. No. 246 (QL), that the risk faced by the
applicant if she were to return to her country would not be different from that
faced by the entire Haitian population in a dramatic situation (Tribunal’s
Record, page 9, paragraph 4).
[15]
The applicant proposes
the following question for certification:
[translation]
Are individuals
who are victims of the restavek system (modern slavery) members of a
particular social group under the Convention?
[16]
The respondent objects
to that question, submitting that it does not meet the requirements well
established in the case law of the Federal Court because it is neither
determinative nor a serious question of general importance.
[17]
The Court agrees with
that submission. In fact, even if that question were to be accepted, it would
not have the effect of setting aside the IRB’s decision.
JUDGMENT
THE COURT ORDERS that the application
for judicial review be dismissed. No question is certified.
“Michel Beaudry”
Certified true
translation
Sarah Burns
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