Date: 20100308
Docket: IMM-3189-09
Citation: 2010 FC 265
Ottawa, Ontario, March 8,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
FULTON DORNO
MARIE EVELINE
DORNO-MOISE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated June 3, 2009. The Board determined that the Applicants were neither
convention refugees nor persons in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, R.S. 2001, c. 27 (IRPA).
[2]
Based
on the reasons below, the application is allowed.
I. Background
[3]
The
Applicants are a married couple who are citizens of Haiti. They left Haiti for the United States in 1994. They
lived in the United
States
from 1994 to 2007 where they made an unsuccessful refugee application. In 2007 they
left the United States and made a refugee claim in Canada.
[4]
In
his Personal Information Form (PIF), the husband (the principle Applicant)
stated that he feared for his life due to the criminal gangs in Haiti. In her PIF,
the female Applicant stated that she relied on her husband’s narrative. The
principle Applicant worked as the Chief Accountant at a development relief
agency in Haiti prior to his
departure (the Agency or ADRA). He claimed that, as part of his job, he had to
go to the bank and drive in agency vehicles and that this made him a target for
criminal gangs. The female Applicant stated that she was at risk based on her
husband’s claims and due to a fear of rape.
[5]
In
the decision, the Board found that the principle Applicant was not specifically
targeted and that the risks alleged by the Applicants were from generalized
criminality.
II. Standard
of Review
[6]
The
issues raised in this matter are those of fact and will be assessed on a
reasonableness standard (see Dunsmuir v. New Brunswick, 2008 SCC 9;
[2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1
S.C.R. 339).
[7]
As
set out in Dunsmuir and Khosa, above, reasonableness requires the
existence of justification, transparency, and intelligibility in the
decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes that are defensible in respect of the
facts and law.
III. Issues
[8]
The
Applicants raised the following issues:
a) Did
the panel err by not conducting a section 97 analysis for the female Applicant?
b) Did
the panel err by categorizing the risk of rape to the female Applicant as a
generalized risk and by not considering the specific gender guidelines as they
apply to this specific circumstance?
c) Did
the panel err by not finding the female Applicant to be a member of a
particular social group under section 96 of the IRPA and by not finding
her to be a refugee under that section?
d) Did
the panel err by finding that there was no evidence supporting the allegation
in the principle Applicant’s PIF that one of the Agency’s inspectors was
assassinated?
e) Did
the panel err by requiring the principle Applicant to provide evidence that
Agency employees are specifically targeted?
f) Did
the panel err by making other miscellaneous findings which were either wrong
factually or were the basis for other erroneous conclusions?
[9]
I
will begin by addressing issues d) to f) together. It is the Applicants’
position that the Board made several errors. These errors included the finding
that there was no evidence supporting the allegation of an attack on an Agency
employee; misstating where the principle Applicant had lived; finding that the
female Applicant misstated if she had brothers, and the Board’s conclusions on
the issue of citizens returning from abroad being specifically targeted.
[10]
The
Applicants argue that some of these errors may have resulted in the Board not
finding the principle Applicant credible. Specifically, the Applicants argue
that the panel may have overlooked the evidence on the attack on the Agency
employee, that this evidence was important to the Board’s findings, and
therefore the Board made an erroneous finding in a perverse manner without
regard to the evidence. The evidence in question is an article entitled “Haiti: Adventist
Aid Agency Worker Dies in Shooting” and was identified as
Exhibit C-7 in the Applicants’ index of documents.
[11]
The
Respondent argues that the erroneous findings by the Board were wholly
immaterial.
[12]
If
the mistakes were limited to the findings of where the Applicants lived in the United
States
or if the wife had brothers, I would agree with the Respondent. However, the
Board stated at paragraph 52 and 54:
52. There is an
allegation in the principle claimant’s PIF narrative that one of the Agency’s
inspectors was assassinated. However, there is no indication who that person
was who was assassinated, her or his role with the Agency, the date or place of
the alleged assassination or who the assassins were or why she or he was
killed. I give little or not credence to the allegation.
[…]
54. I find that there is
insufficient credible or trustworthy evidence given by the principle claimant
to support his allegations that because of his association with ADRA, he will
face a risk which was similarly faced by other persons who allegedly were
associated with ADRA.
[13]
The
article in Exhibit C-7, “Haiti: Adventist Aid Agency
Worker Dies in Shooting”, answers some of these questions and was before
the decision maker. Based on the above stated paragraphs, the Board overlooked
this piece of evidence and the decision may have been different if the evidence
was not overlooked. Therefore, the decision of the Board was made without
regard for the material before it and is not reasonable.
[14]
In
this case, the female Applicant's claim relied on that of the principle Applicant
and her fear of rape. The decision reflects this reliance and focuses primarily
on the principle Applicant's claim to the point that is impossible to separate
the decision with regard to the principle and female Applicants. Therefore, the
decision is unreasonable for the female Applicant for the same reasons as for
the principle Applicant. It is therefore unnecessary to address issues a) to c).
[15]
The
Applicant proposed the following question for certification: Does a woman need
to establish that she was specifically raped or targeted for rape, in addition
to country conditions that establish rape as a significant problem in her
country of origin, in order to be described under subsection 97(1)(b)(ii) of
the Immigration and Refugee Protection Act? Based on the facts of this
case, I do not find that the question meets the test for certification as set
out in subsection 74(d) of the IRPA and recently reviewed by the Court
of Appeal in Kunkel v. Canada (Minister of Citizenship and Immigration),
2009 FCA 347; [2009] F.C.J. No. 1700. Therefore, I decline to certify the
question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this
application for judicial review is allowed. The decision is set aside and the
matter is referred back to the Refugee Protection Division for reconsideration
by a different panel in accordance with these reasons; and
2. there is no order as to costs.
“ D.
G. Near ”
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