Date: 20100419
Docket: IMM-3125-09
Citation: 2010 FC 420
Ottawa, Ontario, April 19, 2010
Present: The Honourable
Mr. Justice Mainville
BETWEEN:
SERGE BRAZARD TANIS
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
This is an application
for judicial review pursuant to sections 72 and following of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), filed by Serge
Brazard Tanis against a decision of the Refugee Protection Division (the panel)
of the Immigration and Refugee Board, bearing number TA7‑15505 and
rendered on May 5, 2009.
[2]
The application for
judicial review shall be dismissed for the reasons below.
Background
[3]
The applicant is a 60‑year‑old
Haitian citizen who left Haiti by boat in 1992 for the United States
Virgin Islands to file a claim for asylum with the American authorities. He
then left the Islands to work on the North American continent, specifically, in
Denver, Colorado.
[4]
The applicant states
that he worked in the construction industry in Haiti
and that he was involved in a community group with close ties to the Lavalas
party, although he was not a member. After President Aristide’s departure in
1991, several Lavalas opponents made life difficult for the members of that
movement. The applicant states that in 1992, he was informed that the
anti-Lavalas group was searching for him. When he learned this, he went into
hiding. Later, his brother was arrested, one of his colleagues was
assassinated, and his house was burned down. He said that, like many dissidents
under the new regime, he fled by sea in May 1992 to the United States Virgin Islands to claim asylum there.
[5]
After the American
authorities rejected his claim for asylum in 2006, on the basis that he lacked
credibility, they ordered him to leave the country. The applicant therefore
decided to come to Canada on December 24, 2007, to file a new
claim for refugee protection with the Canadian authorities.
[6]
The applicant also
submits that he would be at risk as a member of the Haitian diaspora if he were
to return to Haiti. He argues that as a member of the Haitian
diaspora, he would be perceived as wealthy, and thus would be vulnerable to
extortion attempts upon his return. The applicant states that his niece, to
whom he sent money, was assassinated in Haiti
in 2006.
The panel’s decision
[7]
The panel did not
recognize the applicant as a Convention refugee given that the persecution he
claimed to fear in Haiti was related to events linked to the Aristide
government that had taken place 15 years before, and given that the dangerous
political situation in Haiti to which he was referring had since changed
considerably.
[8]
The panel concluded
that the applicant now feared returning to Haiti
because he would be perceived as wealthy and would be a target for kidnappers.
After considering the decisions in Prophète v.
Canada (Citizenship and Immigration),
2008 FC 331, Prophète v. Canada (Citizenship and Immigration),
2009 FCA 31, and Cius v. Canada (Citizenship and Immigration),
2008 FC 1, the panel was of the view that the harm feared by the
refugee protection claimant was not one of the five grounds set out in the
Convention refugee definition. Moreover, the panel did not believe that the refugee
protection claimant would be personally subjected to a danger of torture, a
risk to his life or to cruel and unusual treatment or punishment.
The applicant’s position
[9]
The applicant submits
that the panel misunderstood the Prophète and Cius decisions, which
require an analysis of the circumstances on a case-by-case basis to determine whether
a refugee protection claimant faces a serious risk; this analysis was not
carried out in his case.
[10]
The applicant submits
that the panel ignored the evidence filed with respect to his niece who was
assassinated in Haiti. He also submits that his past political
activities in Haiti would render him subject to heightened danger
in the event of his return.
[11]
The applicant adds that,
in Cius, there was no documentary evidence before the panel regarding
the particular risks faced by Haitians who return to their country. The
applicant argues that, in this case, the documentary evidence establishes that
they do face a heightened risk.
The Minister’s position
[12]
The Minister submits
that because the persecution referred to by the applicant took place about
15 years ago, and given the significant political changes that have since
taken place in Haiti, it was reasonable for the panel to
conclude that the applicant’s fear of persecution based on those past political
events was no longer well founded.
[13]
The Minister also
submits that the applicant had admitted during his testimony before the panel
that the risk that the applicant would be a victim of crime if he returned to Haiti was generalized. Moreover, because the applicant’s
political activities in Haiti were minor and occurred more than
15 years ago, it is not reasonable for the applicant now to claim that he
would face a heightened risk due to these past activities. Finally, the death
of the applicant’s niece is certainly evidence in support of the state of crime
in Haiti, but it does not demonstrate that the
applicant himself faces a particularized risk not faced by Haitians in general.
[14]
As for the applicant’s
claim that Cius does not apply to his case in light of the absence of
documentary evidence regarding the particular risks faced by Haitians who
return to the country, the Minister submits that a similar argument was
rejected by Mr. Justice Mosley in his recent decision in Saint‑Hilaire v.
Canada (Minister of Citizenship and Immigration), 2010 FC 178.
The standard of review
[15]
The only questions
raised by this case are questions of fact and credibility. The applicable
standard of review is the standard of reasonableness, according to the
principles established by the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at para. 53,
and Canada (Citizenship and Immigration) v.
Khosa, [2009] 1 S.C.R. 339,
at para. 46.
[16]
I note that the recent
decisions of this Court on the standard applicable to the section 97
analysis also confirm that it is to be reviewed on a standard of reasonableness: Acosta v. Canada (Citizenship and Immigration), 2009 FC 213; Michaud v. Canada (Citizenship
and Immigration), 2009 FC 886; Innocent v.
Canada (Citizenship and Immigration), 2009 FC 1019, at paras. 36
and 37; Marcelin Gabriel v. Canada (Citizenship and Immigration), 2009 FC 1170,
at para. 10; Saint‑Hilaire v. Canada (Citizenship and Immigration), 2010 FC 178,
at para. 12.
Analysis
[17]
It was reasonable for
the panel to conclude that the applicant could not reasonably fear former
Haitian soldiers on the basis of events that took place more than 15 years
ago, given that the political situation in Haiti
has changed considerably in the meantime. However, it is not this conclusion by
the panel that is the principal focus of the applicant’s challenge, but rather
its conclusion regarding the risk he would face as a member of the Haitian
diaspora.
[18]
The panel recognizes
that civil society in Haiti has all but collapsed and that the rule of
law is, to a large extent, systematically absent; it also recognizes that the
country’s human rights record is poor and that there has been a rash of
kidnappings. Nevertheless, in this case, the panel correctly framed the issue
before it, namely, whether returning the applicant to Haiti
would personally subject him to a risk not faced by the Haitian population
generally. This is the proper question to ask in the circumstances of this case
in light of the Prophète decisions, supra, which I analyzed at
length in my decision in Innocent v. Canada (Minister of Citizenship and Immigration),
2009 FC 1019 (Innocent).
[19]
In Prophète v.
Canada (Citizenship and Immigration), 2008 FC 331, a Haitian
businessman claimed to be a person in need of protection on the basis that persons
who are or who are perceived to be wealthy in Haiti face a greater risk of
violent crime than the general population, even after accounting for the
generalized risk of violent crime in Haiti. Madam Justice Tremblay‑Lamer refused
to recognize the status of person in need of protection in that case for the
following reasons:
[18] The difficulty in analyzing personalized risk in
situations of generalized human rights violations, civil war, and failed states
lies in determining the dividing line between a risk that is “personalized” and
one that is “general”. Under these circumstances, the Court may be faced with
applicant who has been targeted in the past and who may be targeted in the
future but whose risk situation is similar to a segment of the larger
population. Thus, the Court is faced with an individual who may have a
personalized risk, but one that is shared by many other individuals.
[19] Recently, the term “generally” [at
subparagraph 97(1)(b)(ii) of the Act] was
interpreted in a manner that may include segments of the larger
population, as well as all residents or citizens of a given country. In Osorio
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1459, [2005] F.C.J. No. 1792 (QL). In
that case, the applicant asserted that if he and his young Canadian born son
were returned to Colombia it would constitute indirect cruel and unusual
treatment/punishment because of the psychological stress that he would
experience as a parent worrying about his child's welfare in that country. At paras. 24
and 26 Snider J. stated:
[24] It seems to me that common sense must determine
the meaning of s. 97(1)(b)(ii) . . .
[26] Further, I can see nothing in s. 97(1)(b)(ii)
that requires the Board to interpret “generally” as applying to all citizens.
The word “generally” is commonly used to mean “prevalent” or “wide-spread”.
Parliament deliberately chose to include the word “generally” in s. 97(1)(b)(ii),
thereby leaving to the Board the issue of deciding whether a particular group
meets the definition. Provided that its conclusion is reasonable, as it is
here, I see no need to intervene. [Emphasis added.]
. . .
[23] Based on the recent jurisprudence of this Court,
I am of the view 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.
[20]
In Prophète, Madam
Justice Tremblay‑Lamer invited the Federal
Court of Appeal to consider the following issue:
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?
[21]
In its
decision dated February 4, 2009, in Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31, the
Federal Court of Appeal declined to answer the certified question on the basis
that it was too broad. The Court nevertheless noted that there was evidence on
record allowing Madam Justice Tremblay-Lamer to reach the conclusion
she did:
[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 (Prophète 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.
[22]
Thus, as I pointed out
in Innocent, consideration of an application
for protected person status under subsection 97(1)(b)(ii) of the Act
requires an individualized assessment in the context of existing and
prospective risks faced by the applicant. This assessment is based on the
particular facts of each case.
[23]
The
requisite analysis includes not only an analysis of the personalized risk faced
by the person in question, but also a separate analysis of the risk faced by
other individuals from the country in question. The objective of these analyses
is to determine, in each particular case, based on the evidence available,
whether the personalized risk faced by the applicant exists “in every part of
that country and is not faced generally by other individuals in or from that
country”.
[24]
I also held
in Innocent that a textual analysis of subparagraph 97(1)(b)(ii) of
the Act and a pragmatic and functional approach to applying this subparagraph show
that the analysis of the risk faced by other individuals from the country in
question is not necessarily limited to an analysis of the risk faced by the
entire population but may also include an analysis of the risk faced by only
one segment of the population, to the extent that the particular circumstances
of each case justify this approach in light of the objectives of the Act and
its section 97.
[25]
These
various analyses are essentially factual and must be carried out on a
case-by-case basis. To the extent that these analyses and the conclusions based
thereon are reasonable, the Court will not intervene on judicial review of such
a decision by the Refugee Protection Division of the Immigration and Refugee
Board.
[26]
In this
case, the panel concluded that the applicant likely faced a risk that he would
be the victim of crime if he were to return to Haiti, but that this was a generalized risk
faced by the Haitian population. The panel, citing Cius, rejected the
applicant’s submission that members of the Haitian diaspora are perceived to be
wealthier than the rest of the population, making them more attractive to
wrongdoers and therefore placing them at greater risk. In Cius, Mr. Justice
Beaudry found that Haitian repatriates did not face a particularized risk of
violence, but rather a risk of general criminality in Haiti.
[27]
The applicant
submits that the panel’s analysis was deficient in his case because it erred in
relying on Cius only, without considering the new evidence demonstrating
that members of the Haitian diaspora are indeed exposed to a heightened risk of
crime. The applicant cites the National Documentation Package on Haiti, which was available to the panel that
dealt with his case, and in particular document 14.1, which bears the long
title of “HTI102610.FE 15 October 2007. Haiti: Whether Haitians who
have lived abroad (in the United States or Canada, for example) for a long time
(several years) are at risk if they return to their homeland; the kinds of
risks they might face; whether their return could represent a threat to members
of their families and, if so, what kind of threat their families would face and
from whom”.
[28]
Behind this
long title is a brief document that does not support the applicant’s claims.
Reproduced below is almost the entire content of the document in question,
which requires no further comment [emphasis added]:
The Office of the United
Nations High Commissioner for Refugees (UNHCR) in Ottawa responded by letter to
a request for information from the Research Directorate regarding the situation
of Haitians who return to their country after living abroad for several years
(24 Sept. 2007). The UNHCR representative in Canada stated that he had limited information and
that he did not know whether such Haitians face any risks simply because they
have lived abroad (UN 24 Sept. 2007).
The UNHCR representative
indicated that certain categories of people who have lived abroad may face a
higher risk of threats and human rights violations, but he did not list them
all (ibid.). For example, criminals deported to Haiti risk facing human rights abuses as a
result of prison conditions and may be subjected to other violations, such as
arbitrary or long-term detention (ibid.). Stories of Haitians who have
lived abroad for a long time and who are kidnapped after returning to their
country because they appear to have greater financial means are often reported
in the media and by non-governmental organizations (UN 24 Sept. 2007).
Also, some people are more likely than others to be targeted upon returning to Haiti because of their involvement in
political or other activities (ibid.). The risks that a person faces
when returning to Haiti depend on that person's
political role or past and [translation] “are not necessarily related to that
person's status as a Haitian who has lived abroad” (ibid.).
In correspondence sent to the
Research Directorate on 27 September 2007, a legal and human rights expert
from the Canadian Cooperation Support Program Unit in Haiti (Unité d'appui au programme de
la coopération canadienne à Haïti, UAPC) stated that the Haitian diaspora as
a whole cannot be considered a [translation] “risk group” and that each case
must be considered individually and within [translation] “its own context.”
He also indicated, however, that the characteristics of members of the diaspora
[language and different behaviour in public] make them [translation] “a group
apart” that [translation] “stands out” more and is [translation] “targeted more
by kidnappers” (UAPC 27 Sept. 2007).
This issue is addressed in a Boston
Globe article that indicates that people deported to Haiti by the United
States have limited ties with the country and do not speak Creole well, which
makes it difficult for them to adapt and in particular [translation] “makes deportees
more easily identifiable” (11 Mar. 2007).
In correspondence sent to the
Research Directorate on 18 September 2007, an analyst from the
International Crisis Group (ICG) indicated that he has not studied the issue in
detail and that he is not aware of any specific cases of Haitians who have
been at risk following their return after living abroad for several years.
However, he also stated that he has heard rumours and stories about such cases
(ICG 18 Sept. 2004). He indicated that [translation] “Haitians who return
to the country, particularly to Port-au-Prince” face certain risks and that [translation] “those risks are
probably lower outside urban areas” (ibid.).
Information on whether the
return of such people could represent a threat to their families could not be
found among the sources consulted by the Research Directorate.
[29]
I can
identify no error in the panel’s reliance on Prophète and Cius in
concluding that the risk of criminality currently faced by the applicant as a
member of the Haitian diaspora was a generalized risk. Nothing in above-cited
document in the National Documentation Package on Haiti calls this conclusion into question, and,
having read this document, I do not see any error made by the panel in this
respect.
[30]
I also note
that the applicant’s situation resembles that considered by Mr. Justice Mosley
in Saint‑Hilaire v. Canada (Citizenship and Immigration), 2010 FC 178.
[31]
The
applicant also submits that he can establish a personalized risk in this case
in light of the assassination of his niece and his past political activities.
However, the panel did not consider the applicant’s past political activities
to represent a particularized risk given the 15-year period that has since
elapsed. This conclusion is reasonable, as it falls within the possible,
acceptable outcomes which are defensible in respect of the facts and the law.
Moreover, the applicant’s contention that his niece was assassinated
demonstrates, at most, the state of generalized crime that is rampant in Haiti and not a particular risk that the
applicant would face if he returned there.
[32]
In
conclusion, the application for judicial review is dismissed.
[33]
The parties
posed no question for certification pursuant to paragraph 74(d) of the
Act, and no question is certified.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that the application for
judicial review be dismissed.
“Robert M.
Mainville”
Certified true translation
Francie Gow, BCL, LLB
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