Date: 20101108
Docket: IMM-804-10
Citation: 2010 FC 1100
Ottawa, Ontario, November 8, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MANITA FREDERIC
RODERK FREDERIC
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Ms. Manita Frederic fled Haiti in 1994 with her son, Roderk, just
after her mother, brother and sister were murdered in Port-au-Prince. The perpetrators, she believed, were opponents of President Aristide,
whom the family supported. She sought asylum in the United
States, but her claim was denied. In 2007, she came to
Canada with her U.S.-born son,
Roderk, and claimed refugee protection here.
[2]
A panel of the Immigration and Refugee Board
found Ms. Frederic’s account of her experiences in Haiti credible, but denied her claim because the identity of the
murderers and the reason for the attack were unknown. Based on the fact that
her shop had been destroyed in 1991 by political opponents, Ms. Frederic
suspected a political motivation for the murders of her relatives. However, she
had no evidence to support her belief.
[3]
The Board concluded that any risk that Ms.
Frederic would be persecuted on political grounds had now subsided. It went on to
consider two other potential grounds for her claim: (1) whether Ms. Frederic
was at risk of serious mistreatment based on the fact that women in Haiti are
frequently victims of sexual crimes, and (2) whether Ms. Frederic was at risk
of extortion or kidnapping on her return to Haiti because she would be
perceived to be a person of comparative wealth having lived for many years in
the United States and Canada. In respect of these latter grounds, the Board
found that crime is rampant in Haiti and any fear Ms. Frederic may have of being a victim of crime would
be shared with the entire population. She would not be singled out on the basis
of her membership in a social group. Nor would the risk be personal to her.
[4]
In her application for judicial review, Ms. Frederic
raises only one issue: Did the Board err when it concluded that fear of sexual
assault cannot give rise to refugee protection because it amounts to a general
fear of crime which affects the entire population of Haiti, not a particular
social group?
[5]
In my view, in the circumstances of this case,
the Board did not err. I must, therefore, dismiss this application for judicial
review.
II.
The Board’s Decision Regarding Risk of Sexual
Assault
[6]
The Board began by noting that Ms. Frederic had
not expressly raised the issue of fear of sexual violence in her claim. Rather,
her counsel raised it at the hearing.
[7]
The Board referred to documentary evidence
confirming that Haitian women and girls face widespread violence. Sexual
assaults are common and often unpunished. However, crime in general is rampant
in Haiti. Women are not
specifically targeted. All Haitians are at risk of becoming victims of criminal
acts (citing Soimin v. Canada (Minister of Citizenship and
Immigration), 2009 FC 218, and Lozandier v. Canada (Minister of Citizenship and
Immigration), 2009 FC 770). Accordingly, the Board
concluded that there was no nexus between Ms. Frederic’s fear of sexual assault
and a ground of persecution recognized in the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, s. 96.
III.
Did the Board Err in Dismissing Ms.
Frederic’s Claim?
[8]
Ms. Frederic argues that the Board erred in law
when it concluded that a finding of general criminality in Haiti was sufficient to dismiss her claim.
She maintains that the Board was obliged to go on to consider whether she was,
in fact, persecuted on the basis of gender.
[9]
In support of her position, Ms. Frederic relies
on Justice Yvon Pinard’s statement that “a finding of generality does not
prohibit a finding of persecution on the basis of one of the Convention
grounds” (Dezameau v. Canada (Minister of Citizenship and Immigration), 2010 FC 559, at para. 23). She also notes Justice Richard Boivin’s
observation that the Board must, even where there is evidence of general
criminality, determine whether the claimant had a well-founded fear of
persecution on a Convention ground (Luc v. Canada (Minister of
Citizenship and Immigration), 2010 FC 826, at para. 25).
[10]
As I read the Board’s decision, it did not stop
short of considering whether Ms. Frederic had a well-founded fear of
persecution on a Convention ground. It did not conclude that a finding of
general criminality was, in itself, an obstacle to her claim. Rather, the Board
found that Ms. Frederic’s fear was not related to her membership in a
particular social group or any other Convention ground. In other words, the
Board did not fail to consider whether there was a nexus to a recognized ground
of persecution. It specifically concluded that no such nexus existed – her fear
was “not for reason of her membership in a particular social group nor for
reason of any other ground mentioned in section 96”.
[11]
I would also note that, while the issues raised
in this case are difficult and merit, in appropriate circumstances, serious
scrutiny both by the Board and this Court, this is not an apt case to analyze
them thoroughly. As mentioned, the proposition that a woman’s fear of sexual
violence could form the basis of a refugee claim was not the main thrust of Ms.
Frederic’s application. Accordingly, the evidence before the Board was not as
extensive as one might otherwise have expected, and the submissions on the
point were not as detailed as they might have been in a case in which the issue
was central to the claim.
IV. Conclusion and Disposition
[12]
In light of the evidence before it, the Board
did not err in its analysis of the question of whether Ms. Frederic’s fear of
sexual assault could amount to persecution based on membership in a particular
social group. Therefore, I must dismiss this application for judicial review. In
the circumstances, no question of general importance will be stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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