Date: 20091119
Docket: IMM-1816-09
Citation: 2009 FC 1170
Ottawa, Ontario, this 19th
day of November 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Marie
Nerlande MARCELIN GABRIEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review by the refugee claimant pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, (the “Act”) of the decision of the Refugee Protection Division of
the Immigration and Refugee Board (the “Board”), rendered March 18, 2009. The
Board found that the applicant was neither a refugee nor a person in need of
protection. The Board denied the section 96 claim because there was not a
sufficient nexus between the persecution feared and the Convention ground. The
Board denied the section 97 claim because it found the risk of persecution was
a generalized risk of becoming the target of criminal activity faced by all
Haitians.
* * * * * * *
*
[2]
Marie
Nerlande Marcelin Gabriel (the “applicant”) is a thirty-three year old citizen
of Haiti. Her
daughter, Keisha Dorrine is a citizen of the United States (the “U.S.”). The
applicant fled Haiti for the United States in 1994. The reason for
leaving Haiti was that two
of her uncles were involved in “Militant”, a political organization that
campaigned against Aristide’s government. The Lavalas Party supported
Aristide’s regime. In 1992 the Lavalas Party began targeting their opponents in
the “Militant”. The applicant’s whole family was a target, despite the fact
that the uncles had fled. One evening her family was shot at and a woman hiding
with them died. Shortly after, the applicant and her mother moved to Cabaret and
her brother was kidnapped by Lavalas members. In 1994 she fled Haiti for the U.S. but her
mother stayed behind. She was reunited with her brother who had successfully
claimed refugee status in the U.S. Her uncles who were the principal targets
of the Lavalas Party also successfully claimed refugee status and were living
in the U.S. She has
another brother who lives in St. Martin.
[3]
Two
years after arriving in the U.S., she applied for asylum but was rejected
because she did not show up for the scheduled hearing. She explained to the
Board that she was moving at the time and did not receive the hearing notice.
She lived in the U.S. without status until 2007. She also married an
American citizen in 2007 (it is not clear what the current status of her
relationship is). On March 27, 2007 she arrived in Canada with her
American born daughter and claimed refugee protection.
[4]
She
claims protection on the grounds of her membership in a particular social group
(her maternal family, specifically her two political uncles) and imputed
political opinion. She alleges that she is afraid to go back to Haiti because she
could be kidnapped, tortured and/or killed by members of the Lavalas Party.
[5]
Her
claim was heard by the Board on February 10, 2009 and rejected on March 18,
2009.
* * * * * * *
*
[6]
In
its section 96 analysis, the Board held that the applicant did not supply a
credible basis for her fear of persecution seventeen years after she fled Haiti. The targets
of past persecution were her uncles. She was not involved in politics at the
time she fled. Her mother has been living safely in Haiti until
recently and has not been targeted for revenge by the Lavalas Party.
Furthermore, the Lavalas Party is no longer a coherent organization and so it
is not presently in a position to be an agent of persecution.
[7]
The
Board also determined that the applicant’s behaviour, while living in the United
States,
was not consistent with a fear for her life. The tribunal supplied two specific
examples. First, the applicant delayed two years before claiming asylum in the United
States
notwithstanding available information on how to proceed with the refugee
process. Second, her claim was declared abandoned due to her failure to ensure
that the U.S. Immigration authorities had her current contact information.
[8]
The
Board found that the applicant did not discharge her burden to show a
well-founded fear of persecution pursuant to section 96 of the Act.
[9]
In
its section 97 analysis, the Board concluded as follows:
[22] The
Tribunal finds that the principal claimant would face a generalized risk should
she return to Haiti; a risk shared by the
population in general. […] As a Haitian expatriate, the principal claimant
might be perceived as being wealthy by criminal elements but this is a risk
faced by a segment of the total Haitian population, indigenous and returnee,
who are perceived as rich. No evidence was adduced to establish that the
principal claimant would face a “particularized risk” or a specific threat
directed at her as an individual upon her return.
* * * * * * * *
[10]
In
Prophète
v. Minister of Citizenship and Immigration, 2008 FC 331, this Court, at paragraph 11,
held that interpretation of section 97 of the Act is a pure question of law,
reviewable on the standard of correctness. However, the question certified in
that decision was declined by the Federal Court of Appeal on the basis that
“[t]he examination of a claim under subsection 97(1) of the Act necessitates an
individualized inquiry” (Prophète v. Minister of Citizenship and Immigration,
2009 FCA 31, at paragraph 7). This reason has since been interpreted by my
colleague Justice Johanne Gauthier as “clearly” indicative that the inquiry
under 97 is not one of pure law (Acosta v. Minister of Citizenship and
Immigration, 2009 FC 213). Accordingly, the appropriate standard of review
is reasonableness because the issue is one of mixed fact and law (Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190, at paragraph 53). Thus, if the decision falls within a
range of possible, acceptable outcomes that are defensible in respect of the
facts and law it is reasonable (Dunsmuir, at paragraph 47).
Did the Board err when it interpreted section 97
of the Act?
[11]
The applicant
argues that this Court should find the Board’s decision unreasonable for the
following two reasons: first, based on Surajnarain v. Minister of
Citizenship and Immigration, 2008 FC 1165, it erred in interpreting the
legal concept “particularized” risk to the circumstances of the applicant; and
second, it ignored documentary evidence that gave evidence of the
“particularized” risk facing the applicant and contradicted the Board’s
conclusion.
[12]
A section
97 risk does not require a nexus between the fear and Convention grounds (Cius
v. Minister of Citizenship and Immigration, 2008 FC 1, at paragraph 23).
The Board rejected the applicant’s claim of persecution on the grounds of
imputed political opinion. However, in respect of the section 97 analysis, the
applicable subgroup the applicant claimed put her at risk of persecution was
the Haitian Diaspora, a perceived wealthy class of people.
[13]
The
evidence necessary to establish a claim under section 97 differs from section
96 of the Act. When considering a section 97 claim the Board must decide
“whether the claimant’s removal would subject him personally to the dangers and
risks stipulated in paragraphs 97(1)(a) and (b) of the Act” (Odetoyinbo
v. Minister of Citizenship and Immigration, 2009 FC 501, paragraph 7).
[14]
In Prophète,
supra, the Court held that the applicant must demonstrate a “personal”
risk to persecution; the Federal Court of Appeal specifically noted that the
section 97 interpretation involves a personalized analysis of the applicant.
[15]
However,
Justice Eleanor Dawson in Surajnarain, supra, appears to
be recalibrating the focus of the section 97 analysis. Instead of considering
if the evidence demonstrates sufficient personal circumstances to link an
applicant to the persecution feared, the inquiry should focus on whether the
risk is indiscriminate or random. If it is not a random risk, it is a
particularized risk to the applicant. Justice Dawson’s comments are made in obiter
dicta. At paragraph 17, she rejects the argument that the applicants be
required to demonstrate a direct link between themselves (as individuals) and
the risk:
[t]he
threat is not restricted to a risk personalized to an individual; it
includes risks faced by individuals that may be shared by others who are
similarly situated. […] Any risk that would apply to all residents or
citizens of the country of origin cannot result in a positive decision
under this Regulation.
(My
emphasis.)
Thus, she accepts that a personalized risk can
be that which is particularized to the circumstances of an applicant and those
similarly situated. Membership, then, to a targeted subgroup is seemingly
sufficient to constitute a personal risk.
[16]
To
follow Justice Dawson’s analysis, provided in obiter, would be a
departure from the dominant interpretation of section 97. The risk is
restricted to instances where the applicant can satisfy the Board of an
individual connection to the risk.
[17]
The respondent
argues that the Board applied the dominant interpretation of section 97 and
that it is not an error in law for the Board to express disagreement with a
comment of a Federal Court judge made in obiter dicta. I agree (see Canada (Commissioner of
Competition) v. Superior Propane Inc., [2003] 3 F.C. 529 (C.A.)).
[18]
In Carias
v. Minister of Citizenship and Immigration, 2007 FC 602, Justice John O’Keefe
explained that a person in need of protection is a person whose removal to
their home country would subject them personally to a risk to their life or to
cruel and unusual treatment or punishment “if the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in that country” (at paragraph 24).
[19]
In Cius,
supra, Justice Michel Beaudry found that a high risk that a person will
be targeted as a victim of crime is not a particularized risk. The applicant in
that case was a Haitian man who alleged a fear of armed gangs in Haiti who are
known to target Haitians who have been abroad, foreigners, and anyone who they
perceive to have wealth. Justice Beaudry found that the applicant was the
subject of general violence, which was the fallout of criminal activity across
the country. He further noted that people who are perceived of as wealthy are
“not marginalized in Haiti” but rather they are more frequently the targets of
criminal activity than the rest of the population (at paragraph 18). The
documentary evidence provided clear support of widespread crime in Haiti of which all citizens
are at risk. This is the only case to suggest that the person asserting a
personal risk belong to a category of persons who are marginalized. Cruel and
unusual punishment or torture can be targeted at persons who are not marginalized
in society. Risk to persecution and marginalization are two different concepts.
[20]
A
generalized risk need not be one experienced by every citizen. A subgroup can
face a generalized risk. This was clear to Madam Justice Judith Snider in Osorio
v. Minister of Citizenship and Immigration, 2005 FC 1459. The Court was
asked to consider parents in Colombia as a specific group that is targeted as victims of crime,
specifically, child abduction. The Court noted that the category of “parents”
is significantly broad and the risk is a widespread or prevalent risk for all
Colombian parents (at paragraph 25). The applicants in that case could not
personalize the risk beyond membership to that subgroup and this did not
satisfy the Court. Thus, a generalized risk could be one experienced by a
subset of a nation’s population thus, membership in that category is not
sufficient to personalize the risk.
[21]
Similarly
in Carias, supra, Justice O’Keefe held, at paragraph 25 that the
wealthy class of people in Honduras is a “large group of people” and the applicants had to
satisfy the Board that “they would be personally subjected to a risk that was
not generally faced by others in Honduras”. Thus, given its size, an association with the
wealthy class was not sufficiently personal.
[22]
Most
recently, in Charles v. Minister of Citizenship and Immigration, 2009 FC
233, Justice Luc Martineau curtly dismissed that applicant’s claim that he will
be at a greater risk if returned to Haiti because of a general perception that
those who return from abroad are wealthy. It was dismissed because there was no
“personal” risk noted as required by Prophète or Carias, supra
(see also Philomena Innocent c. Le ministre de la Citoyenneté et de
l’Immigration, 2009 CF 1019; Michaud v. Minister of Citizenship and
Immigration, 2009 FC 886; and Octave v. Minister of Citizenship and
Immigration, 2009 FC 403).
[23]
While
I appreciate the approach taken in obiter by Justice Dawson in Surajnarain,
supra, it is clearly not the analysis taken by this Court for determining
section 97 claims. The risk must be particularized to the personal
circumstances of the claimant.
[24]
In
any event, the documentary evidence available to the Board indicates that the
risk that a person will be targeted for crime is heightened not just due to
their perceived wealth but also relates to their political activity.
Did the Board
ignore documentary evidence that contradicted its conclusion that the applicant
does not face a particular threat upon her return to Haiti?
[25]
The
Board explicitly accepted that the applicant might be perceived as being
wealthy by criminal elements as an expatriate. It did not specifically mention
the documentary evidence supporting its conclusion but nor is it required to do
so. There is a presumption that the Board has considered all the evidence (Cepeda-Gutierrez
v. Canada (M.C.I.), 157 F.T.R. 35). The applicant submits that there is a document
which contradicts the Board’s finding that she does not face a particularized
risk.
[26]
The
document that the applicant argues that the Board ignored, and the applicant
claims contains equivocally supportive evidence of her particularized risk,
states that:
.
. . 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”.
In
correspondence sent to the Research Directorate on 27 September 2007, a
legal and human rights expert from the Canadian Support Program Unit in Haiti
(Unité d’appui au programme de la coopération canadienne à Haiti, 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, 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).
[27]
As
clearly set out by this document, it was reasonable for the Board to conclude
that membership in the Haitian Diaspora was not sufficient to attract the
personal risk the applicant argues she faces. The alleged contradiction is
contained within the same document that the Board likely relied on for finding
that as a member of the expatriate subgroup of the population the applicant is
likely to be perceived of as wealthy. From that same document, also relevant to
determining her risk to be targeted by criminal elements is the applicant’s
political role in the past. The Board did not ignore relevant evidence before
it. The Board is entitled to weigh the evidence before it: the Board’s decision
was reasonable.
* * * * * * * *
[28]
For
all the above reasons, the application for judicial review will be dismissed.
[29]
The
applicant submits the following question for certification, alleging that it
“can be resolved independent of a particular fact pattern”:
In
order to avoid the application of the risk “not faced generally by other
individuals” clause of section 97(1)(b)(ii) of the Immigration and Refugee
Protection Act [IRPA], is it sufficient for a person seeking protection to
establish that the risk they face is not indiscriminate or random but rather
related to their personal circumstances?
[30]
For
his part, the respondent submits that the question should not be certified as
it would not be determinative of the appeal. The respondent specifies that the
issue is simply not raised by the facts of this case. I agree. In so doing, I
adopt the reasoning contained in paragraphs 4 to 10 of the respondent’s
“Response to Proposed Question for Certification” (document 11).
[31]
Accordingly,
there is no certification.
JUDGMENT
The application for judicial review
of the decision of the Refugee Protection Division of the Immigration and
Refugee Board, rendered on March 18, 2009, is dismissed.
“Yvon
Pinard”
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