Date: 20091029
Docket: IMM-1638-09
Citation: 2009 FC 1105
Montreal, Quebec, October 29, 2009
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
MILDREDE SERMOT
LUCROSSE SERMOT
Applicants
and
THE 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 Act) of a decision by the
Refugee Protection Division of the Immigration and Refugee Board (the panel),
dated February 13, 2009, according to which Mildrede Sermot (the applicant) is
not a Convention refugee as defined in section 96 of the Act or a person in
need of protection under section 97 of the Act.
[2]
The
applicant is a citizen of Haiti
who alleges that she took part in peaceful activities against the government of
Jean Bertrand Aristide in November 2003. She left her country to go to the United States because she was
allegedly beaten during the demonstration and members of the Chimera allegedly
came to her house. Her refugee claim was denied. In April 2007, she arrived in Canada and claimed refugee
protection for herself and her minor daughter.
[3]
The
panel’s negative decision was based on the lack of credibility and
contradictions in the applicant’s testimony. Having analyzed the documentary
evidence, the panel considered that the fear alleged by the applicant arose
from a generalized risk.
[4]
The
standard of review that applies in such circumstances is reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[5]
The
Court must determine whether this decision is justified and based on the
evidence adduced. The Court must also ask itself whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir, at paragraph 47).
[6]
The
applicant is not challenging the panel’s findings with respect to its
determination of the identity of her daughter and the rejection of her claim. Nor is she
challenging the negative findings concerning her credibility.
[7]
The
only issue to decide is whether the panel made an unreasonable decision in
finding that the applicant was not persecuted by reason of her membership in a
particular social group – women – in Haiti.
[8]
The
Court is satisfied that the panel understood the grounds for persecution
alleged by the applicant and proceeded to analyze that fear. Here is what the
panel wrote on the subject at paragraph 18:
[translation]
According to the documentary evidence,
the political situation in Haiti is considered stable since
the elections of 2006, and most political forces accept the new rules of the
game and are co-operating with Préval and the prime minister. Only a small
percentage of Aristide supporters still call for his return by maintaining
insecurity and violence. This
is also confirmed by Exhibit P-2 (Amnesty International Report 2008), which
states that political violence has remained relatively rare and that social
unrest and violence are rather a consequence of high unemployment, mass poverty
and drug trafficking. Nothing in the evidence indicates that the applicant could
be the target of specific violence or be persecuted by reason of her membership
in the particular social group “women”. The documentary evidence indicates that
the risk of being the victim of violence by armed gangs in Haiti could be described as a generalized risk
that is not connected with the two above-mentioned variables. The panel finds,
therefore, that the applicant did not objectively demonstrate her fear in
connection with her political activities or her membership in a particular
social group.
[9]
It
is for the panel to assess the evidence as a whole and to weigh it. Where the
determination is reasonable, as is the case here, the Court must not reassess
the evidence in a judicial review proceeding (Singh v. Canada
(Minister of Citizenship and Immigration), 2008 FC 408, [2008] F.C.J. No. 547
(QL), at paragraph 17; Malagon v. Canada (Minister of Citizenship and Immigration),
2008 FC 1068, [2008] F.C.J. No. 1586 (QL), at paragraph 44).
[10]
Moreover,
this argument was raised recently and Justice Lagacé dealt with it as follows
in Soimin v. Canada (Minister of
Citizenship and Immigration), 2009 FC 218, [2009] F.C.J. No. 246 (QL), at paragraph
14:
The violence feared by the applicant
arises from general criminal activity in Haiti, and not the discriminatory targeting of
women in particular. The harm feared is criminal in nature and has no nexus to
the Convention refugee definition. The generalized risk of a situation in a
country must be distinguished from the probable risk to a person on the basis
of his or her particular circumstances.
[11]
The
Court believes that this obiter dictum applies here.
[12]
The
applicant proposed the following question for certification:
[translation]
Does the Convention apply for women where
there is a context of generalized violence and where they are raped?
[13]
The
respondent objected to this question. The Court considers that the question is too
general.
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