Date: 20090304
Docket: IMM-3470-08
Citation: 2009 FC 218
Montréal, Quebec,
March 4, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
RUTH
SOIMIN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The applicant is seeking judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act), of a decision dated July 10, 2008, by the Refugee
Protection Division of the Immigration and Refugee Board (RPD), which
determined that she was neither a “refugee” nor a “person in need of
protection” within the meaning of sections 96 and 97 of the Act, and
which accordingly rejected her refugee protection claim, on the basis that
it had no nexus to any of the five Convention grounds and her fear of being
kidnapped was a generalized risk.
II. Facts
[2]
The
applicant, a citizen of Haiti, alleges that, as a woman, she fears being
the victim of rape in her country. She also alleges that she would be
personally targeted since she has travelled abroad and would therefore be perceived
as being wealthy.
[3]
Following
a trip to Canada in 2002 to accompany
an aunt, who was a Canadian citizen and too old to travel alone, the applicant
allegedly returned to Haiti and reported having been robbed at home.
[4]
On
June 11, 2003, the applicant allegedly once again left Haiti with her
aunt to come to Canada, where she has since remained.
[5]
She
alleges that, in November 2006, she learned of the kidnapping for ransom in Haiti of one of
her neighbours, a woman, who was allegedly raped before being killed. According
to her, it was only on February 22, 2007, that, motivated by that
distant event, she claimed refugee status in Canada, on the
basis that, as a woman, she fears being the victim of rape in her country. She
also alleges that she would be specifically targeted because of her trip abroad
and the perception thus created that she is wealthy.
III. Impugned decision
[6]
In
rejecting her refugee protection claim, the RPD concluded that it has “no nexus
to any of the five Convention grounds and the claimant’s fear of being
kidnapped [was] a generalized risk” rather than a personalized one.
IV. Issue
[7]
Did
the RPD make an unreasonable error in concluding that the applicant was not a
“person in need of protection” under the Act?
V. Analysis
Standard of
review
[8]
Given
that this issue raises a question of mixed fact and law, the Court will apply
in its analysis the standard of reasonableness set out by the Supreme Court of
Canada in Dunsmuir v. New Brunswick, 2008 SCC 9), despite
the applicant’s submissions that the applicable standard here is that of
correctness.
Applicant’s submissions
[9]
The
applicant says that she fears being kidnapped, raped and tortured should she
return to Haiti because of
the general crime and violence in her country of origin.
[10]
The
applicant does not challenge the RPD’s conclusion that her fear of being
targeted by criminals because they perceive her as being wealthy fails to meet
the RPD’s tests.
[11]
However,
she submits that the tribunal errs in law by failing to recognize women in Haiti
who may be targeted by criminals on the basis of their sex as a group that,
in her view, meets the tests to qualify as a particular social group within the
meaning of the Convention.
[12]
Essentially,
the applicant’s submissions amount to saying that all women in Haiti, including
herself, would be members of that group simply by being potential victims of
criminal acts (rape) specific to their sex.
Merits of the
decision
[13]
The
RPD correctly analyzed and understood the applicant’s submissions on that
aspect of her claim, even though it cannot conclude that, in this case, her
fear of persecution is based on her sex. The RPD essentially bases its decision
on the following observations:
a. The main
source of the applicant’s alleged fear “lies not in the fact that she is a
woman, but in the situation of insecurity in Haiti, which
results from widespread criminality throughout the country”.
b. In addition,
the applicant does not fear a specific person or group. She “does not know the
identity of her potential aggressors; she fears all potential criminals in Haiti”.
c. In Haiti, “women are
not the only victims of criminal offences”. On the contrary, in that “country
where crime is endemic . . . both women and men are likely to be victims of
[crime]”.
[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.
[15]
At
the hearing, the applicant herself admitted that in [translation] “Haiti, everyone is scared”
and that women or people like her who travel to Canada are not more
likely to be specifically attacked; all Haitians, both men and women, she
agrees, fear kidnappings and rape.
[16]
The
risk alleged by the applicant is a random risk shared by everyone who lives in
her country; it does not personally or particularly target the applicant. The situation
that the applicant fears is no different from that faced by other individuals
from her country; therefore, she does not qualify as a person in need of
protection, as set out by subparagraph 97(1)(b)(ii) of the Act.
[17]
After
analyzing the facts submitted in evidence and the impugned decision, the Court
must find that the RPD correctly concluded that the applicant failed to
discharge her burden of proving that she was in the situation of a person in
need of protection within the meaning of sections 96 and 97 of the Act.
The RPD’s decision is worthy of all the deference owed to it by this Court.
V. Conclusion
[18]
The
RPD’s decision is justified by both the facts submitted in evidence and the law
bearing on those facts; therefore, it is a reasonable decision that does
not warrant the Court’s intervention. The application will therefore be dismissed.
[19]
Since
no serious question of general importance was proposed, no question will be
certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified
true translation
Tu-Quynh
Trinh
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