Date:
20110317
Docket: IMM-3165-10
Citation: 2011 FC 322
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, March 17, 2011
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
|
|
NATALIE LAMOUR
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, submitted by the applicant, Natalie
Lamour, a citizen of Haiti, in accordance with subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision by the
Immigration and Refugee Board (panel) dated May 19,
2010, rejecting her refugee claim on the grounds that she is not a Convention
refugee or a person in need of protection.
[2]
After
reviewing the file and the written and oral submissions of the parties, I have come
to the conclusion that there is no reason warranting the intervention of this
Court.
I. The facts
[3]
Ms.
Lamour was a violin teacher in Port-au-Prince and Jacmel, Haiti, and alleges having
been a victim of several criminal assaults purportedly because of her status as
a woman musician.
[4]
At
the beginning of July 2004, while travelling to Jacmel to give music lessons to
underprivileged children, Ms. Lamour said that she witnessed an armed assault. She
was allegedly released by one of the assailants after he purportedly found out
that she was a musician.
[5]
On
July 17, she was apparently again a victim of an armed assault, this time by
four men who were after her personally because she is an artist. After this incident,
she said she occasionally received threatening telephone calls accusing her of
being privileged, a musician and an intellectual. She nevertheless continued to
travel to Jacmel for work until the month of August of the same year.
[6]
In
October 2004, she was apparently pursued by four armed men who purportedly
tried to assault her. Then, in February 2005, an armed man allegedly tried to
break into her home, fired shots and uttered threats against intellectuals and
artists like her.
[7]
Ms.
Lamour was unable to identify her various assailants, whom she describes as common
criminals. During the hearing, she said that she fears a group of bandits in
particular, the Zinglindos, who are apparently present throughout Haiti and purportedly
attack people without provocation. This group apparently has no organizational
hierarchy and there is no ideological motivation behind their actions.
[8]
Fearing
being kidnapped, she left Haiti on March 12, 2005, for the United
States.
She stayed there as a visitor, and then remained there illegally. She then
claimed refugee protection in Canada on February 1, 2008.
II. Impugned decision
[9]
First,
the panel dismissed the applicant’s claims that she fears persecution by reason
of her membership in the particular social group of women and her profession.
Relying on the documentary evidence, the panel concluded that all Haitians are just
as likely to become victims of criminal offences and that this threat does not
affect women exclusively. Similarly, the panel noted that no evidence was
submitted showing that artists are more of a target for criminals. As victims
of criminal acts are not part of a particular social group, the panel therefore
rejected Ms. Lamour’s claim in accordance with section 96 of the Act.
[10]
Moreover,
the panel concluded that the applicant falls under the exception of
subparagraph 97(1)(b)(ii) of the Act, insofar as the risk she claimed
she would face if she were to return to live in Haiti was a generalized risk of
crime faced by the general population of Haiti.
[11]
Furthermore,
the panel believed that certain inconsistencies in the applicant’s testimony
with respect to her own experiences and the treatment of other musicians in Haiti called into question
the credibility of her account. For example, the applicant alleged that all
musicians in Haiti are victims
of persecution and assault, but admitted that the other musicians she knew had
not been assaulted. Furthermore, she maintained that she had been assaulted because
of her status as a musician, while in another instance, she had been released
because she was a music teacher. Finally, the panel was of the view that the
fact that she returned to teach music in Jacmel after being assaulted there
brought her subjective fear into question.
[12]
The
panel therefore found that the applicant had not established, on a balance of
probabilities, that she would be personally subjected to persecution or to a
danger of torture, a risk to her life or a risk of cruel and unusual treatment
or punishment if she were to return to Haiti.
III. Did the panel err in
rejecting Ms. Lamour’s refugee claim?
[13]
First,
it should be noted that Ms. Lamour’s counsel is not calling into question the
panel’s findings with respect to section 96 of the Act. He is basically
challenging the finding that the risk the applicant is claiming to face is
generalized. In this respect, he is submitting that the numerous assaults Ms.
Lamour was a victim of show that she was not a random victim but rather
personally targeted because of what she represents, that is, her status as a woman
musician and intellectual.
[14]
It
is undisputed that the assessment of the evidence and the findings by the panel
with respect to the risk of persecution are issues subject to the standard of
reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, at para.
47.
[15]
It
appears to me that the applicant was correct not to call into question the
panel’s findings with respect to section 96 of the Act. Relying on the
documentary evidence demonstrating that criminality is rampant in Haiti and
that the risk of being a victim of criminal acts does not affect a particular group
of the population exclusively, the RPD found that the applicant was a victim of
this criminality, not persecution within the meaning of the Convention.
[16]
This
finding is consistent with numerous decisions by this Court on this matter. The
case law is consistent that the fear of a refugee claimant who is a victim of
threats, extortion or further retaliation at the hands of criminals does not
constitute persecution under one of the five grounds mentioned in the
Convention: see, for example, Hernandez v Canada (Citizenship and Immigration),
2003 FCT 5 (FC); Yuen v. Minister of Employment and Immigration, [1994] F.C.J.
No. 1045 (FCA); Lozandier v. Canada (Citizenship and Immigration),
2009 FC 770; Jean v. Canada (Citizenship and Immigration), 2010 FC 674.
[17]
It
is the responsibility of the RPD to determine whether the applicant’s claim for
protection can be related to one of the grounds of persecution set out in the Convention.
This is a question of fact that is within the panel’s area of expertise, the determination
of which must warrant a high degree of deference by this Court. In this case, the
applicant merely expressed her disagreement and reiterated the arguments she made
before the RPD; this is not sufficient to warrant the intervention of this
Court.
[18]
The
applicant’s alleged risk of being kidnapped also cannot be accepted in
accordance with section 97. In order to qualify as a person in need of
protection, the applicant had to demonstrate that she would “personally” face a
risk and that this risk is not one the population generally faces, as specified
in subparagraph 97(1)(b)(ii) of the Act:
|
Person in need of protection
97. (1) A person in need of protection
is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
|
Personne à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
|
[19]
In
this case, the RPD did not accept the applicant’s allegation that she had been
targeted by her assailants, whether it was as a member of a risk group (woman,
musician) or personally. Relying on the documentary evidence addressing the
situation in Haiti, the panel found
that crime is a generalized problem in this country that is faced by the general
population. Moreover, the respondent filed several decisions by this Court that
refer to this unfortunate situation: see Lazandier, above; Jean v.
Canada (Citizenship and Immigration), 2010 FC 674; Sermot v. Canada (Citizenship
and Immigration), 2009 FC 1105; Soimin v. Canada (Citizenship and Immigration),
2009 FC 218; Frederic v. Canada (Citizenship and Immigration), 2010 FC
1100; Cyriaque v. Canada (Citizenship and Immigration), 2010 FC 1077.
[20]
It
is well established that a generalized fear of crime, shared by the population
as a whole, does not meet the criteria of section 97 of the Act. My colleague,
Justice Danièle Tremblay‑Lamer, wrote on this point in a decision quoted
by the panel:
22. In the recent case of Carias
v Canada (Minister of Citizenship and
Immigration)
. . . paras. 23 and 25, O’Keefe J. concluded that the applicants faced a
generalized risk of economic crime which was experienced by many other
Hondurans, including those perceived as wealthy. In that particular case, the
Board accepted that the applicants had been the victims of violence, however,
O’Keefe J. dismissed the application indicating, at para. 25, that “[t]he
applicants are members of a large group of people who may be targeted for
economic crimes in Honduras on basis of their perceived wealth.” Further, he held that
“[g]iven the wording of subparagraph 97(1)(b)(ii) of the IRPA, 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.”
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.
Prophète v. Canada (Citizenship and Immigration), 2008 FC 331, aff’d. by the Federal
Court of Appeal in 2009 FCA 31.
[21]
The
documentary evidence is not adequate for establishing that woman musicians are
more at risk than the Haitian population in general. She could very well have
been perceived as privileged because she was in contact with wealthy people, and
could have therefore been more susceptible to kidnapping and extortion. Again,
this does not make her a person directly subject to a risk to her life or to a
risk of cruel and unusual treatment or punishment.
[22]
Alternatively,
the applicant’s counsel submitted that she was personally targeted by criminal gangs
or individuals and that the assaults she was a victim of were not random. In
support of his submissions, counsel relied on Martinez Pineda v. Canada (Citizenship
and Immigration), 2007 FC 365, in which this Court found that the RPD
had erred in finding that the applicant was not subjected to a risk greater
than the risk faced generally by the population of El Salvador, relying on the
fact that street gangs recruited across the country and targeted all levels of
society, according to the applicant’s own admission.
[23]
However,
it should be noted that the facts underlying that case were very different from
the situation in which the applicant found herself in this case. In Pineda,
the applicant received threats for a long period of time and by the same
individuals. As noted by the Court, the applicant did not claim to be subject
to a risk to his life or his safety based only on the fact that he was a
student, young or from a wealthy family. He had been personally targeted, and
the risk that he faced was clearly greater than that faced by the population as
a whole. To that end, the Court wrote the following:
15. Under these circumstances, the RPD’s finding is patently
unreasonable. It cannot be accepted, by implication at least, that the
applicant had been threatened by a well-organized gang that was terrorizing the
entire country, according to the documentary evidence, and in the same breath
surmise that this same applicant would not be exposed to a personal risk if he
were to return to El Salvador. It could very well be that the Maras
Salvatruchas recruit from the general population; the fact remains that Mr.
Pineda, if his testimony is to be believed, had been specifically targeted and
was subjected to repeated threats and attacks. On that basis, he was subjected
to a greater risk than the risk faced by the population in general.
[24]
Given
the above-mentioned reasons, I am of the opinion that it was reasonable for the
RPD to find that the applicant was not likely to be personally subjected to a
risk not shared by other Haitians. The fact that the applicant disagrees with
this finding is not sufficient to warrant the intervention of this Court.
[25]
The
parties did not propose any serious question of general importance;
consequently, no question will be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review is dismissed. No question is certified.
“Yves
de Montigny”
Certified true
translation
Janine Anderson,
Translator
Email this Content