Date: 20110513
Docket: IMM-5749-10
Citation: 2011 FC 549
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, May
13, 2011
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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MURIELLE ETIENNE DESGRANGES
AND
PATRICE ETIENNE
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review submitted in accordance with subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of
a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel) dated September
2, 2010, that the applicants are not refugees or persons in need of protection.
THE FACTS
[2]
The
applicants, a married couple, are citizens of Haiti. The male applicant is a land
surveyor who was appointed to Pétionville on October 28, 2009. He states that
his problems started at that time. That land surveyor position in Pétionville had
been vacant for thirty years while the three other land surveyor positions had
been held by persons who had “inherited” these positions from their fathers. The
other land surveyors had allegedly accused him of being appointed because of
his political ties with René Préval. He purportedly started to receive death threats
and was apparently followed and harassed by a criminal group supporting Jean-Bertrand
Aristide (Chimères) that had been hired by the land surveyors. He allegedly
asked for help from the dean of the civil tribunal in
Port‑au‑Prince, but without success. Their situation apparently
worsened after the earthquake in Haiti on January 12, 2010. The applicants were
forced to live in the streets and were no longer able to protect themselves
against these criminals. Furthermore, after the earthquake, the female
applicant started to fear for her safety because of the possibility of sexual
violence in the country’s streets.
[3]
The
applicants left Haiti for the United States on January 30, 2010. They stayed
there until March 5, 2010, without claiming asylum. They sought protection when
they arrived in Canada.
[4]
The
panel found that the applicants were not persons in need of protection under
subsection 97(1) of the IRPA because the male applicant did not face a
personalized risk.
[5]
The
panel also found that the applicants were not refugees within the meaning of
the Geneva Convention and section 96 of the IRPA. It found that the male
applicant was not a member in the social group of land surveyors. It also found
that the applicants had not established that they were persecuted because of
their nationality or their membership in a particular ethnic or linguistic
group.
[6]
With
respect to the female applicant’s alleged fears of sexual violence, the panel
found that, even though she belongs to the social group of women and
documentary evidence shows a generalized risk of violence in Haiti, this was
not a basis upon which to grant refugee status. The panel found that she had
not established a well-founded fear and her particular vulnerability as violence
is generalized in the country.
ISSUES
1. Did the panel
err in finding that the male applicant was not a person in need of protection
pursuant to subsection 97(1)
of the IRPA?
2. Did the panel err in
finding that the female applicant had not established a well‑founded fear
of persecution for rape if she were to return to Haiti?
ANALYSIS
1. Did the panel err in finding that the
male applicant was not a person in need of protection pursuant to subsection 97(1) of the IRPA?
[7]
The
applicants argue that the panel erred in finding that the male applicant was
not a person in need of protection pursuant to subsection 97(1) of the IRPA. The
panel’s finding that the risk feared by the male applicant is no different from
that of the entire population of Haiti disregards the evidence that was submitted
by the male applicant and that was found to be credible by the panel; according
to this evidence, he was personally targeted and threatened by a criminal group
hired to do just that.
[8]
The
applicants also maintain that the panel erred in finding that the female
applicant had not established, in a credible manner, that she feared being
raped if she were to return to Haiti. The panel did not consider her testimony
that she feared being particularly vulnerable to sexual assaults because of her
weight and the fear and threats she was the subject of when she was homeless
following the earthquake of January 12, 2010.
[9]
The
respondent claims that the risk the male applicant claims to face is generalized
because the entire Haitian population is threatened by criminality.
[10] The
respondent also submits that being female is not sufficient for finding that
the female applicant is a refugee or a person in need of protection under the
IRPA. The
risk of sexual violence is a risk faced by all women in the country. The allegation
that the female applicant is more vulnerable to sexual assaults because she is
overweight is not mentioned in the Personal Information Form (PIF) account submitted
in support of her refugee claim.
[11] The case law
has established that, to be granted the status of person in need of protection,
a refugee claimant must demonstrate, on a balance of probabilities, that he or
she personally faces one of the risks mentioned in subsection 97(1) of the IRPA
and that these risks are present or prospective (Sanchez v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 99 at paragraph 15).
[12] In Prophète
v. Canada (Citizenship and Immigration), 2008 FC 331 (upheld in Prophète
v. Canada, 2009 FCA 31), I found that it was reasonable for the panel to
refuse to grant the applicant the status of person in need of protection
because he did not face a risk that would not be faced generally by other
individuals.
[13] I also noted
that, when violence is generalized in an entire country, the dividing line
between a generalized risk and a personalized risk is more difficult to
establish and analyzing these cases requires particular vigilance (Prophète
at paragraph 18):
[18] The
difficulty in analyzing personalized risk in situations of generalized human
rights violations, civil war, and failed states lies in determining the
dividing line between a risk that is “personalized” and one that is “general”.
Under these circumstances, the Court may be faced with applicant who has been
targeted in the past and who may be targeted in the future but whose risk
situation is similar to a segment of the larger population. Thus, the Court is
faced with an individual who may have a personalized risk, but one that is shared
by many other individuals.
[14] In this case, the male
applicant indicated in his PIF and testified during the hearing that he had personally
been the subject of death threats and intimidation because he had been
appointed by Préval. His appointment had fuelled hatred and jealousy on the
part of the city’s other three land surveyors, who hired the Chimères to
threaten him and force him to quit his job.
[15] The panel did not challenge
the fact that the male applicant had been harassed by the Chimères because of his
land surveyor appointment. It nevertheless found that the male applicant had
not established that he faced a personalized risk:
The panel is of the opinion that the risk
alleged by the male claimant, should he return to his country, would not be any
different than the risk faced by the entire Haitian population, which is
generally confronted with a very difficult situation in a country where living
conditions are characterized by poverty, theft, violence, kidnappings, a
volatile situation and a lack of workers to ensure the safety of the civilian
population.
[16] A generalized risk is a
risk that the population in general, or a significant subset of it, actually
and currently faces. However, without disregard for the general situation of
violence in Haiti, the male applicant actually faced a real and personal threat
because of his appointment as a land surveyor, because of suspicion that this
appointment had been a result of his political connections and because of the
aggressive and defensive reactions of the other three land surveyors towards
him as a result of this suspicion. His particular situation, actually and currently,
is not generally applicable to the rest of the population or a significant subset
of it. According to the documentary evidence, these specific risks are present
or prospective because the male applicant’s appointment was never revoked and
there is therefore no reason the threat would cease to exist if he were to
return to the country.
[17] Therefore, the risk the
male applicant faced and will likely face if he were to return to Haiti falls under
the definition in subsection 97(1) of the IRPA. The panel’s finding that the
risk the male applicant faced after his appointment as a land surveyor is
unreasonable and the Court’s intervention is warranted.
[18] In view of
the answer to this issue, it is unnecessary to address the second issue as to
whether the female applicant has a well-founded fear of persecution for rape if
she were to return. However, I note that, concerning the female applicant’s
argument that she would be specifically targeted by criminals because of her
weight, the objective documentary evidence does not support that an overweight
woman is at a greater risk of being raped.
[19] For all of
these reasons, the application for judicial review is allowed. The matter is
referred back to a differently constituted panel for redetermination.
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