Date:
20110729
Docket: IMM-251-11
[UNREVISED ENGLISH
CERTIFIED TRANSLATION] Citation: 2011
FC 966
Ottawa, Ontario, July 29,
2011
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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JEAN PATRIQUE ORPHÉE
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Applicant
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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
I.
INTRODUCTION
[1]
The
applicant is seeking judicial review of a decision of the Immigration and
Refugee Board (the Board), dated December 21, 2010, under paragraph 72(2)(d)
of the Immigration and Refugee Protection Act, R.S.C., 2001, c 27
(the Act). In that decision, the Board dismissed the applicant’s claim for
refugee protection and determined that he was neither a refugee nor a person in
need of protection within the meaning of sections 96 and 97 of the Act.
[2]
For
the following reasons, the Court finds that its intervention is not warranted.
II. THE
FACTS
[3]
The
applicant is a citizen of Haiti. His spouse still lives there, along with
their children.
[4]
At
the time of the events that give rise to his refugee claim, the applicant was
working as a taxi driver. He was also a member of the Association des
chauffeurs guides d’Haïti (the Association).
[5]
On
March 30, 2005, unknown armed men attempted to kidnap the applicant, his spouse
and his daughter when they were getting into their car. They fled and escaped
their assailants.
[6]
On
January 8, 2009, the applicant received telephone threats demanding that he
resign from the Association. One of his colleagues received the same threats.
[7]
On
February 1, 2009, that colleague was killed.
[8]
The
applicant fled on February 6, 2009. He showed up at the Canadian border on February 7,
2009, and claimed refugee protection.
III. THE
BOARD’S DECISION
[9]
In
its decision, the Board determined that the applicant had not established a
fear of persecution within the meaning of one of the five grounds set out in
the United Nations Convention Relating to the Status of Refugees. It also
determined that the risk he faced in Haiti was not a personalized
risk.
[10]
The
applicant maintains that he is a member of a “particular social group” as
defined in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1 [Ward]. The
Board dismissed this claim because the risk he faced arose out of his
membership in the Association. According to the Board, the Association was
neither “[a group] whose members voluntarily associate for reasons so
fundamental to their human dignity that they should not be forced to forsake
the association” nor a group “associated by a former voluntary status,
unalterable due to its historical permanence”. Furthermore, the Board noted
from the applicant’s testimony that he planned on changing vocations if he were
to return to Haiti.
[11]
The
applicant also claims to fear being persecuted for his political opinion. He
states that the arms used by the bandits who tried to kidnap him in 2005 came
from the government. The Board also dismissed this ground because that
allegation does not constitute a political opinion.
[12]
The
Board then examined the protection of the Haitian state within the meaning of
section 97 of the Act. It found that the applicant faced, in Haiti, a
generalized risk within the meaning of paragraph 97(1)(b). The Board
relied on the decision of Madam Justice Tremblay-Lamer in Prophète v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, 167 A.C.W.S. (3d) 151 [Prophète].
IV. APPLICABLE
LAW
Immigration
and Refugee Protection Act, R.S.C. 2001, c 27:
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Convention
refugee
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Définition
de « réfugié »
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96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person
in need of protection
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Personne
à protéger
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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
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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 :
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(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
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a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life
or to a risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person
in need of protection
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Personne
à protéger
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(2) A
person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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V. ISSUES AND
STANDARD OF REVIEW
[13]
The
following issues arise from this matter:
a. Is the
applicant a member of a “particular social group” as defined in Ward?
b. Is the risk
faced by the applicant in Haiti a
personalized risk?
[14]
The
Board’s decision with regard to the applicant’s fear of persecution on one of
the Convention grounds is reviewable on a reasonableness standard (see Mia v.
Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 120, 94 A.C.W.S. (3d)
970 (QL) at para. 16). The same standard applies to the second issue (Is the
risk face by the applicant in Haiti personalized?) (see De Parada v. Canada (Minister of
Citizenship and Immigration), 2009 FC 845, [2009] F.C.J. No. 1021 (QL)
at para. 19).
[15]
The
Court examines the justification, transparency and intelligibility within the
decision-making process, “[b]ut it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 CSC 9,
[2008] 1 S.C.R. 190 at para. 47).
VI. ANALYSIS
a) Is the
applicant a member of a “particular social group” as defined in Ward?
The
applicant’s position
[16]
The
applicant argues that the Board erred by determining that the Association did
not meet the definition of a particular social group within the meaning of Ward.
The applicant noted that he had been an active member of the Association since
2000. His employment as a taxi driver and his membership in the Association
enabled him to earn a dignified living and provide for his needs and the needs
of his family in Haiti.
[17]
The
applicant claims that the Association is a particular social group because its
members voluntarily choose to become taxi drivers. The Association’s goals were
not limited to the monetary or commercial success of the business, but sought
to promote the human dignity of all of its members. Having a job allowed
members of the Association to provide for themselves and earn a decent living.
The applicant further argues that every human being should be able to freely
choose their employment. He should not be forced to change professions because
of threats.
The respondent’s
position
[18]
The
respondent argues that determining whether someone is a Convention refugee is
done by weighing the nature of the threats against an individual and not
according to the grounds perceived by the refugee claimant. The respondent
relies on Zolfagharkhani v. Canada (Minister of Employment
and Immigration), [1993] 3 FC 540, 155 NR 311 (FCA) at para. 13. According
to the respondent, the applicant acknowledged at the hearing that the intent of
the threats was to extort money from him. Extortion is a criminal offence that
has no nexus with any of the Convention grounds.
[19]
The
respondent cited the three categories of groups of persons set out by the
Supreme Court in Ward: those that are defined by an innate or
unchangeable characteristic, those whose members associate for reasons
fundamental to their human dignity and those associated by a former voluntary
status, unalterable due to its historical permanence. The respondent argues
that the Association is not based on an innate or unchangeable characteristic,
and that it is not fundamental to its members’ human dignity. The respondent
further argues that the applicant intends to change vocations if he returns to Haiti. The
respondent also cites Mortera v. Canada (Minister of
Employment and Immigration) (1993), 71 F.T.R. 236, 45 A.C.W.S. (3d) 720 at para.
3, in which it is stated that privileged or wealthy individuals do not meet the
definition of members of a particular social group based solely on their
financial status.
Analysis
[20]
In
order for his application for judicial review to succeed, the applicant must
convince the Court that the Board erred in its finding that the Association is
not a particular social group within the meaning of Ward. The vocation
of taxi driver does not constitute an innate characteristic or one that is
fundamental to human dignity. Furthermore, the applicant acknowledges that he
would change professions if he has to return to Haiti. This
acknowledgement confirms the voluntary nature of his choice of employment as a
taxi driver. His membership in the Association has no impact on his impact on
his human dignity. Therefore, the Association cannot be considered as a
“particular social group” within the meaning of Ward, despite the difficult
living conditions in Haiti and the chronic unemployment that
continues to plague that country.
b) Is
the risk faced by the applicant in Haiti a
personalized risk?
The
applicant’s position
[21]
The
applicant maintains that his fear arises from his job as a taxi driver and not
only because he is thought to have money. The applicant states that the murder
of his colleague convinced him to flee without his spouse and children.
Furthermore, he maintains that he filed documentary evidence and provided
testimony establishing that the murder and the threats against him resulted
from his employment as a taxi driver.
The
respondent’s position
[22]
The
respondent claims that it was reasonably open to the Board to find that the
risk to which the applicant would be exposed if he were to return to Haiti is a
generalized and not a personalized risk. The respondent cites Paz Guifarro v.
Canada (Minister of
Citizenship and Immigration), 2011 FC 182, [2011] F.C.J. No. 222 (QL),
in which there is a reference to De Parada v. Canada (Minister of
Citizenship and Immigration), 2009 FC 845, [2009] F.C.J. No. 1021 (QL) at
para. 22. In that decision, it is stated that “an increased risk experienced by
a subcategory of the population is not personalized where that same risk is
experienced by the whole population generally, albeit at a reduced frequency”.
According to the respondent, the Board’s findings are reasonable and the
applicant simply proved that he is part of a class of Haitian society that is
relatively wealthy and therefore more likely to receive threats of extortion.
Analysis
[23]
The
Court is of the view that the Board’s decision contains no error in its
assessment of the facts, or any error in law applicable in this case. In fact,
the evidence in the record leads us to find that the Board correctly applied
the principles set out in Ward, above. The applicant’s membership in the
Association and his status as a taxi driver-guide do not make him a person in
need of protection within the meaning of the Convention because he is not
exposed to a different and personalized risk (see Prophète, above, and Étienne
v. Canada (Minister of Citizenship and Immigration), 2007 FC 64, 154 A.C.W.S.
(3d) 1171 (QL)).
VII. CONCLUSION
The present application
for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS that
1.
The
Court dismiss the application for judicial review.
2.
This
matter raises no question of general importance.
“André
F.J. Scott”
Certified
true translation
Sebastian
Desbarats, Translator
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