Date: 20110216
Docket: IMM-3622-10
Citation: 2011 FC 186
Ottawa, Ontario, February 16, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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PATERNISE DIEUJUSTE-PHANOR
ROCK DIEUJUSTE
JEAN ROLDY SAMEUL DIEUJUSTE
ANNE MEDJINE DIEUJUSTE
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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 of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated April 30, 2010,
concluding that the applicants are not Convention refugees or persons in need
of protection pursuant to sections 96 or 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c.27 (the Act) because their claims have no
nexus to a Convention refugee ground and because they do not face a
personalized risk of persecution in Haiti.
FACTS
Background
[2]
The
principal applicant, Paternise Dieujuste-Phanor, is a 47 year-old citizen of Haiti. She worked
in Haiti as a
registered nurse. The second applicant, Rock Dieujuste, is her husband. He is a
Haitian citizen and worked in Haiti as a teacher. The other two applicants are
their minor children.
[3]
The
principal applicant arrived in Canada with her two children on July 17, 2008,
and claimed refugee protection. She was joined by her husband, the second
applicant, on December 16, 2008.
[4]
In
her Personal Information Form (PIF) narrative, the principal applicant
described three incidents in which she had been attacked in Haiti:
1. During
elections in 2006, a group of men tried to threaten the principal applicant to
force her to vote in the election. She refused to vote because of her religion.
She has had no further contact from any of those men;
2. Around May of
2008 two men approached the principal applicant and told her that a patient had
died because she had refused to admit him into her hospital. The principal
applicant did not remember the incident to which the men were referring. The
men told her that one day they would come back for revenge;
3. On May 30,
2008, the minor applicants were kidnapped and a ransom demanded for their
return. The principal and her husband were able to raise the required money and
their children were returned to them in exchange on the following day. The
principal applicant reported the incident to the police and asked the police to
keep the report secret. Nevertheless, the next week she began to receive more
calls from the same kidnappers, who told her that because she had gone to the police
they were going to kill her.
[5]
As
a result of these threats, the applicants fled Haiti. The family first
went to the United States (US), where they remained for one month before coming
to Canada to claim
refugee protection. The husband did not accompany his family to Canada but returned
to Haiti. He stated
in his PIF and in his oral testimony that he returned to Haiti because he had a
job there and wanted to support his family (he thought that he would not be
able to find employment in Canada or the US).
[6]
The
husband returned to Haiti on August 1, 2008. Beginning in September, he
began to receive phone calls on his cellular phone from callers looking for his
wife. The callers accused him of hiding his wife, and warned him that if he did
not tell them where she was they would kill him. As a result of these threats,
the second applicant moved from his own house into his cousin’s house, which
was nearby. In the early morning hours of September 12, 2008, the husband heard
gunshots from the vicinity of his house. Later in the morning, he went by his
house and saw that his house had been riddled with gunshots. He reported the
attack to the police, who made a report.
[7]
As
a result of the attack, the applicant moved to a town approximately 15
kilometres away. He continued to receive threatening telephone calls. In early
November, two men saw him near the high school where he taught and exclaimed
that now they knew where to find him. The husband decided to flee Haiti.
[8]
In
her PIF narrative, the principal applicant states the basis of her fear of
returning to Haiti:
¶14. I
am afraid that if I return to my country I will be killed by the kidnappers who
took my children, as they have threatened to do. I am afraid they may kidnap my
children again and this time I may not be able to get them back. I do not
believe that the government can protect me. For the above reasons I am asking
for protected person status.
Decision under Review
[9]
In
a decision dated May 27, 2010, the Board dismissed the applicants’ refugee
claims because it found that there was no nexus to a Convention ground under
section 96 of the Act, and because there was no personalized risk of
persecution under section 97 of the Act.
[10]
The
Board found both the principal applicant and her husband credible. It accepted
their identities and found that their oral testimony was consistent with their
PIFs.
[11]
The
Board found that there was no nexus to a Convention ground under section 96 of
the Act. Citing Rizkallah v. Canada (Minister of Employment and Immigration)(1992),
156 N.R. 1 (F.C.A.), and Cius v. Canada (Citizenship and Immigration),
2008 FC 1, the Board found that neither wealth nor status as a person
returning to Haiti from abroad are sufficient to constitute a social group
under the Convention. The Board also considered whether the principal applicant
or her daughter could claim nexus based on gender, but found, citing Soimin
v. Canada (Citizenship and Immigration), 2009 FC 218, and Sermot v.
Canada (Citizenship and Immigration), 2009 FC 1105, that their fear was not
gender-related.
[12]
Finally,
the Board considered the applicants’ submission that the social group of which
the applicants were members was “persons aware of possible police complicity in
criminal acts.” The Board rejected this description of a social group. At
paragraph 10, the Board stated that law with regard to what social group falls
within the definition of the Act:
¶10. .
. . In terms of membership in a particular social group, the Supreme Court of
Canada in Ward defined three groups; the first was
a group defined by an innate or unchangeable characteristic, the other is
groups whose members voluntarily associate for reasons so fundamental to their
human dignity that they should not be forced to forsake the association. And
the third is groups associated by a former voluntary status unalterable due to
its historical permanence. The panel determines that the particular social
group proposed by counsel does not fall into any of these three definitions.
[13]
With
regard to a risk of persecution under section 97 of the Act, the Board’s
central finding was that the risk faced by the applicants is one faced
generally by other individuals in Haiti. In contrast, the Board
stated, quoting Carias v. Canada (Citizenship and Immigration), 2007 FC
602, at paragraph 25, and Cius, above, at paragraph 23, that the law is
that refugee claimants must be able to show a personal risk not faced by others
in Haiti. The Board
defined the risk faced by the applicants as a “risk of kidnapping,” which it
found is widespread in Haiti:
¶13. Counsel
suggested that the claimant’s risk of kidnapping is personalized as they are
afraid of specific kidnappers. The documentary evidence suggests that
kidnapping is a widespread phenomenon in Haiti. . . .
[14]
Quoting
from Prophète v. Canada (Citizenship and
Immigration), 2008 FC 331, at paragraph 23, and Soimin, above, at
paragraph 16, the Board concluded at paragraph 17:
After
considering the evidence in light of the jurisprudence, the panel is satisfied
that the claimants’ fear of kidnapping is one faced generally by other
individuals in Haiti. The claimants are not
persons in need of protection, accordingly.
LEGISLATION
[15]
Section 96
of the Act, grants protection to Convention refugees:
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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,
(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
(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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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 :
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;
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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[16]
Section 97
of the Act grants protection to persons whose removal from Canada would subject them personally
to a risk to their life, or of cruel and unusual punishment, or to a danger of
torture:
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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
(a)
to a danger, believed on substantial grounds to exist, of torture within
the meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself
of the protection of that country,
(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,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed
in disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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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 :
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;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce
pays,
(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,
(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,
(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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ISSUES
[17]
The
applicant submits the following two issues:
1. Did the Board
err by ignoring two central pieces of evidence contradicting its conclusion
that the principal applicant faced only a generalized risk of persecution?
2. Did the Board
err by failing to provide adequate reasons supporting its conclusion that the
applicants faced only generalized risk and are not persons in need of
protection?
STANDARD OF REVIEW
[18]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada held at paragraph
62 that the first step in conducting a standard of review analysis is to
“ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of (deference) to be accorded with regard to a particular
category of question”: see also Khosa v. Canada (MCI), 2009 SCC 12, per
Justice Binnie at para. 53.
[19]
The
Board’s assessment of whether the applicants are persons in need of protection
and whether they face a particularized risk is a question of mixed fact and law
and subject to review on a reasonableness standard: see, for example, my
decision in Michaud v. Canada (Citizenship and Immigration), 2009 FC 886,
at paragraphs 30-31.
[20]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at para. 59.
[21]
The
determination of whether the Board gave adequate reasons for dismissing the
applicants’ claims is an issue of procedural fairness and must be correct: Weekes
v. Canada (Citizenship and Immigration), 2008 FC 293, at paragraph 17.
ANALYSIS
Issue 1: Did the Board err by ignoring
evidence contradicting its conclusion that the principal applicant faced only a
generalized risk of persecution?
[22]
The
applicant submits that the Board ignored evidence submitted by the principal
applicant that her risk of kidnapping arose as a result of her failure to admit
a patient into her hospital. In support of this belief, the applicant submits
that the Board had before it the following two pieces of evidence that it did
not consider:
1. Statements
made in the principal applicant’s amended PIF narrative:
¶4. At the hospital I usually worked at
night. One day in approximately May 2008, while I was shopping, two men
approached me and told me that one day I had not admitted a patient into the
hospital and because of that the patient had died. They told me that one day
they were going to come back for revenge. I did not remember who they were referring
to.
¶5. .
. . On 30 May 2008, I received a phone call at work on my cell phone at
approximately 1:30 and the caller told me that I need not worry if I do not see
the children because he has them. He told me he knew I worked at the hospital.
2. A certificate of
attestation from the Conseil D’administration de la 2eme Section Communale de
Belander Commune Des Verrettes, stating that the principal applicant had
reported being threatened by two strangers on account of failing to admit a
patient into the hospital where she worked.
[23]
The
principal applicant submits that the applicant was directly targeted by these
two men as a result of her failure to admit the patient. Then the principal
applicant was threatened after she reported the kidnapping to the police. After
the principal applicant and the two children had fled from Haiti, the
principal applicant’s husband was threatened and his house was “riddled with
bullets”. The Board makes reference to the Personal Information Form in
paragraph 5 of its decision, and the Board finds that the applicants are
credible. The applicants therefore submit that the risk of persecution faced by
the principal applicant was personalized in a way that the Board failed to
consider.
[24]
At
the hearing, the Board invited counsel to make submissions regarding
personalized risk. Counsel made the following submissions on the point:
The claimants do not fear random
kidnapping if they return to Haiti. This is not a case where
they have been away for a while and want to go back and fear being identified
as a ripe target for kidnappers. They fear a specific set of kidnappers who
have already kidnapped the children and subsequent to the actual kidnapping
threatened the death of the female claimant and the two children and afterwards
not only threatened but shot up the house where the male claimant had been
living. They have clearly demonstrated more than a passing interest in these
two claimants. . . .
(Certified Tribunal Record
page 302)
[25]
The
Board did not refer to the principal applicant’s evidence regarding the threats
that she received regarding her failure to admit the patient. The Court may
infer that the Board has not considered the evidence in cases where the Board
fails to address evidence that contradicts its findings. See Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.A.)(QL), 157
F.T.R. 35.
[26]
In
Aguilar Zacarias v. Canada (M.C.I.), [2011] FC
62, Mr. Justice Noël held at paragraph 17:
¶17…Because the Applicant’s credibility
was not in question, the Board had the duty to fully analyse and appreciate the
personalized risk faced by the Applicant in order to render a complete analysis
of the Applicant’s claim for asylum under section 97 of IRPA. It appears that
the Applicant was not targeted in the same manner as any other vendor in the
market: reprisal was sought because he had collaborated with authorities,
refused to comply with the gang’s requests and knew of the circumstance of Mr.
Vicente’s death.
In the case at bar, the Board did not
fulfill its duty to fully analyse and appreciate the personalized risk faced by
the applicants. Just as Justice Noël held, the applicants were not targeted in
the same manner as any other person in Haiti. In the case
of the applicants, reprisal was sought because the principal applicant, a nurse,
had not admitted a patient who later died and the kidnappers sought revenge.
Then when the principal applicant reported the kidnapping to the police, the
kidnappers again sought revenge. Even after the principal applicant and her two
children had left Haiti, the kidnappers continued to seek revenge
against the principal applicant’s husband who is also an applicant before the
Board. None of this evidence was referred to by the Board in its decision.
[27]
As
I held in Melvin Alonso Cruz Pineda v. Canada (M.C.I.), [2011] FC
81 at paragraph 39 where the Board failed to refer to an expert report that the
applicant would now face a heightened threat as compared to the general
population, the failure to mention this evidence is a reviewable error.
Issue 2: Did the Board err
by failing to provide adequate reasons supporting its conclusion that the
applicants faced only generalized risk and are not persons in need of
protection
[28]
The
applicants submit that the Board’s reasons are lacking because the Board failed
to apply the case law that it cites to the specific facts of the applicants’
claim. The applicants submit in particular that the Board failed to explain why
the evidence provided by the applicants did not demonstrate the existence of a
personalized risk not generally faced by other Haitians. In fact, the
applicants submit that the Board failed to refer to any evidence at all in
reaching this conclusion. Instead, the Board’s section 97 analysis consisted of
a single paragraph:
¶13. After
considering the evidence in light of the jurisprudence, the panel is satisfied
that the claimants’ fear of kidnapping is one faced generally by other
individuals in Haiti. The claimants are not
persons in need of protection, accordingly.
[29]
In
VIA Rail Canada Inc. v. Canada (National
Transportation Agency) (2000), [2001] 2 F.C. 25 (Fed. C.A.) Justice
Sexton set out at paragraph 22 the contents of the duty to provide reasons:
¶22. The
obligation to provide adequate reasons is not satisfied by merely reciting the
submissions and evidence of the parties and stating a conclusion. Rather, the
decision-maker must set out its findings of fact and the principal evidence
upon which those findings were based. The reasons must address the major points
in issue. The reasoning process followed by the decision-maker must set out and
must reflect consideration of the main relevant factors.
[30]
In
this case, the Board recognized, at paragraph 13, the applicants’ evidence that
their “risk of kidnapping is personalized as they are afraid of specific
kidnappers.” The Board went on to quote from four cases of this Court. In Carias,
above, the Court held that applicants could not demonstrate personalized risk
by showing merely that they are part of a large group targeted for their
wealth. In Cius, above, the Court held that a risk of violence was a
risk faced by all in Haiti and not personalized to the applicant in
that case. Likewise in Prophète and Soimin, above.
[31]
The
Board’s reasons do not make clear how these cases relate to the principal
applicant’s evidence that the kidnappers had threatened her and because of the
incident at the hospital, and because they knew that she had reported the
kidnapping to the police, nor to her husband’s evidence that he was repeatedly
contacted and threatened upon his return to Haiti by individuals who were
looking for the principal applicant.
[32]
The
failure by the Board to discuss the specifics of the applicants’ claim in the
context of the law is an error.
CERTIFIED QUESTION
[33]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This judicial review application is allowed and the matter
sent back to a different panel for redetermination in accordance with these
Reasons.
“Michael
A. Kelen”
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