Docket: IMM-1601-11
Citation: 2011 FC 1344
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, November 23, 2011
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
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FRANÇOIS LELIO RENÉ
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is disputing the legality of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the panel), which found that he
is not a “Convention refugee” or a “person in need of protection” within the
meaning of sections 96 and 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27 (the Act).
[2]
The
applicant, an 84-year-old citizen of Haiti, left his country in
July 2007 to visit his daughter in Canada. Today, he is afraid to
return to his country because of the increasing number of kidnappings. At his
age, he will not be able to protect himself against potential abductors who
will see him as an ideal target. He was already approached in 2005 by bandits
who believed he had money because he is a coal merchant and was returning from Canada.
[3]
The
panel found that none of the Convention grounds were involved and that the
applicant had not established that he would be subjected personally to a danger
of torture, a risk to his life or a risk of cruel and unusual treatment should
he return to Haiti. Essentially, the risks the applicant faces from criminals
are the same for the entire Haitian population.
[4]
The Court’s intervention is not required in this case.
[5]
According
to the documentary evidence, kidnappers in Haiti generally act out of opportunism rather
than choosing their victims based on their nationality, race, sex or even age,
and anyone who appears to be wealthy is at risk of being kidnapped for ransom. The
documentary evidence also suggests that any increase in risk is also linked to a
refugee claimant’s political activities or other past activities. The
jurisprudence is clear and consistent: a generalized fear caused by a situation
that prevails in the entire country, here Haiti, and that affects the whole
population is not, in itself, sufficient to justify the status of “person in
need of protection”: Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331 [Prophète] affirmed by 2009 FCA 31; Charles v Canada (Minister of Citizenship and Immigration), 2009 FC 233; Soimin v Canada (Minister of Citizenship and Immigration),
2009 FC 218
at paragraph 16.
[6]
The
applicant contends that the panel erred by finding that the fact that he had
been targeted in Haiti in the past, particularly after his return from Canada in 2005, did not
personalize his risk. In support of this argument, he states that in Pineda v Canada (Minister of Citizenship and Immigration), 2007 FC 365 at paragraph 17 [Pineda], the Court held that the fact
that a young Salvadorian man had been repeatedly approached by a street gang (associated
with MARAS) that was seeking to recruit members personalized his risk of being
approached again by this gang (see also Aguilar Zacaria v Canada (Minister of
Citizenship and Immigration), 2011 FC 62, for a similar decision in the case of a Guatemalan citizen).
[7]
In my opinion, this case is different from Pineda, mentioned
above. Even though bandits targeted the applicant in 2005, nothing demonstrates
that today in 2011, taking into account his current situation, he faces a
higher risk than that faced by the wealthier sub‑group of the population
that he is a member of, i.e., members of the diaspora. We point out that at paragraph 18
of Prophète, mentioned above, the
Court noted the case of an “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” and stated that such a situation does not involve
a personalized risk but a risk that is shared by many other individuals (see
also Desgrandes v Canada (Minister of Citizenship and
Immigration), 2011 FC 549 at paragraphs 16‑17).
[8]
The
Court is of the view that the panel’s finding of fact is not unreasonable and
is supported by the evidence in the record. That said, the Court cannot help
noting that, given the applicant’s very advanced age and the extremely
difficult conditions in Haiti, he no doubt has very serious grounds for an
application to the Minister based on humanitarian and compassionate
considerations.
[9]
The
application for judicial review is dismissed, and no question of general
importance is raised in this case.
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