Date: 20080730
Docket: IMM-5082-07
Citation: 2008 FC 926
Ottawa, Ontario, July 30, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
GEMSCESS VILMOND
JAMAL KESHAN FONTUS
KEARA LINEA CASSAMAJOR
KEANA DEVINA VILMOND
KYLEL DEVON VILMOND
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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), pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act), dated November 6, 2007. The Board found that the applicants are not
Convention refugees or persons in need of protection.
ISSUES
[2]
The
applicants raise the following issues:
a) Did the Board
err in failing to consider that the applicant is part of a particular social
group, namely that of women from Haiti who have been raped,
thereby failing to properly analyze her claim.
b) Did the Board
err in finding that the applicant’s extended stay in the United States is not commensurate
with a subjective fear of persecution?
[3]
For
the reasons that follow, my answer to the first question is yes. The applicant
stated at the hearing that she does not challenge the Board’s conclusions on
her section 97 claim. I find that the Board’s failure to consider the applicant’s
claim that she was a member of a particular social group is determinative and
the application should be allowed.
FACTUAL BACKGROUND
[4]
The
principal applicant (applicant) is a citizen of Haiti, and was
born on September
26, 1983.
Her four minor children are citizens of the United States (US), and their
claims are dependent on that of their mother. The applicant fled Haiti in 1992 at
the age of 9 years old, following an attack in her home by three men, who raped
the applicant, her mother and her cousin. Her mother sent her to live in St. Martin, where she
remained until 1998.
[5]
The
applicant entered the US using a false passport in 1998, at the age
of fourteen. She stayed with a friend of her mother who assisted her in making
an asylum claim. Following a dispute between the mother and her friend, the
applicant had to leave the friend’s home at the age of fifteen. No follow up
was done on her pending refugee claim. When the applicant discovered that she
had no legal status in the US, she consulted case workers at Catholic
Charities. She was informed that nothing could be done to regularize her
immigration status in the US.
[6]
Fearing
that deportation was imminent, she came to Canada with her
children on March
26, 2007
and made a refugee claim.
[7]
In
her Personal Information Form (PIF) the applicant indicated that she claimed
protection on the ground of her membership in a particular social group. The
narrative included in the PIF stated that she fled Haiti because she
was raped. She cited that she feared returning to Haiti because of
the violent situation in the country, and because she didn’t “want [her] kids
to, specially (sic) [her] daughters to survive what [she] survived in the past.”
At the hearing, when asked why she did not want to return to Haiti, the
applicant testified that she feared being raped again if she returned. She also
testified that she feared the same thing would happen to her daughters.
DECISION UNDER REVIEW
[8]
The
Board rejected the claim based on section 96 of the Act, because it determined
that there was no nexus between the applicants’ claim and any Convention
ground. The Board rejected the section 97 claim because the applicants had not
provided credible or trustworthy evidence that they are persons in need of
protection.
[9]
The
Board noted that it took the Chairperson’s Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution (Gender Guidelines)
into consideration.
[10]
With
regard to the applicant’s claim made pursuant to section 96, the Board stated
that the applicant feared serious harm amount to persecution at the hands of
“criminal elements” in Haiti. The Board stated that the applicant’s
fear is based on being a victim of crime, and as a consequence she is not a
member of a social group.
[11]
With
regard to the applicant’s section 97 claim, the Board did not believe that the
applicant established the existence of a well-founded fear. The Board stated
that there was a question of the claimant’s credibility and overall behaviour. Certain
facts were noted including the fact that the incident occurred in 1992, when
the applicant was nine. The Board noted that the applicant’s mother was also
raped and continues to live in Haiti. The Board stated that the agent of persecution
could not be identified. The Board noted that the applicant made a refugee
claim in Canada, fifteen years after leaving Haiti. The
applicant lived in the US and was over the age of majority for the
final five years of her stay. The Board noted that a document had been produced
indicating that immigration hearings had been undertaken in the US; however, it
was noted that the outcome of her claim is unclear. For these reasons, the
Board did not believe that the applicant’s behaviour was commensurate with
someone fleeing persecution.
[12]
In
the final paragraph of its analysis, the Board wrote the following:
In the event that the panel does accept
as credible the claimant’s evidence of what occurred to her in 1992 her current
fear in Haiti appears to be a fear of
generalised violence. The claimant here could face a risk. However, it is a
risk that is faced by the entire population of Haiti – including her mother. As a
consequence the claimant cannot take the benefit of refugee protection.
ANALYSIS
Standard of Review
[13]
The
applicant argues that the applicable standard is that of correctness. This
standard was applied in my recent decision in Cius v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1, at paragraph 13, [2008] F.C.J.
No. 9. However, the question under review in the case at bar is not whether the
social group alleged by the applicant indeed exists, as was the case in Cius;
as such the standard of correctness does not apply. Rather, the applicant
argues that the Board failed to consider the central ground of her claim. The
failure to consider the claim as it is put forward by the applicant constitutes
a misapprehension of the facts and the evidence. As such the decision is
reviewable on the standard of reasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9).
[14]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, above at paragraph 47).
Failure
to consider the ground of the claim
[15]
The
applicant argues that the Board erred by failing to examine the issue of
gender-based persecution, despite the fact that it was explicitly raised by
counsel at the hearing. The applicant submits that she is a member of the
social group “women in Haiti”, and more particularly, “women in Haiti who have
been raped”, not a victim of generalized crime. The applicant further asserts
that the Board made a boiler-plate statement that it considered the Gender
Guidelines, but that the reasons demonstrate that the Board did not
consider that the applicant faced persecution on the basis of gender.
[16]
The
respondent submits that it was open to the Board to consider that the
applicant’s fear was based only on generalized violence.
[17]
Such
a finding might have been open to the Board, had it not committed an error
which I find to be fatal to the decision. I agree with the applicant’s position
that the Board misconstrued the central element of her claim. For the Board’s
conclusion to be reasonable, it must first characterize the claim in such a way
that is responsive to the allegations put forward by the applicant. Without
coming to any conclusions as to the existence of the social group put forward
by the applicant, I am satisfied that it was incumbent upon the Board to
properly identify and address this question.
[18]
This
Court has found that the obligation to consider all grounds for claiming
refugee status extends even to grounds which the claimant may have failed to
identify. In Viafara v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1526, at paragraph 6, [2006]
F.C.J. No. 1914, Justice Dawson wrote:
[6] However, in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at pages 745 and 746, the
Supreme Court of Canada confirmed that the Board must consider all of the
grounds for making a claim to refugee status, even if the grounds are not
raised during a hearing by a claimant. This flows from the direction at
paragraph 67 of the United Nations High Commissioner for Refugees (UNHCR)
Handbook on Procedure and Criteria for Determining Refugee Status that it is
not the duty of a claimant to identify the reasons for their persecution.
[Emphasis added].
[19]
There
can therefore be no question that the failure to consider grounds which were
explicitly raised at the hearing constitutes an error. In his oral submissions,
counsel for the applicants unequivocally submitted that the claim was grounded
in a fear of gender-based persecution (Tribunal Record, page 388):
While, of course, all citizens of Haiti can be innocent victims of violence and
harassment, which include for example kidnappings and random killings, one can
target the principle [sic] claimant as well because of her being a women [sic].
As such, she is very much vulnerable to rape. And to reiterate, she was the
victim of rape when she was a young girl in Haiti. Rape in Haiti is a common and widespread problem.
[20]
In
the three-page decision rendered by the Board, there is no acknowledgement of a
central aspect of the applicant's claim, being fear of persecution as a member
of the social group of women in Haiti who have been raped. The
failure to identity the relevant ground precludes any analysis the Board might
have performed regarding the merits of that claim. The determination made by
the Board that there is no nexus between the claim and a Convention ground is
therefore unsubstantiated.
[21]
No
question arises for certification.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be allowed. The matter is sent back for redetermination by a differently
constituted panel. No question is certified.
“Michel
Beaudry”
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