Docket: IMM-209-16
Citation:
2016 FC 910
[ENGLISH TRANSLATION]
Montréal, Quebec, August 10, 2016
PRESENT: The Honourable
Mr. Justice Locke
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BETWEEN:
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JERRY BELFOND
SCHMADYNE DURANDIS
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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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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the Act) of a decision rendered by the
Refugee Protection Division (RPD) of the Immigration and Refugee
Board (IRB). The RPD concluded that the principal applicant and his wife
are not Convention refugees or persons in need of protection within the meaning
of sections 96 and 97 of the Act.
II.
Facts
[2]
The principal applicant, Jerry Belfond, and
his wife, Schmadyne Durandis (hereinafter “the applicant”), are citizens
of Haiti. They claim to have been threatened separately, by two different
groups, between July and September 2015. Prior to leaving Haiti, the
applicants resided in Port-au-Prince.
[3]
On July 10, 2015, when leaving his office,
the principal applicant was attacked by two armed individuals who robbed him of
all his valuables.
[4]
On August 5, 2015, the applicant visited
some land she owned outside of Port-au-Prince, to see what condition it was in
and to clean it up. A group of individuals approached her to ask if it was
possible to rent the land, in order to build an office there for a political
party. The applicant refused.
[5]
On August 8, 2015, the applicant returned
to her land to continue her work. The same group of individuals was there
waiting for her. When she asked them to leave the premises, these individuals
threatened her.
[6]
On August 16, 2015, the applicant again
returned to her land, this time accompanied by her husband. They discovered
that the cabin located on the land had been vandalized. Since the group of
individuals who had threatened the applicant were blocking the road, the
applicants sought help from the neighbours in order to leave the premises
safely. They filed a complaint with the Tribunal de paix de Pétionville.
[7]
Throughout the night of August 16, and into
the early morning of August 17, 2015, the applicants received threats on
their shared cell phone.
[8]
On September 6, 2015, they were informed by
a neighbour that strange people were lurking near their residence in
Port-au-Prince and were asking questions about them. They therefore fled to
Léogâne and hired a police officer for a week to protect them during their
travels.
[9]
On September 14, 2015, the principal
applicant was again attacked by thieves outside of a bank. He recognized one of
the thieves who had attacked him in July 2015. Seeing that he had been
recognized, the thief threatened to kill the principal applicant, but was
stopped by his accomplice. The thief nevertheless swore to the principal
applicant that he would one day kill him.
[10]
On September 29, 2015, the applicants left
Haiti for the United States, having been unable to obtain a Canadian visa. They
made a claim for refugee protection in Canada on October 3, 2015.
[11]
Subsequently, the telephone threats about the
land started again.
III.
Decision
[12]
The RPD concluded that the key issue in this
case was the possibility of an internal flight alternative (IFA). It was
satisfied as to the applicants' identities and found their testimonies to be
generally credible, despite a few omissions and contradictions during the
hearing.
[13]
The RPD accepted the applicants' arguments that
the department of Artibonite was not a suitable refuge given the cholera
epidemic that was raging there. The RPD therefore proposed Jacmel as an
alternative.
[14]
With regard to the first prong of the IFA test,
the RPD concluded that the applicants had not discharged their burden of proof
to show that, based on the balance of probabilities, they would be persecuted
in Jacmel. The RPD noted that it was speculative for the principal applicant to
state that the thieves who had attacked him on two occasions would be able to
find him in Jacmel, or to find him again during occasional visits to Port-au-Prince,
other than by a chance encounter. The RPD noted that the principal applicant
himself had stated that he did not know who these people worked for, or the
scope of their operations.
[15]
Similarly, the applicant did not succeed in
establishing that the individuals who threatened her regarding her land outside
of Port-au-Prince would be able to find her in Jacmel.
[16]
Regarding the second prong of the IFA test, the
RPD was of the view that the applicants had not established, on a balance of
probabilities, any impediment to their setting up a life in Jacmel. The RPD
found that the possibility of being attacked by bandits in Jacmel was
speculative and applied to all residents of Jacmel. The RPD also noted that the
applicants had not demonstrated that they would be unable to find work in this
city despite their university degrees and their employment histories.
IV.
Issues in dispute
[17]
There are two (2) issues in dispute:
- Did the RPD err
in determining that an IFA existed in Jacmel?
- Did the RPD err
in failing to analyze the applicant's fear based on her membership in a
particular social group (women)?
V.
Analysis
A.
Standard of review
[18]
The parties do not contest that the standard of
review applicable to the IFA is that of reasonableness.
B.
Did the RPD err in determining that an IFA existed
in Jacmel?
[19]
The applicants accept the legal test applicable
to an IFA as described by the RPD.
[20]
After having considered the applicants'
arguments regarding the IFA, I am not convinced that the RPD committed an
error. The RPD's conclusions that there was insufficient evidence to show that
(i) the thieves in Port-au-Prince, or (ii) the individuals who wanted to build
on the land outside of Port-au-Prince had the desire and the ability to find
the applicants in Jacmel, were reasonable.
[21]
The fact that the RPD focused on the individuals
at the property instead of on their political party was not erroneous; the
RPD's comments regarding these individuals also apply to their political party.
The telephone threats do not demonstrate the ability to find the applicants in
Jacmel, either. The applicants had not changed their telephone number, so no
additional searching was required to reach them by telephone.
C.
Did the RPD err in failing to analyze the
applicant's fear based on her membership in a particular social group (women)?
[22]
I agree with the respondent's argument that, at
the hearing, the applicant did not explicitly state that her fear was based on
her membership in a particular social group (women) in Haiti. Rather, her fear
was linked to the individuals who threatened her on her land outside of
Port-au-Prince. This fear was analyzed in a reasonable manner by the RPD. It
was the applicants' counsel who raised the issue of the social group of women
in Haiti.
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