MA9-01175

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA9-01175 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXXXXXXXXXXXXX Date(s) of Hearing Date(s) de l'audience January 19, 2011 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision February 8, 2011 Panel Tribunal Me Sonia Beaupré Claimant's Counsel Conseil du demandeur d'asile Me Claude Whalen Tribunal Officer Agent du tribunal Jacqueline La Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A [1] The claimant, XXXXXXXXXXXXX, who is 84 years old, is invoking section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (hereinafter the IRPA). ALLEGATIONS [2] In his Personal Information Form (PIF) submitted to the panel on February 24, 2009, the claimant alleges that he left Haiti in XXXX 2007 to visit his daughter in Canada. The claimant alleges that he fears returning to his country because of the escalation in kidnappings since he left his country. The claimant alleges that Haitians who return from abroad are often targeted. The claimant also alleges that he is the perfect target, since he cannot protect himself from these people. That is why he decided to claim refugee protection in Canada in November 2008, after arriving in the country on XXXX, 2007. DETERMINATION [3] The panel determines that the claimant is not a "Convention refugee" or a "person in need of protection", for the following reasons. ANALYSIS [4] The claimant's identity has been established to the panel's satisfaction, by a copy of his passport, which was issued by the Haitian authorities and was filed as evidence by immigration services. [5] The claimant's testimony was credible and did not contain any contradictions. [6] At the hearing, the claimant's counsel told the panel that, contrary to what had been indicated in the claimant's PIF, section 96 was not to be considered in the present claim. Beyond this indication, the panel endeavoured to ensure that there was no possible link between the present claim and one of the Convention grounds. The panel concluded that there was actually no nexus with any of the grounds listed in section 96 of the IRPA, since the claimant did not establish any possible fear of persecution pertaining to that section. [7] The panel must analyze this claim for refugee protection under subsection 97(1) of the IRPA to determine whether the claimant is a "person in need of protection", since he claims to fear crime and the criminals on the streets. [8] According to the jurisprudence, to establish that someone qualifies under subsection 97(1) of the IRPA, an individual analysis of the case must be made in the context of the current and future risks to which the claimant would be exposed. [9] The claimant told the panel that he feared the criminals who came to see him on a few occasions because not only had he sold XXXX, but he had also visited Canada in 2005, and they believed that the claimant had money. [10] The claimant told the panel that he was targeted in a different way because he believes that these kidnappers think that he would be receiving money from Canada. The fact that he was approached in the past does not personalize the risk within the meaning of subsection 97(1) of the Act. [11] The panel is of the opinion that the risk that the claimant claims to fear, should he return to live in his country, would not be any different from the risk to the entire Haitian population, which is facing a very difficult situation in a country where living conditions are marked by poverty, robbery, violence, kidnapping, instability and a lack of resources to provide security for the civilian population.1 [12] As stipulated in Prophète:2 16. The test under s. 97 of the Act is distinct from the test under section 96. ... Accordingly, documentary evidence which illustrates the systematic and generalized violation of human rights in a given country will not be sufficient to ground a section 97 claim absent proof that might link this general documentary evidence to the applicant's specific circumstances. ... Based on the recent jurisprudence of this Court, I am of the view that the applicant does not face a personalized risk that is not faced generally by other individuals in or from Haiti. The risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence. [13] Furthermore, the documentary evidence3 reveals that, according to the Washington Post, at the beginning of 2007, kidnappings for ransom were still part of the Haitian daily reality. The section headed "Groups targeted by kidnappers" states that kidnappers in Haiti generally act opportunistically and do not choose their victims according to nationality, race, gender or age, and that anyone who appears to be wealthy risks being a victim of kidnapping for ransom. [14] Another documentary source4 also from 2007 states: The risks that a person faces when returning to Haiti depend on that person's political role or past and [translation] "are not necessarily related to that person's status as a Haitian who has lived abroad"...In correspondence sent to the Research Directorate on 27 September 2007, a legal and human rights expert from the Canadian Cooperation Support Program Unit in Haiti (Unité d'appui au programme de la coopération canadienne à Haïti, UAPC) stated that the Haitian diaspora as a whole cannot be considered a [translation] "risk group" and that each case must be considered individually and within [translation] "its own context." [15] Furthermore, nothing in the evidence indicates that the claimant had any political role whatsoever in the past. [16] The claimant did not establish that he is a "person in need of protection" who is subjected to a personalized risk within the meaning of subsection 97(1) of the IRPA. [17] In light of all the evidence, the panel determines that the claimant did not discharge his burden of establishing that there is a serious possibility that he would be persecuted on one of the Convention grounds or that, on a balance of probabilities, he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment, should he return to his country. CONCLUSION [18] For these reasons, the panel determines that the refugee protection claimant, XXXXXXXXXX XXXX, is not a "Convention refugee" within the meaning of section 96 of the IRPA and that he is not a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. [19] The panel rejects his claim for refugee protection. Sonia Beaupré Me Sonia Beaupré February 8, 2011 Date IRB translation Original language: French REFUGEE PROTECTION DIVISION / GENERALIZED VIOLENCE / RISK / ELDERLY / VISITOR / FINANCIAL CIRCUMSTANCES / NEXUS / GENERALIZED RISK / MALE / NEGATIVE / HAITI 1 Exhibit A-1, IRB, Ottawa. National Documentation Package - Haiti, 30 June 2010, see Tab 1.3, International Crisis Group. 30 October 2006. Haiti: Security and the Reintegration of the State (Latin America/Caribbean Briefing No. 12). 2 Ralph Prophète v. MCI (F.C., IMM-3077-07), Ottawa, March 12, 2008, 2008 FC 331; upheld by Prophète v. Canada (Citizenship and Immigration) 2009 F.C.A. 31, February 4, 2009. 3 Exhibit A-1, IRB, Ottawa. National Documentation Package - Haiti, 30 June 2010, see Tab 7.3, HTI102506.FE. 14 February 2008, Frequency of kidnappings for ransom; groups targeted by kidnappers; measures taken by the authorities to combat kidnappings (2004-2007), page 2 of 6. 4 Ibidem, Tab 14.1, HTI102610.FE. 15 October 2007. Whether Haitians who have lived abroad (in the United States or Canada, for example) for a long time (several years) are at risk if they return to their homeland; the kinds of risks they might face; whether their return could represent a threat to members of their families and, if so, what kind of threat their families would face and from whom. --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA9-01175 5