MONTCAMENE DESIRE Applicant v. THE MINISTER OF CITIZENSHIP AND, 2013 FC 167

Date: 20130215 Docket: IMM-1197-12 Citation: 2013 FC 167 Ottawa , Ontario , February 15, 2013 PRESENT: The Honourable Madam Justice Gleason BETWEEN: MONTCAMENE DESIRE Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The applicant is a citizen of Haiti. She left Haiti in 1997 and lived for a number of years in the United States, both before and after her claim for refugee status was denied in that country. She then came to Canada in 2009 and made a refugee claim upon arrival.

As a single woman, she claims to fear being raped if she were to be returned to Haiti, due to the prevalence of sexual violence against women in that country. [ 2 ] In a decision dated January 12, 2012 the Refugee Protection Division of the Immigration and Refugee Board [the RPD or the Board] rejected the applicant’s claim, finding that she was neither a refugee, within the meaning of

section 96 of the Immigration and Refugee Protection Act , SC 2001, c 27 [the IRPA or the Act], nor a person in need of protection within the meaning of

section 97 of the Act. In the present application for judicial review, the applicant seeks to have the Board’s decision set aside. [ 3 ] The applicant raises three separate errors on the part of the Board. She argues first that the Board erred in finding her to not fit the profile of those at risk for rape.

She asserts that at least some of the documentary evidence established that all women are at risk of rape in Haiti and that the Board erred in confining its analysis to a review of the more recent country documentation, some of which indicated that such risk is prevalent for those who are young and living in a tent or a refugee camp. Second, she asserts that the Board erred in failing to mention and apply Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution , Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act [the Gender Guidelines].

Finally, she argues that the Board’s findings were perverse because it found the applicant to possibly face a heightened risk of kidnapping and assault, but neglected to consider that

the country documentation recognizes that women who are kidnapped are often raped. In this regard, the most recent U.S.

Department ofState for Human Rights Report before the RPD stated that “kidnappers often raped their female abductees” and a newspaper articlebefore the Board also indicated that “almost half of women kidnapped had been raped”. [4] The respondent, for its part, argues that there was evidence before the Board which supported its determination that theapplicant did not fit the profile of those at risk of rape: the applicant is a middle-aged woman of some means, with family, and could livewith her family in Fonds-Parisien and thus would not be forced to live in a tent or a refugee camp.

The respondent argues that the RPD’sfinding on this point is accordingly reasonable. With respect to the applicant’s second argument, the respondent submits that, contrary towhat the applicant asserts, the Board was sensitive to the requirements of the Gender Guidelines and did recognize that rape constitutesgender-related persecution under

section 96 of the IRPA but simply found that the applicant had not established that there was anobjective basis for her fear of rape as she lacked the profile of those for whom rape is more than a mere possibility in Haiti. Therespondent asserts in this regard that it is not necessary for the Board to specifically mention the Gender Guidelines in a decision as longas it applies the principles mandated by the Guidelines.

Finally, the respondent argues that the finding that the applicant is at risk ofkidnapping and assault does not conflict with the finding that the applicant lacks the profile of a woman who might be at risk of rape.The respondent relies on Soimin v Canada, 2009 FC 218 in support of the argument that a woman who fears kidnapping in Haiti does notmeet the definition of a Convention Refugee as the risk of kidnapping is one of general criminality. [5] While the first and second grounds advanced by the applicant do not warrant intervention, I agree with the applicant that theBoard’s findings regarding the risk of kidnapping and characterization of this risk as one of mere criminality constitutes a reviewableerror warranting intervention. [6] In this regard, the Board first recognised in its decision that rape constitutes gender-based persecution, within the meaning ofs. 96 of the IRPA.

This recognition is in accordance with several decisions of this Court, including, notably, three relatively recent casesinvolving Haiti: Josile v Canada (Minister of Citizenship and Immigration), 2011 FC 39 at para 33 [Josile]; Dezameau v Canada(Minister of Citizenship and Immigration), 2010 FC 559 at paras 23, 26 [Dezameau]; and Frejuste v Canada (Minister of Citizenship andImmigration), 2009 FC 586 at paras 34-37.

The recognition of rape as a gender-based crime is likewise mandated by the decision of theSupreme Court of Canada in R v Osolin, (SCC), [1993] 4 SCR 595, [1993] SCJ No 135 where Justice Cory, in majority,stated: It cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the other forms of assault, is anact of violence. Yet it is something more than a simple act of violence. Sexual assault is in the vast majority of cases gender based.

It isan assault upon human dignity and constitutes a denial of any concept of equality for women. [7] After recognizing that the probability of being raped amounts to persecution under

section 96 of the IRPA, and determiningthat the applicant did not face such risk, the RPD went on to qualify her risk as being one of “the possibility of assault and kidnapping.”It then continued by stating, “the jurisprudence holds that this does not constitute a ‘personalized risk’” and dismissed the risk ofkidnapping under

section 97 of the IRPA as a generalized risk. [8] What the RPD failed to do, however, was to assess whether or not the risk of kidnapping might constitute gender-basedpersecution under

section 96 of the Act. This analysis was necessary on the facts of this case because there was evidence before theBoard which indicated that women are disproportionately at risk of rape if kidnapped in Haiti, including documents submitted by theapplicant in her submissions to the Board. In my view, it was necessary for the Board to assess this evidence, and weigh it along with theother evidence regarding risk of rape in its analysis. This does not necessarily mean, however, that the applicant's claim must succeed.Rather, the Board must properly assess it.

In light of the evidence before the RPD, its finding that the applicant was not at risk of rapebut was at risk of being kidnapped cannot live together, and its conclusion, without further explanation, is therefore perverse. It is theevidence of the link between rape and kidnapping which distinguishes this case from Soimin as there, unlike here, there does not appearto have been evidence regarding the likelihood of kidnapping victims being raped. [9] Thus, for these reasons, the Board’s decision must be set aside and the matter remitted for reconsideration.

No question forcertification arises in this matter, as my decision turns squarely on the reasoning advanced by the Board in this case. JUDGMENT THIS COURT’S JUDGMENT is that:

1. This application for judicial review of the RPD’s Decision is granted; 2. The RPD’s Decision is set aside; 3. The applicant’s refugee claim is remitted to the RPD for re-determination by a differently constituted panel of the Board; 4. No question of general importance is certified; and 5. There is no order as to costs. "Mary J.L. Gleason" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1197-12 STYLE OF CAUSE: Montcamene Desire v The Minister of Citizenship and Immigration PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: October 2, 2013 REASONS FOR JUDGMENT AND JUDGMENT: GLEASON J. DATED: February 15, 2013 APPEARANCES : Russell Kaplan FOR THE APPLICANT

Max Binnie FOR THE RESPONDENT SOLICITORS OF RECORD : Kaplan Immigration Law Office Ottawa , Ontario FOR THE APPLICANT William F. Pentney, Deputy Attorney General of Canada Ottawa , Ontario FOR THE RESPONDENT