Innocent v. Canada (Minister of Citizenship and Immigration), 2009 FC 1019

• Judge: Mainville, J.
• Court: Federal Court (Canada)
• Case Date: September 15, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 1019;(2009), 364 F.T.R. 17 (FC)

Innocent v. Can. (M.C.I.) (2009), 364 F.T.R. 17 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] F.T.R. TBEd. OC.019

Philomena Innocent (demanderesse) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-541-09; 2009 CF 1019; 2009 FC 1019)

Indexed As: Innocent v. Canada (Minister of Citizenship and Immigration)

Federal Court

Mainville, J.

October 8, 2009.

Summary:

The applicant, a citizen of Haiti, applied for refugee status in Canada. The Immigration and Refugee Board determined that she was neither a Convention refugee nor person in need of protection. She was granted leave to seek judicial review.

The Federal Court of Appeal dismissed the application.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act provided that a person in need of protection was a person in Canada whose removal to their country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and was not faced generally by other individuals in or from that country - The Federal Court stated that a textual analysis of s. 97(1)(b)(ii) demonstrated that the provision did not require that the risk be faced by all other individuals from the country - See paragraph 45 - The court concluded that "Thus, in cases such as this one, where the general population faces a risk of criminality, the fact that certain individuals are more likely to face this risk, either because they live in more dangerous areas, or because they are perceived as being more affluent, does not necessarily make those individuals eligible for protected person status under subparagraph 97(1)(b)(ii). In the first case, the availability of an internal flight alternative would exclude this status and in the other case, the generalized risk would have the same effect." - See paragraph 49.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The Federal Court stated that consideration of an application for protected person status under s. 97(1)(b)(ii) of the Immigration and Refugee Protection Act "... requires an individualized assessment in the context of existing and prospective risks faced by the applicant. This assessment is based on the particular facts of each case. The requisite analysis includes not only an analysis of the personalized risk faced by the person in question, but also a separate analysis of the risk faced by other individuals from the country in question. The objective of these analyses is to determine, in each particular case, based on the evidence available, whether the personalized risk faced by the applicant exists 'in every part of that country and is not faced generally by other individuals in or from that country' ... the analysis of the risk faced by other individuals from the country in question is not necessarily limited to an analysis of the risk faced by the entire population but may also include an analysis of the risk faced by only one segment of the population ... " - See paragraphs 38 to 40.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The applicant, a citizen of Haiti, sought refugee status in Canada - She had a small business in her home - She alleged that, starting in September 2005, she was allegedly attacked on three occasions when people went to her home to rob her, demanding the money that she received from her daughter who lived in Canada - She alleged that the police were afraid to go to her neighbourhood because the gangs had invaded it and the government had even asked the citizens to leave the neighbourhood - The Immigration and Refugee Board dismissed the application - The Board held that a state of violence and insecurity prevailed in Haiti and affected the entire population - The risk to which the applicant could be subjected was a generalized risk affecting the entire population of the country and not a personalized risk and therefore she was not a person in need of protection (Immigration and Refugee Protection Act, s. 97(1)(b)(ii)) - The applicant sought judicial review - She argued that she was more at risk of the generalized crime prevalent in Haiti than the rest of the population because she was perceived to be a member of a group that was more affluent and she had been directly targeted by a gang of thugs three times - The Federal Court rejected the argument and dismissed the application - The Board's decision was reasonable - A person victimized by crime was not, based on that fact alone, a person in need of protection - It depended on the circumstances of each case - See paragraphs 65 to 70.

Cases Noticed:

Prophète v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 230; 2008 FC 331, refd to. [para. 20].

Ventura De Parada v. Canada (Minister of Citizenship and Immigration) - see De Parada v. Canada (Minister of Citizenship and Immigration).

De Parada v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned.515; 2009 FC 845, refd to. [para. 21].

Acosta v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 113; 2009 FC 213, refd to. [para. 21].

Cius v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 8; 2008 FC 1, refd to. [para. 21].

Etienne v. Canada (Minister of Citizenship and Immigration) (2007), 308 F.T.R. 76; 2007 FC 64, refd to. [para. 21].

Osorio et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 882; 2005 FC 1459, refd to. [para. 21].

Jeudy v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 671; 2005 FC 1124, refd to. [para. 21].

Surajnarain v. Canada (Minister of Citizenship and Immigration) (2008), 336 F.T.R. 161; 2008 FC 1165, refd to. [para. 24].

Sinnappu v.Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 791; 126 F.T.R. 29 (T.D.), refd to. [para. 24].

Prophète v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 149; 2009 FCA 31, refd to. [para. 26].

Martinez Pineda v. Canada (Minister of Citizenship and Immigration) - see Pineda v. Canada (Minister of Citizenship and Immigration).

Pineda v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 234; 2007 FC 365, refd to. [para. 28].

Lebrun Charles v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 125; 2009 FC 233, refd to. [para. 32].

Octave v. Canada (Minister of Citizenship and Immigration) (2009), 346 F.T.R. 103; 2009 FC 403, refd to. [para. 32].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 34].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 34].

Cartaway Resources Corp. et al., Re, [2004] 1 S.C.R. 672; 319 N.R. 1; 195 B.C.A.C. 161; 319 W.A.C. 161; 2004 SCC 26, refd to. [para. 34].

Pushpanathan v.Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 35].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229, refd to. [para. 35].

Michaud v. Canada (Minister of Citizenship and Immigration) (2009), 351 F.T.R. 290; 2009 FC 886, refd to. [para. 36].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 44].

Vickram v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 312; 2007 FC 457, refd to. [para. 59].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 97(1)(b)(ii) [para. 17].

Counsel:

Jared Will, for the applicant;

Alexandre Tavadian, for the respondent.

Solicitors of Record:

Jared Will, Montreal, Quebec, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Montreal, Quebec, on September 15, 2009, by Mainville, J., of the Federal Court, who delivered the following decision on October 8, 2009.