 
 Immigration and Refugee Board Refugee Protection Division 
 Commission de l'immigrationet du statut de réfugié Section de la protection des réfugiés 
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o de dossier de la SPR : MA8-03002 MA8-03003 MA8-03004    Private Proceeding Huis clos
 
Claimant(s)  Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
 
Date(s) of Hearing  Date(s) de l'audience 
July 5, 2010 
Place of Hearing  Lieu de l'audience 
Montréal, Quebec 
Date of Decision  Date de la décision 
August 18, 2010 
Panel  Tribunal 
Youssoupha Diop 
Claimant's Counsel  Conseil du demandeur d'asile 
XXXXXXXXXXXXXXXXXXX 
Tribunal Officer  Agent du tribunal 
XXXXXXXXXXXXX [Filing of documents] 
Designated Representative  Représentant désigné 
N/A 
Minister's Counsel  Conseil du ministre 
N/A  
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 [1] The claimant, XXXXXXXXXXXXXXXXX , a citizen of Haiti, alleges a well-founded fear of persecution in her country of citizenship by reason  of her political opinion and her membership in a particular social group. Her children, XXXXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXX, American citizens, are also alleging a fear of persecution in Haiti. [2] They are further claiming Canada’s protection as  persons in need of protection on the grounds that they would be subjected to a risk to their lives, as well as to a danger of torture or to a risk of cruel and unusual treatment or punishment.  [3] At the start of the hearing, the principal claimant, XXXXXXXXXXXXXXXXXX was appointed as the designated representative of her children, XXXXX and XXXXX.  [4] Also at the start of the hearing, the panel as ked the claimant whether she intended to file evidence against the United States, her children’s count ry of citizenship. The claimant stated that she was not claiming refugee protection for her children. They therefore withdrew their claims. [5] The hearing therefore centred exclusively on the claimant’s own claim against Haiti.  ALLEGED FACTS [6] The claimants arrived in Canada on XXXXX, 2008. They filed their claim for refugee protection in Saint-Bernard-de-Lacolle.  [7] The claimant stated that, before she left Ha iti, she was persecuted by members of the Corps d’Intervention et du Maintien de l’Ordre (CIMO) [r esponse and public order force]. Fearing that she would be killed, she left by boat for Miami on XXXXX , 1999. She lived in the United States from that time until XXXXX, 2008, when she left the country and arrived in Canada with her children. DECISION [8] The panel determines that the claimant is neither a Convention refugee nor a person in need of protection, for the reasons below.  ANALYSIS [9] The claimant testified that she left her c ountry because she was afraid of the acts of intimidation committed by CIMO members. In res ponse to a question, she explained that CIMO 
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 members had gone to her cousins’ home while they were out to check whether any vehicles were parked there. She stated that she had no idea wh y CIMO members wanted to know about vehicles parked in the yard at her cousin’s house. She was,  however, certain that they had returned several times and had taken two women who worked for the family hostage to force them to reveal their cousin’s whereabouts (at that time, their cousin  had already left Haiti for the United States). [10] The claimant stated that, given their actions, sh e left Haiti with the help of her parents. Although she had stated in response to question 23  of her Personal Information Form (PIF) that she had left Haiti on XXXXX, 1999, the claimant asked at the start of the hearing to amend her date of departure to XXXXX, 1998, stating that this was the correct date. To corroborate this statement, the claimant submitted a school certificate issued  to “XXXXX XXXXX” and dated XXXXX, 1999, her own name being XXXXX XXXXX XXX XX, according to all the documents she submitted. The panel is of the opinion that this certainly constitutes some evidence to suggest that the claimant was in the United States before XXXXX, 1999; however, a lthough the claimant changed the date of her departure from Haiti, the fact remains that she stated in response to question 11 of her PIF that she lived in Haiti until XXXXX, 1999. When  she was confronted with this discrepancy in her statements, the claimant explained that she had kept 1999 so that it would match the information she had provided for her asylum claim in the United States. The panel rejects this explanation, which is not trustworthy in the panel’s opinion, since the claimant also stated under oath that all the information in her PIF was correct; moreover, she attempted to correct the date of her departure, but did not change the date when she was still living in Haiti. This date is, incidentally, the date she provided in response to question 7 of IMM 5474 (Schedule 1). [11] Furthermore, the panel is of the opinion that producing a diploma does not necessarily mean that she was present. Indeed, this diploma is  in the name of “XXXXX XXXXX,” not “XXXXX XXXXX,” unlike the other documents the claimant submitted, which clearly state XXXXX XXXXX, or simply XXXXX., as her primary given name. Th is document is therefore the only one that gives XXXXX as her first given name, unlike all the others that the claimant submitted. Thus, it appears from all of this that the claimant did not leave her country on the date she wanted to correct (that is, XXXXX, 1998), but rather that, as pe r all of her previous statements in response to question 11 and 
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 the questions in Schedule 1, she stated that she had in fact left on XXXXX, 1999. In the panel’s opinion, this is a first point that undermines the claimant’s credibility.  [12] To continue, the panel asked the claimant why, in her opinion, the CIMO members had targeted her cousin. The claimant stated that th e CIMO officers were looking for vehicles. She explained, however, that their function is to main tain order in the country, but that, in her opinion, they do not obey any authority and do as they pl ease. However, when she was asked whether she had experienced any problems with CIMO members or whether she had in any way been threatened or intimidated by them, the claimant stated that XXXX had never experienced any problems with CIMO members or been threatened by them. The claimant explained that CIMO officers commit crimes in plain sight and do not respect any particular authorit y. The panel is of the opinion that this testimony shows that the claimant’s fear is based on crime, pure and simple, and that although this group’s mandate is to maintain order, the claimant’s statem ents suggest that their actions are mainly criminal in nature, as she states that they do not respect a ny authority and do as they please, in particular by committing crimes. The case law has consistently established that crime victims do not constitute a particular social group.
1 Consequently, based on the claimant’s explanations, the panel is of the opinion that she has instead shown—if her story is in fact true—that CIMO members commit crimes while purporting to enforce the law.  [13] When the claimant was asked what she would fear should she return to her country of citizenship today, she stated that the situation in Haiti has gone from bad to worse since she left. Women receive no protection, they are raped, and should she return, people would know that she was not from Haiti and could demand money from her. She stated that she is afraid of what happens in the street and added that there is no sanitation and that  people are living in tents on the street. She stated that her children, who were living in luxury—these  are her own words—could not get used to living without electricity, without doctors and without good schools. The panel pointed out to her that people are not living in tents in every part of the country, for example in Jérémie. The claimant stated that she does not know that place, but that everyone sleeps in tents because they are afraid there will be 
                                                           
1  XXXXXX, XXXXXXXXX v. M.C.I. (F.C.A. No. A-321-98), Létourneau, Nöel, Malone, February 22, 2000. Indexed: XXXXXX v. Canada (Minister of Citizenship and Immigration) , [2000] 3 FC 327 (F.C.A.). 
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 another earthquake. This testimony paints a complete picture of the social and economic conditions in Haiti, which are marked by the absence of school and sanitation infrastructures, a lack of electrical power in some areas of the country, and in particular, rampant criminality—generalized problems that plague the entire population and especially the most  disadvantaged members of society. The claimant demands luxury, in her own words, for her childre n. Although the panel tried to soften her claims, telling her that she could settle for a certain degree of comfort for her children, she maintained that her children were accustomed to luxury and that, if they returned to Haiti, they would be unable to find decent living conditions in that country. [14] Although the panel is sympathetic to the claimant, her claim, as she has expressed it, cannot reasonably be said to have any nexus to the Conv ention, and what she is demanding cannot make her a person in need of protection; the insecurity, the l ack of infrastructure and the lack of electricity are the predominant characteristics of the generalized, indiscriminate poverty that the most disadvantaged members of that society are subjected to, as are some groups that could be considered relatively affluent. The panel is of the opinion that the reasons cited by the claimant cannot constitute persecution within the meaning of XXXXX.
2  [15] The claimant’s explanations reveal that the risk she could face has no personal component and is no different from the risk generally faced by th e population as a whole or by a given sub-group of that population. According to her statements, the claimant fears everyone. She fears the people in the streets. In considering this case, the panel to ok into account the Guideline issued by the IRB Chairperson,
3 which states that, in order for a female claimant’s allegation of gender-based persecution to be considered well founded, the evid ence must establish that the claimant genuinely fears persecution on a Convention ground, not that she was a victim of random violence or of a single crime perpetrated against her as an individual. In th is case, the claimant has never been the victim of any persecutory act. She was never threatened by th e CIMO members. Even when she found herself in the presence of these individuals, they did not th reaten her; they allegedly simply talked about her 
                                                           
2  Adjei v. Canada (Minister of Employment and Immigration) , [1989] 2 FC 680; (1989), 7 Imm. L.R. (2d) 169 (C.A.). 
3  Guideline 4 issued by the Chairperson: Women Refugee Claimants Fearing Gender-Related Persecution , IRB, Ottawa, November 13, 1996. 
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 cousin’s vehicle. However, she states that she fears be ing raped, like all women in Haiti, and specifically those who do not seem to be from that country or who are known to be returning from a long stay abroad. According to her explanations, it is clear that such acts can only be attributed to the rampant criminality in the country, in conjunction with the fact that she has been out of the country for a long time. However, the case law has consistently stat ed that harm that is criminal in nature has no nexus to a Convention ground.
4 The panel is of the opinion that the claimant has not shown in her testimony that a sexual assault, which she claims  she may be subjected to in that context of generalized criminality, can have any nexus to a Co nvention ground. The panel has already stated that victims of crime cannot constitute a particular soci al group. As she was unable to establish a nexus between the Convention and her fear of being a victim of the rampant crime, the claimant was also unable to show that she would be subjected to a risk that would not be faced by all Haitians. Crime, the lack of school and medical infrastructures, the lack of electricity in the country, and the homeless in Port-au-Prince although not throughout the country, are all factors that are inherent to the country’s poverty and underdevelopment and to the aftermath of the earthquake of January 12, 2010; these factors affect all levels of society, and in partic ular the most disadvantaged members of society, indiscriminately.  [16] In light of the foregoing, the panel dete rmines that the exception set out in subparagraph 97(1)(b)(ii) of the Immigration and Refugee Protection Act  (IRPA) applies in this case and that the claimant cannot be consid ered a person in need of protection. [17] In his submissions, counsel for the claimant cited the decision rendered by the Honourable Justice XXXXXX.
5 This decision states that Haitian women who allege a fear of persecution because of the violence in the country are members of a partic ular social group within the meaning of section 96 of the IRPA because rape, within the meaning of Canadian case law, is a gender-based crime. While setting out this principle in his decision, Justice XXXXXX specified the following at paragraph 29:  
This is not to say that membership in a partic ular social group is sufficient to result in a finding of persecution.  
                                                           
4  XXXXXX, XXXX v. M.C.I. (F.C. No. IMM-3470-08), Lagacé, March 4, 2009, 2009 FC 218.  
5  XXXXXXXX, XXXXXXXX v. M.C.I. (F.C. No. IMM-4396-09), Pinard, May 27, 2010, 2010 FC 559, par. 29. 
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 [18] In the panel’s opinion, this makes it clear that mere membership in a particular social group cannot by itself result in a finding of persecution within the meaning of XXXXX.
6 It is therefore clearly the claimant’s responsibility to provide evidence that there are serious reasons for considering that she could be persecuted within the meaning of secti on 96 of the IRPA on a Convention ground. The Honourable Justice also added the following, at paragraph 29 of XXXXXXXX:  
The evidence provided by the applicant must still satisfy the Board that there is a risk of harm that is sufficiently serious and whose occurrence is “more than a mere possibility”.
7  
[19] Based on the foregoing, the panel notes on this pa rticular point that the claimant was very clear in establishing her fear of persecution: she st ated explicitly that she fears everyone—the people in the streets—and also the CIMO members who, according to her, do not respect any authority, but who have nonetheless never targeted her. She furt her stated that she did not want her children to endure hardships that they are not used to, unlike in their current living arrangements, or be forced to live in tents like everyone in Haiti (which is not the reality in Haiti, after the earthquake). The earthquake was certainly a severe catastrophe and affected the entire Haitian population as well as the international community. Although the entire c ountry has suffered the social and economic consequences, not the entire country is living in tent s. In many cities and districts in the country, there are still buildings and housing structures that have even been able to take in earthquake victims in Port-au-Prince and other nearby cities. [20] Consequently, the panel is of the opinion th at, notwithstanding the arguments raised by counsel for the claimant, the claimant did not credibly  establish in her testimony that she has a fear of persecution based on the violence against women in Haiti. She mainly expressed a fear of returning to the country because of the difficult livin g conditions stemming from the poverty and underdevelopment of Haiti, conditions th at are faced by all levels of society in third-world countries like Haiti.  
                                                           
6  XXXXX, footnote 2. 
7  XXXXX, footnote 5. 
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   CONCLUSION [21] Accordingly, having examined all of the eviden ce, the panel determines that the claimant, XXXXX XXXXX XXXXX, has not established that she would face a serious possibility of persecution on a Convention ground. She also failed to demonstrate, on a balance of probabilities, that she would be subjected to a risk to her life, a risk  of cruel and unusual treatment or punishment, or a danger of torture.  [22] Consequently, the panel determines th at XXXXX XXXXX XXXXX is not a Convention refugee or a person in need of protection. [23] Her claim for refugee protection is therefore rejected. [24] As explained in paragraphs [4] and [5], the cl aim for refugee protection filed by the children, XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX, was withdrawn. The panel therefore did not examine it.      Youssoupha Diop 
 Au gust 18 , 2010  Date 
IRB translation Original language: French  REFUGEE PROTECTION DIVISION  /  PARTICULAR SOCIAL GROUP  /  GENDER  /  VIOLENCE AGAINST WOMEN  /  GUIDELINES  /  GENDER  /  NEXUS  /  GENERALIZED RISK  /  FEMALE  /  NEGATIVE  /  HAITI 
2010 CanLII 96732 (CA IRB)

