Monday, August 01, 2011

Josile—women as a particular social group

Josile v. Canada (Citizenship and Immigration), 2011 FC 39 (CanLII)

Judge: Justice Martineau

Date heard: December 8, 2010

Date decided: January 17, 2011

Counsel for Josile: Russell L. Kaplan

Counsel for Minister: Helene Robertson

Place of Hearing: Ottawa, Ontario

The applicant was a female Haitian national who had left Haiti in 2005 and had a refugee claim rejected in the United States, following which she came to Canada and in 2007 made a claim on the basis of political opinion, social group Haitian women, and social group family (para. 3). Her father was a minor local official who had been beaten and threatened for cooperating with the police, and she also feared the level of sexual assault and lack of state protection for women (para. 4).

The Refugee Protection Division (RPD) found that the applicant was not credible regarding her family’s situation (para. 5). Regarding the other grounds, the RPD found that she feared criminals, not politically-motivated harm, and therefore was not protected by the Convention (para. 6). Finally, the RPD found that Haitian women do not face persecution as a particular social group, as any persecution they faced was, again, criminal rather than political (para. 7). She challenged the RPD’s legal analysis of criminality versus political persecution.

Justice Martineau noted that:

The situation of sexual abuse and violence against women in Haiti has recently come to the attention of the Federal Court … In this regard, the Court has cautioned the Board not to import into the definition of a Convention refugee, legal requirements which are specific to section 97 when the Board is assessing whether the fear of persecution is based on a Convention ground in light of section 96 of the Act. (para. 11)

Having reviewed the case law, Justice Martineau noted:

Indeed, a gender-specific claim cannot be rejected simply because the group in question or its members face general oppression and the claimant’s fear of persecution is not supported by an individualized set of facts. Where the claimant has not, himself or herself, experienced the type of persecution, he or she fears, the claimant can use evidence of similarly-situated persons to demonstrate the risk and the unwillingness or inability of the state to protect … (para. 22)

Justice Martineau then turned to similar immigration cases (Dezameau v. Canada(Minister of Citizenship and Immigration), 2010 FC 559 (CanLII)) as well as non-immigration jurisprudence (R. v. Osolin, 1993 CanLII 54 (S.C.C.), [1993] 4 S.C.R. 595) as well as the Immigration and Refugee Board’s own Gender Guidelines, all as authority for the proposition that rape and sexual assault, by their very nature, target women as women (paras. 24-27). Therefore, according to those and other authorities, women fearing sexual assault are a particular social group (paras. 28-32). Therefore the RPD’s finding that nexus had not been established was unreasonable (para. 33).

Justice Martineau also criticized the RPD for making comments about the fact that boys can also be victims of rape (irrelevant, since in that circumstance they are a particular social group in themselves) (para. 34); and stated that “The Court is also appalled by certain gratuitous statements of the Board” about the crime of rape (para. 35).

Unusually, Justice Martineau went further than simply overturning the decision by directing the RPD to consider the new circumstances and risks arising out of events in Haiti since the initial claim was heard (paras. 38-39).


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