Date: 20100525
Docket: IMM-5081-09
Citation: 2010 FC 550
Ottawa, Ontario, this 25th
day of May 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Heydi Vanessa LOPEZ MARTINEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of a decision by
Board member Rena Dhir of the Refugee Protection Division of the Immigration
and Refugee Board (the “Board”), dated September 23, 2009, wherein the
applicant’s claim for refugee protection was refused.
[2]
The
applicant, Heydi Vanessa Lopez Martinez, is a 21-year-old woman who is a
citizen of Honduras and at all material time was a resident of Tegucigalpa. She claims refugee
protection on the basis of fear of persecution by the Mara Salvatrucha 13 (hereinafter
the “maras” or “MS-13”), one of the two main criminal gangs in Honduras. More particularly, she
fears being forcibly recruited to the maras as well as fearing sexual
assault, serious harm or death at the hands of the maras. This is a
claim based on membership in a particular social group.
[3]
The
Board found the applicant to be credible. The following is a summary of the
events precipitating the applicant’s choice to flee Honduras.
[4]
In
August 2007, just after turning 19, two men from the maras raped her.
She identified them as members of the maras by their tattoos as they
were not known to her personally. They threatened to kill her and that her
mother, with whom she lived alone, would pay if she told anyone what happened.
She attended a medical clinic in Honduras on August 21, 2007 seeking medical treatment in
response to her rape.
[5]
Over
the next few months the gang members stalked her. She quit her job to avoid
them. In April 2008 she was again sexually assaulted by these maras
members. At that time they informed her that she must join the gang. In order
to do this, she would have to present a virgin girl to their boss and have to
kill someone. They burned a cigarette onto her leg to demonstrate their
seriousness. She supplied corroborating medical evidence from a doctor in Vancouver, British Columbia who had examined her
scar and identified it as being caused by a first degree burn from a cigarette.
[6]
During
the time of the assaults, the applicant did not alert her mother or the police.
[7]
On
June 3, 2008 the applicant fled Honduras for fear of persecution by the gang in response
to her refusal to join them. Members of maras went to the applicant’s
home, assaulted and threatened her mother and demanded to know her whereabouts
and threatened to kill her. While it is not clear from the transcript whether
the members of the maras were the same as the persons who had previously
raped and sexually assaulted the applicant, the Board member found that they
were.
[8]
Upon
reaching Guatemala, the applicant called
her mother and told her everything. Her mother then filed a police complaint against
the two maras members and left Tegucigalpa and has been living with relatives ever
since. A copy of the police complaint, filed on June 20, 2008, was submitted to
the Board. The applicant testified at the Board’s hearing that neighbours report
to her mother that the maras have continued to make inquiries as to the
applicant’s whereabouts. The mother, living with relatives, has not been
directly contacted or found by the maras since leaving her home.
However, she is unable to work for fear of the maras.
[9]
The applicant
reached Canada after traveling through Guatemala, Mexico and the United States. She made her refugee
claim on July 26, 2008 after she was arrested for being in Canada illegally.
[10]
Since
arriving in Canada, the applicant has been
diagnosed with Post-Traumatic Stress Disorder and has received counseling.
* * * * * * * *
[11]
The
Board stated that the determinative issue was whether the applicant had an
Internal Flight Alternative (“IFA”) in San Pedro Sula, Honduras. The Board member found the applicant
credible and did not doubt any aspect of her story such that she accepted all
explanations to the inconsistencies between the applicant’s Personal
Information Form and her oral testimony.
[12]
The
Board concluded that the applicant could have availed herself of an IFA in San Pedro Sula, Honduras “and it is
not objectively unreasonable to seek refuge in this city”.
[13]
The
sole issue in this matter is whether the Board erred in concluding that San Pedro Sula was a reasonable IFA
for the applicant.
* * * * * * * *
[14]
The
standard of review of the Board’s decision to find an IFA is reasonableness
(see Campos Navarro v. The Minister
of Citizenship and Immigration, 2008 FC 358 at paragraphs 12 to 14, and Estrella
v. The Minister of Citizenship and Immigration, 2008 FC 633, at paragraph
9).
[15]
The
test for a finding of an IFA is well-established in the jurisprudence (Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)). There are two prongs
that must be satisfied by the Board before an IFA will be accepted. On a
balance of probabilities, (1) there is no serious possibility of the applicant
being persecuted in the proposed IFA and (2) that in all the circumstances, including
the circumstances particular to the claimant, the conditions in the proposed
IFA are such that it is not unreasonable for the claimant to seek refuge there.
[16]
The
Board identified the source of the applicant’s risk of future persecution in San Pedro
Sula
as the two maras gang members who had targeted her and not the maras
generally.
[17]
The
Board accepted, albeit with no reference to the documentary evidence, that gang
members are found in every city in Honduras and that gang violence
is a serious risk faced by all citizens of Honduras. This
finding is consistent with the information contained in the U.S. Department
of State 2008 Human Rights Report: Honduras:
.
. . Year-end statistics indicated that there were approximately 36,000 gang
members, many of them minors. The NGO Washington Office on Latin America
estimated that gangs were responsible for 15 percent of violent crime in the
country. Gang membership was primarily confined to the Tegucigalpa and San
Pedro Sula areas.
[18]
In
addition, the United States Agency International Development report, “Central
America and Mexico Gang Assessment Annex 3: Honduras Profile”, describes the
phenomenon of gang violence in Honduras and emphasizes that gangs are
entrenched in Tegucigalpa and San Pedro Sula:
.
. . Gangs established themselves in Tegucigalpa in the 1980s. MS-13 became prominent in Honduras in 1989; 18th
Street became prominent in
1993. These two gangs are now well entrenched, particularly in Tegucigalpa and San Pedro Sula, where they are responsible for many
crimes.
[19]
It
is clear from the documentary evidence that San Pedro Sula is one of two cities,
separated by only 200 kilometers, which make up the key territories of the maras
and their rival gang, 18th
Street.
[20]
Despite
this evidence, the Board concluded that there was no serious possibility that
the applicant would be persecuted in San Pedro Sula. The Board determined that there was no
evidence that the maras members, identified as the persecutors, forcibly
recruit individuals outside their specific neighbourhood of Tegucigalpa. This inference,
combined with the Board’s assessment that the applicant was not a particularly
high profile person of interest for the maras members, supported its
ultimate conclusion that it was reasonable for the applicant to relocate to the
other key urban territory of this gang.
[21]
In
my opinion, the Board’s suggestion of San Pedro Sula as a safe place for the applicant
to relocate is problematic as it is not supported by the documentary evidence
or the applicant’s testimony.
[22]
The
evidence in the record is that the individual persecutors are members of a
national gang, the maras, responsible for violent crime throughout the
country. The two key cities for the maras are Tegucigalpa and San Pedro Sula yet
the Board does not acknowledge the entrenchment of the gang in San Pedro Sula. In her testimony at
the hearing, the applicant stated that maras gang members had been
inquiring about her whereabouts as recently as one week prior to the hearing.
This suggests that they had sustained interest to obtaining information about
her whereabouts for close to a year and is evidence which contradicts the
Board’s assertion that the maras would not sustain interest in locating
her. The applicant also testified that the gang targets those who refuse to
join with revenge killings and informed the Board that she had witnessed this
kind of revenge violence through the murder of her neighbour who had refused to
join the maras. Furthermore, it was the applicant’s assertion that the maras
would persecute her upon return despite relocation to another city.
[23]
While
I do not propose that the Board is under an obligation to provide justification
for selecting the city it did initially, given the absence of any discussion as
to why living in the other key territory of the gang did not put the
applicant’s life and personal safety at serious risk, in my opinion, it was
unreasonable for the Board to conclude that San Pedro Sula was a viable IFA. No
documentary evidence was cited to support the Board’s assertion that
recruitment is localized and from my review of the record I am unable to find
direct support for that fact.
[24]
The respondent
suggests that the fact that the gang members have been routinely asking the
applicant’s former neighbour in Tegucigalpa whether she knows of the
applicant’s whereabouts and the fact that the applicant’s mother has not yet
been found or directly approached by the maras is a reasonable factual
basis upon which to infer that those members do not operate outside that
specific neighbourhood of Tegucigalpa. It is a tenuous link and is unreasonable
in light of the applicant’s accepted testimony.
[25]
The
applicant testified that the maras gang had the ability to find out she
had returned to San
Pedro Sula:
Q: And
if you had moved to another city, how would they find you?
A: Under
my name, the way I look. They have so many ways of finding a person.
Q: You
were asked if they were still in the neighbourhood and you said that your
friend Myra said they were still in the
neighbourhood looking for you. Is that correct?
A: Yes.
Q: It
seems that they haven’t gone to any other city looking for you.
A:
They’re waiting for one to return. When they find that they can’t find
any more information on my neighbour’s part, they’re going to look for me. They
must be looking for me. They have to find me.
Q: Do
they know where you are today?
A: No.
Q:
Now, if you returned to Honduras and lived in another city like San Pedro
Sula, how would they know you had returned to Honduras,
if they don’t even know that you’re in Canada?
A: They’re
big groups and they have all the possibilities about how to find a person.
Maybe this can sound a little compromising, even the police is – they’re part
of them.
[26]
According
to the applicant, the logical inference from the evidence before the Board of
the maras gang’s entrenchment in San Pedro Sula and the close proximity between her home
town and the proposed IFA is that her whereabouts would eventually become known
to the specific members who had targeted her in the past. This same reasoning
was used by Justice Barnes in Ng’aya v. The Minister of Citizenship and
Immigration, 2006 FC 1136 at paragraph 14 to quash a Pre-Removal Risk
Assessment decision wherein the officer had held that the applicant had an IFA
from serious risk of persecution from her father and his associates in the
Mungiki cult. While notably, there was the added fact that the applicant and
her persecutor were related, I do not consider the facts of the instant case
wholly distinguishable from Ng’aya.
[27]
In
regard to the Board’s characterization of the risk faced by the applicant, I
note Justice Yves de Montigny’s reasoning in Pineda v. The Minister of
Citizenship and Immigration, 2007 FC 365. In Pineda, this Court had
cause to review a section 97 decision wherein the Board concluded that the
applicant was not a person in need of protection:
[15] Under these circumstances, the
RPD’s finding is patently unreasonable. It cannot be accepted, by implication
at least, that the applicant had been threatened by a well-organized gang that
was terrorizing the entire country, according to the documentary evidence, and
in the same breath surmise that this same applicant would not be exposed to a
personal risk if he were to return to El Salvador. It could very well be that the
Maras Salvatruchas recruit from the general population; the fact remains that
Mr. Pineda, if his testimony is to be believed, had been specifically targeted
and was subjected to repeated threats and attacks. On that basis, he was
subjected to a greater risk than the risk faced by the population in general.
Despite the fact that the context of the Board’s
inference was with respect to a different legal test, this decision is of
assistance in assessing the logic of the Board’s reasons in this case.
[28]
The
only issue decided by the Board in the case at bar was the existence of the IFA
in San
Pedro Sula.
The Board correctly identified the IFA to be determinative of both a claim for
protected status pursuant to section 96 as well as section 97 of the Act. To
the extent that the Board uses its conclusion that a risk of maras gang
violence is a generalized risk to refute the applicant’s assertion that she
would be persecuted in the proposed IFA, the reasoning in Pineda, supra,
illustrates such assumed generalization to be faulty. This is not to say that
the applicant faces a particular risk of violence which is equivalent to a
positive determination on the first branch of the IFA. Rather, it undermines
one of the premises the Board uses to get to its ultimate conclusion that there
is no serious possibility of persecution in San Pedro Sula by the maras.
[29]
I
conclude, therefore, that the Board’s conclusion with respect to the first
prong of the IFA is unreasonable. This is sufficient to quash the Board’s
decision without having to consider the Board’s analysis under the second prong
of the IFA test.
* * * * * * * *
[30]
For
all the above reasons, the application for judicial review is granted, the
decision of Board member Rena Dhir is quashed and the matter is sent back for redetermination
by a differently constituted Board.
JUDGMENT
The application for judicial
review is granted. The decision rendered on September 23, 2009 by Board member
Rena Dhir of the Refugee Protection Division of the Immigration and Refuge
Board is quashed and the matter is sent back for redetermination by a
differently constituted Board.
“Yvon
Pinard”
Email this Content