Date: 20100729
Docket: IMM-86-10
Citation: 2010 FC 793
Vancouver, British Columbia, July
29, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
CLAUDIA ISABEL HIDALGO TRANQUINO
JOHANNA
GABRIELA COLORADO HIDALGO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Claudia
Isabel Hidalgo Tranquino and her daughter Johanna sought refugee protection in
Canada based upon Ms. Hidalgo’s alleged fear of criminal gangs in El Salvador
who, she says, had specifically targeted her because of her work as a
prosecutor in that country.
[2]
The
Refugee Protection Division of the Immigration and Refugee Board dismissed the
applicants’ claim on the basis that Ms. Hidalgo lacked the subjective fear
necessary to support a claim under section 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. The Board further found that the risk the
applicants faced was generalized in nature, and thus did not provide a basis
for protection under section 97 of the Act.
[3]
For
the reasons that follow, I find that the Board erred in its analysis.
Consequently, the application for judicial review will be allowed.
The Section
96 Claim
[4]
Ms. Hidalgo described the threats
that had been made to her life and that of her daughter by members of the Mara
18, Mara Salvatrucha and MS gangs, which she says, were the result of her work
as a lawyer involved in gang prosecutions. She also described the extreme fear
and desperation that she felt as a result of these threats.
[5]
The
Board made no negative credibility findings with respect to Ms. Hidalgo’s evidence. However,
the Board found that she lacked subjective fear of persecution based upon her
failure to seek refugee protection during the two years that she spent in the
United States before coming to Canada.
[6]
While
the failure of an applicant to seek protection elsewhere may indeed provide a
basis for a finding of a lack of subjective fear, the Board’s finding in this
case was unreasonable. Ms. Hidalgo explained why she did not make a refugee claim in the United States. The Board seemingly
accepted her explanation as truthful, but nevertheless found it to be
“inconsistent with a well-founded fear of persecution”.
[7]
As
the Federal Court of Appeal observed in Shanmugarajah v. Canada (Minister of
Employment and Immigration), 34 A.C.W.S.
(3d) 828, [1992] F.C.J. No. 583, at paragraph 3 “it is almost always foolhardy
for a Board in a refugee case, where there is no general issue as to
credibility, to make the assertion that the claimants had no subjective element
in their fear…”. See also Justice Dawson’s comments in Ribeiro v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1363, 143 A.C.W.S. (3d) 147 at
para.11.
[8]
Having
accepted Ms. Hidalgo’s evidence as truthful,
including the explanation that she provided for her failure to claim elsewhere,
it was simply unreasonable for the Board to dismiss her claim for protection
under section 96 on the basis that she lacked subjective fear.
The Section
97 Claim
[9]
Because
the Board made no finding as to whether the applicants belonged to a particular
social group and thus had a nexus to a Convention ground, it is therefore
necessary to also deal with the applicants’ arguments with respect to the
Board’s section 97 analysis.
[10]
In
this regard, the Board found that although Ms. Hidalgo had adduced evidence to
show that she and her daughter were personally subject to risk in El Salvador,
the risk that they faced was a generalized one faced by others in that country,
including other lawyers working on gang prosecutions.
[11]
The
respondent relies on the Federal Court of Appeal’s decision in Prophète v.
Canada (Minister of Citizenship and Immigration), 2009 FCA 31, 387 N.R. 149
to say that the Board’s finding in this regard was one that was reasonably open
to it on the record before it.
[12]
Citing
its earlier decision in Li v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 1, 329 N.R. 346 at paragraph 33, the Federal Court
of Appeal observed in Prophète that “section 97 is meant to afford
protection to an individual whose claim ‘is not predicated on the individual
demonstrating that he or she is [at risk] ... for any of the enumerated grounds
of section 96’”: at paragraph 6.
[13]
The
Federal Court of Appeal further found that to be a person in need of
protection, an applicant has to show the Board that his or her removal to the
country in question would subject him or her personally, in every part of that
country, to a risk to his or her life, or to a risk of cruel and unusual
treatment, that is not faced generally by other individuals in or from the
country in question: Prophète at para. 3.
[14]
Prophète mandates that the Board
carry out an individualized inquiry with respect to the issue of
forward-looking risk, on the basis of the evidence adduced by the applicant: at
para. 7.
[15]
The
respondent argues that the risk asserted by Ms. Hidalgo was specifically tied
to her employment, and that having resigned from the prosecutor’s office, she
should no longer be at risk in El Salvador. There are two difficulties with this argument. The first
is that it formed no part of the Board’s analysis. The second is that it flies
in the face of the Board’s finding that Ms. Hidalgo had adduced evidence to
show that she and her daughter were personally subject to risk in El Salvador.
Conclusion
[16]
For
these reasons, the application for judicial review is allowed.
Certification
[17]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is allowed, and the matter is remitted to a
differently constituted panel for re-determination; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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