Date: 20100225
Docket: IMM-3830-09
Citation: 2010 FC 221
Ottawa, Ontario, February 25,
2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
MYNOR MARTINEZ MENENDEZ
SONIA NINETH CASTANEDA DE MARTINEZ
ALICIA MARTINEZ CASTANEDA
MELISSA MARTINEZ CASTANEDA
Applicants
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 dated
July 8, 2009, by the Refugee Protection Division of the Immigration and Refugee
Board (the Board), wherein the Board found the applicants were not Convention
refugees or persons in need of protection pursuant to subsections 96 and 97(1)
of the Act.
Factual Background
[2]
The
applicants, Mynor Martinez Menendez (the principal applicant), his wife Sonia
Nineth Castaneda de Martinez, and their two minor children, Alicia Martinez
Castaneda and Melissa Martinez Castaneda, are citizens of Guatemala who claim
refugee protection on the basis of an alleged risk of extortion and kidnapping
by organized criminal gang members (maras). They base their claim on their
political opinion and on membership in a particular social group: people who
fear kidnapping by organized criminals.
[3]
During
his career, the principal applicant has been a senior administrator for, or
consultant to, various international development non-governmental organizations
(NGOs) in Central
America.
[4]
On
September 27, 2005, the principal applicant travelled to France to study at the
Institute of
Development Bioforce in Lyon. He returned to Guatemala on July 15,
2006. On August 1, 2006, the principal applicant began a one-year contract with
a French agricultural and veterinary non-governmental organization (NGO) called
“Agronomes et Vétérinaires Sans Frontières – France” (AVSF) as an Agricultural
Development Project Consultant. He was given signing authority for the NGO’s
bank accounts in order to buy materials and pay invoices.
[5]
On
August 14, 2007, the principal applicant allegedly received a threatening phone
call at home from an unknown individual indicating his family was being watched
and he should give the group what he assumed was money. He reported the
incident to the police the following day and was advised to make a denunciation
at the General Direction of the National Civil Police, Division of Criminal
Investigation (DINC). The DINC advised the applicant to reconnect his phone,
find out what the caller wanted and negotiate with him in the event he wanted
money. The DINC followed up but provided no other protection. The principal applicant
subsequently noticed people watching his house from cars parked in the lot
across the street and graffiti on the outside walls of his house which he
believes were made by gangs.
[6]
On
September 15, 2007, the principal applicant was approached by four men in the
parking lot of a local market. The men appeared to be gang members by their
appearance and told the principal applicant he had 24 hours to give them
Q100,000.00 (approximately $12,000.00 CDN) or they would kidnap or kill one of
his daughters.
[7]
The
principal applicant believed that the men were members of a criminal gang who
were trying to extort money from him but thought it would be useless to report
it to the police. Instead, he took his family to live with relatives (an uncle)
in the north of the city. His daughters continued to attend their school. The
principal applicant continued to work but never advised his employer of the
threats he was receiving because he did not want to get them involved.
[8]
On
October 16, 2007, the applicants obtained Canadian visitor visas and flew to Canada on November
7, 2007. They claimed refugee protection on November 20, 2007.
[9]
The
applicant heard that at the beginning of October 2007, a man had come to the
school asking for his daughters. The applicant also indicated that some NGO workers
in Guatemala had been
threatened. The applicant states he has been told he continues to receive calls
from strangers asking for him and he was asked to return to the District
Attorney’s office.
Impugned Decision
[10]
The
Board found the applicants would not be subject to a personalized risk under
section 97 of the Act due to the principal applicant’s profile as an employee
of an international NGO. The Board held that the alleged particular social
group, people who fear kidnapping or extortion from criminal gangs, does not
constitute a particular social group within the meaning set out in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, 153 N.R. 321. Based on the
documentary evidence, the Board noted that all people in Guatemala face a
generalized risk of harm from criminal gangs, with some groups of the
population being targeted more frequently than others. The Board also found the
applicants’ allegation of having been personally targeted in the past by
criminal gangs to be lacking in credibility.
[11]
With
respect to credibility, the Board gave little weight to the applicants’
assertion that criminal gang members visited the daughters’ school and passed
by their house following their departure from Guatemala. The
neighbours and the person at the school who reported these incidents to the
principal applicant did not say the individuals in question were gang members,
which the Board notes would have been apparent from their tattoos, manner of
dress, language and use of signs. The Board also gave little weight to the
alleged telephone hang-ups and graffiti on the wall as the identity of the
perpetrators was equally unknown. The fact that the applicants were not
approached or harmed by criminal gangs between the initial threats and the time
they left for Canada seven weeks
later also undermined their credibility to have been targeted by criminal gangs.
[12]
Under
section 96 of the Act, the Board found that there is not sufficient credible or
trustworthy evidence to support a nexus to the Convention grounds of political
opinion or particular social group. The Board rejected the applicant’s
submission that the criminal organization, which the applicants fear, acts as
the “de facto” government in some areas of Guatemala. Therefore
refusal to pay extortion would be seen as a political act because the country
evidence shows gangs do not form the “de facto” government in Guatemala.
[13]
Under
section 97, the Board determined that the risks faced by the applicants (extortion,
kidnapping and death by local gangs or maras) are ones faced by all people in Guatemala, although
some groups are targeted more than others. The Board therefore added that the applicants
would not be personally subject to a risk because of their particular
circumstances.
[14]
Nevertheless,
in his decision, the Board addresses the question of whether the applicants, as
they allege, may have been “individually targeted” or “actively targeted” by
maras. The Board concludes the applicants have not been so targeted since
others in Guatemala have also
been targeted for extortion. The Board also noted that the applicant has not
been personally targeted because the maras engaged in no follow-up with the applicant’s
family after he left Guatemala.
Issues
[15]
The
applicant raises the following issues:
1.
Did the Board err in its interpretation of section 97: what does it
mean to be “personally targeted” or face a “personalized risk”?
2.
Did the Board make crucial credibility findings unreasonably and
without regard to the evidence before it?
3.
Did the Board err by ignoring the evidence that the applicant was a
member of a “particular social group” because of his occupation, or in the
alternative, he faced a heightened risk of harm because of that occupation?
Standard of Review
[16]
The
respondent submits, and the Court agrees that the application of sections 96
and 97 of the Act to the particular facts of the applicants’ case is a question
of mixed fact and law which is to be reviewed on the standard of reasonableness
(Acosta v. Canada (Minister of
Citizenship and Immigration), 2009 FC 213, [2009] F.C.J. No. 270 (QL)).
1. Did the Board err
in its interpretation of section 97: what it means to be “personally targeted”
or face a “personalized risk”?
[17]
The
applicants submit that the Board’s decision cannot stand as the Board erred in its
interpretation of what constitutes a risk “not faced generally by other
individuals in or from” Guatemala in this case.
[18]
Where
there has already been a personal threat or attack or other evidence of risk, the
applicants argue that personalized threat must be considered, regardless of
what generalized risk may be faced by others in the same country. At the hearing,
counsel for the applicants submitted that the facts in Pineda v. Canada (Minister of
Citizenship and Immigration), 2007 FC 365, 161 A.C.W.S. (3d) 467 were
similar to the facts in the case at bar. In Pineda, this Court found that
the claimant had already been targeted. Therefore the applicant is of the view
that the Board should have considered that factor as a “personalized risk”. The
Court does not agree with the applicants. In the Pineda case, the
claimant had been personally targeted on more than one occasion and over quite
a long period of time. Moreover, Mr. Pineda had been targeted not has a victim
but rather for recruitment into the Gang. On the basis of these facts, the
Court finds that the Pineda case can be distinguished and is therefore
not analogous to the case at bar as alleged by the applicants (Acosta).
[19]
Further,
based on Surajnarain v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1165, 336 F.T.R., the applicant
submits that a risk can indeed be faced by a sub-group. However, this Court in Prophète
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, 167 A.C.W.S. (3d) 151 at
par. 23, rejected the allegation that a person faces a personalized risk of
violence by being a member of a group that may be targeted more frequently
because of their wealth. Based on Prophète, the Court agrees with the respondent
that it was reasonably open to the Board to determine, on the facts of this
case, that the applicants did not face a personalized risk of harm due to the
principal applicant’s employment with an agricultural and veterinary
non-governmental organization which may be targeted more frequently than other
groups.
[20]
Given
the wording of subsection 97(1)(b)(ii) of the Act, the applicants must
satisfy the Board that they would be personally subjected to a risk which is
not generally faced by others in Guatemala. The Board reasonably
found that the applicants are members of a large group of people who may be
targeted for economic crimes in Guatemala on the basis of their perceived
wealth (Carias v. Canada (Minister of
Citizenship and Immigration), 2007 FC 602, [2007] F.C.J. No. 817 (QL)
at par. 23 and 25). The Court finds the applicants have not succeeded in
establishing that they were personally threatened by the criminal gangs in Guatemala.
2. Did the Board make
crucial credibility findings unreasonably and without regard to the evidence
before it?
[21]
The
applicants submit the Board’s findings of fact with respect to the incidents of
targeting were obviously central to his decision. The applicants argue that the
Board’s rejection of this evidence, on grounds of credibility, was
unreasonable, as it was made without regard to the evidence before the Board.
[22]
The
Board doubted the applicants’ persecutors were members of an organized crime
gang because neither the applicant nor the school authorities mentioned the
“identifiers” to the maras gang. Further, the Board gave little weight to the applicants’
assertion that members of criminal gangs visited their daughters’ school and
their house following their departure from Guatemala as the
people who reported these incidents to the principal applicant did not say
whether these individuals were gang members. The Board also questioned the
alleged telephone hang-ups and graffiti on the wall because the identity of the
perpetrators was unknown. The fact that the applicants were not approached or
harmed by criminal gangs between the initial threats and the time they left for
Canada - seven
weeks later - was also found to undermine their claims to have been targeted by
criminal gangs. Based on the facts and the evidence, the Court finds that the
Board’s credibility findings were thus open to it. The Board reasonably
concluded that the applicant’s lacked credibility regarding the identity of the
gang members who allegedly persecuted them.
3. Did the Board err
by ignoring evidence that the Applicant was a member of a “particular social
group” because of his occupation, or in the alternative, he faced a heightened
risk of harm because of that occupation?
[23]
According
to the applicant, the Board only briefly deals with the evidence on country
conditions, firstly to rebut the applicants’ argument that Guatemala is a failed
state where organized crime acts as the “de facto” government and,
secondly to establish that crime in Guatemala is high and
generalized.
[24]
In
support of these arguments, counsel for the applicants submits that the Board failed
to consider the country’s conditions and that the main applicant, as signing
officer with an international NGO, is at risk in Guatemala. As
evidence, the applicant submitted a number of documents confirming that members
of NGO’s are at risk in Guatemala. The difficulty with
that evidence stems from the fact that it relates clearly to human rights
activist, advocates of marginalized group or activists which is clearly not the
case of the principal applicant. In fact, the principal applicant worked for an
agricultural and veterinary non-governmental organization in an administrative
capacity, in charge of accounting and finance. Thus, on the basis of the
evidence on record, the principal applicant can hardly be defined as a human
rights activist working for a prominent human rights organization.
[25]
In
Ward at paragraph 70, the Supreme Court of Canada concluded that the
meaning assigned to “particular social group” can be identified in three
possible categories: 1. groups defined by an innate or unchangeable
characteristic; 2. groups whose members voluntarily associate for reasons so
fundamental to their human dignity that they should not be forced to forsake
the association; and 3. groups associated by a former voluntary status,
unalterable due to its historical permanence.
[26]
In
the case at bar, the Board reasonably found that the applicants were not
members of a particular social group because of the principal applicant’s
employment with an international NGO, as the applicant’s employment does not
correspond to one of the three categories enumerated in Ward.
[27]
Furthermore,
as noted above, it is trite law that the appearance of wealth does not equate
to a Convention refugee nexus (Prophète, Carias). There is
insufficient evidence supporting the applicants’ contention that they would be
subject to persecution because of their political opinion or particular social
group. The Court finds that, in these circumstances, the Board’s conclusion was
reasonably open to it.
[28]
For
these reasons, I therefore determine that the application for judicial review
is dismissed.
[29]
The
applicants submits the following question for certification:
In a claim for protection to succeed
under section 97 of IRPA on the basis of risk “not faced generally by
other individuals in or from a country” is it relevant to the factual analysis
that the risk alleged is the result of the action or inaction of the government
in that country, such as that failure to consider this factor amounts to an
error of law?
[30]
To
be certified, the question must be one which transcends the interests of the
immediate parties to the litigation, contemplates issues of broad significance
or general application, and be one that is determinative of the appeal (Canada
(Minister of Citizenship and Immigration) v. Liyanagamage (FCA), [1994]
F.C.J. No. 1637, at para. 4).
[31]
The
question proposed by the applicants for certification was not raised or dealt
with on the application for judicial review and, as such, is not an appropriate
question for certification. Therefore, it shall not be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question of general importance
is certified.
“Richard
Boivin”
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