Date:
20101005
Docket:
IMM-968-10
Citation:
2010 FC 991
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, October 5,
2010
PRESENT:
The Honourable Madam Justice Bédard
BETWEEN:
JORGE
ADELMARO MORALES GONZALEZ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (Board),
dated December 25, 2010, which rejected the applicant’s refugee claim and
found that he was neither a refugee under section 96 of the IRPA nor a “person
in need of protection” under section 97 of the IRPA.
Background of the application
[2]
The
applicant, a citizen of El Salvador, worked as business manager for a
credit firm. In January 2008, he was forced, under threat of death, to pay $100
per month to members of the Mara Salvatrucha gang, a transnational criminal organization.
The applicant paid the amount demanded for the months of January 2008 to
August 2008 and refused to pay as of September 2008.
[3]
After his
refusal to pay the amounts demanded, the applicant and his family were subject
to threats and intimidation from members of Mara Salvatrucha. His wife and
children allegedly left to live in Honduras and the applicant left his country
for Canada on October 5, 2008.
Impugned decision
[4]
The Board
rejected the applicant’s claim on two main grounds. Initially, it analyzed the
application under section 96 of the IRPA and found that the applicant did
not establish that his fear of persecution was related to one of the five
Convention grounds. The Board subsequently analyzed the refugee claim under
paragraph 97(1)(b) of the IRPA and found that the applicant failed
to establish on a balance of probabilities that he was subject to a greater
risk of extortion and violence from gangs than the general public was. The
Board based its decision in this matter on the principles set out by the Court
in Prophète v. Canada (Citizenship and Immigration), 2008 FC
331, [2008] F.C.J. No. 415.
[5]
On the
basis of the information contained in the National Documentation Package on El Salvador,
the Board found that El Salvador is one of the most dangerous countries in the
world, that extortion by gangs is widespread and that all citizens are subject
to a risk of extortion and violence from gangs. The Board also stressed that
the applicant himself had acknowledged in his testimony that all citizens are
subject to a risk of extortion by gangs, that they are active throughout the
country and that members of these criminal organizations do not hesitate to
kill those who refuse to pay the money demanded.
Issue
[6]
In his
memorandum, the applicant alleged that the Board had erred in finding that the
applicant was not part of a particular social group within the meaning of
section 96 of the IRPA, and that it had also erred in finding that the
fear shown by the applicant was a generalized fear, which excluded him from the
definition of person in need of protection under section 97 of the IRPA. During
the hearing, the applicant’s counsel abandoned the first ground.
[7]
The only
issue to be determined therefore is whether the Board erred by not recognizing the
applicant as a person in need of protection on the ground that he was not
subject to a greater personal risk than that which the general public was
subject to if he were to return to El Salvador.
Standard of review
[8]
It
is well established in case law that the Board’s decision as to the
interpretation and application of section 97 of the IRPA is reviewable on
a standard of reasonableness: Perez v. Canada (Citizenship and
Immigration), 2010 FC 345, [2010] F.C.J. No. 579; Marcelin Gabriel v.
Canada (Citizenship and Immigration), 2009 FC 1170, [2009] F.C.J.
No. 1545 and Ventura De Parada v. Canada (Citizenship and Immigration),
2009 FC 845, [2009] F.C.J. No. 1021.
[9]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme
Court of Canada defined reasonableness as follows:
... reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (para. 47 of the
decision).
Analysis
[10]
The
applicant submits that the Board erred in finding that his fear was a
generalized fear experienced by the general public. The applicant submits that
he has shown that he was personally targeted by the Maras, that he was subject
to extortion, that he agreed to pay the money demanded for eight months and
that he was threatened when he refused to continue to pay. The applicant
submits that, since then, he has been subject to a personalized risk and that
it cannot be considered comparable to that which the general public is subject
to.
In his memorandum, the applicant also stressed that the nature of his work puts
him at a greater risk than the general public is subject to. The applicant
supports his allegations by referring to Martinez Pineda v. Canada (Citizenship
and Immigration), 2007 FC 365, [2007] F.C.J. No. 501 and Hidalgo
Tranquino v. Canada (Citizenship and Immigration), 2010 FC 793,
[2010] F.C.J. No. 962.
[11]
The
respondent, however, argues that the applicant’s suggestion is not consistent
with this Court’s case law and that the Board was justified in finding that the
risk that the applicant was subject to was not personalized because it was
comparable to that which the entire population of El Salvador was subject
to.
[12]
With
all due respect and however sympathetic I may be to the applicant, I find that
the application for judicial review must be dismissed. I think that, in this
case, it was not unreasonable for the Board to conclude that the risk of
threats and extortion from gangs which the applicant was subject to was the
same as that which the general public of El Salvador was subject to.
[13]
Paragraph 97(1)(b)
of the IRPA does not give protection to people who are subject to a risk which others in a
country are generally subject to:
|
Person
in need of protection
97.
(1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
. . .
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
|
Personne
à protéger
97.
(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
[…]
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
|
[14]
The Court
has ruled a number of times on the concept of personalized risk in
circumstances where the risk in question is also faced by the general public or
by a significant portion of the population. In Prophète, Justice
Tremblay-Lamer stated the applicable principles as follows:
[18] The
difficulty in analyzing personalized risk in situations of generalized human
rights violations, civil war, and failed states lies in determining the
dividing line between a risk that is “personalized” and one that is “general”.
…
[23] … the applicant
does not face a personalized risk that is not faced generally by other
individuals in or from Haiti. The risk of all forms of criminality is general
and felt by all Haitians. While a specific number of individuals may be
targeted more frequently because of their wealth, all Haitians are at risk of
becoming the victims of violence.
[15]
In
Innocent v. Canada (Citizenship and Immigration), 2009 FC 1019,
[2009] F.C.J. No. 1243, at para. 67, the Court found that a person who
has personally been a victim of crime is not, by that fact alone, a person in
need of protection under section 97 of the IRPA. The case of Acosta v.
Canada (Citizenship and Immigration), 2009 FC 213, [2009] F.C.J. No.
270, dealt with facts similar to those in this case in that the applicant had
been personally targeted by the Maras in Honduras and had established that the
gang was still looking for him. The Court reiterated the principles set out in Prophète
and concluded that:
… It is no more unreasonable to find that
a particular group that is targeted, be it bus fare collectors or other victims
of extortion and who do not pay, faces generalised violence than to reach the
same conclusion in respect of well known wealthy business men in Haiti who were
clearly found to be at a heightened risk of facing the violence prevalent in
that country (paragraph 16).
[16]
In
Ventura De Parada, Justice Zinn reiterated these same principles and
stated the following at paragraph 22:
I agree with my colleagues that an
increased risk experienced by a subcategory of the population is not
personalized where that same risk is experienced by the whole population
generally, albeit at a reduced frequency. I further am of the view that where
the subgroup is of a size that one can say that the risk posed to those persons
is wide-spread or prevalent then that is a generalized risk.
[17]
The
same principles were also applied by Justice Boivin in Perez.
[18]
I
understand that the applicant is likely to be subject to extortion and threats
again from gangs if he returns to El Salvador, but his risk is comparable to
that which the general public is subject to. The fact that he has already been
a victim of extortion by the Maras is not sufficient to make his risk
recognized as a personalized risk, because all citizens of El Salvador are
subject to a risk of extortion by gangs. The evidence does not support a
finding that a person who has already been a victim of extortion by gangs is
more likely to again be subject to extortion. Therefore, I consider that the
Board’s finding is reasonable: it is based on the evidence, is well articulated
and falls within the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para. 47).
[19]
The
judgments in Martinez Pineda and Hidalgo Tranquino were rendered
in a specific factual context, separate from the factual context of this case,
and the Court’s findings in those matters cannot be applied in this case.
[20]
The
parties did not propose a question for certification and none will be
certified.
JUDGMENT
THIS COURT ORDERS that the application for judicial
review be dismissed. There is no question to certify.
“Marie-Josée
Bédard”
Certified true
translation
Catherine Jones,
Translator
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