Docket: IMM-3903-11
Citation: 2012 FC 69
Montreal, Quebec, January 19, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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VERONICA
BEATRIZ FERNANDEZ RAMIREZ
ROBERTO CARLOS JIMENEZ CANO
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
As
challenging as it might be for judicial officers (who are but judicial
officers, neither legislators nor members of the executive branch) to watch or
to be made aware of the effects of generalized criminality in certain
countries, as per the jurisprudence in application of the legislation,
generalized criminality, viewed as a generalized risk to segments of a certain
population or a significant segment of a certain population, cannot, in and of
itself, be a reason to grant refugee status. (National entities or countries
must take responsibility for the safety of their populations in protecting such
populations from generalized criminality; such is not the legal responsibility
of refugee receiving States.)
II. Judicial Procedure
[2]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision made
by the Refugee Protection Division of the Immigration and Refugee Board
[Board], rendered on May 17, 2011, wherein it was determined that the Principal
Applicant is not a Convention refugee nor a person in need of protection,
pursuant to sections 96 and 97 of the IRPA.
III. Facts
[3]
The Principal Applicant,
Ms. Veronica Beatriz Fernandez Ramirez, and her common-law husband, Mr. Roberto
Carlos Jimenez Cano, are citizens of El Salavador. They allege a fear of
persecution by members of the Maras Salvatrucha gang [Maras], should they return
to El Salvador.
[4]
The Principal Applicant
alleges that, in 2004, she became a victim of harassment by an individual by
the name of Alberto, a member of the Maras in her neighborhood.
[5]
The Principal Applicant’s
family owns a gardening business which hires local youth. She alleges that, on
July 12, 2005, her brother was robbed, late at night, on his way to work. He
was also shot.
[6]
After this incident,
the Principal Applicant went into hiding with her brother.
[7]
The Principal Applicant
alleges she and her brother were located by the gang and, for this reason, they
moved to a friend’s home nearby and then relocated to their grandfather’s home
in Suchitoto. In January 2006, their sister, harassed by a gang member, had joined
them. The Principal Applicant and her sister subsequently returned home and her
brother remained in hiding until December 2006.
[8]
The Principal Applicant
alleges that the police raided the family’s neighborhood in November 2006 and
many gang members fled, were arrested or were killed. According to the Principal
Applicant, gang-related problems in 2007 were infrequent.
[9]
In March 2007, Alberto
returned to the neighborhood and again harassed her.
[10]
The Principal Applicant
left El Salvador and arrived in Canada on July 25, 2007 as a temporary foreign worker.
[11]
In April 2009, her
family was a victim to vandalism and extortion because the Maras discovered
that the Principal Applicant sent money from Canada.
[12]
On February 9, 2010,
the Principal Applicant filed a refugee claim in Canada.
IV. Decision under Review
[13]
The Board did not question
the Principal Applicant’s credibility. The Board concluded that the Principal Applicant
is not a refugee. The Board determined that the Principal Applicant’s fear
resulted from generalized criminality; therefore, the Board concluded that the Principal
Applicant did not qualify as a person in need of protection, pursuant to
section 97 of the IRPA.
[14]
In accordance with
the documentary evidence, the Board found that criminality is a wide-spread
problem in El Salvador; and, the risk that the Principal Applicant
faces is experienced by a certain considerable segment of the population of her
country. Consequently, the Board concluded that no personalized risk exists.
V. Issue
[15]
Did the Board err in
its analysis of section 97 of the IRPA?
VI.
Relevant Legislative Provisions
[16]
Sections
96 and 97 of the IRPA are applicable in these proceedings:
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Convention
refugee
96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
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
(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
(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.
Person in
need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition
de « réfugié »
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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 :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
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.
Personne
à protéger
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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VII.
Position of the parties
[17]
The Principal Applicant
submits that the wide-spread violence as documented in the country condition
evidence demonstrates a well-founded fear of persecution; thus, the Board erred
when it concluded that the Principal Applicant was not personally targeted. Furthermore,
the Board should have considered that the Principal Applicant’s brother had
been shot and that the Maras had planned to kill her.
[18]
The Respondent
submits that the Board was justified in finding that the Principal Applicant
and her family had been victims of generalized violence by the Maras due to the financial situation derived from their family business.
Due to an exposure to the same risk as the general population in El Salvador, the Board determined that the Principal
Applicant does not face a personalized risk.
VIII. Analysis
[19]
The standard of
review is one of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190).
[20]
In cases of
generalized risk, this Court has said, as it has, in Gonzalez v Canada (Minister of Citizenship and
Immigration), 2010 FC
991:
[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). [Emphasis added].
[21]
In the
present case, the Board’s finding is supported by the evidence; and, it does appear
that the motivation for the Maras having approached the
Principal Applicant’s family is due to the family’s financial situation.
[22]
The risk
faced by the Principal Applicant was reasonably characterized by the Board as
one of extortion; one, which the Principal Applicant admits is faced by many
due to the Maras.
[23]
The Principal
Applicant submits that her presence in Canada increased the extent of extortion
demands. In this regard, the Principal Applicant made her claim only in
February 2010 even though she has been in Canada as a temporary worker since July 2007.
[24]
Due to her
perceived wealth, the Principal Applicant fears being further targeted should
she be made to return to her country of origin. According to the jurisprudence,
this is not a case of personalized risk as decided in Guifarro v Canada (Minister of Citizenship and
Immigration),
2011 FC 182:
[32] Given the conjunctive nature of
the two elements contemplated by paragraph 97(1)(b)(ii), a person applying for
protection under section 97 must demonstrate not only a likelihood of a
personalized risk contemplated by that section, but also that such risk “is not
faced generally by other individuals in or from that country.” Accordingly, it
is not an error for the RPD to reject an application for protection under
section 97 where it finds that a personalized risk that would be faced by the
applicant is a risk that is shared by a sub-group of the population that is
sufficiently large that the risk can reasonably be characterized as being widespread
or prevalent in that country. This is so even where that sub-group may be
specifically targeted. It is particularly so when the risk arises from
criminal conduct or activity.
[33] Given the frequency with which
claims such as those that were advanced in the case at bar continue to be made
under s. 97, I find it necessary to underscore that is now settled law that
claims based on past and likely future targeting of the claimant will not meet
the requirements of paragraph 97(1)(b)(ii) of the IRPA where (i) such targeting
in the claimant’s home country occurred or is likely to occur because of the
claimant’s membership in a sub-group of persons returning from abroad or
perceived to have wealth for other reasons, and (ii) that sub-group is
sufficiently large that the risk can reasonably be characterized as being
widespread or prevalent in that country. In my view, a subgroup of such
persons numbering in the thousands would be sufficiently large as to render the
risk they face widespread or prevalent in their home country, and therefore
“general” within the meaning of paragraph 97(1)(b)(ii), even though that
subgroup may only constitute a small percentage of the general population in
that country. [Emphasis added].
[25]
To warrant
the intervention of this Court, the Principal Applicant must demonstrate that
the Board’s decision is unreasonable in respect of the evidence. The Principal
Applicant is not in a position to simply substitute her opinion for that of the
Board.
VIII. Conclusion
[26]
The specific
circumstances of this case, when considered in their entirety, do reflect
outcomes determined by the jurisprudence above. Consequently, the application
for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS that that the application for judicial review be dismissed. No
question of general importance for certification.
“Michel M.J. Shore”
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