Docket: IMM-4766-11
Citation: 2012 FC 143
Ottawa, Ontario, February 3,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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RENE GUILLERMO VAQUERANO LOVATO
PRISCILA PATRICIA PADILLA ALVARADO
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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
[1]
The
applicants seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board) dated July
11, 2011 finding that the applicants were neither Convention (United Nations’
Convention Relating to the Status of Refugees, [1996] Can TS No 6) refugees
under section 96 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA)
nor persons in need of protection under section 97 of the IRPA.
[2]
For
the reasons that follow, the application is granted.
Facts
[3]
The
principal applicant, Rene Guillermo Vaquerano Lovato (applicant), alleges that
he fears returning to El Salvador because he and his
extended family have been victims of extortion by the Mara Salvatrucha (MS).
The MS targeted the applicant’s father and uncles, the joint owners of a gas
station, and then murdered and robbed an uncle while he was en route to the
bank. The applicant then began to receive threatening phone calls suggesting
that his family would be killed if the MS’s financial demands were not met. He
fulfilled the demands but made a denunciation to the police for which he was
later attacked and beaten. The threats continued and as a result, the
applicant left El Salvador on April 11, 2010 and claimed for refugee
protection in Canada on April 27,
2010.
[4]
The
Board found the applicant to be credible. However, it rejected the applicant’s
claim under section 96 and section 97 of the IRPA. With respect to
section 96, the Board found that there was no nexus to a Convention ground and
dismissed the claim as a result.
[5]
With
regards to section 97, the Board accepted that the applicant faced a particular
risk of harm from the MS, but concluded that because this risk was generally
faced by others in El Salvador, the requirements of section 97 were not met.
Analysis
[6]
At
issue in this case is whether the Board applied the correct legal analysis of
section 97(1)(b)(ii). I find that the Board erred in law in its assessment of
the section 97 claim, and therefore the decision must be set aside.
[7]
The
Board correctly noted that “consideration of an application under section
97(1)(b)(ii) of the IRPA requires a personalized review in the context of
the actual and potential risks to which the claimant is subject.” However, the
Board went on to find that “even if the claimant does face a personalized risk
of harm, in cases like this, where the general public is subject to the risk of
crime, a person who is a direct victim of crime is not automatically a person
in need of protection within the meaning of section 97 of the Act.” I find
that the Board misunderstood the applicable legal test under section
97(1)(b)(ii) which rendered its decision unreasonable.
[8]
The
Board made a number of findings which are central to the disposition of this
review:
Having undertaken an individualized
inquiry I find that the claimant did face a particular risk of harm at the
hands of the MS, but I also find that the risk of harm faced by the claimant is
a risk generally faced by others in El Salvador.
…
… being a victim of violence and other
crimes at the hand of criminal or organized gangs in El Salvador is a risk
faced generally by all citizens and residents of El Salvador.
…
… the risk with which the claimant faced
[sic] is generalized and one which is faced generally by the population of El Salvador. Based on the particular
facts of this case, even if the claimant faced a particularized risk of harm in
accordance with section 97 of the IRPA, the risk faced by the claimant is
generalized, which falls under the paragraph 97(1)(b) exception.
[9]
The
Board erred in concluding that the applicant faced a particular risk of harm
but was ineligible for section 97 protection simply because there is a general
risk of criminal or gang activity in El Salvador. Vivero v Canada
(Minister of Citizenship and Immigration), 2012 FC 138, reviewed the basic
principles governing the interpretation of section 97(1)(b)(ii) - specifically,
that an individualized inquiry must be conducted in each case, and the fact
that the risk to an applicant arises from criminal activity does not in itself
foreclose the possibility of protection under section 97. The decision under
review is not consistent with the jurisprudence, as it completely negates an
admitted situation of individualized risk simply because the actions giving
rise to that risk are also criminal.
[10]
The
facts of this case are similar to those in Pineda v Canada (Minister of
Citizenship and Immigration), 2007 FC 365. In that case, the applicant
was a young man from El Salvador who claimed to have
been targeted for recruitment and then threatened by the MS over a period of
several months. The Board did not make any unfavourable findings about the
applicant’s credibility, but relied on the applicant’s admission that gangs
recruited throughout the country and across society. On the basis of this
admission, the Board found the risk to be generalized and denied the claim.
[11]
In
Pineda, Justice de Montigny made the following statement at paragraph
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.
[12]
In
Guerrero v Canada (Minister of
Citizenship and Immigration), 2011 FC 1210, Justice Russel Zinn
observed at paragraph 34 that the requirement that the risk is not faced
generally by other individuals in or from that country means that:
persons who face the same or even a
heightened risk as others face of random or indiscriminate violence from gangs
[may not be] eligible for protection. However, where a person is specifically
and personally targeted for death by a gang in circumstances where others are
generally not, then he or she is entitled to protection under s. 97 of the Act
if the other statutory requirements are met.
[13]
In
this case, the Board was guided by an incorrect understanding of the meaning of
section 97(1)(b)(ii). Despite finding that the applicant was subject to a
particularized risk of harm, it concluded that the risk also affected the
population at large because all El Salvadorians are at risk of violence from
the MS. The Board noted: “There was no persuasive evidence before me that the
claimant was targeted for any other reasons than the reasons I have already
indicated”, i.e. those that motivate the MS to target any member of the
population. In this way, the Board incorrectly focused on the reasons for
which the applicant was being targeted, rather than the evidence that the MS
was specifically targeting the applicant to an extent beyond that experienced
by the population at large. As a result, the Board’s decision is
unreasonable.
[14]
As
noted in Vivero, section 97 must not be interpreted in a manner that
strips it of any content or meaning. If any risk created by “criminal activity”
is always considered a general risk, it is hard to fathom a scenario in which
the requirements of section 97 would ever be met. Instead of focusing on
whether the risk is created by criminal activity, the Board must direct its
attention to the question before it: whether the claimant would face a personal
risk to his or her life or a risk of cruel and unusual treatment or punishment,
and whether that risk is one not faced generally by other individuals in or
from the country. Because the Board failed to properly undertake this inquiry
in this case, the decision must be set aside.
[15]
The
application for judicial review is granted. No question has been presented for
certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back to the Immigration Refugee Board for reconsideration
before a different member of the Board’s Refugee Protection Division. No
question for certification has been proposed and the Court finds that none
arises.
"Donald
J. Rennie"
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