Docket: IMM-2959-11
Citation: 2012 FC 209
Toronto, Ontario, February 13, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ROBERTO EDUARDO AMAYA JEREZ
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Applicant
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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. Overview
[1]
In
2009, Mr. Roberto Eduardo Amaya Jerez fled his native El Salvador and claimed
refugee protection in Canada. He claims to fear drug dealers who tried
to force him to sell drugs in the restaurant he owned in the town of San Martin.
[2]
A
panel of the Immigration and Refugee Board dismissed Mr. Amaya Jerez’s claim,
finding that his fear was not related to any ground recognized in the Refugee
Convention, and that he was not subject to a personal risk of mistreatment.
Rather, he was exposed to a generalized risk of crime.
[3]
Mr.
Amaya Jerez argues that the Board erred in both of its findings. He submits
that the Board ignored evidence that he was perceived to be a gay man and was
persecuted, at least in part, for that reason. Further, he contends that the
Board’s conclusion that he was exposed to a generalized risk, not a personal
risk, was unreasonable on the evidence.
[4]
In
my view, the Board did not overlook significant evidence. In addition, its
conclusions were reasonable on the evidence before it.
[5]
There
are two issues:
i.
Did
the Board overlook evidence?
ii.
Was
the Board’s decision unreasonable?
II. Factual Background
[6]
In
2003, Mr. Amaya Jerez and his wife opened a small restaurant in San Martin,
which attracted a wide range of clientele including gay customers and local
drug dealers. One of those drug dealers, a man called “El Chino Tres Colas”,
attempted to enlist Mr. Amaya Jerez to sell drugs in the restaurant. Mr. Amaya
said no.
[7]
In
2004, two of Chino Tres Colas’ associates, known as “Cousin” and “El Tabatha”,
told Mr. Amaya Jerez that he would have to cooperate. They put a gun to Mr.
Amaya Jerez’s head and threatened his pregnant wife by pointing a gun at her
belly and vagina. Mr. Amaya Jerez was beaten. During the assault, the gang
members forced a gun into Mr. Amaya Jerez’s underwear and said, “[y]ou allow
fags in the restaurant and therefore you must be one of them”.
[8]
Mr.
Amaya Jerez made arrangements to send his wife to another town and started to
close his business. Cousin and four other gang members told Mr. Amaya Jerez
that he was not allowed to refuse, and that they knew where his wife was. They
beat Mr. Amaya Jerez, suggested again that he must be homosexual, and assaulted
him by putting a gun in his underwear.
[9]
Mr.
Amaya Jerez did not make a police complaint because he had seen prominent
police officers, including the local chief of police, socializing at his
restaurant with the same drug dealers he feared. However, Mr. Amaya Jerez
sought medical attention and was hospitalized for three days. His family
physician stated that he had injuries all over his body, including a head wound
that required five stitches, serious bruising and lacerations on his back, and
signs of sexual abuse in the anal and genital region.
[10]
Mr.
Amaya Jerez fled San Martin and moved to San Salvador with his
wife, obtained a new job, and was living there until July 2007, when he was
surrounded by people asking for money. One of them was Cousin, who recognized
Mr. Amaya Jerez from San Martin.
[11]
Cousin
stole Mr. Amaya Jerez’s wallet and keys, told him he would kill him if he went
to the police, and reminded him that there was unfinished business with Chino
Tres Colas. Mr. Amaya Jerez and his wife moved to another city, Chalchuapa, and
hid at home when they were not working. He felt he could not live that way
forever, so he decided to leave the country.
[12]
Mr.
Amaya Jerez obtained a Canadian work visa and entered Canada in 2009.
After he left El
Salvador,
his wife was approached by gang members who attempted to kidnap their child.
She was also approached by other men who asked where Mr. Amaya Jerez was.
[13]
In
Canada, the job Mr.
Amaya Jerez had been promised never materialized and he was unable to renew his
work permit. Fearing a return to El Salvador, he made a refugee
claim in June 2010.
III. The Board’s Decision
[14]
The
Board found Mr. Amaya Perez to be a truthful witness. Further, his account of
events was consistent with the documentary evidence, which stated that El Salvador has an
extremely serious crime problem, including extortion and violence by drug
traffickers. Furthermore, the documentary evidence confirmed the existence of
the drug dealer, Chino Tres Colas. He is a well-known, high-ranking leader of
the Mara 18, an organization that is known for drug trafficking and committing
street crimes. News reports stated that Chino Tres Colas has recently been
prosecuted for his violent crimes.
[15]
The
Board noted Mr. Amaya Jerez’s claim that he had been subject to sexual violence.
While it concluded that his allegations were substantially true, it found that
they did not support a claim under ss 96 or 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] (see Annex for statutory
reference).
[16]
First,
he had not shown a nexus to a Convention ground. In essence, Mr. Amaya Jerez
was a victim of criminality, having been extorted and pressured to sell drugs,
and attacked when he refused. This treatment had no connection to any of the
grounds of persecution recognized in s 96.
[17]
Second,
s 97 of IRPA protects those facing a risk not faced generally by others in the
country. The Board noted that, although Mr. Amaya Jerez had been personally
affected by the events in El Salvador, he did not face a
personalized risk of mistreatment. Mr. Amaya Jerez came to the attention of
Chino Tres Colas because he was a potential source of revenue. Furthermore, the
documentary evidence confirmed that there are many gang members active in El Salvador who extort
money from the general population. The Board concluded that all people with
businesses, facilities or assets faced a generalized risk.
[18]
Mr.
Amaya Jerez had argued that he faced a personalized risk because his
mistreatment, in part, was based on the fact that he was perceived to be
homosexual. The Board disagreed. It found no evidence that the claimant was
perceived to be a gay man in El Salvador. The alleged agents of
persecution knew he was a married man with children. Furthermore, when
questioned, Mr. Amaya Jerez did not allege that he has any gay self-identity.
The Board stated that, although the criminals who assaulted Mr. Amaya Jerez
suggested he must be gay, they did not do so because they genuinely believed
that he was homosexual.
[19]
Accordingly,
the Board found that the issue of persecution on grounds of sexual orientation
was not supported by the evidence. It found Mr. Amaya Jerez not to be a person
in need of protection under s 97 of IRPA, nor a Convention refugee under s 96.
IV. Issue One – Did the Board overlook
evidence?
[20]
Mr. Amaya Jerez submits the Board stated incorrectly that
“[t]here is no evidence the claimant is perceived to be a gay man in El
Salvador”. This finding contradicted the evidence provided by Mr.
Amaya Jerez, whom the Board found to be a credible witness. He testified that the
gang members made homophobic statements during both sexual assaults, accusing him
of being gay because he served homosexual customers at his restaurant.
[21]
In my view, the Board did not overlook this evidence. It
concluded that the agents of alleged persecution knew that Mr. Amaya Jerez was
not actually homosexual. They knew that he was married. The fact that he served
homosexuals in his restaurant was an aggravating factor affecting the language
and conduct they employed in expressing their threats. However, it was not the
reason they were interested in Mr. Amaya Jerez or the real basis for their
threats. The Board’s conclusion that the real reason the gang pursued Mr. Amaya
Jerez was because it wanted to sell drugs in his restaurant was not
unreasonable on the evidence before it.
V. Issue Two – Was the Board’s
decision unreasonable?
[22]
Mr. Amaya Jerez submits that, because the Board ignored his
evidence about his perceived sexual orientation, it incorrectly concluded that Mr.
Amaya Jerez’s evidence did not show a nexus to a Convention ground.
Furthermore, he argues that the Minister erroneously suggested that because Mr.
Amaya Jerez is married, he cannot be perceived to be a homosexual. Further, the
Board’s incorrect analytical framework is expressed in the last sentence of the
decision, which states that “[o]ne does not become gay as a result of being
assaulted”.
[23]
As I
see it, the Board considered Mr. Amaya Jerez’s claim that he had been
persecuted based on perceived sexual orientation and implicitly acknowledged
that the gang members could have had mixed motives. However, as discussed
above, the Board took into account the evidence relating to this issue and
concluded that the gang’s motives were financial.
[24]
It
is certainly possible for a claimant to support a refugee claim based on imputed
membership in a particular social group when he or she is not actually a member
of that group. Here, the Board did not rule out that possibility. It simply
concluded that Mr. Amaya Jerez was targeted not for his sexual orientation but
for his ownership of a restaurant. Based on the evidence before it, I cannot
conclude that its determination was unreasonable.
[25]
In addition, Mr. Amaya Jerez submits that the Board
incorrectly applied the law on generalized risk and overlooked his particular
circumstances. He maintains that he was subjected to multiple incidents of
sexualized violence because he was perceived to be homosexual.
[26]
However,
the Board considered the evidence related to the allegedly imputed sexual
orientation and concluded that Mr. Amaya Jerez was not targeted on that basis.
Accordingly, he was not subjected to a personalized risk. Based on the evidence
before it, the Board’s conclusion was not unreasonable.
VI. Conclusion and Disposition
[27]
The
Board’s decision was intelligible, justified and defensible based on the law
and evidence before it. It was not unreasonable. Further, the Board did not
ignore evidence regarding Mr. Amaya Jerez’s alleged imputed sexual orientation.
Accordingly, I must dismiss this application for judicial review. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex “A”
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Immigration
and Refugee Protection Act, SC 2001, c 27
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.
(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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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
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.
(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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