Docket: IMM-5166-11
Citation: 2012 FC 218
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, February 17, 2012
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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LUIS FERNANDO ALVAREZ
FUENTES
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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
[1]
This
is an application for judicial review submitted in accordance with subsection
72(1) of the Immigration
and Refugee Protection Act,
SC 2001, c 27 (Act), of a decision dated June 20, 2011, by the Refugee Protection Division of the Immigration and Refugee Board (panel) that the
applicant is not a refugee or a person in need of protection in accordance with
sections
96 and 97 of the Act.
I.
Background
A. Factual
background
[2]
The facts
alleged by the applicant and as stated by the panel are as follows.
[3]
Luis
Fernando Alvarez Fuentes (applicant) is a citizen of Guatemala. He is seeking
refugee protection in Canada
because he says that he fears a risk of extortion and persecution by members of
an organized criminal gang.
[4]
The
applicant was the administrator of a public transit bus cooperative called
Flomitax in Guatemala City. The applicant’s grandmother was also a member of
that cooperative and owned four buses.
[5]
In January
2006, the applicant’s cousin, a bus driver, was the target of a criminal gang
(Mara Salvatrucha) that wanted to extort him. The cousin was killed after
refusing and attempting to report the situation to the authorities.
[6]
On
September 1, 2009, the criminal gang started to extort the applicant. The
applicant received anonymous telephone calls ordering him to pay significant
amounts of money under threat of death.
[7]
In
mid-September 2009, the applicant went into hiding in Zacualpa. However, death
threats resulting from the applicant’s failure to pay the amounts demanded
continued to be sent to the capital.
[8]
On October
1, 2009, the applicant left Guatemala and arrived in Canada on October 18, 2009. He sought refugee
protection on October 20, 2009. On June 6, 2011, his refugee claim was heard by
the panel.
[9]
On
the day of the hearing, the applicant a submitted an amendment to his Personal
Information Form indicating that, in December 2009, his female cousin’s husband
was killed by a criminal gang after refusing to cooperate during an extortion
attempt. The applicant noted that his other cousins witnessed the murder and
subsequently received death threats to keep them from testifying. They fled
Guatemala and have also sought refugee protection in Canada.
[10]
In
summary, the applicant maintains that there were three deaths in his family
resulting from their refusal to comply with the demands of organized crime.
B. Impugned
decision
[11]
The
panel stated that the applicant’s identity had been established. However,
the panel found that the applicant was not a refugee in accordance with section
96 of the Act because he did not provide evidence that he feared persecution
based on one of the five (5) Convention grounds. More specifically, the panel
stated that the applicant was not persecuted because of his membership in a
particular social group or by reason of his race, religion, nationality or
political opinion. The panel rejected the applicant’s explanation that he had
been targeted because of his family, specifically because he is his
grandmother’s grandson. Instead, the panel stated that, in light of the
evidence in the record, the applicant was targeted by the criminal gang for the
purposes of illegal gains and extortion.
[12]
Furthermore,
the panel noted that the applicant had not submitted evidence that he feared
persecution by the police or an agent of the state of Guatemala. Consequently,
the panel found that the applicant was not a “person in need of protection”
under paragraph 97(1)(a) of the Act.
[13]
From
the perspective of paragraph 97(1)(b), the panel recognized the
pervasive nature of social violence in Guatemala and that criminal gangs target certain professions, such as bus drivers
and merchants. In this case, the panel found that the applicant had been
targeted, but not for his family ties. The panel explained that the applicant’s
situation was different from that of his cousins who were killed: they had
tried to get to the bottom of the attacks and to report the complicity of the
police in those matters. In light of the evidence in the record, the panel
stated that the applicant would face a generalized risk, not a personalized
risk, if he were to return to Guatemala (subparagraph 97(1)(b)(ii)
of the Act).
II.
Issue
[14]
In
this application for judicial review, the Court is of the opinion that the
issue is as follows:
Did
the panel err by finding that the applicant would face a generalized risk if he
were to return to Guatemala and thus that he is not a “person in need of
protection” in accordance with section 97 of the Act?
III.
Applicable
legislative provisions
[15]
Sections
96 and 97 of the Act read as follows:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
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.
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Notions
d’asile, de réfugié et de personne à protéger
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.
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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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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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IV.
Applicable
standard of review
[16]
It
is well established that the application of sections 96 and 97 of the Act to
the specific case of a refugee claimant is a question of mixed fact and law
that attracts reasonableness (Acosta v Canada (Minister of Citizenship and
Immigration), 2009 FC 213, [2009] FCJ No 270 at
paragraphs 10 and 11; Guifarro v
Canada (Minister of Citizenship and Immigration), 2011 FC 182, [2011] FCJ No 222) at paragraphs 12 to 18.
V.
Arguments
[17]
The
applicant submits that his family was specifically targeted by members of the
criminal gang and that the incidents were in no way random. The applicant
explains that all of the victims in his family had a connection to the bus
company.
[18]
Furthermore,
the applicant states that the panel mischaracterized the subgroup in question –
merchants or bus drivers – in its decision. Instead, the applicant maintains
that the subgroup to which he belongs is his family. Furthermore, the applicant
argues that the panel made insufficient reference to the documentary evidence
describing the intensity of the risk merchants or bus drivers face in Guatemala.
[19]
The
respondent argues that, in light of the case law and the evidence in the
record, the panel’s decision is reasonable: the applicant is not a “person in
need of protection” under section 97 of the Act because he would face a
generalized risk if he were to return to Guatemala. Also, the respondent notes
that the applicant is again attempting to provide the same arguments and
explanations that the panel has already rejected.
VI.
Analysis
[20]
In
this case, the determinative issue is generalized risk. On the basis of the
facts in this case, the Court finds that the panel’s finding was reasonable.
[21]
The
Court recalls that claims based on subsection 97(1) of the Act must demonstrate
that the applicant would be personally subject to a threat to his life or to a
risk of cruel and unusual treatment or punishment and the risk “is not faced
generally by other individuals in or from that country.” Pursuant to Prophète v Canada
(Minister
of Citizenship and Immigration), 2008 FC 331, at
paragraph 14, [2008] FCJ No 415 (Prophète), a claim
based on section 97 of the Act must provide “persuasive evidence (i.e. a
balance of probabilities) establishing the facts.”
[22]
The case
law has established that such a risk must not concern all citizens. As Justice Tremblay-Lamer
explained in Prophète, the term “generally” was interpreted in a
manner that may include segments of the larger population, as well as all
residents or citizens of a given country (affirmed by Prophète v Canada (Minister of
Citizenship and Immigration), 2009 FCA 3, [2009] FCJ No 143; see also Osorio v
Canada (Minister
of Citizenship and Immigration), 2005 FC 1459,
[2005] FCJ No 1792). In Prophète, Justice Tremblay-Lamer
observed the following:
[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”. Under these circumstances, the Court
may be faced with applicant who has been targeted in the past and who may be
targeted in the future but whose risk situation is similar to a segment of the
larger population. Thus, the Court is faced with an individual who may have a
personalized risk, but one that is shared by many other individuals.
[23]
Furthermore,
Federal Court decisions demonstrate that the risk of being a victim of a
criminal gang in Guatemala is generalized, not personalized (Perez v Canada
(Minister of Citizenship and Immigration), 2009 FC 1029, [2009] FCJ No 1275 (Perez); Menendez v Canada (Minister of
Citizenship and Immigration), 2010 FC 221, [2010] FCJ No 254;
Vasquez
v Canada (Minister
of Citizenship and Immigration), 2011 FC 35, [2011] FCJ
No 38).
[24]
For
example, Justice Kelen stated the following in Perez:
[34]
In this case the applicants were targeted because they owned a small business.
The telephone harassment and threats after they shut down their business were a
continuation of the extortion. There is no evidence that the maras
personally targeted the applicants or that they face a greater risk then other
small business owners or persons perceived to be relatively wealthy (Pineda
v. Canada (MCI), 2007 FC 365, per Justice de Montigny).
[35]
I am of the view that if the risk to violence or injury or crime is a
generalized risk faced by all citizens of the country who are seen as
relatively wealthy by the criminals, the fact that a specific number of
individuals may be targeted more frequently because of their wealth, does not
mean that they are not subject to a “generalized risk” of violence. The fact
that the persons at risk are those perceived to be relatively wealthy, and can
be seen as a subset of the general population, means that they are exposed to a
“generalized risk”. The fact that they share the same risk as other persons
similarly situated does not make their risk a “personalized risk” subject to
protection under section 97. A finding otherwise would “open the floodgates” in
that all Guatemalans who are relatively wealthy, or perceived as being
relatively wealthy, could seek protection under section 97 of IRPA.
[25]
The
following remarks by Justice Near in Ventura v Canada (Minister of Citizenship
and Immigration), 2011 FC 1107, [2011] FCJ No 1361, also support this:
[20] The Applicant in this case was initially targeted because
he was perceived as a wealthy small business owner. He claims to have been
attacked a second time because he reported the incident to the police.
Regardless, I agree with the Respondent that this does not take the Applicant
outside the scope of a generalized risk. The Board acknowledged that while
violence by the MS-13 gang was rampant, merchants were more frequent targets.
The risk does not need to be faced by every person as long as it is prevalent
and widespread (see Osorio v Canada (Minister of Citizenship and
Immigration), 2005 FC 1459, [2005] FCJ No 1792). This Court has stated in Prophète
v Canada (Minister of Citizenship and Immigration), 2008 FC 331, [2008] FCJ
No 415, aff’d 2009 FCA 31, [2009] FCJ No 143 that section 97 can be interpreted
to include a sub-group within the larger one that faces an even more acute
risk. As in that case, the perception of the Applicant as a wealthy
businessman could increase his chances of being victimized, but that does not
mean the risk is no longer generalized.
[21] In addition, past threats to the Applicant as a small
business owner by the MS-13 do not necessarily amount to a personalized risk
(see Gonzalez v Canada (Minister of Citizenship and Immigration), 2010
FC 991, [2010] FCJ No 1353 at para 18; Perez v Canada (Minister of
Citizenship and Immigration), 2009 FC 1029, [2009] FCJ No 1275 at para 34; E.A.D.S.
v Canada (Minister of Citizenship and Immigration), 2011 FC 785, [2011] FCJ
No 1110 at para 13).
[26]
In
the present case, the applicant was unable to identify who or which group he
fears and, moreover, he does not believe that there was only one attacker or
group (Tribunal Record, page 225). The evidence demonstrates that the amount
demanded of the applicant (40,000 quetzales) is within the range of those
extorted from transport company owners (between 30,000 and 50,000 quetzales)
(Tribunal Record, page 35). Nevertheless, the applicant testified that the
money demanded of drivers is minimal, as contrasted with the amount that was
apparently demanded of him (Tribunal Record, page 238).
[27]
The
panel explained that, unlike Irma Verena Salazar Ortiz, who was threatened because
she was trying to find out the truth about the murder of her spouse, Omar
Alfredo Marroquin Alvarez (the applicant’s cousin), the applicant was a victim
of extortion because he was the administrator of his grandmother’s company and
they were going through him for the money because he had access to the funds
(Decision of the panel, paragraph 20; Menendez). The affidavit
concerning José Arnoldo Orrellana Hernadez does not mention that he was
purportedly targeted as a member of the family, and the Court observes that
Blanca Ondina Salazar Herrera reported police complicity. The Court also notes
that the victims had a connection to a bus company. The evidence to which
counsel for the applicant refers indicates that bus drivers and employees may
be the subject of extortion or attacks (Tribunal Record, page 35).
[28]
Finally,
the applicant alleges that the panel erred in its decision by referring to
“merchants” when the applicant is in fact an “administrator” (Decision of the
panel, paragraph 24). Upon reading the decision, the Court is satisfied that
the panel was well aware that the applicant was an administrator of his
grandmother’s company (Decision of the panel, paragraph 20). The general
reference to the word “merchant” at the very end of the decision, when read in
context, is not fatal and the Court cannot find that the panel’s decision was
unreasonable.
[29]
To
summarize, the Court is of the opinion that the panel took into account the
applicant’s specific situation and reasonably found that he had not provided
specific and detailed evidence demonstrating that his family had been
specifically targeted by the criminal gang in question. After reading the
record and hearing the parties, the Court finds that the panel’s decision, in
light of the evidence before it, falls within the range of “possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47).
[30]
For
all of these reasons, the intervention of the Court is unwarranted and the
application for judicial review is dismissed.
[31]
There is no question to certify.
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