Docket: IMM-5441-11
Citation: 2012 FC 482
Ottawa, Ontario, April 25,
2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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JUAN CARLOS GARCIA KANGA
CHRISTIAN OLGUIN FRAGA
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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]
This
is an application for judicial review by Christian Olguin Fraga and her
husband, Juan Carlos Garcia Kanga, challenging a decision of the Refugee
Protection Division of the Immigration and Refugee Board (Board) by which their
claims to refugee protection were denied.
Background
[2]
The
Applicants are citizens of Mexico who sought protection in Canada based on a
history of criminal victimization directed at Ms. Olguin, her father, her
mother and other members of her family. The problems experienced by the family
initially arose from extortion demands from a criminal gang directed
principally at Ms. Olguin’s father who owned a successful business.
According to Ms. Olguin, the frequent kidnapping of persons of financial
means in Mexico was a
considerable concern for her family going back to at least 1998. In addition,
Ms. Olguin’s father had been assaulted no less than 15 times and had
experienced numerous break-ins to his business over several years. In 2005,
telephone threats were made to Ms. Olguin’s mother and father, in 2006,
her mother was carjacked at gunpoint, and in 2009, her brother received
extortion demands. In 2009, the same persons who had threatened her father kidnapped
Ms. Olguin. A day later, she was released after her father made a ransom
payment of 100,000.00 pesos. Shortly after this incident, the abductors
demanded monthly extortion payments from Ms. Olguin’s father of 30,000.00
pesos. These payments were made for two months but then stopped. Not long
afterwards, Ms. Olguin and her husband came to Canada and made a
refugee claim.
The
Board’s Decision
[3]
The
Board accepted Ms. Olguin’s testimony as credible and consistent with the
recognized country conditions in Mexico of widespread,
gang-related kidnapping and extortion. The Board found (and it is not
contested) that the Applicants’ claim to protection had no nexus to any of the
convention grounds in section 96 of the Immigration Refugee and Protection Act,
SC 2001, c 27, [IRPA] and could, therefore, only be considered under
section 97.
[4]
The
Board then rejected the claim because it found that the risk faced by
Ms. Olguin was not sufficiently “particularized” as it was one faced
generally by other similarly situated individuals in Mexico. The
Board’s analysis of this point is contained in the following extract from its
reasons:
[20] Extortion by organized crime is
also a prevalent problem in Mexico. You confirm in your Personal
Information Forms (“PIF”) several times that business owners and their families
are especially vulnerable and, indeed, your family and your father’s business
have been victimized many times. Even though I accept that you have already and
may continue to be targeted for ongoing extortion, kidnapping, or other crimes
because your father’s former business or your family’s perceived wealth make
you vulnerable, your case remains undistinguished from many such instances in
which organized crime demand ransom or regular protection money from those
perceived as wealthy. Many Mexicans must confront the risk of kidnapping and
extortion by organized crime. In this case, I do not find that your risk is
distinct from other Mexicans.
[21] La Familia, in my view,
were and are looking for anyone who can pay them once or more often, making
prosperous business owners and their families vulnerable. The motivation to
target you was purely financial and I do not find that this is any kind of
interpersonal conflict or personal vendetta, for example. Your parents own
three homes, other property that is rented out, and four stores (until they
were closed this year). They were able to afford to send their children to
school in the U.S. and pay for post-secondary
education as well. This relative wealth definitely makes your family a target for
ongoing victimization, but I cannot find any other motive in the evidence to
target you other than a financial one.
[22] It was submitted on your behalf
that a generalized risk becomes particularized when there are repeated or
intervening criminal acts sustained over a period of time, and, that the level
of targeting experienced by your family that persists until today makes this an
individualized risk. Furthermore, that as people who have already been shown to
pay ransom and extortion, this also particularizes the risk. The cases relied
upon were Aguilar Zacharias [sic] and Martinez Pineda.
[23] What is interesting about the
above two cases is that the Federal Court found the exact opposite in two cases
based on rather similar facts; those being Perez and Paz Guifarro.
In my view, Aguilar Zacharias [sic] and Martinez Pineda are the
minority and the preponderance of case law follow Perez and Paz
Guifarro. Many federal court cases have considered vulnerable subcategories
of populations in high crime countries. The Court has found that the risk to
such groups is faced generally by most individuals in the country, as the risk
of all forms of criminality is widely experienced. Though certain groups may be
targeted more frequently or repeatedly because of their perceived wealth,
occupation, or business ownership, for example, everyone in the country is
deemed at risk because of the general conditions there. This was also held in
cases such as Osorio, Rodrigues Perez, Prophete, Acosta,
and repeated and heightened victimization has been dealt with in, Vickram,
Carias, Cius, Innocent, Ventura De
Parada, and found to be generalized. All cases I have cited indicate that a
personal risk, or one that is not random, is not necessarily a particularized
risk that others do not generally face in the country. Being part of a
vulnerable sub-category of a population is not sufficient to individualize a
risk, as subgroups of a population may also experience a general risk.
[Footnotes omitted; emphasis in original]
Issues
[5]
Did
the Board err in its assessment of the evidence of personalized risk or in the
application of that evidence to the test for relief in section 97 of the IRPA?
Analysis
[6]
The
issues raised on this application are matters of mixed fact and law and the
applicable standard of review is reasonableness: see Acosta v Canada (MCI), 2009 FC 213
at para 9, [2009] FCJ no 270 (QL).
[7]
The
Applicants’ principal criticism of the Board’s decision concerns the treatment
of the alleged differences in Federal Court jurisprudence dealing with the
issue of a generalized criminal risk in a population subgroup (eg. wealthy
families in Mexico). According
to the Applicants, the Board had a duty to explain why it preferred the
authorities upon which it relied and rejected those that had been cited on
their behalf (ie. Zacarias v Canada (MCI), 2011 FC 62, [2011] FCJ no
144 (QL) [Zacarius], and Pineda v Canada (MCI), 2007 FC
365, [2007] FCJ no 501 (QL) [Pineda]).
[8]
I
do not agree with this submission. Firstly, it is not obvious to me that there
is a material incongruity in the applicable Federal Court jurisprudence on this
question. The concern expressed by Justice Simon Noël in Zacarius,
above, and by Justice Yves de Montigny in Pineda, above, had to do with
the Board’s failure to consider the evidence of personalized risk in the
context of a section 97 analysis. This problem was described by Justice Noel
in the following way:
17 As was the case in Martinez
Pineda, the Board erred in its decision: it focused on the generalized
threat suffered by the population of Guatemala
while failing to consider the Applicant's particular situation. Because the
Applicant's credibility was not in question, the Board had the duty to fully
analyse and appreciate the personalized risk faced by the Applicant in order to
render a complete analysis of the Applicant's claim for asylum under section 97
of the IRPA. It appears that the Applicant was not targeted in the same manner
as any other vendor in the market: reprisal was sought because he had
collaborated with authorities, refused to comply with the gang's requests and
knew of the circumstance of Mr. Vicente's death.
[9]
The
above analysis does not appear to me to be out-of-step with the authorities
relied upon in this case by the Board. Those authorities similarly require the
Board to closely examine the evidence of personalized risk to determine if it
transcends the risk faced generally by a substantial part or subgroup of the
population. Here the Board carried out the required analysis and concluded
that the risk faced by the Applicants did not satisfy the test for relief in
section 97 of the IRPA. Unlike the cases relied upon by the Applicants,
the Board did not overlook evidence pertaining to the Applicants’ risk
history.
[10]
There
was no evidence before the Board that the Applicants were personally targeted
for harm beyond their speculation that Ms. Olguin’s father’s failure to
pay extortion money and her previous kidnapping placed them at a heightened
risk. This is the type of risk that has repeatedly been found to be
generalized and insufficient to support a claim to section 97 protection: see Guifarro
v Canada (MCI), 2011 FC 182, [2011] FCJ no 222 (QL); Prophète v Canada
(MCI), 2009 FCA 31, [2009] FCJ no 143 (QL) [Prophète]; Gabriel v
Canada (MCI), 2009 FC 1170, [2009] FCJ no 1545 (QL); Perez v Canada
(MCI), 2010 FC 345, [2010] FCJ no 579 (QL);Ayala v Canada (MCI),
2012 FC 183, [2012] FCJ no 137 (QL). The Board’s decision to refuse protection
was amply supported by authority and cannot be characterized as unreasonable.
[11]
Furthermore,
even where there is divided Federal Court authority on a point of law, I do not
agree that the Board is required to explain why it has adopted one view over
the other. Presumably, Federal Court jurisprudence speaks for itself and the
Board has no obligation to offer any additional interpretation of the legal
authorities that it chooses to rely upon in resolving a point of law.
[12]
In
summary, I cannot identify any error in the Board’s decision dealing with its
application of the evidence of risk to the test for relief in section 97.
[13]
The
Applicants’ additional concern that the Board created a new legal test for
relief under section 97 by referring to a “particularized risk” instead of
“personalized risk” is without merit. It is clear from the Board’s reasons
that it understood the distinction between generalized risks and personalized
risks and no reviewable error arises from its use of synonymous language to
describe that distinction.
[14]
At
the conclusion of argument in this proceeding, I invited counsel to propose a
certified question. Counsel for the Applicants proposed the following
question:
Can a risk which was initially random, indiscriminate,
or general, remain a generalized risk pursuant to Section 97(1)(b)(ii) of IRPA
despite accepted evidence of escalated, personal and specific targeting from
the persecutor arising from the subsequent actions of the victim such as a refusal
to pay extortion demands?
[15]
Counsel
for the Respondent opposes the certification of any question in this case on
the basis that the application of section 97 of the IRPA to a criminal
risk is fact-dependant so that the outcome of one claim is not determinative of
another.
[16]
I
agree that the Board’s risk determination in this case turned on an issue of
mixed fact and law – a determination that I have found to be reasonable. As
Justice Johanne Trudel observed in Prophète, above, the application of
section 97(1) of the IRPA requires “an individualized inquiry” that
cannot be determined by some universal rule or approach. To the same effect is
the decision of Justice James Russell in Rodriguez v Canada (MCI), 2012
FC 11, [2012] FCJ no 6 (QL), where he declined to certify a similar question
because “in some cases, personal targeting can ground protection, and in some
it cannot”.
[17]
Here
the proposed question would not be determinative of this application or of
similar cases yet to be heard. In the result, I decline to certify a question
in this proceeding. The application is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
"R.L.
Barnes"
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