Date:
20120719
Docket:
IMM-4983-11
Citation:
2012 FC 912
Ottawa, Ontario, July
19, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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MESA SOLER DE MUNGUIA, INGRID
JASMINE (A.K.A. MEZA SOLER DE MUNGUI, INGRID JASMINE) AND MUNGUIA OQUELI,
MARCO ANTONIO, MUNGUIA MEZA, ANDREE ANTHONIOLY (A.K.A. MUNGUIA MEZA, ANDREE
ANTHONIO)
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated June 14, 2011, wherein the applicants were determined to be
neither Convention refugees within the meaning of section 96 of the Act, nor
persons in need of protection as defined in subsection 97(1) of the Act. This
conclusion was based on the Board’s finding that the applicants faced a
generalized rather than personalized risk in Honduras.
[2]
The applicants request that the Board’s
decision be set aside and the matter be referred back for redetermination by a
differently constituted panel.
Background
[3]
The
principal applicant is Ingrid Jasmine Mesa Soler De Mungui. The other
applicants are related to her as follows: Marco Antonio Munguia Oqueli, husband
and Andree Anthonioly Munguia Meza, minor son. All the applicants are citizens
of Honduras.
[4]
The
principal applicant and her husband both held well-paying jobs in Honduras. In 2004, members of the organized crime group, Mara Salvatrucha (referred to as
the MS or Mara), approached them and demanded money. The gang threatened the
applicants should they report them to the police, whom the gang claimed they
had good connections with.
[5]
Initially,
the applicants refused to meet the MS’s demands. The gang therefore started
persecuting the applicants; robbing, assaulting and threatening them in May
2005. Thereafter, the applicants complied with the gang’s demands.
[6]
In
April 2007, the MS discovered that the applicants were earning more money. They
therefore increased their demands. The applicants told them it was too much. However,
the MS merely responded by threatening them further. To escape the increasing
demands, the applicants moved to a different city and changed their car to hide
their identity. However, in December 2008, the MS found them and forced them to
pay. In April 2009, the MS increased their demands again. The applicants paid,
but also decided to leave the country to avoid further persecution.
[7]
The
applicants did not know the name of the alleged perpetrators nor did they file
any complaints with the police, except on one occasion two days before their
departure from Honduras. The applicants filed this complaint so that their
problems could be incorporated into government statistics. The following day,
the applicants received a note stating that their son would be kidnapped if
they did not pay a large sum of money.
[8]
The
applicants left Honduras on August 16, 2009. They travelled north through the United States, arriving in Canada on September 2, 2009. The applicants filed their refugee claims at
the United States-Canada border.
[9]
The
hearing of the applicants’ refugee claims was held on May 9, 2011.
Board’s Decision
[10]
The
Board issued its decision on June 14, 2011. Notice of the decision was issued
on July 13, 2011.
[11]
The
Board first summarized the applicants’ allegations. The Board also accepted the
applicants’ identities as claimed.
[12]
The
Board then addressed the question of nexus under section 96 of the Act. It
found that the applicants’ fear was not linked to any of the Convention
grounds, but rather that the applicants were victims of criminality. The Board
noted that victims of criminality generally do not establish a link between
their fear of persecution and any of the Convention grounds. Therefore, the
Board denied the applicants’ claims under section 96 of the Act.
[13]
Turning
to the section 97 analysis, the Board first noted that the applicants left Honduras by entering the United States illegally and from there, travelling to Canada where they filed their refugee claims. They did not file their claims in the U.S. as they were advised by relatives in the U.S. and Canada that they were more likely to receive
help in Canada. However, the Board found that persons with a well-founded fear
of persecution would attempt to apply for refugee protection without
unreasonable delay. Thus, their failure to seek asylum in the U.S. indicated a lack of subjective fear. Nevertheless, the Board noted that this was not
the determinative issue. Rather, the determinative issue was whether the
applicants faced a generalized or personalized risk.
[14]
The
Board noted that risk under subparagraph 97(1)(b)(ii) of the Act must be
personal, faced in every part of the country and not generally faced by others.
The Board reviewed the documentation before it. It noted that Honduras was considered one of the most violent countries in Latin America with high levels of youth
violence, murder and gangs. The MS became prominent in the late 1980s and were
well entrenched and responsible for many crimes in the country.
[15]
Based
on this review, the Board found that the applicants feared the MS and the
gang’s acts of criminality that affect the general population in Honduras. As they shared the same risk as other similarly situated persons with good
incomes, their risk was not a personalized risk. The Board found that the
applicants were pursued for extortion purposes because the MS believed they had
money; just as the MS pursued other citizens in Honduras with means. The fact
that the applicants were identified personally as a target did not necessarily
remove them from a generalized risk category as the nature of this risk was one
faced generally by others in the country. As such, the Board found on a balance
of probabilities that the applicants’ alleged risk was generalized. The Board
therefore denied the applicants’ claim under subsection 97(1) of the Act.
Issues
[16]
The
applicants submit the following point at issue:
Did the Board err in finding
that the applicants faced a generalized risk when they had been specifically
targeted for assaults and robbery by the MS gang and the Board accepted that
“the [applicants] were approached for extortion purposes by the [MS] just like
other people in Honduras, such as in these [applicants’] particular situation
and circumstances i.e., perceived to be capable of paying money to the [MS]”.
[17]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in its assessment of the nature of the applicants’ risk under subparagraph
97(1)(b)(ii)?
Applicants’ Written Submissions
[18]
The
applicants submit that the only issue in this case is the interpretation of the
phrase “not faced generally by other individuals in or from that country” in
subparagraph 97(1)(b)(ii) of the Act. The applicants submit that when the
principles that have emerged in the jurisprudence on this provision are applied
to this case, it is clear that the applicants were personally targeted for
murder by the MS as a result of their refusal to meet the extortion demands.
Rather than being at risk because of their employment or economic class, the
applicants were at personal risk because they refused to pay the extortion
demands. As such, there was no doubt that that the applicants would be
personally in danger if returned to Honduras. The Board made a patently
unreasonable error in finding that they were not persons in need of protection
because they faced a generalized risk.
Respondent’s Written Submissions
[19]
The
respondent submits that the question of what constitutes a generalized risk
under subparagraph 97(1)(b)(ii) is one of mixed fact and law that is reviewable
on a reasonableness standard.
[20]
The
respondent submits that the Board did not err in finding that the risk faced by
the applicants in Honduras is one faced generally by the population. The
documentary evidence clearly supported this finding. Further, the Board did consider
the applicants’ personal situation in rendering its decision.
[21]
The
respondent also submits that while the applicants may have been victimized for
not complying with the MS’s demands, this does not establish a risk under
section 97 if it is one generally faced by the population. The applicants did
not provide evidence to demonstrate that the Board’s factual finding that the
MS constitutes a widespread risk for all citizens was in error. Further, wealth
does not constitute a personalized risk under section 97. There was no evidence
on the record that the applicants faced any personalized risk.
Analysis and Decision
[22]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[23]
The
issue of whether an applicant faces a personalized risk, as opposed to a
generalized risk, arises from the application of subparagraph 97(1)(b)(ii) of
the Act and is reviewable on a reasonableness
standard (see Acosta v Canada (Minister of Citizenship and Immigration),
2009 FC 213, [2009] FCJ No 270 at paragraphs 1, 9 and 11; Innocent v Canada
(Minister of Citizenship and Immigration), 2009 FC 1019, [2009] FCJ No 1243
at paragraph 36; and Rajo v Canada (Minister of Citizenship and Immigration),
2011 FC 1058, [2011] FCJ No 1277 at paragraph 26).
[24]
In
reviewing the Board’s decision on a standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] SCJ No 12 at paragraph 59). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraphs 59 and 61).
[25]
Issue
2
Did the Board err in its
assessment of the nature of the applicants’ risk under subparagraph
97(1)(b)(ii)?
Under subsection 97(1)(b) of
the Act, applicants may be found in need of protection if their removal would
subject them personally to a risk to their life, or of cruel and unusual
treatment or punishment, for which they are unable, or unwilling due to the
risk, to avail themselves of state protection. This analysis entails a case-by-case
determination of the real and particularized threat directed at the applicant
(see Innocent above, at paragraph 42). Victims of crime do not qualify
as persons in need of protection under section 97 of the Act for that reason
alone – the determination must be based on the specific circumstances of each
case (see Innocent above, at paragraph 67).
[26]
In
this case, the determinative issue in the Board’s decision was whether the risk
that the applicants faced was personalized. Based on the evidence before it,
the Board found that this risk was not personalized, but rather generalized and
faced by other similarly situated persons in Honduras. The applicants submit
that the Board erred in coming to this decision because their risk was indeed
personalized. This personalized risk arose from their repeated refusal to pay
the MS’s extortion demands, which differentiated them from other citizens that
were either not targeted or had abided to the MS’s demands.
[27]
In
its decision, the Board cited extensive jurisprudence in support of its finding
that the fact that individuals may be victimized repeatedly or more frequently
by criminals did not personalize their risk if it was a risk generally faced by
others; particularly where they were victimized due to: their perceived wealth;
the location of their home in a more dangerous area; their pursuit after
reporting to police or relocating; or the fact that they faced retaliation for
not complying with the demands of criminals.
[28]
The
jurisprudence cited by the Board supports these findings.
[29]
For
example, in Carias v Canada (Minister of Citizenship and Immigration),
2007 FC 602, [2007] FCJ No 817, the applicants were wealthy citizens of Honduras. At paragraph 25, I held that:
The
applicants are members of a large group of people who may be targeted for
economic crimes in Honduras on the basis of their perceived wealth. The
applicants submitted that the Board erred in imposing too high a standard upon
them in requiring that they prove that they would be personally at risk. Given
the wording of subparagraph 97(1)(b)(ii) of IRPA, the applicants had to satisfy
the Board that they would be personally subjected to a risk that was not
generally faced by others in Honduras. The application for judicial review is
therefore dismissed.
[30]
Similarly,
in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC
331, [2008] FCJ No 415 at paragraph 17 (upheld on appeal: Prophète v Canada (Minister of Citizenship and Immigration), 2009 FCA 31, [2009] FCJ No 143), Madame
Justice Danièle Tremblay-Lamer found that (at paragraph 23):
Based
on the recent jurisprudence of this Court, I am of the view that the applicant
does not face a personalized risk that is not faced generally by other
individuals in or from Haiti. The risk of all forms of criminality is general
and felt by all Haitians. While a specific number of individuals may be
targeted more frequently because of their wealth, all Haitians are at risk of
becoming the victims of violence. [emphasis added]
[31]
In
Perez v Canada (Minister of Citizenship and Immigration), 2009 FC 1029,
[2009] FCJ No 1275, Mr. Justice Michael Kelen explained the rationale for
finding that wealth was not a personalized risk (at paragraph 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. [emphasis added]
[32]
In
Innocent above, Mr. Justice Robert Mainville recognized that:
…
where the general population faces a risk of criminality, the fact that certain
individuals are more likely to face this risk, either because they live in more
dangerous areas, or because they are perceived as being more affluent, does not
necessarily make those individuals eligible for protected person status under
subparagraph 97(1)(b)(ii)” (at paragraph 49).
[33]
In
Mendoza v Canada (Minister of Citizenship and Immigration), 2010 FC 648,
[2010] FCJ No 788, Mr. Justice Russel Zinn explained that risk does not become
personalized for the sole reason that victims relocate to escape persecution
and are followed by their persecutors (at paragraph 33):
I
do not accept the applicants' submission that the risk they faced became
personalized when their agents of persecution followed them after they
relocated. A crime does not become particularized persecution just because the
criminals, in this case the Mexican police, follow their victims over some
geographic distance. The fact that the applicants were being targeted does not
make their risk one that is not faced generally by other individuals in or from
that country.
[34]
Finally,
in Mejia v Canada (Minister of Citizenship and Immigration), 2006 FC 12,
[2006] FCJ No 23, the applicant was unable to make an extortion payment to a
criminal gang and thereby faced risk of retaliation. However, Mr. Justice Pierre
Blais upheld the Board’s decision that this risk was generalized rather than
personalized because it was reasonable based on the evidence before it (at
paragraphs 18 and 19). Similarly, in Rajo above, the Court upheld the
Board’s decision that a bus driver who had reported a gang’s crimes and thereby
faced retaliation, had a generalized rather than personalized risk. This even
though the evidence included the murder of the applicant’s brother-in-law in
retaliation for the bus driver’s reporting to the police (at paragraph 36).
[35]
In
this case, all of the above enumerated elements were present. Both adult
applicants held good jobs with good salaries and were therefore perceived as
wealthy. At the hearing, the principal applicant admitted that her neighbours
had also been threatened, suggesting that they lived in a community where
threats were common. The applicants’ evidence also indicated that they were pursued
after relocating and that kidnapping threats were made after they filed their
complaint to the police. Further, they testified that they feared retaliation
if returned due to their failure to comply with the MS’s demands.
[36]
Based
on the documentary evidence before it that showed widespread gang violence
across the country, I find that the Board rendered a reasonable finding that
the risk faced by the applicants in Honduras was generalized rather than
personalized. The evidence suggested that the risk of crime from gangs was
experienced by the whole population generally, albeit at a potentially reduced
frequency (see De Parada v Canada (Minister of Citizenship and Immigration),
2009 FC 845, [2009] FCJ No 1021 at paragraph 22).
[37]
However,
the applicants rely on Pineda v Canada (Minister of Citizenship and
Immigration), 2007 FC 365, [2007] FCJ No 501 to support their position. In Pineda
above, the applicant was targeted for recruitment by a gang in El Salvador. When he refused to join, he was threatened repeatedly, the family home was
placed under surveillance and the applicant finally fled his country. The Board
in Pineda above, denied the applicant’s claim on the basis of his
testimony that street gangs recruited across the country and targeted all
levels of society, thereby rendering the risk he faced general as opposed to
personal. In coming to this decision, the Board relied solely on the
applicant’s testimony at the hearing, ignoring the submissions in his Personal
Information Form that he had been personally subjected to danger. This was the
Board’s fatal error.
[38]
Pineda above, has
often been distinguished by this Court. In De Parada above, Mr. Justice
Zinn explained that the key factor that led to the Court in Pineda
overturning the Board’s decision was that the Board did not consider the fact
that the applicant had been personally targeted by the gang because he refused
to be recruited to their cause (at paragraph 25). In distinguishing De
Parada from Pineda above, Mr. Justice Zinn explained (at paragraph
25):
Here
the Applicants have not been targeted personally by the MS, rather they, as a
part of a large group of business persons who are perceived to be well-off,
have been targeted. That is a generalized and not a personalized risk.
[39]
This
case is also distinguishable from Pineda above, because the Board did
consider the personal circumstances of the applicants. However, the evidence
indicated that the risk they faced was not a personalized risk but rather a
more generalized risk as wealthy citizens targeted for extortion in Honduras. Recognizing that there is a fine distinction between a generalized and
personalized risk that depends on the facts of each case (see Rajo
above, at paragraph 36), I find the Board came to a reasonable conclusion on
this issue based on the evidence before it. I would therefore dismiss this
application.
[40]
The
applicant submitted the following proposed question for my consideration for
certification as a serious question of general importance:
Section 97(1)(b)(ii) of IRPA requires the RPD to
determine whether the risk that would be faced by the claimant upon return is a
risk which is “faced generally by other individuals in or from that country”.
When making this determination, is it an error for the RPD to consider only the
nature of the risk, and not also assess and consider the probability
of the claimant succumbing to that risk, as compared to the probability facing
“other individuals in or from that country”?
I am not prepared to certify this
question as the issue has already been dealt with by the Federal Court of
Appeal.
[41]
The
application for judicial review is therefore dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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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