Date:
20120924
Docket:
IMM-9305-11
Citation:
2012 FC 1114
Ottawa, Ontario,
September 24, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JOSE WALTER
ESCAMILLA MARROQUIN, PATRICIA LISSETTE MURILLO GALVEZ DE ESCAMILLA, WALTER
EDUARDO ESCAMILLA MURILLO, ANNGIE STEPHANIE ESCAMILLA MURILLO
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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
November 17, 2011, finding that the applicants were not Convention refugees nor
persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is granted.
Facts
[2]
The
applicants are a family from El Salvador: Jose Walter Escamilla Marroquin
(applicant); his wife, Patricia Lissette Murillo Galvez de Escamilla (female
applicant); and their children, Anngie Stephanie Escamilla Murillo and Walter
Eduardo Escamilla Murillo (minor applicants).
[3]
The
applicant worked as a long-haul truck driver. In October 2005, he returned
from a trip and parked his trailer unit on the street near his home. The next
morning he discovered it had been stolen. He was approached by members of the
Mara 13 gang who saw him looking for his truck. They told him they were in
control of the neighbourhood and not to go to the police or he would be killed.
[4]
The
applicant called his boss and informed him of the theft. His boss told him to
file a police report for insurance purposes otherwise he would be financially
responsible for the loss of the unit. The applicant filed a police report and
the boss drove the police to the scene of the theft. The applicant states that
the Mara 13 gang members are always in the area and surely saw the police at
the scene of the theft.
[5]
The
applicants hid in their home for about a week, fearing the gang members. The
applicant states that he felt they were being watched. After a week, they
moved to his mother’s house and then decided to flee El Salvador. The female
applicant traveled to the United States using a visitor’s visa in November
2005. The other applicants traveled to the United States illegally in December
2005 and were detained by border patrol. They were told to report at an
immigration hearing, which was held in July 2009, at which point the applicants
were ordered to leave the country within eight months. The applicants arrived
in Canada on February 12, 2010, and claimed refugee protection the same day.
Decision Under Review
[6]
The
Board found the applicant and female applicant to be credible in their
testimony, and thus accepted their allegations as true. The Board noted that
the applicants had conceded that their claims did not fall within the scope of
section 96. The Board agreed with this and thus proceeded to assess the claims
solely under section 97 of the IRPA.
[7]
Under
section 97, the Board found that the determinative issue was whether the risk
was generalized. The Board noted that theft and extortion are common problems
in El Salvador. The Board noted that it had asked the applicant why his
situation was different than any other victim of crime and noted the
applicant’s response that his life was threatened by the Mara 13, and that gang
carries through with its threats. The Board also noted the submission of
counsel for the applicants that the applicant was being specifically targeted
by the gang. The Board held at paragraph 44:
Canadian case law, including decisions in Acosta,
Ventura De Parada and Perez, all involving circumstances in which
claimants feared extortion, violence and threats from criminal gangs, held that
personal risk felt by claimants where the violence was prevalent in a variety
of sectors of the country was not different from the generalized risk in that
country.
[8]
The
Board then quoted extensively from the Court’s decision in Paz Guifarro v Canada
(Minister of Citizenship and Immigration), 2011 FC 182, relying on that
case for the proposition that a risk may still be generalized even if a
claimant is part of a subgroup targeted more frequently in a country. The
Board found: “I cannot agree that simply because his life was threatened that
he is different than any other victim of crime in El Salvador.” The
applicant’s claim was therefore refused.
[9]
The
Board similarly found that the armed robbery of the female applicant was a
random incident of violent crime and there was no evidence she was targeted. She
had therefore not established a risk that was not faced generally by other
individuals in El Salvador. The remainder of the female applicant’s
allegations were the same as the applicant (as were the minor applicants’), and
therefore their claims were also refused.
Standard of Review and Issue
[10]
The
issue raised by this application is whether the Board’s finding that the
applicants faced a generalized risk was reasonable: Dunsmuir v New Brunswic k, 2008 SCC 9.
Analysis
[11]
I
find that the Board’s analysis of whether the applicants faced a generalized
risk was unreasonable and the decision must be set aside. As this Court has
consistently held: Portillo v Canada (Citizenship and Immigration),
2012 FC 678; Vaquerano Lovato v Canada (Citizenship and Immigration),
2012 FC 143; Guerrero v Canada (Minister of Citizenship and Immigration),
2011 FC 1210, Alvarez Castaneda v Canada (Minister of Citizenship and
Immigration), 2011 FC 724, Barrios Pineda v Canada (Minister of
Citizenship and Immigration), 2011 FC 403, and Aguilar Zacarias v Canada
(Minister of Citizenship and Immigration), 2011 FC 62, that the mere fact
that the persecutory conduct is also criminal conduct which may also be
prevalent in a country does not end the analysis of a claim under section 97.
The Board must consider whether the applicants faced a risk that was different
in degree than that faced by other individuals in El Salvador.
[12]
The
applicants’ testimony was found credible, and thus all the allegations were
accepted. The Board therefore accepted that the applicant reported the theft
of his truck to the police, that the Mara 13 became aware of this fact, and
that the applicants fled El Salvador because they feared retaliation by the gang.
This is the precise kind of factual scenario which may go beyond a generalized
risk, as in the cases listed above.
[13]
The
Board focused on the fact that theft is a common problem in El Salvador, but as the applicants submit, it was not the theft itself that gave rise to their risk.
Rather, the applicant was at risk because he reported the theft to the police
and therefore became a target of the Mara 13. The decision will be set aside,
therefore, for failing to assess the claim in accordance with the applicable
legal principle.
[14]
There
is a second basis for setting the decision aside. It arises from the failure
of the Board to consider highly relevant evidence. The evidence before the
Board was that another man named Walter Escamilla, who also worked at the
applicant’s trucking company, was executed on January 18, 2011, because he was
confused with the applicant.
[15]
The
failure to address material evidence renders the decision unreasonable. I
would add, however, that this is also evidence which ought to have been
considered as part of the section 97 analysis, had it been properly framed.
This was evidence that in fact the applicant faces a very different risk than
the average El Salvadoran and faces specific targeting by the gang.
[16]
The
respondent argues that the Board is entitled to deference, as it is for the
Board and not the Court to determine whether a risk is general based on the
facts. The respondent also submits that the cases relied on by the applicant
involved much stronger evidence of risk, with the claimants often being
subjected to continuous threats over a period of time.
[17]
The
respondent’s argument cannot succeed because the Board did not reach its
conclusion based on the strength of the evidence; rather, the Board accepted
the applicants’ evidence as credible, and furthermore accepted that the
applicant had been targeted and would be targeted in the future. The Board’s
decision was therefore not based on the weighing of the evidence, but rather on
the mistaken premise that the applicant faced a generalized risk even if he was
specifically targeted in a way that others in El Salvador are clearly not. The
Board’s decision was inconsistent with the law and rendered unreasonable by
reason of the failure to consider material evidence, and the application must
be granted.
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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