Date:
20120831
Docket:
IMM-1364-11
Citation:
2012 FC 1048
Ottawa, Ontario,
August 31, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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DAVID DANIEL BALCORTA OLVERA
MARIA SOFIA RICALDE PEON
RODRIGO BALCORTA RICALDE
CARLA SOFIA BALCORTA RICALDE
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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
ORDER AND ORDER
I. Overview
[1]
“[I]f
an individual is subject to a personal risk to his life or risks cruel
and unusual treatment or punishment, then that risk is no longer general,” even
if it is widespread in his or her country of origin. Individual targeting
cannot be said to be general or impersonal, as was ruled by Justice Mary Gleason in Portillo v Canada (Minister of Citizenship and Immigration), 2012
FC 678 (at para 36).
II. Introduction
[2]
The
principal Applicant, together with his spouse and two young children, seek
refugee protection due to a fear of retribution for a refusal to pay extortion
fees to a criminal gang. The Refugee Protection Division of the Immigration and
Refugee Board [Board] has denied their claim determining that (i) no nexus to a
Convention ground exists; and, (ii) that their risk was insufficiently
personal.
III. Judicial Procedure
[3]
This
is an application, under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], for judicial review of a
decision of the Board, dated January 4, 2011, rejecting the Applicants’ refugee
protection claim.
IV. Background
[4]
The
principal Applicant, Mr. David Daniel Balcorta Olvera, born in 1978; his
spouse, Mrs. Maria Sofia Ricalde Peon, born in 1983; their daughter, Carla Sofia Balcorta Ricalde, born in 2004; and their son, Rodrigo Balcorta Ricalde, born in
2008, are Mexican citizens.
[5]
The
principal Applicant was a successful realtor in Cancun, Mexico.
[6]
The
principal Applicant alleges that a man claiming to belong to the Los Zetas, a
criminal gang, called him on August 14, 2009. The man demanded 500,000 pesos
stating, “all the companies were [paying] and ... it was [the Applicant’s]
turn”. When the principal Applicant refused and hung up, the caller immediately
called to repeat the demand.
[7]
Such
calls persisted and began to include threats to kill the principal Applicant or
a family member. On August 17, 2009, the Applicant’s spouse intercepted such a
call.
[8]
The
principal Applicant then complained to police in Cancun. Shortly after
complaining, he began to notice strange vehicles and people spying on his home.
[9]
On
August 30, 2009, the Applicant and his family returned home to find it had been
broken into. Police did not respond to calls for assistance. On August 31,
2009, the principal Applicant reported the incident to police and the Procuraduria General de la Republica [PGR]. The PGR advised it would not become involved until
someone was murdered or kidnapped.
[10]
The
Applicant’s spouse received another call on September 2, 2009. The caller
stated the gang “knew [where the family] lived because [it] already visited
their home”.
[11]
On
September 7, 2009, police told the principal Applicant that the PGR had the
onus of protecting him. When he complained to the Quintana Roo State Human
Rights Commission [Commission], the Commission advised that this position was
incorrect but added that the police lacked resources and procedures necessary
to protect him.
[12]
In
considering whether to move elsewhere in Mexico, the principal Applicant
learned that the Los Zetas organization is ubiquitous in Mexico. It would
likely find him anywhere he went in Mexico.
[13]
The
Applicants fled to Canada on September 13, 2009.
V. Decision under Review
[14]
The
Board denied the principal Applicant’s claim under section 96 of the IRPA
as his fear was unrelated to a Convention ground. The claim also fell outside
subsection 97(1) of the IRPA because the principal Applicant’s risks, as
stated by the Board, were general, not personal.
[15]
The
Board did not accept that owning a business made the principal Applicant a
member of a particular social group under section 96 of the IRPA. Citing
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, the Board stated
that membership is measured by innate and immutable characteristics – by who a
person is rather than what a person does. Occupation, which is neither
immutable nor fundamentally connected to persona, could not in itself
constitute a particular social group. In support of this, the Board referred to
Sanchez v Canada, 2007 FCA 99.
[16]
The
Board did not accept that the Convention ground of political opinion applied.
It rejected submissions that political opinion could be imputed to the
principal Applicant because he had resisted the gang; reported this situation to
the police, and complained of police inaction to the Commission. Rejecting a
United Nations High Commission for Refugees “Guidance Note on Refugee Claims
Relating to Victims of Organized Crime” [UNHCR Note] supporting this argument,
the Board stated that resisting a gang does not constitute an expression of
political opinion unless the resistance is rooted in political conviction.
[17]
The
Board found instead that the principal Applicant was targeted because of his
business and perceived wealth. His fear, in short, resulted from criminality.
Referring to Larenas v Canada (Minister of Citizenship & Immigration),
2006 FC 159 and Vickram v Canada (Minister of Citizenship & Immigration),
2007 FC 457, the Board observed that such fear had no nexus to a Convention
ground. This criminality, moreover, pre-existed his complaints to the
authorities – a sequence of events suggesting that his recourse to authority
could not have motivated the persecution of the principal Applicant.
[18]
The
Board found that the principal Applicant’s risks were insufficiently personal
to withstand a section 97 of the IRPA analysis. The Board reasoned that
section 97 of the IRPA protects against risks where “someone is targeted
specifically because of who they are”. Since criminal activity is a risk to all
Mexicans, the principal Applicant’s risk was considered not personal to him.
[19]
Although
criminal gangs target this Mexican subgroup – wealthy business owners –
disproportionately, the principal Applicant’s risks were generalized. The Board
cited several cases, including Osorio v Canada (Minister of Citizenship and
Immigration), 2005 FC 1459, Prophète v Canada (Minister of Citizenship
and Immigration), 2009 FCA 31, and Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213, for the proposition that risks
are not personal when faced generally by a large subgroup.
VI. Issues
[20]
(1)
Was it reasonable for the Board to find that there was no nexus to a Convention
ground?
(2) Was it
reasonable for the Board to find that the principal Applicant faced a general
risk?
(3) Did the
Board fail to consider material and contradictory evidence?
VII. Relevant Legislative
Provisions
[21]
The
following legislative provisions of the IRPA are relevant:
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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.
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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.
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VII. Position of the Parties
[22]
The
Applicants submit that the Board, in analyzing the existence of a section 96
nexus, did not conduct an individualized assessment. The Applicants argue that
the Board misconstrued the law by stating that any act of persecution that is
criminal cannot form a nexus. This alleged error in legal analysis caused the
Board to overlook the particular facts of the case and, thus, to assess it on
its own specific narrative.
[23]
The
Applicants dispute the Board’s decision that the principal Applicant did not
face a personal risk. Relying on Pineda v Canada (Minister of Citizenship
and Immigration), 2007 FC 365, the Applicants submit that an individual who
is specifically targeted faces a personalized risk, even if the population faces
risks generally. The Applicants argue that a specifically targeted individual
person is necessarily subject to a greater risk than the general population.
[24]
The
Applicants also submit that the Board did not adequately consider material and
contradictory evidence in the form of the UNHCR Note. The Applicants cite Lopez v Canada (Minister of Citizenship & Immigration), 2007 FC 1341
for the proposition that failing to address contradictory evidence is a
reviewable error. Relying on discussions of the UNHRC Handbook in Lebedev v
Canada (Minister of Citizenship & Immigration), 2007 FC 728, 314 FTR
286, the Applicants argue that the document should receive greater weight.
[25]
The
Respondent submits it was reasonable to find there was no section 96 nexus.
Citing Martinez v Canada (Minister of Citizenship and Immigration), 2010
FC 502, the Respondent argues a nexus exists if persecution is based on an
unchangeable and fundamental part of identity; accordingly, occupation is not a
nexus. Relying on Karaseva v Canada (Minister of Citizenship and
Immigration), [1997] FCJ No 1725 (QL/Lexis) and Suarez v Canada
(Minister of Citizenship and Immigration), [1996] FCJ No 1036 (QL/Lexis),
the Respondent continues that criminal victimization is not a nexus. Citing Deheza
v Canada (Minister of Citizenship and Immigration), 2010 FC 521, the
Respondent asserts that denouncing corruption will not constitute a nexus
unless it is a “challenge to the corrupt state as a whole”.
[26]
The
Respondent also argues that asking whether the principal Applicant’s risk is
personal involves re-weighing evidence. Citing several cases, including Prophète,
above, and Acosta, above, the Respondent submits it was reasonable to
find that the principal Applicant’s risk was general simply due to the fact
that a sufficiently large subgroup had experienced this risk generally.
According to the Respondent, that is the case even if a claimant in such a
subgroup is specifically targeted (Perez v Canada (Minister of
Citizenship and Immigration), 2010 FC 345; Katwaru v Canada (Minister of
Citizenship and Immigration), 2010 FC 196).
[27]
Finally,
the Respondent argues that the Board was not required to consider the UNHCR
Note more extensively because the Board was following Canadian law on point.
IX. Analysis
Standard of Review
[28]
Whether
the principal Applicant is a member of a particular social group is a question
of mixed fact and law reviewable on a reasonableness standard (Samuel v Canada (Minister of Citizenship and Immigration), 2012 FC 973). The
reasonableness standard also applies to the Board’s assessment of the principal
Applicant’s risk as generalized (Samuel, above).
[29]
Since
the reasonableness standard applies, the Court may only intervene in a case
where the Board’s reasons are not “justified, transparent or intelligible”. To
satisfy this standard, the decision must also fall in 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 para 47).
(1) Was
it reasonable for the Board to find that there was no nexus to a Convention
ground?
[30]
Ward,
above, states that a “particular social group” under section 96 of the IRPA refers
to: (i) groups defined by innate or unchangeable characteristics; (ii) groups
whose members voluntarily associate for reasons so fundamental to human dignity
that they should not be forced to forsake the association; or, (iii) groups
associated by a former voluntary status, unalterable due to its historical
permanence.
[31]
Occupation
does not ordinarily constitute a nexus under this ground. It relates to what
one does rather than who one is; it does not fit within the first of the Ward groups (Martinez, above, at para 9-10). Nor is a particular occupation so
fundamental to human dignity that one should not be forced to forsake it. In Sanchez,
above, the Federal Court of Appeal held that requiring an applicant to abandon
a side business interest would “not affect a fundamental principal of human
rights” (at para 19). Finally, this Court has held that a building contractor
is not within the third Ward category (Chekhovskiy v Canada (Minister
of Citizenship and Immigration), 2009 FC 970 at para 19-20).
[32]
Given
this jurisprudence, the Board’s decision that the principal Applicant’s
business could not constitute a section 96 nexus was reasonable.
[33]
The
Federal Court of Appeal has held, in Klinko v Canada (Minister of
Citizenship and Immigration) (2000), 3 FC 327, [2000] FCJ No 228 (QL/Lexis),
that “a denunciation of ... existing [government] corruption is an expression
of ‘political opinion’ [if] the corrupt elements so permeate the government as
to be part of its very fabric” (at para 35). In Deheza, above, however,
this Court found that a denunciation of police did not amount to an expression
of a political opinion if it is “not against corrupt elements that have become
part of the fabric of government” but rather “against one tightly-knit group of
three individuals” (at para 32).
[34]
In
the present case, the Board found that the principal Applicant’s resistance to
the criminal gang did not amount to political opinion because it was not
“rooted in political conviction”. The record does not demonstrate that the
principal Applicant reported the gang or the police out of a strong personal
conviction in respect of corruption in Mexico. Rather, the record suggests that
the principal Applicant sought help from authorities because he had been criminally
victimized. As he did refuse to pay extortion fees and was afraid of
retribution. Moreover, although the Board acknowledged evidence that criminal
activity had increased after the principal Applicant’s recourse to authority,
it found that the principal Applicant had been targeted before he had complained.
It was reasonable to conclude, as the Board did, that recourse to authority did
not cause the principal Applicant’s victimization.
[35]
It
was also reasonable for the Board to conclude that, in essence, the principal
Applicant feared criminal victimization and that this could not serve as a
nexus. This finding was consistent with the evidence and the case-law. In Larenas,
above, the Federal Court held that “victims or potential victims of crime,
corruption or personal vendettas, generally cannot establish a link between
fear of persecution and Convention reasons” (at para 14).
(2) Was
it reasonable for the Board to find that the principal Applicant faced a
general risk?
[36]
To
be a person in need of protection under section 97 of the IRPA, an
applicant must show, on a balance of probabilities, that his/her removal to
Mexico would subject him/her personally, in every part of Mexico, to a risk to
his/her life or cruel and unusual treatment that is not faced generally by
other individuals in or from Mexico. The jurisprudence has consistently held
that a risk may still be general, even if it is felt disproportionately by a
large subgroup of a population (Prophète, above, at para 3 and 10).
[37]
The
jurisprudence is less settled, however, on whether persons personally targeted
by criminal gangs face a generalized risk. One strand holds that claimants who
have been specifically targeted face general risk if most of their countrymen
(or a subgroup to which they belong) experience that risk generally (Acosta,
above). The other is of the opinion that it is unreasonable to accept that a
claimant has been specifically targeted and yet, nevertheless, to conclude that
the risk is not personal simply because it is widespread in his or her country
(Pineda, above).
[38]
In
the
Portillo decision, above, Justice Gleason held that it was unreasonable
to find that an applicant, who had been personally threatened by a criminal
gang, faced a risk of general criminality simply because criminal gang violence
was rampant in the applicant’s country of origin. “It is simply untenable,” she
wrote, “for the two statements of the Board to coexist: if an individual is
subject to a personal risk to his life or risks cruel and unusual
treatment or punishment, then that risk is no longer general.” Such an
approach, Justice Gleason held would strain section 97 of the IRPA to
the point of irrelevance: “If the Board’s reasoning is correct, it is unlikely
that there would ever be a situation in which this section would provide for
crime-related risks” (at para 36).
[39]
Justice
Gleason
proposed the following test for determining the nature of the risk faced by an
applicant. Firstly, one must assess whether the claimant “faces an ongoing or
future risk ... what the risk is, whether such risk is one of cruel and unusual
treatment or punishment and the basis for the risk” (at para 40). Secondly, the
risk faced by the claimant must be compared to “that faced by a significant
group in the country to determine whether the risks are of the same nature and
degree” (at para 41).
[40]
The
undersigned member of this Court is in agreement with Justice Gleason’s
decision. Firstly, it is problematic to accept that a person who has been
specifically targeted faces a risk that is faced generally by other
individuals. The risk of an individual who is being targeted is qualitatively
different from the risk of an individual who has a strong likelihood of being
targeted. As such, the former cannot be faced generally. Secondly, the approach
taken by the Board seems to empty section 97 of the IRPA of any
application in the criminal context. As this Court has written in Lovato v
Canada (Minister of Citizenship and Immigration), 2012 FC 143, “section 97
must not be interpreted in a manner that strips it of any content or meaning.
If any risk created by ‘criminal activity’ is always considered a general risk,
it is hard to fathom a scenario in which the requirements of section 97 would
ever be met” (at para 14).
[41]
It
was unreasonable for the Board to find that the principal Applicant faced a
general risk. It is irrational for the Board to accept the principal
Applicant’s allegations that he was specifically targeted by the Los Zetas and,
yet, conclude that his particular risk was faced generally by other Mexicans.
The risks of those standing in the same vicinity as the gunman cannot be
considered the same as the risks of those standing directly in front of him.
(3) Did
the Board fail to consider (pertinent) material and contradictory evidence?
[42]
In
respect of the UNHCR Note, the Board did not err in its approach. It did
consider the document and found it to be inconsistent with Canadian jurisprudence;
it did not assign the UNHCR Note any weight as specified above.
X. Conclusion
[43]
For
all of the foregoing reasons, the Applicants’ application for judicial review
is granted and the matter is returned for a hearing anew (de novo)
before a differently constituted panel.
ORDER
THIS
COURT ORDERS that the Applicants’ application for
judicial review be granted and the matter be returned for a hearing anew (de
novo) before a differently constituted panel of the Refugee Protection
Division. No
question for certification.
“Michel M.J. Shore”
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