Date: 20120604
Docket: IMM-4045-11
Citation: 2012 FC 682
Ottawa, Ontario, June 4, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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JOSÉ DANIEL LUNA PACHECO
AND MARTHA ANDREA NAVA
ESPINOZA
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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
male applicant, José Pacheco, is a citizen of El Salvador. His wife,
Martha Espinoza, is a citizen of Mexico. They seek judicial
review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board (hereafter the Board), dated 26 May 2011, which refused their
applications to be deemed Convention refugees or persons in need of protection
under sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27.
[2]
Mr.
Pacheco is afraid of the Mara Salvatrucha (Maras) gang in El Salvador. He had an
argument with members of the gang in 1998 and was beaten by them. In 2003 he
was asked to join the Maras, refused and was threatened. He fled to
Guatemala in January 2004 and from there to Mexico. He entered
the USA in February
2004.
[3]
Ms.
Espinoza fears a family from her town in Mexico; the Muñiz
family. In 2003 a feud began between the two families and damage was done to
her home. The police were informed and a denunciation was filed. She fears that
the Muñiz family are associated with a drug cartel, Los Zetas. Her family filed
another denunciation against the Muñiz family in 2009 and a member of the Muñiz
family was arrested, prosecuted and imprisoned. A protection order was issued
by the Mexican authorities enjoining the Muñiz family from harming the
applicant’s family.
[4]
Ms
Espinoza fled Mexico for the USA in August
2006 where she met her husband and they had their child Nava. The family came
to Canada and claimed
protection on 17 December 2009. The claims were joined and heard together by
the Board. Nava’s claim, as a US citizen, was denied in oral reasons during
the hearings. She is not a party to this application.
[5]
The
Board found that neither applicant’s fear was linked to a Convention ground and
that both applicants were afraid of crime. It analysed their claims only under
section 97 of the Act. In the case of both applicants, the Board found that
their failure to claim in the USA demonstrated a lack of subjective fear. It
rejected their explanations that they believed their claims would be
unsuccessful.
[6]
With
respect to Mr. Pacheco, the determinative issue for the Board was the
generalized nature of the risk of harm he faced in El Salvador. The Board
examined evidence from the Immigration and Refugee Board’s National
Documentation Package for El Salvador which indicated that El Salvador was one of
the most dangerous countries in the world. The evidence before it led the Board
to conclude that the risk of crime and violence at the hands of gangs and drug
cartels was widespread in El Salvador. It found that the
risk faced by the applicant was not personalized.
[7]
Regarding
the claim of Ms. Espinoza, the Board found that Mexico is a
democratic republic with functioning police and security forces and a
functioning judiciary. It found that there were avenues for the applicant to
seek state protection, including in circumstances where protection might
initially be denied because of corruption. Although Ms. Espinoza had alleged
that the Muñiz family was linked to the Los Zetas who were in turn linked to
the police, the Board noted that a member of the Muñiz family had been
prosecuted for the attack on her family and a protection order had been issued
against the Muñiz family. It concluded that the applicant had not provided
clear and convincing evidence that she would not receive adequate state
protection if she were returned to Mexico.
ISSUES:
[8]
The
parties raised a number of procedural issues respecting irregularities in the
service and filing of documents and the content of affidavits. The applicant
sought to have the respondent’s memorandum of argument struck for failure to
serve the notice of appearance in a timely manner. The respondent asked that
the applicants’ affidavit evidence be struck for failure to comply with
paragraph 10(2) (d) of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22. These problems arose through human error and
a failure to communicate between counsel. The procedural issues were dealt with
in oral reasons at the outset of the hearing. Neither the memorandum of
argument nor the affidavit were struck. Counsel were reminded of the importance
of conducting the preliminary steps in the proceedings so as to ensure a
hearing on the merits in accordance with Rule 3 of the Federal Courts Rules,
SOR/98-106.
[9]
The
applicants raised concerns about the adequacy of the Board’s reasons in their
written materials. These concerns were not pressed at the hearing. In any
event, as instructed by the Supreme Court of Canada in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 14, “the reasons must be read together with the outcome and serve the
purpose of showing whether the result falls within a range of possible
outcomes.” The adequacy of reasons is no longer a matter of procedural
fairness. The Board’s reasons must be analysed in considering the reasonableness of the
decision as a whole.
[10]
The
substantive issues on this application were:
1. Whether the
Board erred in analyzing their claims only under s. 97 of the Act;
2. Whether the
Board’s findings of state protection and generalized risk were reasonable?
ANALYSIS:
Standard of
Review
[11]
The
applicants challenge the Board’s interpretation of the Convention refugee
standard in section 96 of the Act and its application to their circumstances. The Board’s understanding
of the proper legal test is reviewable on the standard of correctness: Singh
Sahota v Canada (Minister of
Citizenship and Immigration), 2011 FC 739 at para 7.
[12]
Whether
the Board properly considered both ss. 96 and 97 claims is a matter to be
determined in the circumstances of each case. A failure to consider a ground
advanced under s. 96 constitutes a misapprehension of the evidence and is to be
evaluated on the reasonableness standard: Vilmond v Canada (Minister of
Citizenship and Immigration), 2008 FC 926 at para 13. It is well
established that the standard of review on a determination under section 97(1)
is reasonableness: Guerilus v Canada (Minister of
Citizenship and Immigration), 2010 FC 394 at para 9.
Did the Board
fail to properly analyse the claims under section 96(1) of the Act?
[13]
The
applicants submit that they both claimed protection on the basis of their
membership in a particular social group, but the Board did not consider these
claims. They argue that the Board should have conducted at least a minimal
analysis of their claims under section 96 because there was evidence before it
on this issue and they had advanced their claims on this basis.
[14]
The
claims were: in the case of the male applicant, that he belonged to a group of
young El
Salvador
males targeted for extortion and for recruitment by the Maras and; in the
case of the female applicant, that she was part of a group of people targeted
by Los Zetas with the complicity of the Mexican police.
[15]
The
Board’s finding that the applicants had not established a nexus between their
fears and one of the five enumerated Convention grounds outlined in section 96
of the Act was reasonable. It is well established that victims of crime
individually cannot establish a nexus to a Convention ground: see ML v
Canada (Minister of Citizenship and Immigration), 2009 FC 770 at
para 15; and Vargas v Canada (Minister of
Citizenship and Immigration), 2002 FCT 1019 at para 6. The fact
that a number of people experience the same risk does not transform the risk
from one of crime to one of persecution within the meaning of section 96.
Accordingly, the Board did not err in analysing the applicants’ claims only
under s.97.
[16]
Even
if I were to find that the Board’s s.96 determination in relation to the female
applicant was flawed, the Board’s state protection finding was fatal to her
claim.
The State
Protection finding
[17]
The
applicants challenge the Board’s finding that Ms. Espinoza had not rebutted the
presumption that Mexico would be able to
protect her. The Board made the following relevant findings of fact:
- Mexico is a democracy with functioning
democratic institutions;
- A member of the Muñiz family was
arrested, convicted, and sentenced for acts perpetrated against the female
applicant’s family; and
- The female applicant’s
family had been granted a protection order against the Muñiz family.
[18]
Having
regard to the Federal Court of Appeal’s direction in Canada (Minister of
Citizenship and Immigration) v Flores Carillo, 2008
FCA 94, the evidence to rebut the presumption of state protection must be clear
and convincing. By
her own testimony, the applicant had taken steps to seek protection from the Muñiz family
and these efforts had been at least partly successful. Her evidence did not
meet the clear and convincing threshold Flores Carillo requires to rebut
the presumption.
Generalized
or personalized risk
[19]
The
Board concluded that the male applicant faced only a generalized risk of crime,
so he was excluded from protection by subparagraph 97(1) (b) (ii) of the Act.
[20]
The
applicants contend that the Board ignored evidence that the Maras had targeted him for
recruitment and had threatened him when he refused to join the gang and because
of his alleged interest in the leader’s girlfriend. They say that the Board
did not take into account the evidence provided by Mr. Pacheco’s sister to the
effect that the Maras were continuing to look for him. The evidence of his
sister was to the effect that after years of annually visiting her family in El Salvador without
incident, she received threatening phone calls in 2010 indicating that the
Maras were still looking for her brother to pay a “debt” that remained owing to
them.
[21]
The
applicants contend further that the Board ignored evidence that the police in El Salvador are corrupt
and involved with the Maras, that the judiciary is corrupt, and that
the Maras torture and kill people. They argue that the evidence before the
Board showed that the male applicant was at a greater risk than the general
population and it was unreasonable for it to conclude otherwise.
[22]
Justice
Russel Zinn helpfully parsed the elements of subparagraph 97(1) (b) (ii) in Guerrero v Canada (Minister of
Citizenship and Immigration), 2011 FC 1210 at paragraphs 26-28. He
found that if a claimant is to be determined a person in need of protection it
must be found that:
a.
The claimant is in Canada;
b.
The claimant would be personally subjected to a risk to their life or to cruel
and unusual treatment or punishment if returned to their country of
nationality;
c.
The claimant would face that personal risk in every part of their country; and
d.
The personal risk the claimant faces “is not faced generally by other
individuals in or from that country.”
[23]
Justice
Zinn noted that the majority of cases turn on the last condition. Before
determining whether the risk faced by the claimant is one generally faced by
others in the country, the decision maker must (1) make an express
determination of what the claimant’s risk is, (2) determine whether that risk
is a risk to life or a risk of cruel and unusual treatment or punishment and
(3) clearly express the basis for that risk.
[24]
In
this case, the Board characterized the claimant’s risk as being a “victim of
crime and violence at the hands of criminal gangs and drug traffickers”, a risk
that was prevalent or widespread in El Salvador. It went on to say
that:
Although
Cesar also accused the claimant of having interest in his girlfriend, based on
the totality of the evidence adduced, the panel finds the claimant fears being
a victim of generalized criminality due to a generalized risk of harm in El Salvador for persons such as in this claimant’s
particular circumstances.
[25]
While
not everyone in El Salvador is threatened with death for being interested in
Cesar’s girlfriend, it was open to the Board to conclude that it was unlikely
that the Maras would
continue to be interested in the applicant for that reason seven years after
his departure. The basis for his claim was primarily that he had refused the Maras’s
recruitment offer and that he would be targeted for that reason.
[26]
The
Board noted that the fact that a claimant is personally at risk does not mean
that the risk is not one faced generally by others in that country. It found
that the risk was “widespread” or “prevalent” in the country. In Paz
Guifarro v Canada (Minister of Citizenship and Immigration), 2011 FC
182, Justice Paul Crampton, as he then was, stated at paragraph 32 that:
[32] … [It] is not an error for the RPD to reject an application for
protection under section 97 where it finds that a personalized risk that would
be faced by the applicant is a risk that is shared by a sub-group of the
population that is sufficiently large that the risk can reasonably be
characterized as being widespread or prevalent in that country. This is so even
where that sub-group may be specifically targeted. It is particularly so when
the risk arises from criminal conduct or activity.
[27]
The
conclusion that the risk feared by the claimant is one that is faced generally
by the population of El Salvador was within the range of
possible outcomes defensible on the facts and law. It therefore meets the standard
of reasonableness as defined by the Supreme Court in Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 47 and Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 59.
[28]
The
applicants proposed that I certify the following question:
In light of the diverse rulings made by
the Refugee Determination Division and by a great number of justices of the
Federal Court, what is the standard to be applied or the true meaning of a
person in need of protection when deciding a claim under s.97 of the IRPA?
[29]
The
respondent is opposed to certification of this question on the ground that it
is “cryptic” and would not be dispositive of an appeal. I agree. The supposed
divergence among the decisions of the Board and this Court does not stem from a
difference of opinion on the interpretation of the law, in my view. Rather, if
it exists, it arises from the varying circumstances that must be considered in
applying subparagraph 97(1) (b) (ii) in particular cases. Those circumstances
are not uniform and each case must be determined on its own facts.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
- the application
for judicial review is dismissed; and
- no questions are
certified.
“Richard
G. Mosley”
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