Date:
20121214
Docket:
IMM-2803-12
Citation:
2012 FC 1476
Ottawa, Ontario, December 14, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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ANGEL CASTANEDA MALVAEZ
MARIA ELIZABETH MENDOZA LUNA
LUIS ANGEL CASTANEDA MENDOZA ALEJANDRO CASTANEDA MENDOZA
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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 challenge the legality of a decision rendered by the Refugee
Protection Division of the Immigration and Refugee Board [Board], made on
February 8th, 2012, dismissing their claims for protection both
under sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [Act].
[2]
Today,
the applicants do not question the legality of the determination made by the
Board that they are not Convention refugees because there is no nexus with any
of the grounds listed in section 96 of the Act. This only leaves the issue
whether the Board’s finding that the risk faced by the applicants is a risk
faced by the general population in their country – and for this reason, they
are not “persons in need of protection” under subparagraph 97(1)(b)(ii) of the
Act – falls within the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v new Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
[3]
The
principal applicant, Angel Castaneda Malvaez, his spouse, and their two sons
[together the applicants] are citizens of Mexico who lived in Tultitlan in the
state of Mexico. On January 24, 2011, they fled to Canada to escape a
well-known criminal and drug cartel. The applicants have been personally
targeted by La Familia Michoacana [La Familia]. They say they have endured
extortion fees, the hijacking of their store, death threats, physical assault,
and forced participation in drug distribution at the hands of La Familia. The
applicants claimed refugee protection on January 26th 2011, shortly
after their arrival in Canada. Despite some doubts expressed by the Board, the
applicants’ overall account of the facts has not been seriously questioned.
[4]
The
applicants’ story begins with the opening of their hardware store, Ferreteria
ABC San Angel, in 2000. The store was well-located in the town of Tultitlan, Mexico, and was across the street from a sizeable high school. The store
became, according to the principal applicant, one of the most successful
businesses on the street. Since the opening of the store, the principal
applicant faced extortion by “regular criminals, and also small time thieves”,
as well as weekly police requests for protection money. As the applicants
indicate, for many business owners in Mexico, these ongoing requests were sadly
“just part of ‘the cost of doing business’ and is not the reason for their
refugee claim.”
[5]
In
June of 2009, the principal applicant received an anonymous phone call
threatening him, his business, and his children if he did not give the caller
money. The caller referred to himself as “Commander of Zetas”. The Zetas is a
well-known criminal organization in Mexico. After contacting the police and
having them trace the call, the police assured the principal applicant that the
call had been made at random from Mexico City, far away from the applicants’
town, and that there was no grave cause for concern. Then, in April 2010, armed
members of La Familia entered the applicants’ business and declared that it now
belonged to them. They proceeded to threaten the principal applicant with the
destruction of his store, warned him against contacting the police, and took
4000 pesos from him. According to the applicant, this event marks the beginning
of where he saw his situation turn from one of generalized risk to that of
personalized risk.
[6]
One
week after their first visit by La Familia members, three men arrived at the
store and told the principal applicant that they were there to collect their
money. The applicant responded that there was no money in the place, to which
the intruders became verbally abusive and warned of impending trouble. The
applicant recognized these individuals as judicial police officers. A few days
later, on the 23rd of April 2010, the principal applicant’s son was
kidnapped and beaten as a warning to the principal applicant that he must
continue to pay La Familia. On that day, a car pulled up with his son and three
or four armed men inside. The son was dragged out of the car and cut with a
bottle. The attackers also warned against contacting the police and stated that
they would cut the son up and throw his head at the door if the principal
applicant did not comply with their demands. The principal applicant contacted
the police about the incident and made a formal denunciation, although he did
not retain a copy; the police did nothing.
[7]
The
visits from La Familia persisted, and each time the principal applicant gave
them at least 10,000 pesos. At one point, the principal applicant decided to
close his store in an effort to end the threats. But this was to no avail as
members La Familia came to the applicants’ house, severely assaulted the
principal applicant by pistol whipping him, and forced him to reopen the store.
The principal applicant again contacted the police and filed a report after his
store was robbed and merchandise was stolen one night. The identity of those
responsible for the break-in was unknown. The police were ineffective each time
the principal applicant sought their protection, only offered to protect him
upon payment of a bribe, and warned him that his family might end up dead if
the complaints he lodged were pursued. The extortion fee requests continued and
the principal applicant kept paying them to La Familia until, one day, members
of La Familia brought two packets wrapped in tape and forced the principal
applicant to keep them in his store until they were picked up by someone. While
he did not open the packets, he inferred that they contained drugs. The
principal applicant also recognized some of those who picked up the packages as
police officers, or former police officers. He did not tell his family about
the packages, but it was at that point that he decided to flee Mexico.
[8]
On
January 20th, 2011, La Familia demanded that 50,000 pesos be paid by
the applicant by January 29th, 2011, but by that point, the family
had already applied for temporary resident visas to Canada, which were issued
on January 11th, 2011. The family left Mexico on January 24th,
2011, leaving before the most recent debt came due. Subsequent to the departure
of the applicants, they were informed by a nephew that their home had been
broken into. Neighbours confirmed that armed men had broken in but that nothing
was taken – leading the applicants to conclude that theft was not the motive
behind the break-in and that the perpetrators were instead searching for the applicants.
[9]
The
Board identified the determinative issue to be that of generalized risk and
that the applicants were not personally at risk, since they faced a risk that
is faced by the general population in Mexico – that of criminal activity. The
applicants contest the reasonableness of this conclusion on three grounds: (1)
the Board misinterpreted and misapplied the law on generalized risk; (2) it
failed to conduct an individualized inquiry; and (3) it interpreted generalized
risk in an erroneous manner that is contrary to the purpose of the statute. The
respondent replies that, when read as a whole, the decision of the Board is
reasonable in the circumstances.
[10]
Decisions
determining whether an applicant faces a generalized risk are usually based on
questions of mixed fact and law, such that they are usually subject to the
standard of reasonableness upon review (see Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213 at paras 9-11 [Acosta]; Portillo
v Canada (Minister of Citizenship and Immigration), 2012 FC 678 at para 18,
[2012] FCJ No 670 [Portillo]). And where the particular question is one
determining whether an applicant is a member of a particular social group
(business owners, in this case), it is also a question of mixed fact and law
that is reviewable on the basis of reasonableness (Olvera v Canada (Minister
of Citizenship and Immigration), 2012 FC 1048 at para 28, [2012] FCJ No
1128 [Olvera]; Samuel v Canada (Minister of Citizenship and
Immigration), 2012 FC 973). With the application of the reasonableness
standard, the Court will intervene where the reasons given in the impugned
decision are not “justified, transparent or intelligible” [Dunsmuir].
[11]
In
light of the facts and the law, I find the Board’s decision to be unreasonable.
In particular, I agree with the applicants that the Board misapplied and
misinterpreted the concept “generalized risk” under section 97 of the Act,
without view to the purpose of a generalized risk determination, and that this
was intimately linked to a dearth of individualized assessment: “There must be
some particularization of the risk of the person claiming protection as opposed
to an indiscriminate or random risk faced by the claimant or others” (Surajnarain
v Canada (Citizenship and Immigration), 2008 FC 1165 at para 20, 336 FTR
161 [Surajnarain].
[12]
Despite
the fact that the Board mentions at paragraph 21 of its decision, that the
principal applicant is “personally subject to a risk of harm under [s]ection 97
involving extortion and gang violence,” it nevertheless finds that the
applicant’s risk on return is a “generalized one” which, in my humble opinion,
is a capricious and arbitrary finding, a conclusion which is not otherwise
supported by the evidence on record and is contrary to the intent of the exclusionary
clause (see Surajnarain at paras 17-21).
[13]
The
Board also writes, at paragraph 28 of their decision, that
it is settled law that claims based on targeting
because a claimant is a member of a group that is perceived to be wealthy,
where that group is large enough to make the risk widespread, will not meet the
requirement of subparagraph 97(1)(b)(ii). Though a group may be a small portion
of the population of the country of reference, what matters is that the risk is
widespread or prevalent. The RPD finds that a business owner being targeted for
extortion and/or to serve the drug cartels’ purpose is a risk that is
widespread in Mexico.
However, recent case law
demonstrates that the Board’s analysis of the case law is somewhat incomplete.
Important caveats must be made in light of the particular facts of this case.
This has prompted the Court to intervene in similar situations, especially
where the decision under review “completely negates an admitted situation of
individualized risk simply because the actions giving rise to that risk are
also criminal” (Lovato v Canada (Minister of Citizenship and Immigration),
2012 FC 143 at para 9, [2012] FCJ No 149 [Lovato].
[14]
Indeed,
it is apparent that the Board has chosen to refer only to those decisions of
the Court that hold generally that claimants who have been specifically
targeted, nonetheless face a generalized risk if the majority of the citizens
of the country, or the subgroup to which the claimant belongs, also generally
experience that same risk (see e.g. Acosta; Guifarro v Canada
(Minister of Citizenship and Immigration), 2011 FC 182). However, this is
only a partial view of the jurisprudence ((Olvera v Canada (Minister of Citizenship and Immigration), 2012 FC 1048 at para 37, [2012]
FCJ No 1128). Interpreting section 97 of the Act in such an overly broad manner
defeats its original purpose since it becomes nearly impossible to categorize a
risk as “personalized” when the risk in question is related to criminal
activity against the claimant.
[15]
In
Portillo at para 36, Justice Gleason ruled that it was unreasonable for
the Board to find that the applicant faced only a generalized risk – even
though he had been personally threatened by the Mara Salvatrucha criminal gang
in El Salvador – due only to the rampant nature of criminal gang violence in El
Salvador. Justice Gleason states that “[i]f 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” (Portillo at para 36). Similarly, in Lovato
at para 14: “[S]ection 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.”
[16]
Recent
case law suggests that it is unreasonable to decide that a claimant was
specifically targeted, yet then go on to conclude that there is a lack of
personalized risk due to the widespread nature of that same risk in the
claimant’s country (see e.g. Lovato at para 7; Guerrero v Canada
(Minister of Citizenship and Immigration), 2011 FC 1210, [2011] FCJ No 1477
[Guerrero]; Vasquez v Canada (Minister of Citizenship and
Immigration), 2011 FC 477, [2011] FCJ No 595; Uribe v Canada (Minister
of Citizenship and Immigration), 2011 FC 1164, [2011] FCJ No 1431; Munoz
v Canada (Citizenship and Immigration), 2010 FC 238, [2010] FCJ No 268).
Again, along this vein of reasoning, in Portillo, Justice Gleason
succinctly states that “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.” Justice Shore, referencing the Portillo decision,
further clarifies that “even if [the risk] is widespread in his or her country
of origin … individual targeting cannot be said to be general or impersonal” (Olvera
at para 1).
[17]
In
Guerrero, Justice Zinn observes at paras 28, 29, 33, and 34:
My second observation is that too many
decision-makers inaccurately describe the risk the applicant faces and too many
decision-makers fail to actually state the risk altogether. Subparagraph
97(1)(b)(ii) of the Act is quite specific: The personal risk a claimant must
face is “a risk to their life or to a risk of cruel and unusual treatment or
punishment.” 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.
An example of the sort of decision I am addressing
is that under review. The closest the decision-maker in this case comes to
actually stating the risk she finds this applicant faces is the following:
“[T]he harm feared by the claimant; that is criminality (recruitment to deliver
drugs)….” But this is not the risk faced by the applicant, and even if it
were, the decision fails to state how this meets the test of risk set out in
subparagraph 97(1)(b)(ii) of the Act. At best, the risk as described forms
part of the reason for the risk to the applicant’s life. When one conflates
the reason for the risk with the risk itself, one fails to properly conduct the
individualized inquiry of the claim that is essential to a proper s. 97
analysis and determination.
…
During the course of oral submissions, I asked the
respondent, given his interpretation of Baires Sanchez, if he could
provide an example of a situation where a person targeted for death from a gang
in one of these gang-infested countries could obtain s. 97 protection. The
example provided in response was the situation where a gang had been hired to
kill a claimant. In that circumstance, it was submitted that the risk to the
claimant was personal and was not one faced generally by the population. I
note that the scenario provided is exactly that which this applicant faced. He
faced death at the hand of a gang hired by a criminal organization to kill him.
I do not accept that protection under the Act is
limited in the manner submitted by the respondent. This is not to say that
persons who face the same or even a heightened risk as others face of random or
indiscriminate violence from gangs are eligible for protection. However, where
a person is specifically and personally targeted for death by a gang in
circumstances where others are generally not, then he or she is entitled to
protection under s. 97 of the Act if the other statutory requirements are met.
[18]
Consolidating
the line of reasoning that has been developing within this strand of
interpreting section 97 of the Act, in Portillo (at paras 40-41) Justice
Gleason goes on to propose a test for the analysis of generalized risk under
section 97 of the Act. (1) The nature of the risk faced by the claimant must
first be appropriately determined. This is done by assessing the ongoing or
future nature of the risk the claimant faces in terms of whether the risk will continue
to be personalized in nature; what the risk is; whether the risk can be
classified as either cruel and unusual treatment or punishment; and the basis
of the risk faced. (2) With the nature of the risk having been appropriately
determined, the next step is to compare the “risk faced by the claimant to that
faced by a significant group in the country to determine whether the risks are
of the same nature and degree” (Portillo at para 41). If the risk faced
by the claimant can be differentiated under this second step, then the claimant
will be entitled to protection under section 97 of the Act.
[19]
I
note at this point that the respondent has made no attempt to adequately deal
with these jurisprudential developments. At the hearing before me, counsel for
the Minister continued to hold the position that there has been an
individualized assessment by the Board, that the distinction between
“generalized” versus “personalized” risk is often “blurred”, and that on the
particular facts of this case, the outcome is an acceptable one in light of the
facts and the law. It appears to me that the Board in this case erred in the
same matter as the Board did in the cases cited above where the Court
intervened.
[20]
As
noted previously, the Board found that the principal applicant was “personally
subject to a risk of harm under [s]ection 97 involving extortion and gang
violence,” but then went on to find that the applicant’s risk on return was a
“generalized one” (see para 21 of the Board’s decision). The principal
applicant began to be targeted personally when La Familia first declared
“ownership” of his store in April 2010. Once the applicants were targeted by La
Familia, the family faced death threats and the principal applicant and one of
his sons were seriously physically beaten and injured, the applicant was forced
to allow drugs to be kept at and picked up from his store, and even when he
tried to close his store in the hopes that La Familia would stop terrorizing
his family, they simply forced him to reopen the store. At no point does the
Board acknowledge the forced reopening of the store. It also bears mentioning
that the location and success of the principal applicant’s store are unique
elements to his individual situation. As the applicant has expressed, the
success of his business leads to high traffic, which increases the
attractiveness of his store as a target for La Familia both in terms of their
drug operations but also in terms of revenue garnishing extortion fees. The
location across from a sizeable high school is notable for the access it gave
La Familia to potential clientele in terms of the drug wing of their
operations, and also potentially in the expansion of other illegal activities.
[21]
In
comparing the situation faced by the applicants to that faced by a significant
group in the country in order to determine whether the risks faced by the
applicants are of the same nature and degree, I note that the applicants are
the first to acknowledge that prior to April 2010, when La Familia began to
target them, they faced no risk that was different in nature and degree to that
faced by other business-owners in the area. The applicants themselves consider
the extortion by street-level criminals and required payment of police
protection to be a generalized risk. Nonetheless, after La Familia became
involved, the physical violence endured by the family was personalized. The
applicant states that there were five or six other businesses of a similar
nature nearby and they did not face these same issues or problems that he and his
family faced. Clearly the situation of the applicants, and the level of threats
and harm that befell them, can be distinguished from the nature and degree of
the risks faced by other business owners in the area. At least, the Board
should have addressed this issue in its reasons and come to some conclusion:
“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” (Olvera
at para 41).
[22]
The
Board failed to conduct an individualized assessment in light of the particular
circumstances of the case. With similar facts to the present case and also
referred to in Portillo at para 44, in Gomez v Canada (Minister of
Citizenship and Immigration), 2011 FC 1093 at para 38, [2011] FCJ No 1601,
Justice O’Reilly overturned the Board’s decision where the claimants also faced
extortion, threats of kidnapping, and assault that did not begin on a
personalized level but subsequently escalated to become personalized in nature:
The applicants were originally subjected to threats
that are widespread and prevalent in El Salvador. However, subsequent events
showed that the applicants were specifically targeted after they defied the
gang. The gang threatened to kidnap [the applicant’s] wife and daughter, and
appear determined to collect the applicants’ outstanding “debt” of $40,000. The
risk to the applicants has gone beyond general threats and assaults. The gang
has targeted them personally.
[23]
Additionally,
in a recent decision rendered by Justice Mactavish regarding a store owner in
Jamaica, and again following the Portillo line of reasoning (Tomlinson
v Canada (Minister of Citizenship and Immigration), 2012 FC 822, [2012] FCJ
No 955), Justice Mactavish writes that the applicant “does not just fear a
criminal gang in Jamaica because he lives there or because he works as a
shopkeeper in that country. That would be a generalized risk faced by a
substantial portion of the population.” Instead, like the principal applicant
in the case at bar, the situation escalated where, prior to the change in
circumstances, the applicant “may have been at risk of extortion or violence
like many other shopkeepers in Jamaica. However, unlike the general population,
[the applicant] is now at a significantly heightened risk as a result of having
been, to quote the Board, ‘specifically and personally targeted by the gang’”
(at para 19).
[24]
For
the above reasons, the Board’s determination that the applicants are not
persons in need of protection under section 97 of the Act is unreasonable and
shall be set aside. The matter shall be remitted to the Board for
redetermination by another member. No question of general importance has been
proposed by counsel representing the parties and none shall be certified by the
Court.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review be granted as the Board’s determination that
the applicants are not persons in need of protection is unreasonable and must
be set aside. The matter is remitted to the Board for redetermination by
another member of the Board. No question is certified.
“Luc
Martineau”
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