Date:
20121127
Docket:
IMM-9124-11
Citation:
2012 FC 1378
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 27, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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BASILIO CARREON
CORTES, CLAUDIA ANGELICA RODRIGUEZ LOPEZ, DENISSE CARREON RODRIGUEZ and
JOSELYN CARREON RODRIGUEZ
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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
I. Introduction
[1]
This
is an application for judicial review filed by the Cortes family, all citizens
of Mexico, of the decision by the Refugee Protection Division (panel) dated
October 27, 2011, that the Cortes family are not Convention refugees or persons
in need of protection. The panel rejected the refugee claim on the ground
that the risk Mr. Cortes would face is not personalized but generalized.
[2]
The
panel found that the applicants are credible and trustworthy witnesses. The
panel found that the principal applicant, Basilio Cortes, testified directly without
trying to dodge the questions asked, and that the applicants submitted many
pieces of documentary evidence in support of their claim.
II. The facts
[3]
The
applicants fear a man named Eduardo Garcia. He sought, on June 6, 2007, the
cooperation of Basilio Cortes, a sales manager for the company Muna Automotriz,
in the purchase of three cars a week using false credit cards.
[4]
Mr.
Cortes refused to cooperate and told Eduardo Garcia that he had informed his
boss and that the police would be notified if he insisted. On August 6, 2007,
he was kidnapped and beaten by Eduardo Garcia, who threatened to kill him if he
did not go along with his plan and to retaliate against his spouse if he told
the police. Released and fearing for his life, he left Mexico and arrived in
Canada on October 2, 2007.
[5]
However,
Mr. Cortes returned to Mexico in November 2007 after his spouse informed
him that his attacker had been arrested by the police. He resumed his work at Muna
Automotriz.
[6]
On
April 8, 2008, Eduardo Garcia called out to him. He insulted him, called
him a rat and told him that, because of him, he had spent a few months in
prison. Again fearing for his life, he left Mexico on April 22, 2008, for
Canada and claimed refugee protection upon his arrival. Ms. Rodriguez
Lopez and the children joined Mr. Cortes on July 19, 2008, after being threatened.
III. Panel’s decision
[7]
The
panel found that the applicants were victims of the rampant criminality in
Mexico and the courts have indicated numerous times that being a victim of a
criminal act and experiencing fear of reprisals motivated by vengeance are not
equivalent to a ground of persecution within the meaning of section 96 of the
IRPA. Since the state was not involved . . . [the panel was of the
opinion that] the claims were reviewed under paragraph 97(1)(b) of
the IRPA and that it must be determined whether the applicants’ return to
Mexico would subject them “personally” to the risks listed there.
[8]
According
to the documentary evidence submitted by the principal applicant, the panel was
of the opinion that Mr. Garcia, who was suspected of making purchases using
fake bank cards, was arrested by the police.
[9]
The
panel added the following:
They [the applicants] believed
that their attacker was a member of an organized group with ties to the police
and, because of the rampant impunity in Mexico, they were not certain that he
would be arrested again. [Emphasis
added]
Although their testimony was credible, their
attacker’s alleged ties to the police were pure conjecture. . . . [but]
that they were plausible given the widespread criminal activity in Mexico.
[10]
The
panel continued its analysis and stated the following:
For
a claim to be allowed under subparagraph 97(1)(b)(ii), the
claimants must establish that the risk they face is different from the
[translation] “generalized risk” faced by all or part of the Mexican population.
In
this case, the panel is of the opinion that the claimants did not discharge
their burden of proof in this regard.
The
Federal Court has referred to the difficulty of establishing what makes a
“personalized risk” different from a “generalized risk” that could give rise to
a claim under paragraph 97(1)(b) of the IRPA. Addressing the
integral elements of that provision, the Court has stated that claimants must
demonstrate the existence of a risk that is personal “but also that such risk
‘is not faced generally by other individuals in or from that country.’”
[Emphasis added]
[11]
The
panel cited Osman José Paz Guifarro v Canada (Citizenship and
Immigration), 2011 FC 182; and Prophète v Canada (Citizenship and
Immigration), 2008 FC 331 at paragraph 23 “confirmed by” the Federal Court
of Appeal in Prophète v Canada (Citizenship and Immigration), 2009 FCA
31.
[12]
Upon
reading the documentary evidence, the panel found that insecurity is widespread
in Mexico because of criminal activities tied to organized groups. Weapons
and drug trafficking, money laundering, kidnappings for ransom and even the
extortion of money are only a few examples of the crimes committed by criminal
groups in Mexico. The panel found the following:
The
documentary evidence highlighting the crime problems tied to criminal gangs
states the following:
.
. . Other sources also note their involvement in assaults, rapes, homicides, kidnappings
and extortions (Desde la red 12 Mar. 2009), contraband and auto theft (La
Jornada 18 Feb. 2005), and, in the north of the country, in gun
smuggling (US Apr. 2006, 116).
[13]
The
panel cited documentary evidence on the Zetas in the two following paragraphs.
[14]
The
panel considered that, despite Mexico’s crackdown on criminal organizations,
the security situation in Mexico seems to have worsened.
[15]
The
panel found, after assessing the applicants’ personal situation, that they
failed to establish that they would personally face the risks listed in
paragraph 97(1)(b) of the IRPA if they returned to Mexico.
[16]
According
to the panel, that finding was based on the following facts and jurisprudence:
At
the hearing, the male claimant submitted Exhibit P-19, a Mexican newspaper
showing that other criminals carried out plans similar to that of Eduardo
Garcia, to obtain cars and resell them.
That
newspaper article and the information in the package lead the panel to
conclude that these are criminal activities that likely target a considerable
number of car dealerships or any other type of business that sells or leases
cars; therefore, they constitute a large enough subgroup that the risk faced by
these merchants can be considered [translation] “prevalent or widespread” in
Mexico and, accordingly, be described as a “generalized risk.”.[Relying on Gil
Osorio v Canada (Minister of Citizenship and Immigration), 2005 FC 1459]
Recently,
the Federal Court has stated that although a claimant may have been targeted
personally, which is the situation in this case, the risk is still generalized
insofar as the risk faced by the claimant is similar to that faced by other
citizens. [Relying on Flores
Romero v Canada (Citizenship and Immigration), 2011 FC 772]
In
this case, the male claimant was targeted because of the type of job he had and
because his attacker, whose activities included buying cars with false credit
cards, needed an accomplice. This collaboration was necessary, no matter the
identity of the person with the sales job. Exhibit P‑19 demonstrates
that in Mexico, other criminals have engaged in comparable activities with
other merchants who operate similar businesses. [Emphasis added]
[17]
The
panel also cited the following excerpt by my colleague, Justice Tremblay-Lamer,
in Prophète:
. . . 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]
[18]
Citing
Chavez Fraire v Canada (Minister of Citizenship and Immigration), 2011 FC
763, counsel for the applicants argued before the panel in this case that the
risk the applicants would face should they return is different from the
“generalized risk” faced by the Mexican population because their attacker will try
to seek revenge because the applicant refused to cooperate with him and because
he believes that he was imprisoned for a few months because of a report made by
the applicant.
[19]
That
argument was not accepted by the panel for the following reasons:
In
Chavez Fraire, the claimant feared a criminal group called “Los Zetas”.
He alleged that the risk he faced was different because he had reported
their criminal activities to the authorities and because this group would try
to seek revenge. However, Justice Zinn stated: “That risk did not become
personalized simply because the applicant fell into the group of those who were
enemies of Los Zetas.” Justice Rennie made similar statements in Flores
Romero Damian, in which a claimant sought to resist the extortion of which
he was a victim by reporting it to the police. The fact of filing a
complaint does not make him unique, or does not bring him within a unique or
discreet subgroup of the general population.
As mentioned, the documentary
evidence states that in Mexico, criminal groups engage in various types of
crime and that the car market seems to be of particular interest to them. In
this case, the panel is of the opinion that this is a situation that is likely
to recur frequently enough for the risk to be described as a “generalized
risk.”
[Emphasis added]
IV. Parties’ submissions
(a)
Applicants’
submissions
[20]
They
raise two points.
[21]
The
documentary evidence cited by the panel is not relevant for the purposes of
this case because it talks about “auto theft” whereas the illegal transactions
suggested by the principal applicant were completely different.
[22]
The
panel failed to analyze the applicant’s specific situation and, because his
testimony was found to be credible, that is a reviewable error. He cites Pineda
v Canada (Minister of Citizenship and Immigration), [2007] FCJ No 501 and Zacarias
v Canada (Minister of Citizenship and Immigration), [2001] FCJ No 144.
(b)
Respondent’s
submissions
[23]
The
introductory information in the respondent’s memorandum reads as follows:
[translation]
Activities by criminal organizations in Mexico are a
genuine scourge and affect its entire population.
[24]
According
to the respondent:
1.
The
panel found that the risk faced by the applicants was widespread.
2.
In
fact, a newspaper article submitted into evidence by the applicants shows that
a considerable number of car dealerships are targeted by criminal groups (panel’s
reasons at paragraph 26).
3.
The
panel also analyzed the applicant’s specific situation and noted that he was
targeted because of his position. Consequently, the bandits’ master plan did
not target the applicant specifically, but rather his possible participation
as a car salesperson (panel’s reasons at paragraph 28).
4.
As
a result, because the vehicle market is coveted by criminal organizations, the
applicant did not face a personalized risk, but a generalized risk faced by all
car dealership employees.
[25]
With
respect to the standard of review, the respondent states that it is established
that the standard of review that applies where the issue turns on a question of
fact or a question of mixed fact and law is reasonableness and that,
consequently, deference is owed to the panel’s decision.
[26]
According
to the respondent:
1.
The
panel found that the risk alleged by the applicants is generalized and that they
failed to establish that they faced a personalized risk.
2.
It
is settled law that, for someone to be considered a person in need of
protection, the risk the person faces must be personalized, that is, a risk not
generally faced by the country’s other citizens (see Prophète v Canada
(Minister of Citizenship and Immigration), 2008 FC 331 (Justice
Tremblay-Lamer); Salem Ould v Canada (Minister of Citizenship and
Immigration), 2007 FC 83 at paragraph 21 (Justice Beaudry); and Rodriguez
v Canada (Minister of Citizenship and Immigration), 2012 FC 11 at paragraph
74 (Justice Russell)).
3.
This
Court interpreted the term “generally”, set out in subparagraph 97(1)(b)(ii),
as possibly including parts of the general population:
[26] Further, I can see
nothing in s. 97(1)(b)(ii) that requires the Board to interpret “generally” as
applying to all citizens. The word “generally” is commonly used to mean
“prevalent” or “widespread”. Parliament deliberately chose to include the word
“generally” in s. 97(1)(b)(ii), thereby leaving to the Board the issue of
deciding whether a particular group meets the definition. Provided that its
conclusion is reasonable, as it is here, I see no need to intervene. (Osorio v Canada (Minister of
Citizenship and Immigration),
2005 FC 1459, at paragraph 26 (Justice Snider) and cited with approval in Paz
Guifarro v Canada (Citizenship and Immigration),
2011 FC 182 at paragraphs 24, 25 and 30 (Justice Crampton).)
4.
That
issue, as correctly noted by the panel, is highly factual and must be analyzed on
the individual facts of each case (Rodriguez v MCI, above at
paragraph 71).
5.
In
this case, the panel reasonably analyzed the documentary evidence before it and
found that there is an abundance of organized criminal groups in Mexico that
commit all sorts of crimes.
6.
Namely,
a newspaper article (exhibit P-19) submitted by the applicants shows that the
scam used by Eduardo Garcia, that is, to illegally purchase cars from
dealerships or comparable businesses and resell them, is a prevalent risk in Mexico.
7.
Contrary
to what the applicants allege in their memorandum, there is no doubt that the
panel considered the testimonial evidence together with the documentary
evidence and the case law to carry out a personalized analysis of the risk the
applicants faced.
8.
Moreover,
the mere fact that the principal applicant was kidnapped in the past does not
establish that he was personally targeted under the IRPA. In that regard, the
respondent points out Acosta, where this Court determined that a refugee
claimant, a citizen of Honduras who worked in a bus collecting fares and was the
subject of extortion by members of the Mara Salvatrucha gang, was subject to a
generalized risk.
9.
Furthermore,
the applicant does not face a personalized risk because he resisted Eduardo
Garcia and refused to participate in his crimes (Chavez Fraire v Canada (Citizenship
and Immigration), 2011 FC 763 at paragraph 10 (Justice Zinn); Flores
Romero v Canada (Citizenship and Immigration), 2011 FC 772 at paragraph 20
(Justice Rennie)).
10.
The
panel’s analysis is personalized and is consistent with this Court’s recent
decisions that confirm that generalized risk is established on a case-by-case
basis, and that, as long as the decision is within the bounds of reasonableness,
this Court should not interfere, even if it would have reached a difference
conclusion (Rodriguez, above, at paragraph 88; Trigueros Ayala v
Canada (Minister of Citizenship and Immigration), 2012 FC 171 at paragraph
10 (Justice Hughes); Camargo Vivero v Canada (Minister of Citizenship and Immigration),
2012 FC 138 at paragraphs 12 and 30 (Justice Rennie)).
11.
In
their memorandum, the applicants did not establish why the panel’s decision is
unreasonable. They merely cited excerpts from the case law without pointing out
a parallel with this case. The intervention of this honourable Court is not
warranted.
V. Analysis and
conclusion
(a) The
standard of review
[27]
The
parties agree that the applicable standard of review is reasonableness and that
the heart of the panel’s decision is the application of the established case
law to the facts of this case.
[28]
The
Supreme Court of Canada, in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190,
at paragraph 47, explained the meaning of reasonableness:
47 Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within
the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. [Emphasis
added]
(b) Conclusion
[29]
This
application for judicial review must be dismissed. According to the panel, the
principal applicant was targeted by his agent of persecution because he was a
car salesperson, a member of a significant subgroup. The result of that finding
by the panel means that the risk the applicants face is a generalized risk that
makes section 97 inapplicable. What is more, the panel’s analysis is consistent
with this Court’s current jurisprudence. The panel’s decision is reasonable.
This Court is not entitled to intervene.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed. No question of general importance was proposed.
“François Lemieux”
Certified
true translation
Janine
Anderson, Translator
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