Date: 20090302
Docket: IMM-3731-08
Citation: 2009 FC 213
Vancouver, British Columbia, March 2, 2009
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
DUNIS
JOEL ACOSTA ACOSTA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Acosta seeks
judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board), rejecting his claim under section 97
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act). The applicant alleges that the Board erred in finding that he did not
face a personal risk, but rather generalised violence, if he returned to Honduras.
Background
[2] Dunis Joel Acosta
Acosta is a 21 year-old citizen of Honduras. Prior to
coming to Canada, he worked as a fare collector on a bus,
beginning in August of 2006. At the end of every day, Mr. Acosta and the driver
of the bus would count the money collected that day, setting aside a portion
for the owner of the bus, another for the fuel, the remaining proceeds being
split between him and the driver in an approximate proportion of 40% for him
and 60% for the driver.
[3] On Fridays, this
daily routine changed, as a member of the Mara Salvatrucha gang (the Gang)
would require the payment of 200 Honduran Lempiras, representing roughly 13
Canadian Dollars. On one of these Fridays, February 2, 2007, the bus on which
the applicant collected fares had mechanical problems at the very beginning of
the day and thus the driver and the applicant had to take it to the garage to
be fixed. As such, the applicant did not work that day and no fares were
collected. The Gang did not get their 200 Lempiras from the applicant and the
bus driver.
[4] Shortly after, another
bus fare collector, Oscar Alexis Flores Sanchez, came to tell him that seven
members of the Gang got on the bus at the bus station and shot the driver with
whom the applicant worked. Referring to the applicant as “El Negro”, the men
inquired to the other fare collectors present at the station as to his
whereabouts. The fare collectors are said to have simply replied that he had
not come to work on that day.
[5] The applicant,
fearing he too would be killed by the Gang, and following his brother-in-law’s
recommendation, fled Honduras destined for Canada. He travelled through Guatemala, Mexico and the United States before crossing the Canadian border on foot, without
reporting to Customs/Immigration, in the early morning hours of April 3, 2007.
That month, the applicant filed his claim for Refugee Protection.
[6] In the course of
his journey to Canada, the applicant phoned his mother in
Honduras on two occasions, once on February 4, 2007 from Guatemala and then slightly more than a week later from Mexico. On both occasions, his mother informed him that a
member of the Gang, “Escorpion” had come to their house, accompanied on one
occasion by another member, “Huicho”, looking for the applicant and vowing that
“your son is going to show up sooner or later and we will kill him”. The applicant’s
mother has since moved to another neighbourhood of Tegucigalpa but members of the Gang again visited her, reiterating their threats.
[7] The applicant’s hearing before the Board
was held on May 29, 2008. In its decision of July 25, 2008, the Board rejected
the applicant’s claim on the grounds that gang activity was prevalent
throughout Honduras and that despite the events referred to
above, the prospective risk the applicant faced was not different than the
generalised risk of violence faced by all Hondurans.
[8] The applicant
challenges the decision on numerous grounds. Mainly, he argues that the Board
erred in: i) failing to appreciate the link between the country documents on
the general situation in Honduras and the applicant’s specific
circumstances. Had it done so, it would have concluded that the applicant’s
risk was dissimilar to that of the larger population in Honduras; and, ii) not appreciating that the risk faced by the
applicant was sufficiently particularized such as he is not excluded from the
definition of “person in need of protection”.
Analysis
[9] The question before the Court today is one of mixed fact and law
which is to be reviewed on the standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, (2008), 329
N.B.R. (2d) 1 at paragraph 53 (Dunsmuir).
[10] In Prophète v. Canada (Minister of Citizenship and Immigration),
2008 FC 331, (2008), 70 Imm. L.R. (3d) 128 (Prophète), Justice Danièle
Tremblay-Lamer, at para. 11, held that interpretation of s. 97 of the Act is a
pure question of law, reviewable on the standard of correctness. In that
respect, it should also be noted that she certified the following question:
Where the population
of a country faces a generalized risk of crime, does the limitation of section
97 (1)(b)(ii) of the IRPA apply to a subgroup of individuals who face a
significantly heightened risk of such crime?
[11] On February 4, 2009, the Federal Court of Appeal refused to answer
this question as it deemed it to be too broad, in light of the fact that “[t]he
examination of a claim under subsection 97(1) of the Act necessitates an
individualized inquiry” (Prophète v. Canada (Minister of Citizenship and Immigration),
2009 FCA 31 at para. 7).
This clearly indicates that the issue is not one of pure law but turns rather
on the application of the section to the particular facts of a case that cannot
be considered in a general way.
[12] In Dunsmuir, the Supreme Court of Canada defined the standard
of reasonableness, explaining, at para. 47, that:
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.
[13] The fundamental underpinning of the applicant’s argument before this
Court is that the Board ignored the particularized nature of the risk faced by
Mr. Acosta as well as the evidence that this risk was ongoing, given that the
Gang was still actively looking for him. An examination of the reasons provided
by the Board in support of its decision makes it plain that this is simply not
so.
[14] At para. 14 of its decision, the Board clearly considers the
evidence put forward by Mr. Acosta to the effect that the Gang is still looking
for him, specifically referencing the statement of his friend, Mr. Sanchez, as
well as that of the applicant’s mother. As for the argument that the
applicant’s risk is different than that which is faced by the Honduran
population generally, it is also specifically canvassed by the Board at para.
19 of its reasons:
It is not a proper
response to say that Mr. Acosta is not, potentially, a victim of generalised
violence, because the gang was looking for him. Victims of generalised
violence are often known to the perpetrators, by name, by position, or for any
number of different reasons. The fact that the victims of generalised violence
have an identity, as all people do, and that that identity is or becomes known
to the perpetrator, does not mean that they are not a victim of generalised
violence.
[emphasis added]
[15] In Prophète, a case where the applicant was
arguing that, in light of his economic situation, he faced a significantly
heightened risk of violence, Justice Tremblay-Lamer held, at para. 23, that:
the applicant does not
face a personalized risk that is not faced generally by other individuals in or
from Haiti. The risk of all forms of criminality is general and felt
by all Haitians. 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.
Similar conclusions were reached by the Court in Carias v. Canada
(Minister of Citizenship and Immigration), 2007 FC 602, [2007] F.C.J. No.
817 (QL) (Carias), Marshall v. Canada (Minister of Citizenship and Immigration),
2008 FC 946, [2008] F.C.J. No. 1179 (QL) and Cius v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1, (2008), 164 A.C.W.S. (3d)
142.
[16] The applicant referred
to a passage of the documentary evidence which confirms that bus fare
collectors are frequently subject to extortion by the Gang. However, the Board
examined this country documentation and found it to clearly indicate the
prevalence of gang related violence in a variety of sectors. It is no more
unreasonable to find that a particular group that is targeted, be it bus fare
collectors or other victims of extortion and who do not pay, faces generalised
violence than to reach the same conclusion in respect of well known wealthy
business men in Haiti who were clearly found to be at a heightened risk of facing
the violence prevalent in that country.
[17] The applicant argues that his risk was not random and
relies on Justice Yves De Montigny’s decision in Pineda v. Canada (Minister of Citizenship and
Immigration), 2007 FC 365, (2007), 65 Imm. L.R. (3d)
275 (Pineda) where the learned judge granted the application in
circumstances that were, in the applicant’s view, analogous to his situation
because Mr. Pineda had been a specific target of attacks by the Maras
Salvatruchas gang in the past. First, the Court notes that the basis of the
decision in Pineda was that the decision maker had not considered in his
analysis the personal situation of the applicant. Here, as mentioned, the Board
has clearly done so. Second, in fact, a more appropriate analogy can be drawn
between the present circumstances and those found in the decision of Justice
John A. O’Keefe in Carias, where the Carias family had repeatedly been
the victims of violence, ranging from harassment to abduction of one of their
sons and nevertheless was found to face a risk generally faced by others in
Honduras. Finally, here, the Board found the risk faced by Mr. Acosta was “a
result of where he happened to be, or not to be, on the day the Mara wanted
their money” (para. 18) whereas Mr. Pineda had been targeted not as a victim of
the Gang but rather for recruitment into the Gang.
[18] The parties have not submitted a question for
certification
and the Court is satisfied that this case turns on its own unique facts. No
question will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application is
dismissed.
“Johanne
Gauthier”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3731-08
STYLE OF CAUSE: DUNIS
JOEL ACOSTA ACOSTA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF HEARING: January 15, 2009
REASONS FOR JUDGMENT
AND JUDGMENT: GAUTHIER J.
DATED: March
2, 2009
APPEARANCES:
|
Mr. Dean D.
Pietrantonio
|
FOR THE
APPLICANT
Barrister and
Solicitor
|
|
Ms. Hilla
Aharon
|
FOR THE
RESPONDENT
Department of
Justice
|
SOLICITORS
OF RECORD:
|
Mr. Dean D.
Pietrantonio
550 – 1130
West Pender St.
Vancouver,
BC V6E 4A4
Fax: (604)
331-8573
|
FOR THE
APPLICANT
Barrister and
Solicitor
|
|
Department of
Justice
900-840 Howe
Street
Vancouver, BC V6Z 2S9
Fax: (604)
666-2639
|
FOR THE RESPONDENT
Department of
Justice
|
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