Date: 20110616
Docket: IMM-4043-10
Citation: 2011 FC 707
Ottawa, Ontario, June 16,
2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
|
|
EDWIN OMAR MALDONADO LAINEZ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
|
|
|
|
Respondent
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Mr. Edwin Omar Maldonado Lainez, is a citizen of Honduras. He claims
that his life will be in danger if he is forced to return to Honduras. He alleges
that the Mara Salvatrucha gang, also known as the “Mara 18” and the “MS 18,” threatened
him with death if he refused to join that gang. After receiving two such
threats, he fled Honduras. Upon his arrival in Canada in November
2008, he claimed refugee protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
In
June 2010, the Refugee Protection Division (RPD) of the Immigration and Refugee
Board rejected his claims.
[3]
The
Applicant submitted that the RPD erred by:
(i)
determining
that there was no nexus between his stated fears and the Convention refugee
ground of membership in a particular social group, namely, young males who are
targeted for membership in the MS 18;
(ii)
determining
that his claimed risks are “faced generally by other individuals in or from Honduras,” as
contemplated by paragraph 97(1)(b)(ii) of the IRPA; and
(iii)
ignoring
certain evidence in reaching its decision.
[4]
For
the reasons that follow, I have concluded that the RPD did not commit any of
those alleged errors. Accordingly, this application is dismissed.
I. Background
[5]
Mr.
Maldonado Lainez (“Lainez”) claims that, in May 2005, when he was 16 years old,
he was physically assaulted and robbed of his wallet by two members of the MS 18
as he was leaving work. He allegedly suffered a knife wound to his hand and was
also knocked unconscious for a period of time. He claims that he reported the
incident to the police approximately one week later, but was told that since he
could not provide a thorough description of his attackers and because there
were no witnesses, they could not follow up on his report.
[6]
Mr.
Lainez further claims that on November 27, 2006, he was approached again by
three members of the MS 18 as he was leaving church. He alleges that on that occasion,
his wallet was stolen, he was told that he had to join the gang within 10 days
if he wanted to live, and he was instructed to report to the gang’s boss in the
village
of Trinchera.
[7]
In
addition, Mr. Lainez claims that, approximately one week later, on the morning
of December 4, 2006, he discovered that a motorcycle he had borrowed from his
brother had been severely damaged at some point during the night. He claims
that there was a note attached to the motorcycle which stated: “This is proof
that we know where you live and you only have a few days left to join the
Mara.”
[8]
On
December 5, 2006, Mr. Lainez fled Honduras. He travelled through
Mexico and entered the United States on January 16, 2007. During
his stay in the United States, he did not make a claim for asylum,
allegedly because he feared that his claim would be rejected and that he would
then be deported to Honduras. He remained with relatives in the United
States until he heard about the availability of refugee protection in Canada.
II. The
Decision under Review
[9]
At
the outset of its decision, the RPD stated that the determinative issue in
respect of Mr. Lainez’s claim for protection under section 96 of the IRPA was
whether there was a nexus between his stated fears and one of the five grounds
of protection set forth in that section. Those grounds are race, religion,
nationality, political opinion and membership in a particular social group.
[10]
The
RPD began its assessment of this issue by noting that Mr. Lainez fears that the
MS 18 will harm or kill him because he did not comply with their demand to join
the gang. After briefly reviewing Mr. Lainez’s allegations, the RPD stated that
his “decision to flee was because he did not want to be a victim of the gang.”
It then concluded that Mr. Lainez was “a victim of crime,” and that therefore
his stated fear is not linked to any of the five Convention refugee grounds set
forth in section 96.
[11]
The
RPD then considered Mr. Lainez’s claim under section 97. It noted that: (i) the
assessment of risk under section 97 must be specific to the individual, in that
the evidence must establish a specific, individualized risk of harm with regard
to the particular claimant; and (ii) the risk must not be indiscriminate or
random and one faced generally by the population of the country in question. It
added that the fact that a group of people may be victimized by criminals repeatedly
or more frequently than others does not satisfy the requirements of section 97
if that risk is faced generally by others in the country.
[12]
The
RPD proceeded to note that the Applicant was victimized because he was
“spotted by gang members as a suitable person to rob as he was walking alone on
a street.” It concluded that “he had no particular characteristic except that
he was unfortunately walking alone on both occasions when the gang members were
looking for someone to rob.” It then observed: “The second time the claimant
was robbed, the gang members also attempted to recruit the claimant into their
gang. However, this does not establish that the risk is not one that is faced
generally by the population in Honduras.”
[13]
In
the course of reviewing the documentary evidence, the RPD observed that: (i)
the “failure to cooperate [with the MS 18] often leads to violence by gang
members”; (ii) gangs and the MS are a widespread problem in Honduras; and (iii) membership
is based on individuals’ proximity to gangs in their community, rather than
resulting from an official recruitment process.
[14]
Ultimately,
the RPD found that the risk identified by Mr. Lainez is one that is faced
generally by others in Honduras. It therefore rejected
his claim for protection under section 97 of the IRPA.
III. Standard of review
[15]
The
issue of whether the Applicant demonstrated a nexus to a Convention ground is a
question of mixed fact and law, reviewable on a standard of reasonableness (Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras 51-55; Ariyathurai v Canada (Minister
of Citizenship and Immigration), 2009 FC 716; Jimenez Herrera v Canada (Minister of
Citizenship and Immigration), 2010 FC 499). In short, the Officer’s decision will
stand unless it does not fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” or is not
appropriately justified, transparent and intelligible (Dunsmuir, above,
at para 47).
[16]
The
issue of generalized risk raised by the Applicant is also a question of mixed
fact and law (Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213, at paras 9-11), reviewable
on a standard of reasonableness (Dunsmuir, above). To the extent that
the RPD is required to interpret paragraph 97(1)(b)(ii) of the IRPA in
conducting its assessment, that part of its analysis is also reviewable on a
standard of reasonableness (Guifarro v Canada (Minister of Citizenship and
Immigration), 2011 FC 182, at paras 13-19).
IV. Analysis
A.
Did the RPD err in concluding that the alleged persecution faced by Mr.
Lainez has no nexus to
a
Convention ground of protection recognized in section 96 of the IRPA?
[17]
Mr.
Lainez submitted that the RPD erred in determining that there was no nexus
between his stated fear of death if he were required to return to Honduras and
the Convention ground of membership in a particular social group, namely, young
men who are targeted for membership in the MS 18 in that country.
[18]
During
his hearing before the RPD, when asked whether the MS 18 had approached or
attempted to recruit any of the other members of his family, Mr. Lainez
testified that they had been pursuing his sister. When asked why they had been
pursuing her, he replied “the same reason as mine.” When the panel member then
pointed out that she is not a male and that he had earlier stated that the MS
18 pursue young men to join their gang, he replied: “Well, the problem is they
kill the [sic] whole families.” He later added: “[W]hat I really think
is that they want to kill her because I am not there, and I said they kill
entire families.”
[19]
A
short while later in the hearing, Mr. Lainez stated that nothing gets by the MS
18 and “that is why everybody [in Honduras] is so terrified, that
is why everybody pays the war tax right now.” A few minutes later, he added:
“One has to pay a war tax just to live; it does not matter, if they need more
money sometimes yeah they will go and attack you, they will mug you.” He then
observed that these types of incidents occur “daily.”
[20]
Considering
the foregoing testimony, together with the country documentation to which the RPD
referred later in its decision, I am satisfied that it was reasonable for the RPD
to conclude that Mr. Lainez was a victim of crime, rather than a member of a
particular social group consisting of young men who are specifically targeted
for robbery and violence by the MS 18 (Castro v Canada (Minister of Citizenship
and Immigration), 2008 FC 1282, at paras 24-26; Bacchus v Canada
(Minister of Citizenship and Immigration), 2004 FC 821, at para 11).
[21]
In
short, it was reasonably open to the RPD to conclude, based on the evidentiary
record, that Mr. Lainez was not targeted by the MS 18 because he was a young
male. As the RPD subsequently explained, it found that he was robbed and
assaulted because he was in the wrong place at the wrong time. Although the latter finding was
discussed in connection with Mr. Lainez’s claim under section 97 of the IRPA,
the RPD’s reasons must be read in their entirety (Ragupathy v Canada
(Minister of Citizenship and Immigration), 2006 FCA 151, at para 15; Abdalla
v Canada (Minister of Citizenship and Immigration), 2006 FC 1429, at para
6; Malveda v Canada (Minister of Citizenship and Immigration), 2008 FC
447, at para 41).
[22]
Having
decided that the two robberies and assaults that he suffered were random, it
was reasonable for the RPD to conclude that Mr. Lainez did not have a well
founded fear of persecution, as contemplated by section 96, even though he may
have been threatened, on one subsequent occasion, with death if he did not join
the MS 18.
B.
Did the RPD err in concluding that the risks alleged by Mr. Lainez are risks
faced generally by
other individuals in
or from Honduras?
[23]
Mr.
Lainez submitted that the RPD erred by emphasizing the arbitrary nature of the
robberies that he experienced and by failing to appropriately recognize that the
generalized risk that it identified had developed into a personalized risk of
death.
[24]
In
its assessment, the RPD determined that Mr. Lainez was victimized by the MS 18
because “he was unfortunately walking alone on both occasions when gang members
were looking for someone to rob,” and not because of any particularized
characteristic. It noted that although the gang members also attempted to
recruit him into their organization on the second occasion, this fact alone did
not establish that the risk he faced was not generally faced by other individuals
in Honduras.
[25]
The
RPD proceeded to note that the documentary evidence indicates that gang
violence is particularly acute and the MS 18 is particularly violent. In this
regard, it noted:
i.
“The
gangs typically have been involved in a number of criminal activities including
murder, rape, kidnapping, human trafficking, drug trafficking, auto and weapons
smuggling, robbery and extortion of residents, bus drivers and business
owners.”
ii. “The failure
to cooperate often leads to harassment or violence by gang members,” and that “gang
activity is prevalent throughout Honduras.”
iii. “[T]here is
no official recruitment process for the youngest members of gangs; rather,
membership is based on their proximity to the gangs in their community.”
[26]
The
RPD then repeated its view that Mr. Lainez was victimized because he was in the
wrong place at the wrong time, rather than because of any reason particularized
to him.
[27]
Even
though the risk he identified may have become personalized to him, that risk is
also faced by everyone in Honduras who, like Mr. Lainez,
are initially victimized on a random basis and then become personally targeted
when they refuse to cooperate. In this regard, the RPD found that “the failure
to cooperate [with the gangs in Honduras] often leads to harassment
or violence by gang members.” The RPD also found that: (i) gang activity is
prevalent throughout Honduras; (ii) the rate of
homicides, physical violence and crimes against property is “also prevalent”;
and (iii) “gangs and the MS are a widespread problem.”
[28]
Based
on these findings, it was reasonably open to the RPD to conclude that Mr. Lainez
does not face a personal risk that is not faced generally by others in
Honduras, even though: (i) he may be part of a sub-group of the population that
faces a heightened risk (Prophète v Canada (Minister of Citizenship
and Immigration), 2009 FCA 31; Ventura De Parada v
Canada (Minister of Citizenship and Immigration), 2009 FC
845, at para 22); and (ii) the risk he faces may have become personal to
him by virtue of his refusal to join the MS 18 (Guifarro, above, at
paras 30-33).
[29]
Although
Mr. Lainez took issue with the RPD’s finding that the risk of death at the
hands of the MS 18 is widespread in Honduras, I am satisfied that it
was reasonably open to the RPD to make this finding on the basis of the
evidentiary record. That record included a report by the United States
Congressional Research Service entitled Gangs in Central America, dated
August 2, 2007, which identified the MS 18 as a “major gang” and stated (at p.
CRS-2) that “homicides have increased dramatically in El Salvador, Guatemala,
and Honduras.” That
report also noted (at p. CRS-3), that “[t]he gang problem is most severe in El Salvador, Honduras,
and Guatemala.” Another
document in the Certified Tribunal Record reported that there has been
“increased violence” by gangs in Honduras, and that the “Honduran government
has claimed that there are 340 active gangs in the country, with 30,000 members
involved in drug trafficking, organized crime, and even international
terrorism.” Yet another report noted that killings by gangs extend beyond
males, to include women who have “refused to work [for the gangs] or to
complete certain missions.”
[30]
Having
regard to the foregoing findings, the evidence in the Certified Tribunal
Record, and the jurisprudence, I am satisfied that it was reasonable for the
RPD to conclude that the risk faced by Mr. Lainez is a risk faced generally by
other individuals in or from Honduras.
C.
Did the RPD err by ignoring significant evidence?
[31]
Mr.
Lainez submitted that the RPD erred by ignoring his evidence that, on December
4, 2006, the motorcycle that he used for work was destroyed by the MS 18 gang
and that the gang left a threatening note stating that he only had a few days
left to join the gang.
[32]
I
disagree. As noted at paragraph 21 above, the RPD’s decision must be read in
its entirety. This evidence was explicitly referred to at the outset of the
RPD’s decision. I am therefore satisfied that the RPD did not ignore this
evidence.
[33]
On
the particular facts of this case, it was not unreasonable for the RPD to fail
to return to this evidence once it made the findings discussed in Parts IV.A
and IV.B of these reasons. Upon making those findings, it was reasonably open
to the RPD to reject Mr. Lainez’s claims under sections 96 and 97 of the IRPA,
without explicitly analyzing the potential significance of the one remaining and
isolated incident of crime and harassment that he claimed to have suffered at
the hands of the MS 18. This isolated incident cannot reasonably be claimed to
have constituted a sufficiently “sustained or systemic violation of basic human
rights” (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, at para 63)
to warrant an explicit analysis of whether Mr. Lainez’s claimed fear of future
persecution rose to the level of being well founded (Alshynetsky v Canada
(Minister of Citizenship and Immigration), 2004 FC 1322, at para 5).
V. Conclusion
[34]
The
application for judicial review is dismissed.
[35]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed.
“Paul S. Crampton”
Email this Content