Date: 20110617
Docket: IMM-7240-10
Citation: 2011 FC 705
Ottawa, Ontario, June 17,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
|
|
JOSE ANIBAL DIAZ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a
negative decision of the Immigration and Refugee Board (the Board) rendered on
November 18, 2010, where it determined that the applicant is not a Convention
refugee and is not a person in need of protection.
[2]
For
the reasons that follow, the judicial review application shall be allowed.
Facts
[3]
The
applicant fled El Salvador in 1993 to the United States due to
ongoing victimization of the populace by gangs. He came to Canada in
November 2008 and filed for asylum and also he wanted to get his 16-year-old
son out of El
Salvador
but the latter was murdered by gang members on October 24, 2009 before the
applicant’s refugee claim was heard.
[4]
The
applicant believes that if returned to El Salvador, he will
become the target of the same gangs who have been victimizing his family. His
fear is that they will either seek to extort him or they will assume he will
want to avenge the death of his son and will pre-empt this by killing him.
The Board's decision
[5]
The
Board found that the applicant testified in a straightforward manner, there
were no serious or relevant inconsistencies or contradictions between his testimony
and the evidence. His testimony was authentic, compelling and the Board was
satisfied that he gave reliable and trustworthy evidence.
[6]
The
determinative issue, however, was whether or not there was a nexus to a
Convention ground.
[7]
The
Board concluded that the applicant did not fear gangs on the basis of his
nationality, race, religion, or political opinion. The Board also considered
whether the applicant might be a part of a social group by virtue of his being
a ‘family member of those who resist gang recruitment’. However, the Board
found that victimization alone cannot form the basis of membership in a
particular social group. Although it was noted that ‘the family’ has been
recognized as a particular social group in certain cases, for this to apply, it
must be found that the original persecuted person was targeted for a Convention
ground. The Board found that this did not apply in the case of the applicant.
[8]
The
Board member relied upon the analysis in Bojaj, Edmond v Canada
(Minister of Citizenship and Immigration), 9 Imm LR (3d) 299, 194
FTR 315, confirmed in Zefi v Canada (Minister of
Citizenship and Immigration), 2003 FCT 636, 123 ACWS. (3d) 739 where the
Court found that victims of families in blood feuds fearing retaliation and
murder are not members of a particular social group as their fear is based on
criminality, which does not constitute fear of persecution based on a
Convention ground (Larenas v Canada (Minister of Citizenship and
Immigration), 2006 FC 159, Vickram v Canada (Minister of Citizenship and
Immigration), 2007 FC 457, 157 ACWS (3d) 609). Mr. Diaz’ situation was
analogous to these cases.
[9]
Having
found that there was no nexus to a Convention ground, the Board went on to
analyse the applicant’s case under section 97 of the Act.
[10]
The
Board considered the applicant’s risk to extortion but found that this
was a generalized risk faced by the rest of the population (Sherman v Canada (Minister
of Citizenship and Immigration), 2006 FC 702, and Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213).
[11]
The
Board went on to consider the risk faced by returnees from abroad perceived as
wealthy in a violent country, but found that this risk is also faced generally
by other individuals in the country, as the risk of all forms of criminality is
felt by most (Prophète v Canada (Minister of Citizenship and
Immigration), 2009 FCA 31, 78 Imm LR (3d) 163, 387 NR 149). In fact, the specific
situation in the context of a Salvadorans perceived as wealthy was also
considered in Ventura De Parada v Canada (Minister of
Citizenship and Immigration), 2009 FC 845, and the Court came to the
same conclusion as in Prophète. The Board further noted that this line
of cases applies not only to extortion, but to all crime, including the fear
that the gang who killed the applicant’s son will murder him as well.
[12]
The
Board recognized that the applicant faces a risk in El Salvador. However,
the Board found that this risk was not personalized but rather general
that it is shared by most other Salvadorans.
Issues
[13]
The
applicant submits numerous issues but the Court is of the opinion that only one
is sufficient to dispose of this matter:
- Did the
Board err in determining that the applicant did not face a personal risk
pursuant to section 97 of IRPA?
Standard of review
[14]
The
above-mentioned issue concerns the Board’s analysis of the evidence. As such,
the factual findings should be given significant deference and be
reviewed on the standard of reasonableness (Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9).
Did the Board
err in determining that the applicant did not face a personal risk pursuant to
section 97 of IRPA?
[15]
The
applicant submits that the Board had no doubt that the applicant faced a
risk in El
Salvador
(decision, para 15) but found that the risk was not personalized as it was
shared by most other Salvadorans. Later on at para 19 the Board wrote "…
While you may be specifically targeted, you would be the victim of the general
and horrific crime problem in El Salvador. Your risk is no
greater or different from most other residents there and your case is therefore
not distinguished". The applicant argues that where there is
specific targeting there is personalized risk and relies on Martinez
Pineda v Canada (Citizenship and Immigration), 2007 FC 365.
Therefore, the Board's decision cannot
stand because the conclusion is not justifiable and is contradictory to its findings
that the applicant may be specifically targeted in El Salvador.
[16]
The
respondent, on the other hand, alleges that under section 97 of the Act,
it is the applicant that has the burden of demonstrating that he personally
faces a risk to his life or a risk of cruel and unusual treatment or punishment
if returned to El Salvador.
[17]
He
underscores that the Board carefully weighed and assessed the objective country
conditions evidence in El Salvador and noted that
gang violence was widespread and pervasive and that no one was immune. Therefore,
the Board did not err in finding that the applicant had failed to establish
that the risk he faced was a personalized risk rather than a generalized one.
[18]
The
Court does not agree with the proposition advanced by the respondent. In the
case at bar, the applicant has been found credible, his evidence trustworthy
and reliable. The Board accepted at para 15 that the applicant was at risk and
at para 19 that he was specifically targeted. There are no explanations for
these findings. Is it because of the applicant’s son's murder that gang
members would kill him fearing that he would avenge his death? Or because
the applicant’s allegations were found credible? When an applicant's
credibility is not in question, the Board has the duty to fully analyze and
appreciate the personalized risk faced by that applicant in order to render a
complete analysis of his claim for asylum under section 97 of IRPA, Zacarias
v Canada (Minister of Citizenship and Immigration) 2011 FC 62 para 17.
[19]
The
Board's conclusion that the applicant is at no greater risk than other
Salvadorans cannot be justified when it already accepted that he was at risk
and specifically targeted. This outcome is outside the range of acceptable
ones as qualified in Dunsmuir at para 47.
[20]
The
Court's intervention is warranted. No question for certification was proposed
and none arise.
JUDGMENT
THIS COURT
ORDERS that:
1.
The
application is allowed. The matter is referred back for redetermination by a
newly constituted Board.
2.
No
question is certified.
“Michel
Beaudry”
Email this Content