Date: 20110624
Docket: IMM-7277-10
Citation: 2011 FC 763
Ottawa, Ontario,
June 24, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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CESAR
ALEJANDRO CHAVEZ FRAIRE
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Applicant
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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]
This is an application for judicial review, pursuant to section 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27, of a decision
of the Refugee Protection Division of the Immigration and Refugee Board. The
Board determined that the applicant was neither a Convention refugee nor a
person in need of protection.
[2]
The applicant is a citizen of Mexico. Between
2002 and 2008 he was threatened, beaten, and robbed by members of the criminal
organization Los Zetas. He moved cities twice in this time but Los Zetas
located him. He also reported the assaults to the police who did nothing. He
came to Canada and sought refugee protection in December 2008 after Los Zetas
beat him up and “told him to leave Mexico because they would make his life
miserable since he reported them to the police and tried to evade them.”
[3]
The applicant’s refugee claim was dismissed because the Board found that
the risk feared by the applicant was generalized and that, therefore, he was not
eligible for protection under s. 97 of the Act.
[4]
The applicant submits that the Board erred in this determination because
it “failed to deal with a key element of the Applicant’s case, namely that the
nature of the risk to him changed and evolved from the original extortion
threats made because he was perceived to be a successful businessman, to the
specific, personalized threats made to him after that time, which arose because
he had reported the matter to the police and had tried to flee, both of which
were taken by the Zetas to be extremely aggravating factors.”
[5]
In support of this submission, the applicant points to and emphasizes
the word “therefore” in the following passage:
The panel
finds that the claimant is a victim of generalized crime. The claimant did not
pay the extortion money to the Zetas. He went to the police and left the
city. Next time, they beat him and took his money. The following two times
they threatened him and beat him. These crimes are the result of not paying
the extortion money and reporting them to the police. The claimant was
originally targeted because he was a businessman perceived to have money; just
as many businessmen are targeted by the Zetas. Therefore, the panel
finds the risk feared by the claimant is generalized risk faced by citizens of Mexico.
[emphasis added]
[6]
The applicant submits that the use of the word “therefore”
indicates that the Board only looked at the risk he had faced as a perceived
successful businessman and not the increased or different risk he faced because
he had reported Los Zetas to the police.
[7]
The Board found as a fact that “since the claimant went to the
police, the Zetas have a vendetta against him.”
[8]
The applicant relies on the decisions of this
Court, including those of Pineda v Canada (Minister of Citizenship and
Immigration), 2007 FC 365 and Zacarias v Canada (Minister of citizenship
and Immigration), 2011 FC 62. I find those decisions distinguishable from
the facts here. In those two cases the Board failed to consider the specific
circumstances of the applicants. In Pineda the Board failed to consider
that the applicant had been personally targeted by the MS-13 gang on multiple
occasions because he had refused to join the gang; rather, it examined his
claim as if he was merely a university student in El
Salvador. In Zacarias the Board failed to
consider the evidence that the applicant was targeted due to collaboration with
the authorities, refusal to comply with the gang’s demands, and knowledge of a
murders committed by the gang; rather, it examined the applicant as if he was
merely a successful vendor in Guatemala. In the case before the Court the
Board did not fail to consider the personal characteristics of the applicant,
including the fact that he went to the police. It was this action that was the
foundation for the Board’s finding that there was a vendetta.
[9]
In its reasons, after describing the last
interactions the applicant had with Los Zetas and specifically the confrontation
wherein he was told that Los Zetas would make his life miserable because he had
reported them to the police and tried to evade them, the Board made the
following finding:
The panel further finds that the Zetas, as well as other gangs of
organized crime, are persistent in following up on those people they have made
demands of. Documentary evidence indicates that “it (Zetas) executes and
kidnaps its enemies.” Therefore, the panel finds that the risk of harm that
the claimant fears is one feared by the general population of Mexico.
[10]
The applicant’s submission is based on a microscopic
examination of the phrasing of the decision and overlooks the fact that the
Board did consider the heightened risk the applicant would have as an enemy of
Los Zetas, but found that this risk was a generalized one. That risk did not
become personalized simply because the applicant fell into the group of those
who were enemies of Los Zetas.
[11]
For these reasons I find the decision of the
Board to be reasonable and the application must be dismissed.
[12]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the application is dismissed and no question is
certified.
“Russel W. Zinn”
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