Date: 20110627
Docket: IMM-6955-10
Citation: 2011 FC 785
Ottawa, Ontario, June 27, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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E.A.DS.
J.M.S.A.
E.C.S.A.
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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
[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 the decision dated
October 26, 2010 wherein the Refugee
Protection Division of the Immigration and Refugee Board determined
that the applicants are not Convention refugees or persons in need of
protection.
[2]
The
decision under review pertains only to the principal applicant and her
children. Although the principal applicant’s husband’s claim was heard
together with the applicants’, he was found to be excluded from refugee
protection under Article 1F of the Convention. That decision was the subject of
a separate application for judicial review. Because of the facts of this case,
initials will be substituted for the name of the principal applicant and her
children and their names shall not appear in the style of cause of these Reasons
for Judgment and Judgment.
BACKGROUND
[3]
The
applicants are citizens of El Salvador who fear being targeted
by organized crime, in particular the Mara Salvatrucha. Back home, the
applicants had successful businesses in money lending and farming. In October
2006 the Maras attempted to
extort the principal applicant’s husband. Threats continued after the husband
reported the problems to the police.
[4]
The
applicants acceded to the extortionists’ demands. However, after having given
them a total of $25, 000 US over 10 months, the extortionists demanded
$3000 US monthly. The applicants could not afford this and at the end of
October they went to the police. Because they had no evidence to identify the
extortionists the police said there was nothing they could do. The principal
applicant resigned from work due to her fear of the children being kidnapped.
[5]
On
one occasion, the principal applicant was in a motel that the family owned. She
was robbed and raped by five individuals and was told that this was just the
beginning. They demanded $75, 000 US and the family was given a deadline of two
months to pay. The principal applicant did not report the robbery or the rape
to the police because she was fearful and embarrassed. She sought medical
attention, including psychological help.
[6]
The
applicants entered Canada on February 1, 2008 and made a refugee claim on
February 23, 2008. Their claims were heard on July 28 and October 14, 2010.
DECISION UNDER REVIEW
[7]
On
October 26, 2010, the Board concluded the applicants were not refugees or
persons in need of protection. It found that the perpetrators were criminals
and the fear experienced by the applicants of this criminal behaviour did not
provide a link to one of the Convention refugee grounds. The risk they faced
was generalized in nature.
[8]
In
light of the rape, the Board initiated a gender-based analysis on whether there
was a nexus between the Convention grounds and the crime. The Board found that
the principal applicant was a victim of crime and did not fall into the five enumerated
grounds. It concluded that their section 96 claim must fail.
[9]
Insofar
as the section 97 analysis was concerned, the Board found the Maras to be a
widespread group engaged in criminal activities, mainly extortion. The Board
held that the applicants were part of a large subgroup of the population, that
is, business people, and the risk they faced was also a risk faced by others in
El
Salvador.
ISSUES
[10]
The
issues raised by the applicants are as follows:
(1) Did the Board err in its
treatment of section 97 of the IRPA?
(2) Did the Board err in failing
to find a nexus between the female applicant and the Convention?
ANALYSIS
Standard of Review
[11]
The
issues raised in this judicial review, i.e. the Board’s decisions with respect
to its section 97 analysis of the IRPA and its consideration of the nexus
between a Convention ground and a particular claimant’s story, are questions of
mixed fact and law and must be reviewed on the standard of reasonableness: Gabriel
v. Canada (Citizenship and Immigration), 2009 FC 1170; Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 53.
Did the Board err in its
treatment of section 97 of the IRPA?
[12]
Risk
faced by the general public, by a significant portion of the population or by a
subgroup of the population does not constitute personalized risk: Prophète
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, 70 Imm. L.R. (3d) 128,
appeal dismissed at: 2009
FCA 31, 387 N.R. 149.
[13]
It
has further been held by this Court that past threats to individuals from the Maras gangs cannot
amount to personalized risk: Gonzalez v. Canada (Minister of
Citizenship and Immigration), 2010 FC 991 at para. 18. Similar to the
case at bar, the applicant in Gonzalez was a citizen of El Salvador who worked
as a business manager and was forced, under threat of death, to pay $100 per
month to members of the Mara Salvatrucha. After paying the amount for 8 months
and refusing to pay thereafter, the applicant and his family were subject to
threats and intimidation. The Court dismissed the application. See also: Arias
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1029 at para. 47.
[14]
Here,
there was evidence before the Board, both documentary and oral testimony, that
business owners throughout El Salvador are targeted for
extortion and are victims of criminal activity by extortionists. An excerpt
from the transcript highlights this unfortunate reality:
MEMBER: I just have a few questions and then we
will take a break. You indicated to, and this is directed to the principal
applicant… you indicated that you were targeted for extortion because you had
several businesses. Is that correct?
CLAIMANT: Yes.
MEMBER: Is it not true that this is the case in El Salvador with other individuals who
have successful businesses?
CLAIMANT: I do not
know, maybe, probably, most likely.
[15]
As
such, the Board concluded that the risk faced by the applicants is a risk faced
generally by others in El Salvador and is not personalized
to them. It follows that the applicants are not afforded section 97
protection, despite having been threatened in the past. That finding was
reasonable.
Did the Board err in
failing to find a nexus between the female applicant and the Convention?
[16]
As
the respondent points out, the applicants’ claim was based on their extortion by
the Maras. This is
evidenced from the principal applicant’s PIF narrative where she states that
she and her husband were being targeted by the gang – “We were being extorted
particularly by a Gangster group” – and from the In-Person Refugee Intake where
the principal applicant explained the reason they were seeking protection in
Canada was because they “were being extorted by Mara Salvatrucha”. The
principal applicant confirmed this again at the hearing:
RPO:
You fear the Mara Salvatrucha.
CLAIMANT: Yes I fear them.
RPO: And their motive to harm you is based on
the extortion terms, is that correct?
CLAIMANT: Yes.
RPO: Is there any particular reason, you know
of, that you were made a target of these threats as opposed to somebody else?
CLAIMANT: Because we had businesses and I had a
good job.
[17]
The
appearance of wealth does not amount to a Convention refugee nexus: Martinez
Menendez v. Canada (Minister of Citizenship and Immigration), 2010 FC 221,
14 Admin. L.R. (5th) 151 at para. 27. The Board was thus justified in
finding that there was no nexus between the risks faced by the applicants and
the Convention grounds.
[18]
With
respect to the applicants’ claim that the Board erred in failing to properly
analyse the Gender Guidelines as applied to issues of nexus, it should
be noted that the principal applicant’s gender was not even raised at the
hearing. Nonetheless, the Board itself initiated an analysis based on the Gender
Guidelines. In the circumstances of this particular case, the Board was
correct to conclude that the rape was an act of violence that flowed from the
generalized criminality experienced by those being targeted by the Maras in El Salvador.
[19]
There
is no doubt that rape is a grave violation against human rights and human
dignity. However, in this case, it cannot be said that the principal applicant
was being persecuted through rape, or, due to her membership in a particular
social group. For this reason, the instant case can be distinguished from Josile
v. Canada (Minister of
Citizenship and Immigration), 2011 FC 39, relied upon by the
applicants.
[20]
The
Board provided clear and comprehensive reasons taking into account all of the
evidence.The decision, therefore, falls within the range of acceptable outcomes
justified on the facts and the law. The application is dismissed.
[21]
The
parties proposed no questions for certification and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. the
application for judicial review is dismissed;
2. initials are
substituted for the name of the principal applicant and the names of the children
and their names shall not appear in the style of cause of this Judgment and
Reasons for Judgment.
3. No questions
will be certified.
“Richard
G. Mosley”
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