Date: 20110624
Docket: IMM-5598-10
Citation: 2011 FC 768
Ottawa, Ontario, June 24,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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VICTOR LOZANO NAVARRO
GABRIELA HAMDAN LOPEZ
VICTOR SAID LOZANO HAMDAN
RICARDO LOZANO HAMDAN
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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 of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 18,
2010, wherein the Applicants were determined to be neither Convention refugees
nor a persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, RS 2001, c 27 [IRPA].
[2]
The
Board found that the persecution feared by the Applicants lacked nexus to a Convention
ground under section 96, and was a generalized rather than personalized risk,
so failed to meet the requirements of section 97.
[3]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[4]
The
Principal Applicant (PA), Victor Lozano Navarro, his spouse Gabriela Hamdan
Lopez and their minor children, Victor Said Lozano Hamdan and Ricardo Lozano
Hamdan (collectively, the Applicants) are citizens of Mexico. The Applicants
fear persecution at the hands of members of Antelmos, a branch of the drug
cartel known as La Familia.
[5]
The
PA owned a mini-supermarket in Cuernavaca, Mexico. He claims
to have first become the target of extortion by La Familia in September 2007.
Members of the gang came to the PA’s store to collect money because the sister
of the PA’s wife, a business owner and prior victim of extortion, had fled to Canada. The PA was
to take her place and buy protection from the gang. Thereafter, men would come
to the store weekly to take money. When the cash in the till was insufficient,
they would take merchandise instead.
[6]
The
PA alleges that he reported the first incident to the Public Ministry, but to
no avail. When he reported a second assault, the Public Ministry had no record
of the first denunciation. The PA claims he returned to the Public Ministry
several times, but they were never able to help him. He eventually turned to
the Human Rights Commission to report the failure of the Public Ministry and
police to act. Similarly, this produced no result.
[7]
The
extortion continued. The PA alleges that he was threatened, physically
assaulted and his wife was sexually assaulted. In December 2007, the
Applicants fled to Mexico City. They returned to Cuernavaca in March
2008. The extortion resumed. The PA claims that when the extortionists
visited his shop on December 5, 2008 he told them that he had no money. They
left empty-handed. Five days later, on December 10, 2008, the PA’s son, Said,
was kidnapped from school. He was returned to his family after they paid a
100,000 pesos ransom.
[8]
The
Applicants again fled to Mexico City. They stayed until
January 2009 when they found La Familia graffiti on the front door of the PA’s
parents’ house where they were staying. The Applicants then fled to PA’s
sister’s home in the state of Cautitlan.
[9]
The
PA returned one last time to Cuernavaca in March 2009. He
tried to report the kidnapping to the police and sold his business.
[10]
The
Applicants fled to Canada on March 16, 2009 and made claims for refugee
protection on April 15, 2009.
B. Impugned
Decision
[11]
Although
the Board made a negative credibility finding with respect to the PA’s efforts
to seek state protection, the determinative issue for the Board was generalized
risk.
[12]
The
Board found that the Applicants failed to establish a link between their fear
of persecution and one of the Convention grounds in the definition of
Convention refugee. The Board determined that the Applicants were victims of
crime, and that they were not targeted due to race, nationality, political
opinion or membership in a particular social group. As a result, the claim
failed under section 96 of the IRPA.
[13]
The
Board found that the risks feared by the Applicants were risks generally faced
by other citizens in Mexico, and therefore their claim was excluded by
sub-paragraph 97(1)(b)(ii) of the IRPA. The Board took “generally” to mean
“prevalent” or “widespread” , and therefore even though counsel argued that the
risk was somewhat particularized because the PA was a store owner and had a
sister-in-law who had been extorted in the past, the risk was still a risk that
is faced generally by other individuals in Mexico. This view was summed up at
paragraph 23 of the decision:
In view of the evidence before
me, I find therefore, that the claimant was a victim of crime, but that these
crimes are widespread in Mexico and not specific to the
claimant. The Refugee Protection Division does not have a specific legal
mandate that extends its protection to persons such as this claimant. I find
the claimants’ fear is a generalized one. The fear articulated by the
claimants is one faced by the general population of Mexico.
II. Issues
[14]
This
application raises the following issues:
(a) Did
the Board err in finding that the Applicants’ claim lacked nexus?
(1) Political
opinion
(2) Social
group
(b) Did the Board err in finding
that the fear faced by the Applicants was generalized?
III. Standard
of Review
[15]
The
issues raised by the Applicants are issues of mixed fact and law and are
reviewable on a standard of reasonableness (see Ospina v Canada (Minister of
Citizenship and Immigration), 2010 FC 1035 at para 16; Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[16]
As
set out in Dunsmuir, above, reasonableness requires consideration of the
existence of justification, transparency, and intelligibility within the
decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes that are defensible in respect of the
facts and law.
IV. Argument
and Analysis
A. Did
the Board Err in Finding that the Applicants’ Claim Lacked Nexus?
[17]
The
Applicants submit that the Board erred in finding that there was no nexus
between the Applicants’ claim and the enumerated grounds under section 96. The
Applicants argue that due to the nature and facts of their claim, the Board
should have recognized that they fall into either political opinion, or social
group, or both.
(1) Political
Opinion as a Ground Under Section 96
[18]
The
Applicants submit that the political opinion ground under section 96 is engaged
in the present matter because the Applicants resisted and defied the
persecutors by reporting them to the authorities several times. The Applicants
rely on the two-part test set out in Klinko v Canada (Minister of
Citizenship and Immigration), [2000] 3 FC 327, [2000] FCJ No 228 (QL), to
argue that this amounts to expressing a political opinion given that the
government of Mexico has endeavoured to eradicate drug cartels such as La
Familia, drug dealing in general, and the endemic corruption among agents of
the state that contributes to its existence.
[19]
The
Respondent takes the position that the jurisprudence of this Court establishes
that victims of criminal activity, including extortion, do not meet the
requirement of having a political opinion merely by filing a report with the
police. The Respondent distinguishes Klinko, above, on the facts.
[20]
Both
parties cite the definition of political opinion as a basis for a well-founded
fear of persecution as articulated by the Supreme Court in Canada (Attorney
General) v Ward, [1993] 2 SCR 689 at 746. For this purpose a
political opinion includes any opinion on any matter in which the machinery of
state, government, and policy may be engaged. The Applicants argue that filing
a police report constitutes either having a political opinion or being imputed
with one which engages the machinery of the state. The Respondent disagrees.
[21]
I
am not persuaded that the act of filing a police report alone or resisting
criminality generally necessarily constitutes an imputed political opinion.
The Applicants characterize such an act as an opinion about a matter that
engages the machinery of the state, as the state itself generally opposes
criminality. In my opinion, this is not a workable argument. The logical repercussion
being that everyone who files a police report must be imputed with an
anti-criminal, pro-government political opinion. The Applicants suggest that
their refusal to cooperate with La Familia marked them as supporters of the
government and the rule of law. However, in my view, absent any evidence that
the Applicants’ resistance to handing over their money to criminals was a
political act, as opposed to an act of economic self-sufficiency, I am
satisfied that it was reasonably open to the Board to find that the Applicants
were not targeted due to a real, or imputed, political opinion. As the Supreme
Court stated in Ward, above, at paragraph 86, “Not just any dissent to
any organization will unlock the gates to Canadian asylum; the disagreement has
to be rooted in a political conviction.”
[22]
The
caselaw relied upon by the Applicants is, as argued by the Respondent,
distinguishable on the facts. In Klinko, above, the claimant filed a
formal complaint about widespread corruption among government officials with
the regional governing authority. As a result, he suffered retaliation. The
Court of Appeal found that the opinions expressed by the claimant fell within
the definition of political opinion, as widespread government corruption is a
matter in which the “machinery of the state, government and policy may be
engaged”. The Court explained, at para 35:
[35] Indeed, the record
contains ample evidence that the machinery of government in the Ukraine was actually
"engaged" in the subject-matter of Mr. Klinko's complaint. The
country information reports, in the present instance, contain statements by the
President of Ukraine and two senior members of the Security Service of Ukraine
about the extent of corruption within the government and the need to eradicate
it both politically and economically. Where, as in this case, the corrupt
elements so permeate the government as to be part of its very fabric, a
denunciation of the existing corruption is an expression of "political
opinion". Mr. Klinko's persecution, in my view, should have been found to
be on account of his "political opinion".
[23]
Though
the government of Mexico may be dedicated to eradicating drug cartels, I
agree with the Respondent that the extortion practiced by drug cartels does not
permeate the Mexican government so as to be part of its very fabric. Furthermore,
the PA’s denunciations were limited to specific incidents and did not
incorporate any general criticisms regarding the cartel’s lack of respect for
the rule of law.
[24]
The
Applicants also rely on Gomez v Canada (Minister of
Citizenship and Immigration), 2001 FCT 647, 213 FTR 54. Gomez
stands for the proposition that victims of extortion may establish nexus to the
definition when the motivation for the extortion may be political. However,
here, unlike in Gomez, there was no evidence before the Board to suggest
that the cartel viewed non-payment as an act of political support for their opponents.
Also, as noted by the Respondent, unlike the present matter, in Gomez,
the Board made no negative credibility finding.
(2) Social
Group as a Ground Under Section 96
[25]
Both
parties cite the definition of social group established in Ward, above.
The Supreme Court recognized three categories:
(1) groups defined by an
innate, unchangeable characteristic; (2) groups whose members voluntarily
associate for reasons so fundamental to their human dignity that they should
not be forced to forsake the association; and (3) groups associated by a former
voluntary status, unalterable due to its historical permanence.
[26]
The
Applicants submit that the Board ought to have considered that they might fit
into the third category. That is, reporting to the authorities and refusing to
co-operate with the cartel is an immutable part of the Applicants’ past such
that they constitute a particular social group.
[27]
Again,
this argument fails. As the Respondent points out, the Supreme Court in Ward,
above, rejected the broad interpretation of particular social group.
The Court reasoned that due to the surrogate nature of the international
refugee system, viewing “an association of people as a "particular social
group" merely by virtue of their common victimization as the objects of
persecution,” (at paragraph 56) would not be sufficient to meet the definitions
of the Convention because, “[a]lthough the delegates inserted the social group
category in order to cover any possible lacuna left by the other four groups,
this does not necessarily lead to the conclusion that any association bound by
some common thread is included” (at paragraph 61). The Court cautioned that
“Canada should not overstep its
role in the international sphere by having its responsibility engaged whenever any
group is targeted.” (Paragraph 69)
[28]
The
Board’s finding regarding lack of nexus was entirely reasonable. It was
neither perverse, nor capricious, and was made with regard to the totality of
the evidence.
B. Did
the Board Err in Finding that the Risk Faced by the Applicants was Generalized?
[29]
The
Board found generalized risk to be the determinative issue, because the risk of
extortion is a risk of general criminality that is faced by everyone in Mexico. The
Applicants submit that this is in error, as the evidence plainly showed that
the Applicants were targeted because the PA’s sister-in-law failed to make her
extortion payments. The Applicants were specific targets over a period of
time, and as such, the risk was individualized.
[30]
The
Respondent disagrees. The evidence showed that La Familia were known for
extortion and there were rumours of extortion in the neighbourhood. Thus, the
Board reasonably concluded, “the risk faced by the Applicants is a generalized
one, due to the nature of the activities and widespread influence of La
Familia.” The evidence showed that the risk was not personalized, and
accordingly the Board reasonably concluded that the Applicants did not fall
within the scope of section 97.
[31]
I
accept the Respondent’s submissions on this point. In order to fall under
section 97 of the IRPA, a claimant must show that a return to her country will
expose her personally to a risk to life or serious harm. Systemic and
generalized violations of human rights evidenced through country documentation
will not be sufficient to ground a section 97 claim absent proof that links the
general documentary evidence to a claimant’s specific circumstances. The risk
cannot be indiscriminate or random (Vickram v Canada (Minister of
Citizenship and Immigration), 2007 FC 457, 157 ACWS (3d) 609 at para
14). It is an objective test, which considers the present or prospective risk
faced by the claimant (Sanchez v Canada (Minister of
Citizenship and Immigration), 2007 FCA 99, 62 Imm LR (3d) at
para 15).
[32]
The
Applicants in the present matter can link their personal circumstances to the
documentary evidence submitted. As recognized by the Board, however, the
problem for the Applicants is that the documentary evidence equally illustrates
the prevalence of La Familia’s extortion practices throughout Mexico. In short,
the fear articulated by the Applicants is shared by many citizens of Mexico.
[33]
In
recent years, this Court has been tasked with specifying what constitutes a
personalized risk as required by section 97. Justice Danièle Tremblay-Lamer
succinctly summed up the challenge presented by a section 97 analysis in Prophète
v Canada (Minister of
Citizenship and Immigration), 2008 FC 331, 70 Imm LR (3d) 128, affirmed
2009 FCA 31, 387 NR 149 at para 18:
[18] The difficulty in
analyzing personalized risk in situations of generalized human rights
violations, civil war, and failed states lies in determining the dividing line
between a risk that is "personalized" and one that is
"general". Under these circumstances, the Court may be faced with
applicant who has been targeted in the past and who may be targeted in the
future but whose risk situation is similar to a segment of the larger
population. Thus, the Court is faced with an individual who may have a
personalized risk, but one that is shared by many other individuals.
[34]
Justice
Paul Crampton recently synthesized the Court’s jurisprudence on claims advanced
under section 97 featuring exactly the issue identified by Justice
Tremblay-Lamer in Prophète, above – that is, a risk that is personalized
but also widespread in nature. At the end of his judgment in Guifarro v
Canada (Minister of Citizenship and Immigration), 2011 FC 182, Justice
Crampton neatly laid out the current approach of the Court with respect to
claims similar to those of the Applicants in the present matter:
[33] Given the frequency with which
claims such as those that were advanced in the case at bar continue to be made
under s. 97, I find it necessary to underscore that is now settled law
that claims based on past and likely future targeting of the claimant will not
meet the requirements of paragraph 97(1)(b)(ii) of the IRPA where (i) such
targeting in the claimant's home country occurred or is likely to occur because
of the claimant's membership in a sub-group of persons returning from abroad or
perceived to have wealth for other reasons, and (ii) that sub-group is
sufficiently large that the risk can reasonably be characterized as being
widespread or prevalent in that country. In my view, a subgroup of such persons
numbering in the thousands would be sufficiently large as to render the risk
they face widespread or prevalent in their home country, and therefore
"general" within the meaning of paragraph 97(1)(b)(ii), even though
that subgroup may only constitute a small percentage of the general population
in that country.
[35]
I
share my colleague’s position. Whether the sub-group of the population
affected indiscriminately in this case is described as people who appear
wealthy, or small business-owners, or small business owners with sisters-in-law
who own small businesses, the Board did not err in determining that the risk of
extortion faced by the Applicants is a generalized risk faced by all people in Mexico.
[36]
With
respect to the Applicants’ submission that the Board erred in failing to
individually assess the risk faced by the minor applicant, I also accept the
Respondent’s submission. The evidence showed that the kidnapping of the minor
son was inextricably linked to the extortion, and thus to the same generalized
risk faced by the entire family. The Applicants’ submission that kidnapping in
Mexico cannot
possibly be considered a generalized risk due to the population size is
nonsensical. To be characterized as generalized, a risk must only be random or
indiscriminate, not statistically-probable, as the Applicants seem to suggest.
Other Arguments raised
by the Applicants
[37]
The
Applicants raise two other issues in their written submissions. Neither is
serious.
[38]
Firstly,
the Applicants argue that the Board’s decision violates section 7 of the
Charter and the principle of non-refoulement. As the Respondent submits, this
argument is premature. The Applicants will not be removed to Mexico without an
opportunity to have their risk re-assessed through a pre-removal risk
assessment.
[39]
Secondly,
the Applicants submit that the Board made unreasonable credibility findings
with respect to the PA’s efforts to seek state protection. I disagree. Even
if I am wrong, the Board made it clear that the determinative issue was generalized
risk.
V. Conclusion
[40]
No
question to be certified was proposed and none arises.
[41]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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