Date: 20110624
Docket: IMM-2625-10
Citation: 2011 FC 772
Ottawa, Ontario, June 24, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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DAMIAN FLORES ROMERO
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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]
The
applicant seeks judicial review of a March 31, 2010 decision by the Refugee
Protection Division of the Immigration Refugee Board of Canada (the Board)
which found the applicant to be neither a Convention refugee nor a person in
need of protection under sections 96 and 97 of Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA). The Board did not make any
negative credibility findings rather it rejected the claim on the absence of
any nexus or connection between the use or threat of persecution faced by the
applicant and the grounds enumerated by the Convention.
Facts
[2]
The applicant is a Mexican
citizen. He fears the Los Zetas (the Zetas). The Zetas are a criminal organization
involved in many enterprises, including police corruption. The applicant was a
street vendor in Tepito,
Mexico. He claims that three
police officers extorted money from him -300 pesos a week. Two months
following the first demand, the extortion was increased to 500 pesos a week. The
applicant refused to pay and reported the officers to the police who arrested
them. The applicant subsequently learned that the arrested officers were
allegedly members of the Zetas. Some weeks later, they approached him to
extort more money from him, and when he refused, beat him. The applicant also
claims that thereafter he was hit by a van and assaulted by three individuals
who jumped out of the van. The applicant testified at his hearing that he was
told by the Zetas that he and his family would be killed. They also apparently
told him that he had “nowhere to hide.”
[3]
The
applicant arrived in Canada on May 7, 2009 and made
his refugee claim two days later, on May 9, 2009. His wife told him once he
was in Canada, that the Zetas had also tracked her down and that she too was
going to flee Mexico. The determinative
issue for the Board in the section 96 claim was lack of nexus to a Convention
ground, and for the section 97 claim, a lack of particularized risk.
[4]
Counsel
framed the issues in this application as whether the Board erred in its finding
that the applicant’s claim did not fall under section 96 of IRPA; and
secondly, whether the Board erred in its interpretation of section 97 in
concluding that the applicant did not face a personalized risk.
Absence of Nexus
[5]
The
applicant is a victim of crime:
The
activity which the claimant fears is a criminal activity. Even if the agents of
persecution are members of the police force, the act of demanding a bribe is a
criminal act and an act of corruption. There is no persuasive evidence that the
claimant was extorted or faced retaliation for Convention grounds. The Federal
Court has held that victims of crime, corruption or vendettas generally fail to
establish a link between their tear of persecution and one of the, Convention
grounds and the Board has been upheld in its finding of lack of nexus, where
the claimant was a target of a personal vendetta or where the claimant was a
victim of crime, even when the agents of persecution are police officers.
The
claimant fears criminals and criminal acts. The principal claimant’s fear in
this case is not linked to race, religion, nationality, political opinion, or
membership in a particular social group. Therefore, I find that the claimant is
a victim of crime which does not provide him with a link to a Convention
ground. As a result his claim must fail under section 96 of the IRPA.
While the jurisprudence shows that in a few
cases victims of crime have been able to establish nexus to a Convention
ground, in this particular case, without more, the applicant was unable to do
so.
[6]
Furthermore, section 96
specifically states: “A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion…” The applicant could
not demonstrate to the Board that he met these criteria nor, that he had a
well-founded fear of persecution.
[7]
The fact that the
individuals who extorted and then beat the applicant were police officers
warrants very close examination in the context of any Convention claim. In
this case, however, the police officers claimed to be members of a criminal
gang engaged in criminal activities, not in the furtherance of political,
religious or racial objectives. Moreover, the officers were clearly acting
without the sanction of the state. When the applicant reported their conduct
to the police, the officers were arrested. Victims of crime and personal vendettas
cannot as a general proposition, establish a link between fear of persecution
and the Convention grounds. In this regard I agree with the observation of
Justice Legacé in Starcevic v Canada (Citizenship and Immigration) 2008 FC 1370 that:
… criminality, revenge, and
personal vendetta cannot be the
foundation of a well-founded fear of persecution by reason of a Convention
ground for the simple reason that such a persecution is not related to one of
the Convention grounds.
[8]
The finding of the Board as
to the existence of a nexus between the persecution and an enumerated
Convention ground is a question of fact, with the result that this Court will
only intervene if it is made in a perverse or capricious manner or without
regard to the material before it. No such basis exists in this case.
[9]
The applicant’s fear or the
risk that he faces does not have a connection to a Convention ground. A
claimant must have a well founded fear of persecution based on one or more of
the grounds set out in the Convention, namely: “race, religion, nationality,
membership in a particular social group or political opinion”. The claimant
must be targeted, either personally or by virtue of his membership in a group
or adherence to religious practice, on one of these grounds. As well, Canada (Attorney General) v
Ward
[1993] 2 S.C.R. 689 makes clear who and for what reasons a group is considered to
be a “social group.” So too does IRPA in section 96. The finding that
the applicant’s occupation as a street vendor is not within the ambit of the
definition of social group as articulated and contemplated by the Supreme Court
of Canada in Ward or by Parliament in section 96 of IRPA was
reasonable. Bribery and extortion, as acts of criminality, do not fall into
the Convention grounds. In sum, the Board correctly analyzed the legal
principle and its assessment of the facts was reasonable.
[10]
The question still remains,
however, whether the applicant is a person in need of protection because he
personally chose to report the Zetas to the police, i.e. has the risk become personalized
under section 97. It is to this issue that I will now turn.
Did the Board err in its interpretation
of section 97
[11]
The Board wrote in respect
of the section 97 analysis:
I
also find that the risk feared by the claimant is one generally faced by other
citizens in Mexico. Not everyone who is subject personally
to a risk to life or to a risk of cruel and unusual treatment or punishment in
their country is a person in need of protection, because section 97(1)(b)(ii)
of the IRPA specifically excludes those persons who face a risk that is “faced
generally by other individuals in or from that country.”
[12]
The Board then summarized
the law with respect to generalized and personalized risk:
The
assessment of risk under section 97(1) must be specific to the individual, and
the evidence must establish a specific, individualized risk of harm with regard
to the particular claimant. The risk of harm faced by the claimant cannot be
indiscriminate or random. The fact that a claimant is personally at risk,
however, does not necessarily mean that the risk is not one faced generally by
others in that country.
A
generalized risk need not be experienced by every citizen. The word “generally”
is commonly used to mean “prevalent” or “widespread [sic]. A generalized risk
could be one experienced by a particular group or subset of the country’s
population, thus membership in that category is not sufficient to personalize
the risk. The fact that a group of persons may be victimized repeatedly or more
frequently by criminals (for example, because of their perceived wealth or
because they live in a more dangerous area), does not remove the risk from the
exception if it is one faced generally by others. Just because a claimant is
personally at risk does not mean that the risk could not be one faced generally
by others from that country. For example, in Acosta, Ventura De Parada and
Rodriquez Perez, the claimants feared extortion, violence, threats and
reprisals from criminal gangs for failing to comply with their demands, yet
were found to be victims of generalized violence and criminality.
[13]
Moving from a general
discussion of the law to a consideration of the facts relating to the
applicant’s claim, the Board further wrote:
The
nature of the crimes faced by the claimant is widespread in Mexico and not specific to the claimant. He is one of many victims
of corrupt policemen and criminal organizations who engage in activities such
as extortion and retaliate against noncooperative victims. The fear he faces is
not different from that faced by the general public.
I
find, consequently, on a balance of probabilities, that the risk which the
claimant faced is one that is faced generally by the population of Mexico. Based on the particular facts of this case, I am not
satisfied that the claimant faced a particularized risk of harm in accordance
with section 97(1) of the IRPA.
[14]
The
test under subsection 97(1)(b)(ii) is conjunctive; a person must demonstrate
not only a likelihood of a personalized risk but also that such risk is “not
faced generally by other individuals in or from that country”.
[15]
The
two or three other street vendors the applicant encouraged to join him in
reporting the Zetas to the police is not the comparator group for section 97 claims;
rather, it is persons subject to a “risk not faced generally by other individuals
in or from that country.” In other words, the other street vendors’ decision
not to report the Zetas is probably a decision made by many people who are
threatened by the Zetas. The Board wrote:
The
nature of the crimes faced by the claimant is widespread in Mexico and not specific to the claimant. He is one of many victims
of corrupt policemen and criminal organizations who engage in activities such
as extortion and retaliate against noncooperative victims. The fear he faces is
not different from that faced by the general public.
[16]
Even
accepting that as a market vendor who sought to resist extortion by reporting
to the police, the applicant constituted a sub-group with a heightened risk,
that was insufficiently discreet to bring him within the scope of a
personalized risk. Analogy can be made to Justice Tremlay-Lamer’s observation in
Prophète v Canada (Citizenship and
Immigration) 2008 FC 331 that:
The risk of all forms of criminality is general and felt by
all Haitians. While a specific number of individuals may be targeted more
frequently because of their wealth, all Haitians are at risk of becoming the
victims of violence.
[17]
The
jurisprudence of this Court does not draw a distinction between wealthy and
those less well-off. Justice Johanne Gauthier said in Acosta v. Canada (Citizenship
and Immigration) 2009 FC 213 para 16:
… It is no more unreasonable to find that a particular group
that is targeted, be it bus fare collectors or other victims of extortion and
who do not pay, faces generalised violence than to reach the same conclusion in
respect of well known wealthy business men in Haiti who were clearly found to
be at a heightened risk of facing the violence prevalent in that country.
[18]
Counsel,
creatively, argues that the fact that the applicant sought to resist the
extortion by reporting it to the police makes him unique, or brings him within
a unique or discreet sub-group of the general population and hence within
subsection 97(1)(b)(ii). In my view, the risk or threat of reprisal cannot be
parsed or severed from the demand for payment. The act of criminality is
established on the demand of payment and implicit or explicit threat of
reprisal for failure to pay. The fact that the threat is implemented or the
victim reports the extortion does not bring them outside of the operative words
of subsection 97(1)(b)(ii), namely whether the threat they face is generalized.
[19]
In
this regard, in Osorio v Canada (Minister of Citizenship and Immigration) 2005 FC 1459,
para 26 Justice Judith Snider observed that there is nothing in the language of
subsection 97(1)(b)(ii) that requires the Board to interpret the risk as
applying to all citizens. Justice Snider observed that:
The word “generally” is commonly used to
mean “prevalent” or “widespread”. Parliament deliberately chose to include the
word “generally” in s. 97(1)(b)(ii), thereby leaving to the Board the issue of
deciding whether a particular group meets the definition. Provided that its
conclusion is reasonable, as it is here, I see no need to intervene.
[20]
For
this reason, I find the Board’s conclusion that, as a person who reported the
extortion to the police, the applicant did not fall outside the word
“generally” as it has been defined, to be reasonable.
[21]
The
application for judicial review is dismissed.
[22]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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