Date: 20110819
Docket: IMM-223-11
Citation: 2011 FC 1012
Ottawa, Ontario, August 19,
2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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ADRIAN MONTOYA CASTENEDA
MARIA CRISTINA OSEGUERA
PUERTO
JOWAR UNICE MONTOYA OSEGUERA
JUAN CARLOS MONTOYA OSEGUERA
ALEX ADRIAN MONTOYA OSEGUERA
KAREN PATRICIA MONTOYA OSEGUERA
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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]
The
Applicants are citizens of Honduras. Adrian Montoya
Casteneda (Adrian) and Maria
Cristina Oseguera Puerto (Maria) are the parents of the other Applicants. They
fear that if they return to Honduras, they will be
threatened with violence at the hands of the Mara Salvatrucha (Maras) street
gangs.
[2]
In
December 2010, the Refugee Protection Division of the Immigration and Refugee
Board rejected their claims for refugee protection under sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[3]
The
two issues in this case are whether the Board erred by: (i) finding that the
Applicants fear criminal activities of the Maras, rather than persecution
linked to one of the five grounds identified in section 96 of the IRPA; or (ii)
finding that the risk faced by the Applicants is a risk that is faced by all
Hondurans, namely that of being victims of violence and crime at the hands of
the Maras.
[4]
For
the reasons that follow, I have concluded that the Board did not err in making
either of these two findings. Accordingly, this application will be dismissed.
I. Background
[5]
Prior
to fleeing Honduras, Adrian operated a grocery store which was
attached to the family home, as well as a bicycle repair shop, in Choloma,
Honduras.
Both of those businesses were located in areas of Choloma which are permeated
by the Maras
street
gangs.
[6]
The
Maras threatened
the family by frequently demanding money (“renta”), by damaging their property
and by demanding that the male children in the family become members of their
gang. The Maras also stole
new bicycles as well as bicycle parts from Adrian’s repair
shop.
[7]
Adrian
was able to keep his business open and operating because he regularly paid
renta, ranging from 100 to 1,000 Pesos, to the Maras.
[8]
On
December 31, 1999, the Maras threw a homemade bomb at the Applicants’
house, causing extensive damage to the roof of the house and to neighbouring
properties. This act was allegedly made in retaliation for Adrian’s refusal or
failure to promptly pay renta that had been demanded by the gang’s members.
[9]
Approximately
one year later, on December 16, 2000, Adrian, Maria and two of their children
(Juan Carlos and Karen) left Honduras for the United
States.
Because of financial constraints, their two other sons, Jowar and Alex
remained in Honduras with their grandparents, approximately 250 kilometers away
from the family home, until they departed Honduras to join the other members of
the family in 2003.
[10]
All
of the Applicants traveled to Canada on June 23, 2008 and made claims for
refugee protection.
II. The Decision
under Review
[11]
With
respect to the Applicants’ claims under section 96 of the IRPA, the Board relied
on Adrian’s testimony and documentary evidence to conclude that what they
feared was criminal conduct of the Maras, rather than persecution
for reasons of race, religion, nationality, membership in a particular social
group or political opinion. Accordingly, the Board rejected those claims.
[12]
With
respect to the Applicants’ claims under section 97, the Board concluded that
the risk of being victimized by criminal conduct at the hands of the Maras is a risk
that is faced by all Hondurans. Accordingly, once again, the Board rejected the
Applicants’ claims.
III. Standard
of Review
[13]
The
issues that the Applicants have raised with respect to the Board’s assessment
of their claims under sections 96 and 97 of the IRPA are questions of mixed
fact and law (Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213, at paras 9-11). Such
questions are reviewable on a standard of reasonableness (Dunsmuir v New
Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190, at paras 51-55). The same
is true with respect to the Board’s interpretation of the words “not faced
generally by other individuals in or from that country”, in paragraph
97(1)(b)(ii) of the IRPA (Guifarro v Canada (Minister of
Citizenship and Immigration), 2011 FC 182, at paras 13- 19).
IV. Analysis
A.
Did the
Board err by finding that the Applicants’ fears did not have a nexus to a
Convention ground set forth in section 96 of the IRPA?
[14]
The
Applicants submitted that the Board erred by failing to find that they had
established a nexus to a fear of persecution for reasons of their perceived
political opinion. In this regard, the Applicants submitted that the Board failed
to consider the mixed motivations of the Maras and the fact
that the Applicants’ refusal to comply with their demands, including their
extortion demands, amounted to an imputed political opinion since the Maras were the de
facto authority in Cholomo. In their oral submissions, the Applicants attempted
to draw a parallel between the Maras and the Fuerzas Armadas Revolucionarias de
Colombia (FARC), a leftist guerrilla group in Colombia. The
Applicants noted that the Board has in the past accepted some refugee claims on
the basis of a fear of politically based persecution at the hands of the FARC.
The Applicants asserted that the mere fact that the Maras does not
maintain the same “veneer” of political ideology as the FARC is not a basis
upon which to distinguish the Maras from the FARC, in respect of the political
opinion category of persecution that is set forth in section 96 of the IRPA.
[15]
I
disagree.
[16]
The
Board recognized that there may be “some societies where criminal and political
activities heavily overlap”, such that opposition to criminal activities may be
perceived to have a political dimension. However, the Board proceeded to find
that the Applicants had presented “no credible evidence … to show that the
Honduran state agents are closely intertwined with the Mara [sic] activities to
indicate that the Maras exercise direct or indirect influence on a segment of
the state or individual government officials.” Based on my review of the
certified tribunal record (CTR), I am satisfied that it was reasonably open to
the Board to reach this conclusion. The same is true with respect to the
related conclusion reached by the Board, to the effect that the Applicants had
not presented any evidence “to show that their disagreement with the demands of
the Maras is in any
way rooted in any political convictions they may have.” There was no evidence whatsoever
in the CTR which suggested that there was a political dimension to any of the threats
made, or actions taken, by the Maras towards the Applicants.
[17]
In
my view, the foregoing facts distinguished the case at bar from cases in which
refusals to comply with the demands of the FARC, an organization which does
claim to have an active political agenda, have been found to have a nexus with
a risk of persecution based on political opinion. I do not mean by this to
suggest that applicants who allege a fear of violence at the hands of the FARC
will always or even usually be able to establish a nexus to political opinion.
Each case will turn on its own facts.
[18]
The
Applicants further submitted that the Board erred by failing to consider and
address in its decision whether the Applicants were persecuted, and feared
future persecution, on the basis of their membership in various social groups,
namely, their family, young males and females.
[19]
I
recognize that “the Board must consider all grounds for making a claim to
refugee status, even if the grounds are not raised during a hearing by a
claimant” (Viafara v Canada (Minister of Citizenship and Immigration),
2006 FC 1526, at para 6). However, the Board is not required to specifically
address each of the five potential grounds set forth in section 96, and all
theoretically possible “social groups”, in each and every case, without regard
for the evidentiary record. Where there is no, or virtually no, evidence in the
record to suggest that an applicant may have a basis for making a claim in
respect of some of those five grounds, or theoretically possible social groups,
the Board is under no obligation to consider and specifically address in its
decision such grounds and groups.
[20]
In
the case at bar, I am satisfied that there was no, or virtually no, evidence in
the CTR to suggest that the Applicants might have a potential basis upon which
to claim refugee status based on their membership in any of the social groups
that they assert ought to have been addressed by the Board.
[21]
Specifically,
contrary to the Applicants’ assertions, I am satisfied that there was no
evidence in the CTR that might suggest that Adrian or any of the other Applicants
were being persecuted as a member of the social group consisting of their
family. The evidence was that Adrian was targeted by the Maras for extortion,
his sons may have been the subject of recruitment efforts by the Maras, and his
daughter (Karen) was the subject of unwanted romantic advances on the part of a
particular member of the Maras gang, and was the target of a random, and minor,
assault by another gang member, who grabbed her leg on one occasion.
[22]
There
was no evidence whatsoever to link any of these things together, such that the
Board might have been obliged to consider whether all or any of the Applicants were
being persecuted as members of their family. Although there was one incident in
which a homemade bomb was thrown inside the porch of their home, their own
evidence was that this may have had something to do with the Maras’ extortion
of Adrian, and it happened on New Year’s Eve in 1999 when gang members who
routinely hung around a billiard hall in front of the Applicants’ home “were
behaving particularly badly.”
[23]
Accordingly,
I am satisfied that it was reasonably open to the Board to refrain from
specifically addressing in its decision whether any of the Applicants might
have had a basis for refugee protection as members of the social group
consisting of their family.
[24]
Similarly,
given that the only evidence in the CTR with respect to potential “persecution”
of Karen involved the fact that one member of the Maras gang apparently “fell
in love” with her and another member randomly grabbed her leg on a single
occasion, I am satisfied that the Board did not err by failing to consider and
specifically address in its decision whether she might have a basis for refugee
protection as a member of the social group consisting of all females, or even
young females.
[25]
With
respect to the Applicants’ submission that the Board ought to have specifically
addressed whether the male children in the family had a basis for refugee
protection based on their membership in a social group consisting of young
males in Honduras, there was only passing mention in the two Personal
Information Forms filed by the Applicants to the fact that the Maras had
attempted to recruit those children. Virtually nothing was said on this point
during the Board’s hearing. Rather, Adrian, who did most of the testifying on
behalf of the Applicants, testified that basically everyone in their
neighbourhood was harassed, threatened, robbed or subjected to violence on a
daily basis. He also testified that anyone who failed to cooperate with the Maras’ demands
faces a risk of death.
[26]
After
noting this testimony, the Board noted that the documentary evidence reflected
that the Maras groups engage
in a broad range of crimes, including “extortion, theft, armed robbery, credit
card cloning, kidnapping for ransom, rape, murder and drug trafficking.” The
Board cited other evidence which reported that the “gangs increasingly targeted
neighbourhood residents that happened to be in the wrong place at the wrong
time, local businesses and those who do not comply with gang demands for
‘renta’.”
[27]
Given
the foregoing, I am satisfied that the Board did not err by failing to
specifically consider and address in its decision the possibility that the male
children in the Applicants’ family had been persecuted based on their
membership in a social group comprised of “young males”.
[28]
In
my view, Mohan v Canada (Minister of Citizenship and Immigration), 2011
FC 847 is distinguishable on the basis that the applicants in that case, who
were of Indo-Guyanese descent, specifically claimed that there was an ethnic
dimension to the crimes to which they had been subjected by members of the
Afro-Guyanese community. The Court quashed the Board’s decision on the basis
that the Board had failed to address why it concluded that the threats and
violence to which the Applicants had been subjected had no connection to the
Applicants’ ethnic background. In the case at bar, there was no similar
evidence in the record before the Board with respect to persecutory conduct
linked to any of the grounds mentioned in section 96 of the IRPA, including any
particular social group. On the contrary, the evidence strongly indicated that
the Applicants had been victims of criminal conduct.
B.
Did the
Board err by finding that the risk faced by the Applicants was a risk that is
faced generally by all Hondurans?
[29]
The
Applicants submitted that the Board erred by failing to appreciate that the
Applicants were at a heightened risk compared to the general population
because: (i) in the case of Adrian, he was a small business owner who was
specifically and repeatedly targeted for extortion and faced reprisals for
failing to comply with those demands; (ii) in the case of the male children in
the family, they were members of a segment of the population (young males) who
were targeted for recruitment into the gang; and (iii) in the case of Karen,
she was a young female who had been repeatedly harassed by a gang member who
had specifically “fallen in love” with her.
[30]
I
disagree.
[31]
In
support of their position, the Applicants relied on this Court’s decision in Pineda
v Canada (Minister of
Citizenship and Immigration), 2007 FC 365. There, my colleague Justice
de Montigny quashed a decision of the Board on the basis that the Board: (i)
had failed to take into account the applicant’s evidence that he had been
personally subjected to danger; and (ii) had unreasonably concluded that the
risk he would face if he were to return to El Salvador was the same as the risk
faced by any other person in that country (Pineda, above, at paras 8, 13-17).
However, in the case at bar, the Board explicitly addressed the claims of
personal risk alleged by the Applicants and accepted that they “lived and
worked in areas which were controlled by Maras gangs and
that they were continually subject to harassment and extortion by the gang
members.”
[32]
Moreover,
there was evidence before the Board, including that which is discussed at
paragraphs 25 and 26 above, which reasonably allowed the Board to conclude that
“all Hondurans are at risk of becoming victims of violence and crime [at the
hands] of the Maras gangs anywhere in Honduras … [and] that the risk the
claimants’ fear is one faced generally by others in Honduras” (Prophète v
Canada (Minister of Citizenship and Immigration), 2009 FCA 31, at para 10).
Other evidence noted by the Board which supported this finding included the
fact that “[r]esidents of areas controlled by gangs are constantly subjected to
extortion and threats of violence by gang members regardless of age or sex.”
[33]
Even
if it could not be said that all, or virtually all, Hondurans face the same
type of risks that are faced by the Applicants, I am satisfied that the
evidence demonstrated that the risks faced by the Applicants are sufficiently
prevalent and widespread in Honduras that the Board did not err in rejecting the
Applicants’ claims under section 97 of the IRPA (Osorio v Canada (Minister
of Citizenship and Immigration), 2005 FC 1459, at para 26; Cius v
Canada (Minister of Citizenship and Immigration), 2008 FC 1, at para 23; Carias
v Canada (Minister of Citizenship and Immigration), 2007 FC 602, at
paras 23-25; De Parada v Canada (Minister of Citizenship and Immigration),
2009 FC 845, at para 22; Acosta v Canada (Minister of Citizenship and
Immigration), 2009 FC 213, at paras 15-16; Guifarro v Canada (Minister
of Citizenship and Immigration) 2011 FC 182, at paras 30-33; Gabriel v
Canada (Minister of Citizenship and Immigration), 2009 FC 1170, at para
20; Perez v Canada (Minister of Citizenship and Immigration),
2010 FC 345, at para 39; Sanchez v Canada (Minister of Citizenship
and Immigration), 2011 FC 993, at paras 25-27; Fraire v Canada
(Minister of Citizenship and Immigration), 2011 FC 763, at paras 4 and 10).
[34]
As
recognized in the aforementioned jurisprudence, the fact that a claimant for
protection under section 97 may face a heightened risk of violence at the hands
of the Maras gangs or other criminals, relative to the general population, is
not sufficient to meet the requirements of section 97 where that heightened
risk is faced by such a large segment of the population that such risk may
reasonably be found to be widespread or prevalent. In my view, where a
heightened risk is faced by a segment of the population numbering in the
thousands, such risk can reasonably be characterized as widespread or
prevalent.
[35]
Accordingly,
I am satisfied that the Board did not err by failing to appreciate that the
Applicants were at a heightened risk compared to the general population.
V. Conclusion
[36]
The
application for judicial review is dismissed.
[37]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed.
“Paul
S. Crampton”
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