Dockets: IMM-7680-10
IMM-7683-10
Citation: 2011 FC 1049
Ottawa, Ontario, September 6,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
Docket:
IMM-7680-10
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WILLIAMS RAMIREZ ABURTO
ALMENDRA VIRIDIANA CASTILLO ANGUIANO
MOISES RAMIREZ CASTILLO (A
MINOR)
MATEO RAMIREZ CASTILLO (A MINOR) VALENTINA
RAMIREZ CASTILLO
(A MINOR)
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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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AND
BETWEEN:
Docket: IMM-7683-10
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LUIS ERNESTO GONZALEZ CORTES
MARIA LUZ ANGUIANO MARTINEZ
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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]
These
are applications for judicial review of the decision of member Barry Dhillon of
the Immigration and Refugee Board (the Board) dated December 6, 2010, wherein
the Applicants were determined not to be Convention refugees or persons in need
of protection pursuant to sections 96 and 97(1) of the Immigration and Refugee
Protection Act, RS 2001, c 27.
[2]
Based
on the reasons below, these applications are dismissed.
I. Background
A. Factual
Background
[3]
Williams
Ramirez Aburto, Almendra Viridiana Castillo Anguiano, Moises Ramirez Castillo,
Mateo Ramirez Castillo, Valentina Ramirez Castillo, Luis Ernesto Gonzalez
Cortes and Maria Luz Anguiano Martinez (collectively the Applicants) are
citizens of Mexico. Williams
and Almendra are married and are the parents of Moises, Mateo and Valentina,
who are all minors. Luis and Maria are also married, and Maria is
Almendra’s aunt. The Applicants, along with Almendra’s brother Aaron Castillo
Anguiano, sought refugee protection in Canada and were all
refused in one joint decision. Their refugee claims were all based on a fear
of persecution from the Los Zetas gang in Mexico.
[4]
Williams
and Luis both owned small businesses in Mexico. On March
13, 2005, Williams’ store was robbed and Williams made a police report. On
September 17, 2005, Williams’ father was robbed while in the store. The father
received a phone call warning him not to contact the police. On June 9, 2006,
six Los Zetas robbed Williams and his father in the store. On March 14, 2007,
Williams and Aaron were kidnapped and beaten by a group of Los Zetas, one of
whom was wearing a police badge; they were released after the Los Zetas took
money from Williams’ truck and they reported the incident to the police. Williams
began receiving threatening phone calls and noticing a vehicle sitting outside
his home and watching him. Williams fled to Canada on June 20,
2008 and claimed refugee protection on November 6, 2008.
[5]
In
April 2007, Almendra and her parents began receiving phone calls threatening to
kidnap her children and demanding money. On August 15, 2008, unidentified
individuals attempted to kidnap Mateo but they were unsuccessful. On August
22, 2008, armed men assaulted and robbed Almendra’s father, who reported the
incident to the public ministry. On December 1, 2008, three armed men forced
Almendra into a car and demanded to know where Williams and Aaron were, but
they released her after robbing her; she reported the incident to the public
ministry. Almendra and her three children fled to Canada on December
5, 2008 and claimed refugee protection on December 15, 2008.
[6]
Luis
and Maria’s store was robbed on several occasions by the Los Zetas. In 2005,
armed persons stopped them while they were in their car and robbed them. In
March 2007, Luis was again assaulted and robbed. After a few months, they
began receiving threatening phone calls. In January 2008, Maria was
abducted, detained for 3 hours, robbed and released; she refused to make a
police denunciation. In March 2008, their store was robbed, as was a customer
who was in the store at the time; they were afraid to give the police a
statement. Luis and Maria came to Canada on May 30, 2008
and claimed refugee protection on November 12, 2008.
B. Impugned
Decision
[7]
Although
the Applicants were generally determined to be credible, the Board rejected the
allegation in Williams’ and Aaron’s Amended Personal Information Forms (PIFs)
that the agents of persecution included police officers; the Board found that
this allegation was not credible because it was omitted from the original PIFs
and because the explanation that they had forgotten this detail was
unreasonable. The Board found that the Applicants had not established a nexus
to a Convention ground because they were merely victims of crime and because
being small business owners did not make them members of a particular social
group. The Board also found that the risk they faced was generalized and that
they were therefore not persons in need of protection.
II. Issues
(a) Is
the Board’s credibility determination reasonable?
(b) Is the Board’s determination that
there is no nexus to a Convention ground reasonable?
(c) Is
the Board’s determination that the Applicants face a generalized risk
reasonable?
III. Standard
of Review
[8]
The
issues before the Court require a deferential standard of review because they
deal with the Officer’s findings of fact and weighing of the evidence.
[9]
The
Applicants submit that the reasonableness standard applies to questions of
mixed fact and law and generally to the exercise of discretion, whereas the
correctness standard applies to questions of law and procedural fairness
issues; the Applicants cite Kastrati v Canada (Minister of Citizenship and
Immigration), 2008 FC 1141, 2008 CarswellNat 3688 at paras 9-10. In its
submissions regarding IMM-7680-10, the Respondent argues that the reasonableness
standard applies, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paras 47-48 and 51; the Respondent’s submissions in IMM-7683-10 do
not address the applicable standard of review.
[10]
Although
not cited by either party, I note that the reasonableness standard applies to
credibility determinations (see Aguirre v Canada (Minister of Citizenship
and Immigration), 2008 FC 571, 167 ACWS (3d) 773 at para 14),
determinations that there is no nexus to a Convention ground (see Chekhovskiy
v Canada (Minister of Citizenship and Immigration), 2009 FC 970,
2009 CarswellNat 2938 at para 18), and determinations that the risk faced is
generalized (see Zacarias v Canada (Minister of Citizenship and Immigration),
2011 FC 62, 95 Imm LR (3d) 187 at para 14).
[11]
As
set out in Dunsmuir, above, reasonableness requires consideration of the
existence of justification, transparency, and intelligibility in 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 fact
and law.
IV. Argument
and Analysis
A. The
Board’s Credibility Determination is Reasonable
[12]
The
Applicants submit that it was unreasonable for the Board to reject the allegation
in Williams’ and Aaron’s Amended PIFs that the police were involved with the
robberies and extortion. The Applicants argue that this finding was
inconsistent with the Board’s determination that they were otherwise credible. The
Applicants further argue that the omission from their earlier PIFs is
reasonably explained by the fact that the two versions of the PIFs were
prepared by different counsel, as explained in their post-hearing submissions,
and that the Board unreasonably ignored this explanation.
[13]
The
Respondent submits that the Board was entitled to draw a negative inference
from the omission of a critical element from the PIF, citing Basseghi v Canada (Minister of
Citizenship and Immigration) (1994), 52 ACWS (3d) 165, 1994 CarswellNat
2175 (FC TD) at para 33. The Respondent argues that a change in counsel does
not explain the omission.
[14]
There
is no merit to the Applicants’ submissions on this issue. As noted by the
Respondent, the Board is entitled to draw a negative inference from the failure
to reasonably explain the omission of critical details from the PIF. The
Applicants failed to offer such a reasonable explanation, and so the Board was
entitled to doubt the veracity of the allegation, despite its finding that the
Applicants were otherwise credible.
B. The
Board’s Determination that there is No Nexus is Reasonable
[15]
The
Applicants submit that they put forward three bases for the persecution: the
fact that they are business owners, their membership in a family unit, and
their right under international law to choose their profession and not be
forced to change profession by a criminal group like Los Zetas. The
Applicants argue that the Board failed to consider the second and third bases. The
Applicants claim that Almendra, Moises, Mateo and Valentina were only persecuted
because they are Williams’ family, citing several decisions of this Court which
address the family as a particular social group. The Applicants also claim
that they have a right to self-determination without being forced to give up
their profession because of criminal groups, though they have not cited any
cases in support of this argument.
[16]
The
Respondent submits that the determination that there was no nexus was
reasonable. The Respondent argues that all three grounds for the persecution
relate to their fear of the Los Zetas, which the Board addressed. The
Respondent notes that the Board found that the Applicants were the victims of
crime, and that there was insufficient evidence to establish a link between
their fear and one of the Convention grounds. The Respondent cites several
decisions of this Court which state that victims of crime are generally not
Convention refugees, the most recent of which is Suarez v Canada
(Minister of Citizenship and Immigration), 2009 FC 227, 2009 CarswellNat
515 at para 6. The Respondent further relies on Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1, at paras 63 to 70,
which rejected the idea that individuals can be members of a particular social
group “merely by virtue of their common victimization as the objects of
persecution” (at para 63).
[17]
The
Applicants have not established a reviewable error on the part of the Board. As
the Respondent has correctly noted, the fact that a group of individuals are
the victims of persecution does not make them members of a particular social
group for the purposes of the Convention. Any claim based on the family as a
particular social group is premised upon a finding that the principal claimant
in that family – that is, Williams or Luis – has established a nexus already;
as the Board rejected the idea that “small business owners targeted by Los
Zetas” are a particular social group, the family-based claims must fail.
[18]
The
Applicants are being victimized by a group of criminals for the purpose of
extortion and they therefore have not established a nexus to a Convention
ground.
C. The
Board’s Determination that the Risk Faced is Generalized is Reasonable
[19]
The
Applicants submit that the Board unreasonably determined that the risk they
face is generalized. The Applicants argue that the documentary evidence shows
that the Los Zetas do not target all Mexican citizens and residents, but rather
only target business owners and those perceived as wealthy.
[20]
The
Respondent submits that the Board reasonably determined that the risk the
Applicants face is a generalized one. The Respondent relies on several
decisions of this Court, including Prophète v Canada (Minister of
Citizenship and Immigration), 2008 FC 331, aff’d 2009 FCA 31 and Innocent
v Canada (Minister of Citizenship and Immigration), 2009 FC 1019, 364 FTR
17. The Respondent argues that, just as in Prophète, above, the
Applicants face a generalized risk because it is a risk face by the general
population even though those perceived as wealthy may be targeted more often.
[21]
The
Applicants further submit that the Board erred in failing to analyze the
adequacy of state protection. The Applicants provide a very lengthy quote from
the decision in Mendoza et al v Canada (Minister of Citizenship and
Immigration), 2010 FC 648, 90 Imm LR (3d) 10, which held that the
Board erred in departing from a persuasive decision which found that state
protection was adequate in Mexico.
[22]
The
Respondent submits that Mendoza, above, has no bearing
on this application.
[23]
Prophète, above, is determinative
of this issue. In that decision, Justice Danièle Tremblay-Lamer canvassed
recent decisions regarding when a risk is generalized at paragraphs 19 to 22,
before concluding in paragraph 23 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.” The Applicants are in a similar
situation and so, as in Prophète, above, face a generalized risk and are
not persons in need of protection.
[24]
It
is unclear why the Applicants have referenced Mendoza, above, as
it is not relevant to this application. Further, as the Board made no finding
that state protection would be forthcoming or adequate, it is unclear why the
Applicants have this issue at all.
V. Conclusion
[25]
In
consideration of the above conclusions, these applications for judicial review are
dismissed.
[26]
No
question was proposed for certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
these applications for judicial review are
dismissed.
“ D.
G. Near ”
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