Date: 20110908
Docket: IMM-848-11
Citation: 2011 FC 1058
Ottawa,
Ontario, September 8, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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ROBERTO STANLEY OLMEDO RAJO
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Applicant
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and
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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 January 18,
2011, concluding that the applicant is not a Convention refugee or person in
need of protection pursuant to sections 96 or 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 (the Act) because his claims have
no nexus to a Convention refugee ground and because he does not face a risk of
cruel and unusual treatment or punishment, or a danger of torture, nor does he
face a risk to his life that is not generally faced by others in El Salvador if
he is returned to El Salvador.
FACTS
Background
[2]
The
applicant is a citizen of El Salvador. He worked as a bus
driver from 2003.
[3]
Beginning
in 2004, members of the Mara Salvatrucha gang (MS-13) began to demand
“protection money” from the applicant in order to prevent them from attacking
him. One day in September of 2004, the applicant was stopped by three gang
members who demanded more than the usual sum. The applicant did not have the
sum that they demanded and so they stabbed him. The applicant required medical
treatment for his wounds.
[4]
Following
that first attack, the gang members repeatedly demanded additional money from
the applicant. The applicant felt that he had no choice but to pay the money in
order to keep his job and support his family. Some of the applicant’s
colleagues were killed when they were not able to pay the money demanded by
gang members. In addition, individuals who reported the murders to the police
were killed as well.
[5]
One
day in February of 2007, the gang members again demanded additional money from
the applicant. When he said that he could not pay, they held a gun to his head.
In desperation, the applicant offered them the money that he had intended to
use to pay his mortgage payments. They left him alone, but told him that he may
be on their list of drivers to kill in 2007.
[6]
The
applicant was so infuriated by the incident that he stopped a passing police
patrol car and reported the crime. When the police arrested the gang members,
the gang threatened the applicant and his family with death.
[7]
Four
days following his report, the applicant was told that the three gang members
who had attacked him, plus two others, had come looking for him. He decided not
to go to work.
[8]
After
waiting five days, the applicant returned to work but was told that the gang
members were still looking for him. He again returned home without working.
After another three days, the applicant contacted his colleague to ask whether
he could safely return, and was told that witnesses had reported that three of
the applicant’s colleagues had been killed by gang members when asked “where
the applicant was” and said that they did not know the applicant.
[9]
Traumatized,
the applicant and his family moved to his sister’s house in a city about 25 km
away. When the applicant spoke to his former neighbour the next day, she told
him that three armed gang members had gone to his house and said that his days
were numbered. The applicant decided to flee.
[10]
The
applicant was only able to gather enough money to flee alone. He left his
family in hiding at his sister’s house. His son is not allowed to leave the
house, even to attend school. On one occasion the applicant’s wife returned to
their old house to pick up some of their clothes and belongings. She was beaten
by gang members, who only stopped the beating because neighbours came to her
assistance. On April 30, 2008, his wife came to Canada and made a
refugee claim. She subsequently returned to El Salvador and her
claim was deemed abandoned.
[11]
On
May 23, 2010, the applicant’s brother-in-law was murdered by gang members as
part of the vendetta against the applicant.
Decision
Under Review
[12]
The
Board reviewed the facts of the applicant’s claim and accepted the applicant’s
credibility.
[13]
The
Board then considered whether the applicant had established a nexus to a ground
for a claim under section 96 as a Convention refugee. The Board rejected the
applicant’s claim to be a member of a social group, specifically a group of
individuals who are targeted by a gang for having reported them to the police.
Relying on a series of decisions of this Court, the Board found that
criminality, and even a targeted vendetta, does not establish a nexus to a
Convention ground (references omitted):
¶12. There
are a number of Federal Court cases, which have held that victims of crime,
corruption or vendettas generally fail to establish a link between their fear
of persecution and one of the Convention grounds in the definition of
Convention refugee. The Board has been upheld in its finding a lack of nexus
where the claimant was a target of a personal vendetta or where the claimant
was a victim of crime.
[14]
The
Board also found that the applicant’s occupation as a bus driver did not
constitute membership in a social group. The Board found that “a social group
should relate to who a person is rather than what they do”, and that the applicant
in this case had been targeted as a victim of general crime and because he had
reported a crime to the police.
[15]
The
Board then considered whether the applicant had established on a balance of
probabilities that he personally faces a risk to his life or a risk of cruel
and unusual treatment or punishment if he returns to El Salvador, to gain
protection under section 97 of the Act.
[16]
The
Board found that the risk faced by the applicant is one that is faced generally
in El
Salvador,
and, therefore, that the applicant did not qualify for protection under section
97 of the Act:
18. …
What the claimant fears is a particularized or personalized instance of what is
in fact a generalized risk – that is, a risk faced generally by others in and
from El Salvador who are targeted by criminal
gangs for the purposes of extortion.
[17]
The
Board found that the jurisprudence supported its finding that although the
claimant may be personally at risk does not mean that he does not face
generalized violence. In particular, the Board relied on Acosta v. Canada (Citizenship
and Immigration), 2009 FC 213. In that case, the applicant was also a bus
driver facing threats from the Mara Salvatrucha gang, who demanded protection
money from bus drivers (in Honduras) or else the gang threatened
to kill the bus driver. The Court in Acosta upheld the Board’s finding
that although the applicant had been targeted and pursued by gang members, the
risk that he faced was generalized. The Court in Acosta stated that the
Board had considered the applicant’s personal situation, but had reasonably
concluded that he simply faced a heightened risk of what is a general concern.
[18]
In
this case, the Board found that the applicant was initially targeted for
extortion because he was a bus driver. This, as found in Acosta, was a
generalized risk. The Board then considered whether the risk that he
subsequently faced after reporting the gang members to the police particularized
or personalized that risk. The Board found that it did not. The Board stated
that the second risk simply flowed from the first:
¶21. …Consequently
the risk that the claimant faced subsequent to his reporting gang members to
police flows from the initial targeting under a generalized risk. I find that
the claimant has not established that he has a personalized risk other than the
personalized risk that is part of the generalized risk of gang violence in El Salvador which includes extortion and
reprisals, including murder, of those who are not compliant with their demands
or who report them to authorities.
[19]
The
Board cited additional jurisprudence in which the Court upheld the Board’s
findings that those who are targeted by gangs nevertheless face generalized
risks: Mejia v. Canada (Minister of Citizenship and Immigration), 2006
FC 12; Velasquez v. Canada (Citizenship and Immigration), 2009 FC
109; Ventura De Parada v. Canada (Citizenship and Immigration), 2009 FC
845; and Prophète v. Canada (Citizenship and Immigration), 2008 FC 331.
[20]
The
Board reviewed the documentary evidence and found that based upon the
documentary evidence and the applicant’s testimony, the applicant had
established a risk to his life, but that it was a risk faced by others in El Salvador:
¶26. Extortion
and murder, are part of MS-13 modus operandi and constitute a widespread risk
for all citizens of El
Salvador.
Unfortunately, the claimant is one of their victims. The fact that the claimant
has been identified personally as a target of a vendetta for complaining to
police does not remove him from the generalized risk category.
[21]
The
Board concluded that on a balance of probabilities the applicant is not a
person in need of protection under section 97 of the Act.
LEGISLATION
[22]
Section 96
of the Act, grants protection to Convention refugees:
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96.
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,
(a)
is outside each of their countries of nationality and is unable or, by
reason of that fear, unwilling to avail themself of the protection of each
of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to return
to that country
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne
qui, craignant avec raison d’être persécutée du fait de sa race, de sa
religion, de sa nationalité, de son appartenance à un groupe social ou de
ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou,
du fait de cette crainte, ne veut se réclamer de la protection de chacun de
ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte,
ne veut y retourner.
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[23]
Section 97
of the Act grants protection to persons whose removal from Canada would subject them personally
to a risk to their life, or of cruel and unusual punishment, or to a danger of
torture:
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97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them
personally
(a)
to a danger, believed on substantial grounds to exist, of torture within
the meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself
of the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed
in disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à
la torture au sens de l’article premier de la Convention contre la
torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce
pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci
ou occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir
des soins médicaux ou de santé adéquats.
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ISSUES
[24]
The
applicant raised the following issue:
Did
the Board err in finding that the applicant is not a person in need of
protection because his risk was generalized?
STANDARD OF REVIEW
[25]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada held at paragraph
62 that the first step in conducting a standard of review analysis is to
“ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of (deference) to be accorded with regard to a particular
category of question”: see also Khosa v. Canada (MCI), 2009 SCC 12, per
Justice Binnie at para. 53.
[26]
The
Board’s assessment of whether the applicants face a particularized or
generalized risk is a question of mixed fact and law subject to review on a
reasonableness standard: see, for example, Acosta, above, at paragraph
11.
[27]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at para. 59.
[28]
Questions
of procedural fairness are determined on a standard of correctness.
ANALYSIS
Issue 1: Did the Board err in finding
that the applicant is not a person in need of protection because his risk was
generalized?
[29]
The
applicant submits that the Board made three errors in coming to its conclusion
that the applicant faced a generalized and not a personalized risk. First, the
applicant submits that the Board’s finding that the applicant faced the same
risk as that faced by the general population contradicts the Board’s finding
that the applicant is not a Convention refugee because he was the victim of a
vendetta. The Court does not accept this submission.
[30]
Second,
the applicant submits that the Board erred in finding the applicant as a person
at risk as any other bus driver. Instead, the applicant submits that he was
part of a subgroup of “bus drivers who report to police against those engaged
in extortion” and, more specifically, those who report to the police in the
presence of the extortionists.
[31]
The
applicant submits that in all of the cases relied on by the Board, the
individuals were victims of gangs who targeted them because of their refusal or
inability to pay the extortion money demanded. Because none of those
individuals reported the extortionists to the police, especially in the
presence of the extortionists, the applicant submits that their risks were less
personalized than the applicant’s case.
[32]
Instead,
the applicant submits that the following cases are more similar to the
applicant’s situation:
a.
Aguilar
Zacarias v. Canada (Citizenship and Immigration), 2011 FC 62: In this case,
the applicant was a vendor in a street market who was extorted by a member of a
gang in Guatemala. The applicant and a fellow
vendor reported the gang member to the police. The gang informed both men that
the gang knew that they were the informants and that they would be killed. In a
subsequent confrontation, the applicant’s fellow vendor was shot and killed but
the applicant managed to escape. Justice Noël found that the Board erred in
finding that the applicant did not face a personalized risk. Relying on Justice
de Montigny’s decision in Martinez Pineda v. Canada (Citizenship and Immigration), 2007 FC 365, Justice Noël
stated the following:
¶17. As
was the case in Martinez Pineda, the Board erred in its decision: it
focused on the generalized threat suffered by the population of Guatemala while failing to consider the
Applicant’s particular situation. … It appears that the Applicant was not
targeted in the same manner as any other vendor in the market: reprisal was
sought because he had collaborated with authorities, refused to comply with the
gang’s requests and knew of the circumstance of Mr. Vicente’s death.
b.
Munoz
v. Canada (Citizenship and Immigration), 2010 FC 238: In this case,
the manager of a car dealership was extorted by a police officer who wanted a
free car. Justice Lemieux found that the Board had erred in applying Prophète
to find that the applicant’s risk was generalized, because there was no
evidence that the applicant had been targeted because of his wealth. Justice
Lemiuex found that the facts demonstrated that the applicant faced a
personalized risk:
¶32. I
agree with counsel for the applicants, the extortion and threats which Mr.
Munoz alleges were not random. Mr. Munoz was specifically and personally
targeted by Mr. Garcia because of his unique position – the head of sales at a
car dealership which is why Garcia and his friends came there. If returned, Mr.
Munoz does not fear being subject to random acts of violence by unknown
criminal gangs. He fears Mr. Garcia.
¶33.
The tribunal’s reliance on Prophète is also misplaced. There is no
evidence on the record Mr. Garcia extorted Mr. Munoz because he was wealthy. In
fact, the last demand he made was for a free new car. I could find no evidence
in which Mr. Munoz testified he was a wealthy man. Being successful does not
mean that person is wealthy.
c.
Cruz
Pineda v. Canada (Citizenship and Immigration), 2011 FC 81: In this case, a
delivery driver from Honduras was repeatedly attacked by
gang members. I found that the Board failed to consider the applicant’s
evidence of the specific risk that he faced – namely, “retribution” for slights
to gang members and an attack on the applicant’s brother-in-law.
[33]
Finally,
the applicant submits that the Board erred in appearing to doubt the
applicant’s evidence that his brother-in-law had been killed as a result of
hiding the applicant in his house while ignoring the corroborating evidence
submitted by the applicant.
[34]
The
respondent submits that the Board made no error. The respondent submits that
the Board reasonably relied on the cases that it cited in support of its
finding that the applicant faces only a generalized risk in El Salvador. The
respondent relies on Paz Guifarro v. Canada (Citizenship and Immigration),
2011 FC 182, in which Justice Crampton upheld the finding of the Board that a
truck driver in Honduras who had ultimately refused to pay extortion money,
reported the extortion to the police, and subsequently faced threats,
nevertheless faced a generalized risk. Justice Crampton crystalized the legal
distinction between personalized risk and generalized risk under section 97 of
the Act in paragraph 33 of his Reasons for Judgment as follows:
¶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.
When I apply
this description of the law to bus drivers targeted like the applicant in the
case at bar, it is clear that the applicant faced the same generalized risk of
violence as all other transportation workers targeted by the gangs.
[35]
The
respondent submits that the Board in this case clearly considered the personal
circumstances of the applicant, including accepting the applicant’s evidence
regarding the murder of his brother-in-law as true. The Court must agree.
[36]
It
is clear that the distinction between a generalized and personalized risk is a
fine one that depends on the facts of each case. The Board has a duty to
carefully consider all of the evidence presented by the applicant, and to
consider whether the risk faced by the applicant in fact is the same as the
risk faced by enough of the rest of the population to constitute a generalized
risk. In this case, the Board reviewed all of the applicant’s evidence,
including his evidence regarding the murder of his brother-in-law. The Board
nevertheless concluded that the risk was the same as that faced by all other
bus drivers, which is a sufficiently large subgroup of the population. This
finding of fact was reasonably open to the Board.
CONCLUSION
[37]
For
these reasons, this application for judicial review must be dismissed.
[38]
No
question is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“Michael
A. Kelen”
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