Docket: IMM-1055-11
Citation: 2011 FC 1107
Ottawa, Ontario, September 27,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JUAN JOSE ASENCIO VENTURA
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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]
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 7,
2011. The Board determined that the Applicant was not a Convention refugee or
person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, RS 2001, c 27 (IRPA).
[2]
For
the following reasons, the application is dismissed.
I. Facts
[3]
The
Applicant, Juan Jose Ascencio Ventura, is a national of Guatemala. He claims
to face persecution and a personalized risk of harm from a criminal gang known
as the Mara Salvatrucha (MS-13).
[4]
The
Applicant operated a mini-market store in a suburb of Guatemala City. On
May 1, 2008, he was approached on a bus by an individual claiming he
was El Tata, a leader of the MS-13 gang. The individual said that he knew
the Applicant was a businessman. He threatened the Applicant at gunpoint and
demanded that he pay a “tax” of 500 quetzals immediately and on the first of
each succeeding month. The Applicant did not have the money with him and the
individual took his watch and wallet.
[5]
That
evening the Applicant reported the incident to the police who told him they
could not do anything without more evidence. Four days later, the Applicant
sold everything he could from the store, ceased operating his business, and
moved approximately 50 kilometres away.
[6]
On
June 8, 2008, an unknown gang member tried to abduct the Applicant. The gang
member suggested that the abduction was prompted by the report to the police.
The Applicant was able to escape and return to his neighbourhood where he hid
in a church parish hall.
[7]
The
Applicant fled Guatemala on June 10, 2008. He travelled through Mexico to the United States
of America.
He entered Canada on October
2, 2008 and filed a claim for refugee protection on January 29, 2009. Since
leaving Guatemala, he has
learned from his sister that unknown individuals are asking for his whereabouts.
II. Decision
[8]
The
Board determined that there was no nexus between the Applicant’s fear of
persecution at the hands of the MS-13 gang and one of the section 96
Convention grounds. The actions of MS-13 had solely criminal motives. Victims
of crime do not generally establish a nexus to a Convention ground such as
race, religion, nationality, political opinion, or membership in a particular
social group.
[9]
The
Board rejected the Applicant’s claim that he was a member in the particular
social group of persons targeted by the MS-13 gang. There was no persuasive
evidence to show that Guatemalan citizens who have been targeted because they
are perceived as wealthy businessmen have been subjected to repeated and
sustained violations of their core human rights sufficient to constitute a
defined social group.
[10]
In
addition, the Applicant was not considered a person in need of protection under
section 97 of the IRPA. The Board acknowledged that social violence was
rampant in the country and certain professions were targeted more frequently by
the MS-13, such as street vendors and merchants. Although the Applicant may
have been personally at risk because he was targeted on the perception that he
had money, the specific risk he faced, extortion and violence at the hands of
the MS-13, was no different than one faced generally by people in Guatemala.
III. Issues
[11]
This
application raises the following issues:
(a) Was
it reasonable for the Board to conclude that there was no nexus between the
Applicant’s fear of persecution and one of the Convention grounds?
(b) Was
the Board’s determination that the Applicant was not a person in need of
protection under section 97 reasonable?
IV. Standard
of Review
[12]
The
nexus to a Convention ground is a question of mixed fact and law reviewable on
a standard of reasonableness (see Chekhovskiy v Canada (Minister of
Citizenship and Immigration), 2009 FC 970, [2009] FCJ No 1180 at para
18). Contrary to the Applicant’s submission, the interpretation of risk under
section 97 also requires a reasonableness standard (see Acosta v Canada (Minister
of Citizenship and Immigration), 2009 FC 213, [2009] FCJ No 270 at paras
10-11; Guifarrao v Canada (Minister of Citizenship
and Immigration), 2011 FC 182, [2011] FCJ No 222 at paras 12-18).
[13]
As
articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47, reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
V. Analysis
Issue 1: Was it
Reasonable for the Board to Conclude that there was No Nexus Between the
Applicant’s Fear of Persecution and One of the Convention Grounds?
[14]
The
Applicant does not dispute the Board’s finding that a fear of criminals will
not necessarily provide a nexus to a Convention ground. He does, however,
propose that the Court consider whether business owners fleeing from the MS-13
in Central
America
establish a nexus as a “particular social group” under section 96, since they
are more prone to be targeted for extortion.
[15]
I
agree with that the Respondent that there is no nexus among individuals
targeted by the MS-13 gang to a particular social group. They do not meet
the criteria established in Canada (Attorney General) v
Ward,
[1993] 2 S.C.R. 689, [1993] SCJ No 74 as being (para 70):
[…]
(1) groups defined by
an innate, unchangeable characteristic;
(2) groups whose
members voluntarily associated 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.
[16]
It
was reasonable for the Board to find that individuals targeted by the MS-13 are
not members of a marginalized social group who face systematic discrimination.
When asked to clarify why business people in particular are targeted by the
MS-13, the Applicant was only able to conclude that the gang targets those it
considers “prey.”. Criminal acts, such as the extortion committed by the MS-13
gang, do not generally establish a link between a fear of persecution and a
Convention ground (see Kang v Canada (Minister of
Citizenship and Immigration), 2005 FC 1128, [2005] FCJ No 1400).
Issue 2: Was
the Board’s Determination that the Applicant was Not a Person in Need of Protection
Under Section 97 Reasonable?
[17]
Subsection
97(1)(b)(ii) requires that a person in need of protection face a risk to life
or of cruel and unusual treatment that “is not faced generally by other individuals
in or from that country.”
[18]
The
Applicant submits that the Board failed to appreciate the heightened risk he
faced of being targeted by the MS-13 gang as a small business owner. He relies
on the decision of Pineda v Canada (Minister of Citizenship
and Immigration), 2007 FC 365, [2007] FCJ No 501 at para 15 where one
student was found to have a greater risk than the risk faced by the general
population from the MS-13 gang.
[19]
Pineda, above, can,
however, be distinguished from the present case. In that instance, the student
was personally targeted and his family was subjected to repeated threats and
attacks over a long period of time. This took him outside the generalized risk
of violence in the country. The Court made clear at paragraph 17 that the
individual was not claiming a risk under a particular category as a student,
young person or member of a wealthy family.
[20]
The
Applicant in this case was initially targeted because he was perceived as a
wealthy small business owner. He claims to have been attacked a second time
because he reported the incident to the police. Regardless, I agree with the
Respondent that this does not take the Applicant outside the scope of a
generalized risk. The Board acknowledged that while violence by the MS-13 gang
was rampant, merchants were more frequent targets. The risk does not need to
be faced by every person as long as it is prevalent and widespread (see Osorio
v Canada (Minister of
Citizenship and Immigration), 2005 FC 1459, [2005] FCJ No 1792). This
Court has stated in Prophète v Canada (Minister of Citizenship and Immigration),
2008 FC 331, [2008] FCJ No 415, aff’d 2009 FCA 31, [2009] FCJ No 143 that
section 97 can be interpreted to include a sub-group within the larger one that
faces an even more acute risk. As in that case, the perception of the
Applicant as a wealthy businessman could increase his chances of being
victimized, but that does not mean the risk is no longer generalized.
[21]
In
addition, past threats to the Applicant as a small business owner by the MS-13
do not necessarily amount to a personalized risk (see Gonzalez v Canada (Minister
of Citizenship and Immigration), 2010 FC 991, [2010] FCJ No 1353 at para
18; Perez v Canada (Minister of Citizenship and Immigration), 2009 FC
1029, [2009] FCJ No 1275 at para 34; E.A.D.S. v Canada (Minister of Citizenship
and Immigration), 2011 FC 785, [2011] FCJ No 1110 at para 13).
[22]
Since
the Applicant can be viewed as facing the same generalized risk as other small
business owners, it was open to the Board to conclude that he was not a person
in need of protection under section 97.
VI. Conclusion
[23]
The
Board reasonably concluded that there was no nexus to a Convention ground or
risk faced to the Applicant that would make him a person in need of protection.
[24]
Accordingly,
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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