Docket: IMM-6423-10
Citation: 2011 FC 1093
Ottawa, Ontario, September 23, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MELVIN ALBERTO TOBIAS GOMEZ,
LUIS ENRIQUE TOBIAS GOMEZ,
MONICA PATRICIA RAMIREZ DE
TOBIAS, DANIELA SARAI TOBIAS RAMIREZ, ALISSON NAHOMY TOBIAS RAMIREZ
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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
I. Overview
[1]
Mr.
Melvin Alberto Tobias Gomez, his wife Ms. Monica Patricia Ramirez De Tobias,
their two children, Daniela and Alisson, and Mr. Tobias Gomez’s brother, Luis,
are citizens of El Salvador.
[2]
The
applicants sought refugee protection in Canada based on
their fear of the Mara-18 criminal gang. They relied on sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] (see
Annex).
[3]
A
panel of the Immigration and Refugee Board dismissed their claims on the basis
that they did not relate to grounds recognized under the Refugee Convention (s 96)
and, further, that the risk of crime and violence the applicants faced was a
general one faced by many citizens of El Salvador (s 97).
[4]
The
applicants argue that the Board erred in respect of both conclusions. They ask
me to overturn the Board’s decision and order a new hearing. I agree that the
Board made reviewable errors and must, therefore, allow this application for
judicial review.
[5]
The
issues are:
1. Did the Board err in
its interpretation of s 96 of IRPA?
2. Did the Board err in
its interpretation of s 97 of IRPA?
[6]
In
respect of each of these issues, involving questions of mixed fact and law, I
can overturn the Board’s decision only if it was unreasonable.
I. Factual Background
[7]
Mr.
Tobias Gomez and his family operated a shop in San Salvador. Beginning
in June 2005, members of the Mara-18 gang threatened Mr. Tobias Gomez and
demanded merchandise and cash from him. Gang members told him that they knew
where he lived and what schools his children attended. They also threatened his
wife and daughter when he was not at the store. Mr. Tobias Gomez says he
attempted to make a police report, but he was told that there was nothing the
police could do.
[8]
In
August 2008, a Mara-18 member threatened to kidnap his daughter, Daniela. The
next month, Mr. Tobias Gomez claims he received a telephone call informing him
that the head of the gang wanted $50,000 or the gang would kidnap his wife and
daughters. Gang members subsequently visited the store to remind him to pay the
$50,000.
[9]
Luis
also claims that the gang threatened him. In 2008, he was approached by a gang
member who told him that he knew where he lived and went to school. Luis claims
that gang members followed him home, demanded that he join the gang, and
threatened him with death if he refused. When he resisted, they punched him.
Luis also claimed he was abducted at gunpoint and threatened that if he did not
join the Mara-18 within 24 hours, he would be shot. Luis went into hiding until
September 2008 when he fled to the United States.
[10]
That
same month, the other applicants left El Salvador for the United
States.
While there, they learned that gang members had visited Mr. Tobias Gomez’s
father demanding that he pay the $50,000 “debt”. He withdrew $10,000 from his
savings account, and then was beaten.
[11]
The
applicants all arrived in Canada in October 2008 and sought refugee
protection at the Canada-U.S. border.
II. The Board’s Decision
1. Section 96
[12]
The
Board found that the applicants had not established a link between their fear
of the Mara-18 and their race, religion, nationality, political opinion, or
membership in a particular social group. They had argued that they were members
of a particular social group because of their innate and unchangeable
characteristics as a family who owned a business, which distinguished them from
the general population. However, the Board concluded that to be a member of a
particular social group, a person must belong either to a group whose members
voluntarily associate for reasons so fundamental to their human dignity that
they should not be forced to forsake the association, or a group whose members
are associated by a former voluntary status which is unalterable due to its
historical permanence. The first type of group would include individuals
fearing persecution on the basis of gender, linguistic background and sexual
orientation, while the second would encompass, for example, human rights
activists.
[13]
The
Board found that, while the applicants had been subjected to various criminal
acts, this did not establish a link to a Convention ground. As such, their
claims could only be assessed against
s 97.
2. Section 97
[14]
The
Board first considered the claims of Mr. Tobias Gomez, his wife, and their two
children. It began by noting that protection is limited to those who face a
personal risk not generally faced by others in or from that country (s 97(1)(b)(ii)).
[15]
The
Board observed that the applicants had testified about threats and widespread
violence in El
Salvador.
The documentary evidence confirmed the prevalence of deadly violence in El Salvador, especially
gang violence. Gangs such as the Mara-18 commit various criminal acts including
robberies, extortion, kidnappings and murders, and they recruit people to
expand their power and reach.
[16]
The
Board noted that the documentary evidence indicated that criminal gangs and the
crimes they commit have caused major threats to public security in El Salvador. The
government has enacted legislation and put in place tactical initiatives to
address rampant gang violence. However, despite these efforts, gang violence
remains widespread. Therefore, being a victim of crime and violence at the
hands of criminal gangs is a risk that is prevalent in El Salvador.
[17]
The
Board observed that a generalized risk need not be experienced by every citizen,
and that a subgroup of the population can still face a risk that is
generalized. In the present case, Mr. Tobias Gomez and his wife belong to a
subgroup of business owners who are targeted for extortion by the Mara-18. An
increased risk experienced by a subgroup of the population is not personalized
where that same risk is experienced by the whole population, albeit at a
reduced frequency (Ventura De Parada v Canada (Minister of Citizenship and Immigration),
2009 FC 845).
[18]
With
respect to Luis, the Board reviewed documentary evidence specific to the recruitment
of new gang members. The Board adopted the reasoning of Justice Richard Boivin
in Perez v Canada (Minister of Citizenship and Immigration), 2010 FC 345
[Perez 1], in which he concluded that the fact that forced recruitment
to a gang is personal does not necessarily mean that the risk is personalized
or that the activity is not faced generally by other individuals.
[19]
Documentary
evidence showed that many young people were vulnerable to recruitment and
extortion by gangs in El Salvador. Thus, the Board found
that there was insufficient evidence to establish that Luis faced a specific,
individualized risk of harm.
[20]
The
Board concluded that all of the applicants’ claims fell under the exception in
s 97(1)(b)(ii) because the risk of harm they faced was generalized.
III. Issue One - Did the Board err
in its interpretation of s 96 of IRPA?
[21]
The
applicants submit that the Board should have considered whether there was a
nexus to any Convention ground, not just a “particular social group”. They had
proposed the alternate nexus of “political opinion” and maintain that Mr.
Tobias Gomez’s confrontation with gang members after they threatened Daniela
should have been considered persecution on the basis of a political opinion,
namely, opposing the gang.
[22]
The
applicants also submit that Luis fits within the definition of a particular
social group as documentary evidence showed that young people in El Salvador are particularly
vulnerable to recruitment and extortion by gangs. The applicants also rely on
jurisprudence from the United States Board of Immigration Appeals which has
found that “youth who have been targeted for recruitment by, and resisted,
criminal gangs may have a shared past experience, which by definition, cannot
be changed”: Matter of S-E-G-, et al, 24 I&N Dec 579, U.S. Board of
Immigration Appeals, 30 July 2008.
[23]
In
Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward], the
Supreme Court made clear that political opinion was to be defined broadly, and
included the persecution of persons holding opinions contrary to government or
its policies, or other groups. The Court defined political opinion as “any
opinion on any matter in which the machinery of state, government, and policy
may be engaged” (at para 81).
[24]
A
person’s opinion may be actually held or imputed from his or her actions. As Justice La Forest observed,
“[t]he absence of expression in words may make it more difficult for the
claimant to establish the relationship between that opinion and the feared
persecution, but it does not preclude protection of the claimant” (at para 82).
The assessment of whether the claimant holds a political opinion, or whether
one can be attributed to him or her, should be “approached from the perspective
of the persecutor, since that is the perspective that is determinative in
inciting the persecution” (at para 83).
[25]
However,
Justice
La Forest cautioned
that “[n]ot just any dissent to any organization will unlock the gates to
Canadian asylum; the disagreement has to be rooted in a political conviction”
(at para 86). In this case, to establish a nexus to the Convention ground of
“political opinion”, the applicants bore the burden of presenting evidence
demonstrating that their opposition to the Mara-18 amounted to a political
conviction, or that it was construed as such by the gang. However, they did not
actually provide any evidence that their resistance to extortion demands and
recruitment efforts was a result of either a conscious political act, or an act
that would be viewed as such by the Mara-18.
[26]
The
applicants point to objective evidence that suggests that those who resist
gangs in El
Salvador
may be subject to retribution. However, the documentary evidence does not
suggest that this opposition, in the eyes of the Mara-18, is perceived to be a
political stand against them. It appears that the applicants’ refusal to comply
with escalating extortion demands, and Luis’ resistance to recruitment, were
acts of economic and personal preservation, not a political stance.
[27]
In
addition, while the applicants mentioned “political opinion” as a ground of
persecution in their written narratives, they did not strenuously advance that
position before the Board. It falls to the Board to identify grounds of
persecution, even if they are not raised by a claimant, but one must consider
whether the issue was seriously presented and nourished by the evidence. Here,
political opinion appears to be an issue the applicants have invoked to attack
the Board’s decision after the fact (as in Suvorova v Canada (Minister of
Citizenship and Immigration), 2009 FC 393, at para 56).
[28]
I
find that the Board properly considered the applicants’ allegations of
persecution but could not find any nexus to a Convention ground. I cannot
conclude that the Board’s decision was unreasonable – with one exception.
[29]
I
find that the Board erred by failing to consider whether Luis was a member of a
“particular social group” on the basis of his status as a young, male
Salvadoran living in San Salvador, or as a youth who refused to join a gang.
IV. Issue Two - Did the Board err
in its interpretation of s 97 of IRPA?
[30]
The
applicants submit that the Board’s analysis with respect to s 97 misinterprets
the case law and is inconsistent with the purposes of the section. They suggest
that the term “generally” in s 97(1)(b)(ii) was conceived as a threshold
to guard against claims based on threats that affect an entire country equally,
such as natural disasters or random violence.
[31]
The
applicants rely on Justice Eleanor Dawson’s approach which gives a broad
meaning to the words “faced generally” in s 97. She accepted that a claimant
could receive protection even if other persons shared the same circumstances (Surajnarain v Canada (Minister of
Citizenship and Immigration), 2008 FC 1165, at para 11).
[32]
The
applicants say that the Board erred in finding that they belonged to a subgroup
of business owners who were a target group for extortion, which was
insufficient to “personalize” the risk. They submit that the Board erred because,
while the family’s persecution began with moderate extortion (which may be a
generalized risk), it escalated dramatically after Mr. Tobias Gomez confronted
a gang member. Thus, the risk turned from harassment to a personal threat
directed at the members of the family. The applicants submit that the risk they
face is a consequence of their firm stance against the Mara-18 and, as such, it
is not a risk faced generally by all Salvadorans.
[33]
In
the case of Luis, the Board concluded that he was not treated differently from
others who are targets of gang recruitment in El Salvador. But the
applicants say that Luis was targeted because of his age, gender, and
geographic location, factors which do not apply to all Salvadorans. Further, he
was personally targeted, followed, physically assaulted, threatened with death,
and kidnapped.
[34]
The
applicants also suggest that where a risk exists for the entire population,
that risk is no longer generalized if a person is individually targeted (Pineda
v Canada (Minister of
Citizenship and Immigration), 2007 FC 365 [Pineda]). Similarly,
a claimant who has been targeted personally by a known adversary no longer
qualifies as a victim of “random” threats and extortion (Munoz v Canada (Minister of
Citizenship and Immigration), 2010 FC 238).
[35]
Justice
Paul Crampton recently considered the analysis to be applied to these types of claims
(Guifarro v Canada (Minister of Citizenship
and Immigration), 2011 FC 182 [Guifarro]). In Guifarro, the
claimant was a victim of extortion by the Mara-18 in Honduras. After he
stopped paying the gang, gang members assaulted him.
[36]
According
to Justice Crampton, the Board does not err when it rejects an application for
protection under s 97 after finding that the alleged risk is shared by a
sub-group of the population that is sufficiently large that the risk can
reasonably be characterized as being widespread or prevalent in that country.
This result is valid even where that sub-group of persons may be specifically
targeted, such as persons perceived to be wealthy.
[37]
Similarly,
Justice Michael Kelen has observed in Perez v Canada (Minister of Citizenship
and Immigration), 2009 FC 1029 at para 34 [Perez 2], that when a
claimant is initially harassed by a criminal gang because he or she owns a
business, and then receives a threat for failing to pay money to the gang, this
is simply a continuation of the extortion, not a personalized risk.
[38]
In
my view, the circumstances of this case are closer to Pineda and Munoz,
above, than to Guifarro and Perez 2, above. The applicants were
originally subjected to threats that are widespread and prevalent in El Salvador. However,
subsequent events showed that the applicants were specifically targeted after
they defied the gang. The gang threatened to kidnap Mr. Tobias Gomez’s wife and
daughter, and appear determined to collect the applicants’ outstanding “debt”
of $40,000. The risk to the applicants has gone beyond general threats and
assaults. The gang has targeted them personally.
[39]
The
same is true in respect of Luis. Although recruitment by gangs is a widespread
and prevalent phenomenon in El Salvador, Luis was singled out
and subjected to threats, assaults and kidnapping. These events show that the
risk to Luis was personalized, not generally felt by the rest of the population.
[40]
Therefore,
the Board’s conclusions in respect of s 97 were unreasonable. The Board
considered that the applicants were targeted merely as business owners or, in
Luis’s case, as a young man. It did not go on to consider the subsequent
threats and actual harm directed at the applicants personally.
V. Conclusion and Disposition
[41]
Given
the evidence before it, the Board’s failure to consider whether Luis was a
member of a particular social group was unreasonable. Its findings with respect
to the other applicants in respect of s 96 were reasonable. In addition, given
the evidence of the particularized threats to the applicants, the Board’s
conclusion that they faced risks that are felt generally by the population of El Salvador was also
unreasonable. Neither conclusion was a defensible outcome based on the facts
and the law. Therefore, I must allow this application for judicial review, and
order a new hearing before a different panel. The panel will reconsider the
applicants’ s 97 claims, and Luis’s claim under s 96. Neither party proposed a
question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that :
1.
The
application for judicial review is allowed and a new hearing before a different
panel is ordered;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Convention
refugee
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.
Person
in need of protection
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.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition
de « réfugié »
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.
Personne
à protéger
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.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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