Date:
20111021
Docket:
IMM-2002-11
Citation:
2011 FC 1210
Ottawa, Ontario,
October 21, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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BENANCIO CORADO GUERRERO
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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]
Benancio
Corado Guerrero is a citizen of Guatemala. He sought protection in Canada as a Convention refugee under s. 96 and as a person in need of protection under s. 97 of
the
Immigration and
Refugee Protection Act, SC 2001, c 27. His claims were dismissed by the
Refugee Protection Division of the Immigration and Refugee Board in its
decision of February 28, 2011. The risk he alleged has no nexus to a
Convention ground. In this application he challenged only the decision under s.
97 of the Act.
[2]
The
applicant submits that the Board (1) erred in misstating or misconstruing the
nature of the risk he faced, thus rendering its analysis invalid, and (2) erred
in determining that he did not face a personal risk pursuant to s. 97 of the
Act.
[3]
The
issues in this case are questions of mixed fact and law are therefore reviewable
under the standard of reasonableness: Dunsmuir v New Brunswick, 2008
SCC 9.
[4]
This
application must be allowed and the Board’s decision that the applicant was not
a person in need of protection under s. 97 of the Act set aside. The Board reached
its decision on erroneous findings of fact made in a perverse or capricious
manner without regard for the material before it, as described in s. 18.1(4) of
the Federal Courts Act, RSC 1985, c F-7. This error led the Board to unreasonably
conclude that the risk faced by the applicant was one faced generally by others
in Guatemala.
[5]
The
Board found the applicant to be credible; it believed what he said in support
of his claim. Critically, the recitation of facts by the Board, in some
instances, fails to include significant facts from the applicant’s evidence and,
in other instances, includes alleged “facts” that are not supported by the record.
[6]
The
following summary of the key events is taken from the applicant’s amended
Personal Information Form narrative (PIF), his oral testimony before the Board,
and the Exhibits accepted by the Board. Where there are differences between the
evidence before the Board, which it accepted as accurate, and the facts as
recited by the Board in its decision, they are noted.
[7]
In
2006, the applicant was a 17 year old boy living with his grandmother in the
small town of El Coco, in Jalpatagua, Jutiapa, Guatemala. El Coco is very
close to the border between Guatemala and El Salvador. The name of the village
is written by the Board as El Choco. All of the official documents before it
clearly state that it is El Coco. Nothing turns on this error.
[8]
The
applicant’s father is dead and although he has a mother and siblings living elsewhere
in Guatemala, they are not in his life and have not been since his mother
abandoned him when he was about eight years old. Effectively, his grandmother,
with whom he lived, was his only family. In 2006, the applicant was in school
and hoped to become a teacher.
[9]
In
August 2006, the applicant was walking with his friends Jorge and Byron past a small
local casino. They were stopped by a man who told the friends to move aside as
he wanted to talk with the applicant alone. In his PIF, the applicant states:
“[H]e told me there was somebody who wanted me to work for them and I asked him
how I could work for them and he told me that they needed someone to take some
drugs from there to across the border to El Salvador.” The applicant responded
that he would not do that because he was studying and he did not want to quit
school. The man said that he would have to do it whether he wanted to or not.
When the applicant repeated the conversation to his friends, they told him that
“it was something that would happen to us sooner or later because these people
were always trying to recruit young people to work for them.” He also told his
grandmother who said they should pray that the men forget about him.
[10]
The
group that wanted him to transport drugs across the border is known as Los
Lorenzanas.
[11]
About
three weeks after this initial encounter, the leader of Los Lorenzanas, together
with about eight others, including the man who had previously spoken to the
applicant, were waiting for him after school. He was directed to get into an
SUV because someone wanted to talk to him. The leader of Los Lorenzanas told
him that he was to take drugs into El Salvador. The applicant again said that
he did not want to do that. He was then driven to his grandmother’s house
where he was told by the leader that “the next time was not going to be like
this” and that he or his grandmother would pay with their lives. The applicant
again told his grandmother of this encounter and she said not to worry because
“their threat wouldn’t become true.”
[12]
Nothing
further happened until the evening of October 2, 2006. The applicant testified
that he was getting ready to eat supper with his grandmother when he heard a
vehicle stop in front of the house. He went to the window and saw two men in a
truck draw automatic weapons. “[T]hey rolled down the windows and they started
to shoot with the rifles against her -- at her.” In his PIF he wrote that they
“started firing at the house.” He continued his testimony saying that “I was
able to throw myself on the ground and when I rolled to her she was dead under
the table and I ran away.” Although a careful review of the certified tribunal
record suggests some contradictions concerning the details of this engagement,
it is uncontested that his grandmother was shot multiple times. The death
certificate shows that she died on October 2, 2006 as a “consequence of Various
bullet impacts in different parts of the body, unknown calibre” [emphasis
in original]. The translated police report reveals the ferocity of the attack.
It describes the bullet wounds the grandmother suffered:
2 wounds in the chest, 1 wound in
the wall of right axillaries, 2 wounds in the right side, 2 wounds in the cheek
and mouth on the left side, 1 wound in the head region, 2 wounds on the back
left side and 1 wound on the little finger of the left hand, caused by unknown
individuals who fled after the fact to unknown direction.
[13]
The
Board, at paragraph 24 of its decision, writes of this event and states that
“[w]hen the organization persisted in recruiting the claimant and he continued
to refuse their offers of money, membership, and a gun to carry, they became
angry and retaliated by threatening and then shooting his grandmother in front
of him to make their point.” Notwithstanding the Board’s colourful description
of the recruiting tactics of Los Lorenzanas, there is nothing in the record to
support its statement that the applicant was offered money, membership or
guns. To the contrary, the Board specifically asked the applicant if he was
asked to join their group and he responded: “They didn’t ask me but if I do
something for them it’s as though I already belonged to them.”
[14]
By
erroneously stating that the group was attempting to recruit the applicant to
join it through promises of guns, membership and money, the Board completely
mischaracterized the interaction between the applicant and Los Lorenzanas. The
evidence before the Board was that Los Lorenzanas specifically targeted the applicant
to work for them to carry drugs across the border, not merely to join their
organization, as the Board states.
[15]
Further,
although the Board at paragraph 24 finds that the grandmother’s shooting was in
retaliation for the applicant refusing the recruitment by Los Lorenzanas, at
paragraph 28 of its decision, the Board writes: “I find that the grandmother
was harmed incidentally and not as a means to recruit the claimant”
[emphasis added]. The Board’s characterization of the violent death of the
grandmother from multiple gun shots as having been “harmed” is a perverse mischaracterization.
She was killed.
[16]
Also
perverse is the Board’s finding that her death was “incidental” when the testimony
of the applicant, supported by the evidence of the police report and the
previous threats, was that they shot at her. As is noted above, the
applicant in his PIF did state that the killers “started firing at the house”
but this must be considered in the context of all the evidence. This includes
the fact that there is nothing in the police report or in the record that
reveals that there were any bullet holes in the walls of the house. Given the
11 bullet wounds in the grandmother’s body, it is unreasonable to conclude that
the grandmother’s wounds were “incidental.” In my view, the only reasonable
view of the evidence is that the wounds were inflicted deliberately. She was targeted
by these killers.
[17]
Following
the shooting, the applicant ran to his friend’s house where he was given enough
money to travel to Guatemala City. Approximately seven months later he was in
the marketplace in Guatemala City where he was approached by one of the men who
had previously threatened him and his grandmother. He was again told to
transport drugs across the border and told that this was the last time he would
be asked; the next time he would be killed. The applicant asked for four days to
return to El Coco and implied that he would do as they asked. Instead of returning,
he left Guatemala.
[18]
He
traveled by foot and rail from Guatemala through Mexico and the United States of
America before entering Canada at Vancouver on February 14, 2008. He filed a
claim for protection in Calgary on July 9, 2008.
[19]
In
its appreciation of the evidence, the Board also considered a letter the
applicant received from his two friends, Jorge and Byron, with whom he was
walking when he was initially approached by a member of Los Lorenzanas, and
with whom he had stayed in contact. In this letter, his friends confirm that
the group that tried to get the applicant to transport drugs is Los
Lorenzanas. The Board at paragraph 27 of its decision writes:
In their letter the friends
inform the claimant that they have learned that the organization that operated
in their home-village of El Choco [sic] is known as Los Lorenzanas; that
they are a large organization with connections throughout Guatemala and neighboring countries and go by different names in different locations. They
are the ‘mastermind’ organization and routinely hire the Mara 18 street gang to
do their dirty work. It was the Maras 18 who were responsible for the murder
of the claimant’s grandmother and for tracking the claimant down in Guatemala City.
[20]
The
Board is in error in its description of the content of the friends’ letter
which can be found on page 293 of the certified tribunal record. It makes no
reference at all to Los Lorenzanas being a “large organization” or to having
“connections throughout Guatemala and neighboring countries” or to going “by
different names in different locations.” In fact, other than this letter and
the evidence of the applicant, there is nothing in the record that references
Los Lorenzanas or describes the characteristics of the group. The applicant’s friends
do however write that they believe that Los Lorenzanas hired Mara 18 to find
and kill him. This supports the evidence of the applicant at page 324 of the
certified tribunal record that Los Lorenzanas hired Mara 18 to look for and to
“assassinate” him.
[21]
The
Board found that the harm the applicant feared was “criminality (recruitment to
deliver drugs)” and that this was not linked to a Convention ground in s. 96 of
the Act. While I agree that s. 96 was not at play, the Board’s conclusion as
to the harm the applicant feared is perverse. It is clear from the evidence
before the Board that the applicant did not base his claim on a fear of recruitment.
Further, if there was recruitment, it was not to join Los Lorenzanas but to
transport drugs for them. He had already said no to that demand. His fear
was a fear of death by a third party organization – the Mara 18. This third
party organization, as stated earlier, had been hired by Los Lorenzanas to kill
the applicant.
[22]
The
Board analysed its view of the applicant’s risk under s. 97 of the Act. The
Board acknowledged the general violence that is prevalent in Guatemala and noted that it is primarily drug related. The Board then noted that the
applicant was a prime target for recruitment because of his vulnerable age and
social profile. It was noted that he was young, naïve, unsophisticated and
uneducated. It was also noted that he was orphaned and had lived with his
elderly grandmother since he was eight years old, without a family and strong
social support to help him make crucial decisions in life. The Board stated
that he was a particular target because of his geographic location of being so
close to the El Salvador border. The Board also noted that what made the
applicant “a particular target of the drug trafficking gang was his refusal to
deliver drugs to the border of El Salvador.” Notwithstanding its finding that
the applicant was targeted, the Board found that the risk he faced was a
generalized one, given the pervasiveness of gangs in Guatemala.
[23]
In
my view, the errors outlined above resulted in the Board mischaracterizing the
personal circumstances of the applicant and thus led the Board to inaccurately find
that his circumstances and his risk of harm was one faced generally by others.
He was not, like many his age, merely at risk of recruitment by a criminal
gang. Rather, he was at risk of death having been specifically and personally
targeted by a criminal organization for death at the hand of Mara 18 who had
been hired to kill him.
[24]
This
finding is dispositive of the application for judicial review; the decision
under review is unreasonable and the applicant’s claim for protection must be
redetermined. Nevertheless, I wish to add a few comments concerning s. 97 of
the Act and, in particular, the respondent’s interpretation of the recent
decision in Baires Sanchez v Canada (Minister of Citizenship and
Immigration), 2011 FC 993 [Baires Sanchez], which he
submitted is dispositive of the present application.
[25]
Subparagraph
97(1)(b)(ii) of the Act defines a person in need of protection as “a person in
Canada whose removal to their country or countries of nationality … would
subject them personally to a risk to their life or a risk of cruel and unusual
treatment or punishment if 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.”
[26]
Parsing
this provision, it is evident that if a claimant is to be found to be a person
in need of protection, then it must be found that:
a. The
claimant is in Canada;
b. The
claimant would be personally subjected to a risk to their life or to cruel and
unusual treatment or punishment if returned to their country of nationality;
c. The
claimant would face that personal risk in every part of their country; and
d. The
personal risk the claimant faces “is not faced generally by other individuals
in or from that country.”
All four of these elements must be
found if the person is to meet the statutory definition of a person in need of
protection; it is only such persons who are permitted to remain in Canada.
[27]
The
majority of cases turn on whether or not the last condition has been satisfied,
that is, whether the risk faced by the claimant is a risk faced generally by
others in the country. I pause to observe that regrettably too many decisions
of the RPD and of this Court use imprecise language in this regard. No doubt I
too have been guilty of this. Specifically, many decisions state or imply that
a generalized risk is not a personal risk. What is usually meant is that the
claimant’s risk is one faced generally by others and thus the claimant does not
meet the requirements of the Act. It is not meant that the claimant has no
personal risk. It is important that a decision-maker finds that a claimant has
a personal risk because if there is no personal risk to the claimant, then
there is no need to do any further analysis of the claim; there is simply no
risk. It is only after finding that there is a personal risk that a
decision-maker must continue to consider whether that risk is one faced generally
by the population.
[28]
My
second observation is that too many decision-makers inaccurately describe the
risk the applicant faces and too many decision-makers fail to actually state
the risk altogether.
Paragraph 97(1)(b) of the Act is
quite specific: The personal risk a claimant must face is “a risk to their life
or to a risk of cruel and unusual treatment or punishment.” Before determining
whether the risk faced by the claimant is one generally faced by others in the
country, the decision-maker must (1) make an express determination of what the
claimant’s risk is, (2) determine whether that risk is a risk to life or a risk
of cruel and unusual treatment or punishment, and (3) clearly
express the basis for that risk.
[29]
An
example of the sort of decision I am addressing is that under review. The
closest the decision-maker in this case comes to actually stating the risk she finds
this applicant faces is the following: “[T]he harm feared by the claimant; that
is criminality (recruitment to deliver drugs)….” But this is not the risk
faced by the applicant, and even if it were, the decision fails to state how
this meets the test of risk set out in subparagraph 97(1)(b)(ii) of the Act.
At best, the risk as described forms part of the reason for the risk to the
applicant’s life. When one conflates the reason for the risk with the risk
itself, one fails to properly conduct the individualized inquiry of the claim
that is essential to a proper s. 97 analysis and determination.
[30]
The
Court of Appeal in Sanchez v Canada (Minister
of Citizenship and Immigration), 2007 FCA 99, at para 15,
cited in Prophète v Canada (Minister of Citizenship and Immigration),
2009 FCA 31, at para 7, stated that “[t]he
examination of a claim under subsection 97(1) of the Act necessitates an
individualized inquiry, which is to be conducted on the basis of the evidence
adduced by a claimant ‘in the context of a present
or prospective risk’ for him” [emphasis in original].
The words “in the context of” in this statement are of fundamental importance.
The decision-maker must examine the claimant’s evidence and the claimant’s
circumstances in the context of the risk to him.
[31]
In
Mendoza v Canada (Minister of Citizenship and Immigration), 2010
FC 648, at paras 35- 36, I attempted to flesh out what such an individualized
inquiry entails. I wrote that:
In conducting the individualized inquiry the Board must
examine both the nature of the risk faced by claimants as well as the agent of
persecution. In examining the nature of the risk, the question is not whether
the risk amounts to being a victim of crime. In most countries, and in most
circumstances, persecution constituting a risk to life or rising to the level
of cruel and unusual punishment, will also constitute criminal conduct under
domestic criminal statutes. The question is not whether all citizens in a
country face a possibility of being a victim of such crimes. We all face the
possibility of being the victim of a crime each and every day.
The relevant question is whether the risk is one generally faced by all citizens. Generally, in this sense,
is to be given its ordinary meaning. What is general in one country may not be
general in another country. In Canada, we generally face a risk of being
involved in a motor vehicle accident each time we drive, even though the
probability of such an event is low; we do not face a general risk of
kidnapping and extortion, even though there is a possibility of being a victim
of such crimes, and such crimes do occur each year. In examining the
generality of persecution the Board must also take a context specific approach
by focusing on the generality of a risk of persecution from a specific agent of
persecution. A risk may be general at the hands of a one agent of persecution
and not general at the hands of a different agent of persecution. For example,
the same risk may be generalized if the agent of persecution is a non-state
actor but particularized if the agent of persecution is the state. [emphasis in
original]
No doubt there are other relevant considerations.
[32]
The
fact that decisions of this Court and the Court of Appeal have long held that
such an individualized inquiry is required explains, in part, why I do not
accept the submission of the respondent regarding Baires Sanchez. The
respondent relied on this decision to support his submission that virtually any
risk of violence at the hands of a criminal gang in one of the Central or South
American countries where gang violence is prevalent is a risk generally faced
by citizens of the country and thus falls outside the protection offered by s.
97 of the Act. To accept that bold proposition would run counter not only to
the position expressed by our Court of Appeal, it would also run counter to
those cases where this Court has found a personal risk from such gangs that is
not also a general risk: See, for example Pineda v Canada (Minister of
Citizenship and Immigration), 2007 FC 365; Zacarias v Canada
(Minister of Citizenship and Immigration), 2011 FC 62; Barrios Pineda v
Canada (Minister of Citizenship & Immigration), 2011 FC 403; and Alvarez
Castaneda v Canada (Minister of Citizenship and Immigration), 2011 FC 724.
[33]
During
the course of oral submissions, I asked the respondent, given his
interpretation of Baires Sanchez, if he could provide an example of a
situation where a person targeted for death from a gang in one of these gang-infested
countries could obtain s. 97 protection. The example provided in response was the
situation where a gang had been hired to kill a claimant. In that
circumstance, it was submitted that the risk to the claimant was personal and was
not one faced generally by the population. I note that the scenario provided
is exactly that which this applicant faced. He faced death at the hand of a
gang hired by a criminal organization to kill him.
[34]
I
do not accept that protection under the Act is limited in the manner submitted
by the respondent. This is not to say that persons who face the same or even a
heightened risk as others face of random or indiscriminate violence from gangs
are eligible for protection. However, where a person is specifically and
personally targeted for death by a gang in circumstances where others are generally
not, then he or she is entitled to protection under s. 97 of the Act if the
other statutory requirements are met.
[35]
The
applicant proposed that the following question be certified: “Can a risk which
was initially random, indiscriminate, or general, be personalized through subsequent
action of either the persecutor or victim, such as where there is an escalating
or targeted reprisal for a refusal to pay?” The respondent opposed certifying
this question and proposed none for certification. In light of the disposition
made of this application, the question the applicant proposes would not be
dispositive of an appeal, and it is therefore not appropriate for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is allowed, the
decision of the Board is set aside, the applicant’s claim for protection under
s. 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
is referred to a differently constituted Board for determination, and no
question is certified.
"Russel W.
Zinn"
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