Date: 20070404
Docket: IMM-4845-06
Citation: 2007 FC 365
Ottawa, Ontario, April 4, 2007
Present:
The Honourable Mr. Justice de Montigny
BETWEEN:
JOSE
MAURICIO MARTINEZ PINEDA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, delivered orally on
August 23, 2006, and in writing on August 29. 2006. The member dismissed
the applicant’s refugee claim and considered that he was not a “person in need
of protection” within the meaning of section 97 of the Immigration and
Refugee Protection Act (IRPA).
FACTS
[2]
The
applicant, Jose Mauricio Martinez Pineda, is a citizen of El Salvador, who
alleged that he would be subjected to a risk to his life or a risk of cruel and unusual treatment or
punishment if he were to return to El Salvador.
[3]
The
applicant claimed that he had been threatened for the first time in 2005 by a
street gang known as Maras Salvatruchas. He had allegedly been approached as he
was leaving the university by a member of this gang who strongly encouraged him
to become a member of the gang. The applicant then responded that he would
never join the ranks of this group. A few days later, the applicant was again
approached by the same individual who threatened him when he refused to join
the gang.
[4]
Mr. Pineda
alleged that in the months that followed he had been threatened by gang members
on several occasions. The gang members waited for him armed with knives at the
university exit, and asked him to give them money. Then, in August 2005,
members of the same gang showed up at the applicant’s home and threatened him
and hit him. It was then that he mentioned the problem to his parents and
decided to abandon his studies at the university to confine himself at home.
[5]
In
December 2005, the applicant’s father in turn had been threatened by members of
the gang. Finally, the applicant submitted that the family home had been under
surveillance since February 2006, which finally prompted him to decide to leave
his country on February 17, 2006. First he went to the United States, where he
lived with one of his aunts, before going to Canada on March 11, 2006, to
request refugee status.
THE IMPUGNED DECISION
[6]
In a short
decision, the RPD first stated that it was satisfied about the applicant’s
identity.
[7]
In regard
to the merits of this matter, the RPD first pointed out that in order to be a
“person in need of protection” under paragraph 97(1)(b) of the IRPA, the
applicant must establish that his return to his native country would subject
him personally to a risk to his life or to a risk of cruel and unusual
treatment or punishment.
[8]
Yet, when
the member asked the applicant whether he was subjected to a risk that was
different from a risk faced generally by the population of El
Salvador , he responded that the street gangs recruited across the country and
targeted all levels of society. Based on this answer, the RPD determined that
the risk that the applicant would face if he were to return to his country was
the same as the one faced by any other person in El Salvador.
ISSUE
[9]
The issue
in this matter is very simple: did the RPD err in determining that the
applicant did not face a personal risk?
ANALYSIS
[10]
There is
no doubt that the appropriate standard of review in this matter is that of
patent unreasonableness. The issue of whether the applicant was personally
targeted, and the assessment of his testimony in relation to that issue, were
clearly questions of fact. This standard imposes a higher degree of deference
on the court sitting in review; to attain the reviewable threshold of patent
unreasonableness, the decision must be clearly irrational, not in accordance
with reason. Indeed, I note that both parties agree that this standard is
appropriate in this matter.
[11]
The burden
of proof under section 97 of the IRPA is higher than under
section 96. In Li v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 1 (at paragraph 14), the Federal Court of Appeal
stated that section 97 requires that a person establish on a balance of
probabilities that he or she would face the risks described at
paragraphs 97(1)(a) or (b):
As was found
by McGuigan J.A. to be the case with respect to section 96, nothing in
subsection 97(1) suggests that the standard of proof to be applied in assessing
the danger or risk described in paragraphs 97(1)(a) and (b) is anything other
than the usual balance of probabilities standard of proof. The answer to the
first certified question is therefore:
The standard
of proof for purposes of section 97 is proof on a balance of probabilities.
[12]
On the
other hand, section 97 provides that the alleged risk must be personal. In
fact, the provision reads as follows:
|
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
|
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) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
|
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) to a risk to their life or to a risk
of cruel and unusual treatment or punishment if
|
b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant:
|
|
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
|
(i) elle ne peut ou, de ce fait, ne veut se réclamer
de la protection de ce pays,
|
|
(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,
|
(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) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
|
(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) the risk is not caused by the
inability of that country to provide adequate health or medical care.
[Emphasis added.]
|
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
[non souligné dans l’original]
|
[14]
On
reviewing the reasons accompanying the RPD’s decision, it appears that the
member did not make any unfavourable findings regarding the applicant’s credibility.
It is true that on reading the hearing transcript, the member sometimes gives
the impression that he doubts the truthfulness of certain explanations given by
Mr. Pineda. However, he did not make the applicant’s credibility an
explicit reason for his decision and therefore we cannot speculate on his
findings in this regard.
[15]
Under
these circumstances, the RPD’s finding is patently unreasonable. It cannot be
accepted, by implication at least, that the applicant had been threatened by a
well-organized gang that was terrorizing the entire country, according to the
documentary evidence, and in the same breath surmise that this same applicant
would not be exposed to a personal risk if he were to return to El Salvador. It
could very well be that the Maras Salvatruchas recruit from the general
population; the fact remains that Mr. Pineda, if his testimony is to be
believed, had been specifically targeted and was subjected to repeated threats
and attacks. On that basis, he was subjected to a greater risk than the risk
faced by the population in general.
[16]
The
respondent’s counsel tried to liken the facts of this matter to the facts which
led this Court to dismiss the applications for judicial review in Jeudy v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1124 and Osorio
v. Canada (Minister of Citizenship and Immigration), 2005
FC 1459. A careful review of both of these decisions indicates that there
is absolutely no analogy between the situations at issue in those matters and
the one described by the applicant. In both cases, the RPD had determined that
the applicants had not succeeded in establishing that they were personally
threatened. In the second of these cases, for example, the applicant claimed
that he would indirectly suffer cruel and unusual treatment or punishment if he
were to return to Colombia, because of the psychological stress that he would
have to endure as a parent worrying about his son’s well-being. The RPD had
dismissed this claim, on the grounds that it was a generalized risk that all
parents in Columbia faced because of the ongoing civil war in that country.
Called to determine the merits of this decision, the Court held as follows:
[24] It seems to
me that common sense must determine the meaning of s. 97(1)(b)(ii). To put the
matter simply: if the Applicants are correct that parents in Colombia are a
group facing a risk not faced generally by other individuals in Colombia, then
it follows that every Colombian national who is a parent and who comes to
Canada is automatically a person in need or protection. This cannot be so.
[25] The risk
described by the Applicants and the Board in this case is a risk faced by
millions of Colombians; indeed, all Colombians who have or will have children
are members of this population. It is difficult to define a broader or more
general group within a nation than the group consisting of “parents”.
[17]
The facts
underlying this application for judicial review have nothing to do with such a
situation. The applicant was not claiming to be subject to a risk to his life
or his safety based only on the fact that he was a student, young or from a
wealthy family. If such were the case, the application would have to be
dismissed for the same reasons that led the Court to confirm the RPD decisions
in the two matters mentioned above. But this is not the case. The applicant
alleged that he had been personally targeted on more than one occasion, and
over quite a long period of time. Unless we question the truthfulness of his
story, which the RPD did not do, we have no doubt that he will be personally in
danger if he were to return to El Salvador. In the particular circumstances of
this matter, to find the opposite amounts to a patently unreasonable error.
[18]
For these
reasons, I therefore determine that the application for judicial review must be
allowed, that the RPD decision must be set aside and that the matter must be
referred to another member for redetermination.
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