Date:
20130325
Docket:
IMM-3671-12
Citation:
2013 FC 298
Ottawa, Ontario,
March 25, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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CANVILLE ROBERTS
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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]
The applicant
has brought this application for judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board [panel], made on March
20, 2012, whereby the panel dismissed his claim for protection under sections
96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA]. The applicant does not question the legality of the determination that
he is not a Convention refugee given that there is no nexus with any of the
grounds listed in section 96 of the IRPA. The issue is the panel’s finding that
the applicant is not a person in need of protection under subparagraph
97(1)(b)(ii) of the IRPA because although he was personally targeted by a
criminal gang, his alleged risk was a generalized one in his country of origin.
[2]
For
the reasons that follow, this application for judicial review is granted.
Facts
[3]
The
applicant is a citizen of Saint Vincent and the Grenadines. Based on a number
of past assaults and threats, he alleges that he is victim of a criminal
vendetta situation in his country and fears for his life at the hands of a gang
of criminals.
[4]
According
to the narrative found in his Personal Information Form, which was found
credible by the panel, on March 8, 2008, the applicant witnessed an argument
between two men, one of whom was a suspected gang member named Orendal James.
The applicant intervened in the dispute and was attacked by Orendal James with
a bottle of acid. The applicant’s treating doctor called the police and Orendal
James was arrested and charged with assault causing injury and bodily harm.
[5]
The
applicant alleges that after this incident he was targeted and threatened by
Orendal James who was angry about the outcome of the charges. In June 2010, the
applicant and a friend, named Carl, were attacked by three individuals who
smashed the windows of their car and started a fight with them. Carl ended up
in a fight with an individual named Gaza and killed him. The applicant alleges
that Carl was accused with murder and is currently in prison awaiting his
trial. The two other individuals involved in the fight were imprisoned for one
year and six months respectively.
[6]
Fearing
retaliation by the gang members after Gaza’s death, the applicant decided to
come to Canada where his sister lives. The applicant had already stayed in Canada for two years (between 1998 and 2000) and travelled to Canada in August 2001. The applicant
arrived in Canada on December 16, 2010 and immediately sought asylum as a person
in need of protection.
[7]
The
applicant alleges that since arriving in Canada, he has received death threats
from his persecutor’s father through two of his friends. He also alleges that
other refugee claimants from Saint Vincent have recognized him in the detention
centre where he has been detained since his arrival in Canada and, Saint Vincent being a small country where almost everyone knows each other, his
aggressors now know that he might be deported back to Saint Vincent and are
awaiting to kill him.
Decision under
Review
[8]
Considering
the matter within the entire context of the testimony and of the country
documents, the panel identified the basic genesis and nature of the risk to the
applicant as being “one that arose out of, and therefore is, a type of
generalized risk: generalized crime activity in Saint Vincent.”
[9]
The
panel cited Justice Zinn’s decision in Guerrero
v Canada (Minister of Citizenship and Immigration), 2011 FC 1210, [2011] FCJ No
1477 in support of its conclusion that “if the claimant
faces no personal risk, there would be no point in analyzing whether the claim
fell under the generalized risk exception: it is required by subsection 97(1)
that the risk faced by the claimant be personal.” In fact, while the panel did
not challenge the applicant’s credibility or question any of his allegations,
and while it admitted that the applicant has been specifically and personally
targeted by a gang of criminals in Saint Vincent, it found that the prospective
personal risk that he faces at their hands is a type of risk that is faced
generally by others in that country.
[10]
Inconsistently
with this finding, the panel further stated that the words “not generally,” as
found in subparagraph
97(1)(b)(ii) of the IRPA, cannot be interpreted as “personally.”
The panel went on to state that the word “generally” should rather be
interpreted as an antonym to “exactly, rarely, and seldom,” and that these
adjectives cannot be used in descriptive conjunction with a widespread
phenomenon. Yet the panel found that based on the documentary evidence,
criminal gang activity is a widespread problem in Saint Vincent and that this
entails real and probable threats to innocent lives which are patently part of
the usual parcel when it comes to such activities. Accordingly, the panel
concluded that in such circumstances, the fact that the applicant may
particularly face an even higher degree of risk than only a probable risk
because of his particular circumstances “does not displace the appropriate
application of the generalized risk exception to his claim.”
Issues and
Standard of Review
[11]
The
following issues are raised in this application for judicial review:
1) Did
the panel err in its application of subsection 97(1) of the IRPA by finding
that the applicant is not a person in need of protection as he merely faces a
generalized risk?
2) Did
the panel err by ignoring the evidence that the applicant faced a heightened
personal risk of harm?
[12]
Both
parties submitted, and I concur, that the applicable standard of review in
respect of each of the alleged errors is reasonableness.
[13]
In
Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213 at
para 11, [2009] FCJ No 270, the Court asserted that interpreting the exclusion
of generalized risks of violence under paragraph 97(1)(b) of IRPA was typically
an issue of application of law to the particular facts of a case and therefore
reviewable against the standard of reasonableness, as set out by the Federal
Court of Appeal in Prophète v Canada (Minister of Citizenship and Immigration), 2009 FCA 31 at
para 7, [2009] FCJ
No 143.
[14]
It has also
been held that the standard of reasonableness applies to the panel’s assessment
of an applicant’s evidence of personalized risk: Kanga v Canada (Minister of Citizenship and Immigration),
2012 FC 482 at paras 5-6, [2012] FCJ No 730.
[15]
Under
the standard of reasonableness the Court’s intervention is
required where
the decision does not fall within the “range of possible, acceptable outcomes which are defensible in respect of the
facts and law” and where the reasons given in the impugned decision are not “justified, transparent or intelligible” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
Analysis
[16]
There is
divided authority within the jurisprudence of this Court over the issue of the
appropriate interpretation to be given to the notion of “generalized risk” as
contemplated in paragraph 97(1)(b) of IRPA and what is required to establish
that a refugee claimant’s risk is not a generalized one. Subparagraph 97(1)(b)(ii) 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.”
[17]
In the
decision under review, the panel seems to suggest that there
was no requirement of a personalized risk under subparagraph 97(1)(b)(ii) of the IRPA, which in
turn, lead the panel to completely disregard the applicant’s personal
circumstances and evidence of alleged risk. The impugned decision contains no
analysis of the applicant’s testimony and corroborating documents tendered in
support of the allegation that he was particularly and personally at risk if he
was to return to Saint Vincent. However, the panel’s conclusion is based on its
unsupported and unexplained finding that the threats of future
harm made to the applicant did not place him at any greater risk than the rest
of the population.
[18]
Justice
Gleason thoroughly reviewed the relevant jurisprudence in Portillo v Canada (Citizenship and Immigration), 2012 FC 678 at paras 38 and following, and
described the analysis required under section 97 claim as follows:
In my view,
the essential starting point for the required analysis under section 97 of IRPA
is to first appropriately determine the nature of the risk faced by the
claimant. This requires an assessment of whether the claimant faces an ongoing
or future risk (i.e. whether he or she continues to face a “personalized
risk”), what the risk is, whether such risk is one of cruel and unusual
treatment or punishment and the basis for the risk. Frequently, in many of the
recent decisions interpreting section 97 of IRPA, as noted by Justice Zinn in Guerrero
at paras 27-28, the “... decision-makers fail to actually state the risk
altogether” or “use imprecise language” to describe the risk. Many of the cases
where the Board’s decisions have been overturned involve determinations by this
Court that the Board’s characterization of the nature of the risk faced by the
claimant was unreasonable and that the Board erred in conflating a highly
individual reason for heightened risk faced by a claimant with a general risk
of criminality faced by all or many others in the country.
The next
required step in the analysis under section 97 of IRPA, after the risk has been
appropriately characterized, is the comparison of the correctly-described risk
faced by the claimant to that faced by a significant group in the country to
determine whether the risks are of the same nature and degree. If the risk is
not the same, then the claimant will be entitled to protection under section 97
of IRPA…
[my emphasis]
[19]
I find that the panel erred in conducting both steps of the
required analysis. First, it made an unreasonable characterization of the
nature of the risk faced by the applicant, stating on one
hand that the applicant was “a victim in a criminal vendetta situation” in Saint Vincent and yet determining his risk as being a generalized risk due to generalized
crime activity. As stated earlier, the panel made no reference to any of the
applicant’s evidence, including written testimony from the applicant’s friends who
received death threats against the applicant. Given that the panel had to
determine on the basis of that evidence whether the applicant suffered a
heightened risk of harm as compared to the risk of harm faced by the general
population – including the risk of reprisal – and considering the panel’s
erroneous statement that “the fact that this claimant has been specifically
and personally targeted by the gang of criminals is irrelevant to the
determination of whether the risk that he faces at their hands is generalized” (my
emphasis), I find that the panel’s failure to conduct an individualized
assessment in light of the applicant’s evidence in its entirety constitutes a
reviewable error.
[20]
Although
the respondent failed to deal with the
most recent jurisprudence on this issue, the jurisprudence is replete with
cases where the Court found that the panel’s failure to conduct an appropriate individualized
assessment to be in contradiction with a finding of generalized risk,
especially where the decision under review “completely negates an admitted
situation of individualized risk simply because the actions giving rise to that
risk are also criminal” (Lovato v Canada (Minister of Citizenship and
Immigration), 2012 FC 143 at para 9, [2012] FCJ No 149 [Lovato].
[21]
On
this point, I fully concur with Justice Gleason’s reasoning in Portillo, above, at para 36, where she
states that
“[i]t is simply untenable
for the two statements of the Board to coexist: if an
individual is subject to a personal risk to his life or risks cruel and
unusual
treatment or punishment, then that risk is no longer
general. If the Board’s reasoning is correct, it is unlikely that there would ever be a situation in which this section [97
of the IRPA] would provide protection for crime-related
risks.” Also, in Lovato at para 14, the Court
held that “section 97 must not be interpreted in a manner that strips it of any
content or meaning. If any risk created by “criminal activity” is always
considered a general risk, it is hard to fathom a scenario in which the
requirements of section 97 would ever be met.” (see also Olvera v Canada (Minister of
Citizenship and Immigration),
2012 FC 1048 at paras 38-41, [2012] FCJ No 1128; Malvaez v Canada (Minister of
Citizenship and Immigration),
2012 FC 1476 at paras 13 and following, [2012] FCJ No 1579; Gomez v Canada
(Minister of Citizenship and Immigration), 2011 FC 1093 at para 38, [2011]
FCJ No 1601; Tomlinson v Canada (Minister of
Citizenship and Immigration), 2012 FC 822 at para 19, [2012] FCJ No
955;
and MACP v Canada
(Minister of Citizenship and Immigration), 2011 FC 81 at paras 43-44, [2011] FCJ No 92).
[22]
The
respondent relies on Perez v Canada (Minister of Citizenship and Immigration),
2009 FC 1029, [2009] FCJ No 1275 [Perez]
and CACF v Canada (Minister of Citizenship and Immigration), 2011 FC 763,
[2011] FCJ No 967 [CACF]. In both cases
the Court held that the fact that the applicant fell into an identified group
which faced a specific danger was insufficient to conclude that the risk had
become “personalized”. In Perez, above, at para 35, the
Court found that the applicants’ status as small business owners in Guatemala, who were seen as a subset of the general
population perceived to be relatively wealthy, did not
transform a generalized risk of criminal violence to a personalized risk. In CACF,
above, a similar conclusion was reached respecting the “group of those who were enemies of Los Zetas,” a gang of
organized crime in Mexico.
[23]
It
is clear that this jurisprudence is of no assistance in the present case. The
panel did not make any finding to the effect that the applicant shared the same
risk as other persons similarly situated, a conclusion that could only be
reached after having considered the specific circumstances of the applicant in
light of the evidence;
it simply overemphasized the risk to the general population and failed to consider any facts related to the applicant’s particular
situation.
[24]
These are reviewable errors sufficient to conclude that the
panel’s determination that the applicant is not a person in
need of protection is unreasonable and must be set aside. No question of general importance has been proposed by
counsel representing the parties and none arises from this case as the panel’s
errors are closely tied to the facts at hand.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
the present application for judicial review be granted;
2.
the decision under review, dated March 20, 2012, is quashed and the matter is remitted to the Refugee Protection Division for
redetermination by a differently constituted panel.
3.
No question is certified.
"Jocelyne
Gagné"
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