Date:
20130408
Docket: IMM-2806-12
Citation: 2013 FC 344
Ottawa, Ontario, April 8, 2013
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
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GIOVANNI
ORTEGA ARENAS
ARACELI
SONI ORTEGA
ANDREA
ORTEGA SONI
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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
[1]
This is an application for judicial review in respect
of the decision of the Refugee Protection Division of the Immigration and
Refugee Board [the RPD or the Board], dated March 7, 2011, finding the
applicants to be neither Convention refugees nor persons in need of protection.
[2]
The applicants are a father, mother and daughter from Veracruz, Mexico. Their claim is based on the father’s experiences with members of the Zetas drug cartel. The
father [the principal applicant] was a successful businessman, who operated two
stores in Veracruz. In February 2009, he began receiving threats (first by
phone, then in person) in which he was told that if he did not pay a significant
sum to the cartel, his daughter would be kidnapped. After several phone calls,
the applicant reported the situation to the local police. Two days later, the
cartel members came to the applicant’s store, put a gun to his head, and
assaulted his wife. They demanded an increased sum of money and told the
applicant that they had learned of his police report from the police,
themselves. They also threatened that they would be able to track the applicant
and his family down, no matter where they went in Mexico. The next day, the
principal applicant and his family fled to Canada and made claims for
protection upon arrival.
[3]
This is the second time this matter has come before this Court. In a
decision dated October 13, 2011, Justice Campbell set aside an earlier decision
in the applicants’ claims because the RPD had failed to conduct a reasonable
state protection analysis. When the matter was remitted to the Board, it
premised its decision not on state protection but, rather, on a finding of
generalized risk under section 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the IRPA or the Act]. More
specifically, the Board characterized the principal applicant’s risk as flowing
from “a refusal to participate in criminal activities” because the principal
applicant refused to act as a drug courier and held that he was “personally
targeted but that the risk he faces is the same faced by [the] general
population or a large subset of population.” The RPD thus held that the
principal applicant was disentitled to protection under section 97 of the IRPA.
It also determined that a claim under section 96 of the IRPA was not available
because there was no nexus to a ground enumerated in the Refugee Convention.
[4]
The applicants argue that the Board’s decision must be set aside because
its section 97 analysis is erroneous in two respects: first, the RPD
mischaracterized the nature of the risk claimed by the principal applicant, who
had never been targeted as a potential drug courier, and, second, the RPD
provided an erroneous interpretation of section 97 of the IRPA in holding that
the personal targeting faced by the principal applicant was a generalized risk.
[5]
The respondent, on the other hand, argues that the Board’s
characterization of the principal applicant’s risk is immaterial as the
decision elsewhere reveals that the Board correctly understood what had
occurred and that the interpretation given by the Board to section 97 of the
IRPA was both reasonable and correct. The respondent asserts in this regard that
the wording of section 97 contemplates that a risk can both be personal and
also be faced by a large segment of the population and that, where this occurs,
protection is not available under section 97 of the IRPA. The respondent thus
argues that the statements made in Portillo v Canada (Minister of
Citizenship and Immigration), 2012 FC 678 [Portillo]; Tomlinson v
Canada (Minister of Citizenship & Immigration), 2012 FC 822 and Olvera
v Canada (Minister of Citizenship and Immigration), 2012 FC 1048 [Olvera]
regarding the incompatibility of finding a personalized risk to be general are
incorrect. The respondent additionally relies on Rodriguez v Canada
(Minister of Citizenship and Immigration), 2012 FC 11 and Osorio v
Canada (Minister of Citizenship and Immigration), 2005 FC 1459 in support
of the argument that it matters not whether the degree of risk faced by the
claimant is the same as is faced by others in the country, but rather, that
what matters is the cause of the claimed risk. More specifically, the respondent
argues that where, as here, extortion led to the circumstances the applicants
fear, the risk is a general one because many Mexicans face the risk of
extortion.
[6]
With respect, I disagree with the arguments advanced by the respondent,
and, for the reasons set out below, have determined that the Board’s decision
must be set aside.
Standard of review
[7]
Turning, first, to the standard of review, the first error alleged by
the applicants – the Board’s mis-assessment of the principal applicant’s
profile – is factual and thus to be reviewed on the reasonableness standard
(see e.g. Dunsmuir v New Brunswick, 2008 SCC 9 at para 51; Garcia
Arias v Canada (Minister of Citizenship and Immigration), 2010 FC 1029 at
para 12). Insofar as concerns the second alleged error, a convincing case can
be made in support of the application of the correctness standard of review to
the Board’s interpretation of section 97 of the IRPA. This issue is arguably of
general importance to the legal system as a whole because section 97 imports Canada’s international treaty obligations into domestic law (see Portillo at para 26; Canada (Minister of Citizenship and Immigration) v B472, 2013 FC 151 at para
22). However, as in Portillo, because I find the Board’s interpretation
of section 97 to be both unreasonable and incorrect, nothing turns on the
selection of the standard of review.
Mischaracterization of the
principal applicant’s risk
[8]
Prior to discussing the Board’s interpretation of section 97 of the
IRPA, it is useful to reproduce the section. It provides:
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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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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.
Note marginale :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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[9]
As I held in Portillo, section 97 of the IRPA mandates the
following inquiry. First, the RPD must correctly characterize the nature of the
risk faced by the claimant. This requires the Board to consider whether there
is an ongoing future risk, and if so, whether the risk is one of cruel or
unusual treatment or punishment. Most importantly, the Board must determine
what precisely the risk is. Once this is done, the RPD must next compare the
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.
[10]
Here, the Board held that the principal applicant was at risk because he
refused to participate in criminal activities, namely couriering drugs.
However, nothing of the sort occurred. It is difficult to understand why the
Board said it did, other than by surmising that the panel member must have
copied his reasons from another case without taking care to edit them. What
actually happened is that the principal applicant refused to pay monies that
the Zetas tried to extort, reported the matter to the police and then, along with
his family, was threatened.
[11]
Contrary to the respondent’s assertion, the RPD’s mischaracterization of
the risk faced by the principal applicant is not a simple clerical error, but,
rather, is central to the Board’s analysis. The Board three times mis-described
the nature of the risk in the context of explaining why it believed the risk
was a generalized one (decision at paragraphs 16, 17 and 27). This error in
large part led the Board to conclude that similar risks were faced by others in
Mexico. What it ought to have done was determine whether, in light of what
had actually happened to the principal applicant, he and his family were more
likely than not to face a risk to life or of cruel and unusual treatment or
punishment or be subjected to torture.
[12]
As noted in Guerrero v Canada (Minister of Citizenship and
Immigration), 2011 FC 1210 [Guerrero] by Justice Zinn, and as I
noted in Portillo, accurately describing the nature of the risk faced by
a refugee claimant is an essential first step in the section 97 analysis. If
the risk is mischaracterized, the RPD will typically make a reviewable error.
That is precisely what occurred here: the mischaracterization of the nature of
the principal applicant’s risk led the Board to err in its application of
section 97. This mischaracterization provides sufficient basis to set aside
this decision.
Misinterpretation of section
97 of the IRPA
[13]
After making this first error, the Board then also erred in the second
step of its section 97 analysis by comparing the applicants’ situation to that
of other well-to-do Mexican citizens. Its erroneous interpretation of section
97 of the IRPA is entirely intertwined with its mischaracterization of the
applicants’ risk.
[14]
The focus of the second step in the inquiry is to compare the nature and
degree of the risk faced by the claimant to that faced by all or a significant
part of the population in the country to determine if they are the same. This
is a forward-looking inquiry and is concerned not so much with the cause of the
risk but rather with the likelihood of what will happen to the claimant in the
future as compared to all or a significant segment of the general population.
It is in this sense that in Portillo I held that one cannot term a
“personalized” risk of death “general” because the entire country is not
personally targeted for death or torture in any of these cases. There is in
this regard a fundamental difference between being targeted for death and the
risk of perhaps being potentially so targeted at some point in the future.
Justice Shore provides a useful analogy to explain this difference in Olvera,
where he wrote at para 41, “The risks of those standing in the same vicinity as
the gunman cannot be considered the same as the risks of those standing
directly in front of him”.
[15]
Contrary to applying the foregoing analysis, the Board held that
drug-related crime is rampant in Mexico and that even though the principal
applicant had been “personally targeted,” the risk he faced was the same as
that faced by a large subset of the population due to the prevalence of crime
in the country. As I held in Portillo, this conflation of actual risk
faced by the applicants with potential risk faced by all others in Mexico is both an incorrect and unreasonable interpretation of section 97 of the Act.
[16]
For these reasons, this decision must be set aside.
Certified question
[17]
The applicants requested that I certify the following question that
Justice Zinn refused to certify in Guerrero, namely:
Can a risk which was initially random,
indiscriminate, or general, be personalized through subsequent action of either
the persecutor or the victim, such as where there is an escalating or targeted
reprisal for refusal to pay?
[18]
The respondent resists certification of this question, arguing that the
Federal Court of Appeal declined to answer such a general question in Prophète
v Canada (Minister of Citizenship and Immigration), 2009 FCA 31. The
respondent also argues that, by its nature, the requisite inquiry in a section
97 case must be fact-specific and, therefore, that certification of a question
in a case like the present is inappropriate.
[19]
I agree that the question posed by the applicants is too general to
warrant certification. Nor do I believe it is appropriate in this case to
certify a different, more narrowly-worded question aimed at seeking a
confirmation from the Court of Appeal as to the correct approach to
interpreting section 97 because the Board’s erroneous interpretation of the
section in this case is completely tied to its mischaracterization of the
applicants’ risk, which is specific to their circumstances. This, however,
should not be taken as meaning that no question should ever be certified
regarding the meaning to be ascribed to section 97 of the IRPA. In an
appropriate case, certification may well be warranted if there remains a
tension in the jurisprudence regarding how this section is to be interpreted.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review of the
RPD’s decision is granted;
2.
The RPD’s decision is set aside;
3.
The applicants’ refugee claim is remitted to the
RPD for re-determination by a differently constituted panel of the Board;
4.
No question of general importance is certified;
and
5.
There is no order as to costs.
"Mary J.L. Gleason"
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