Date:
20130603
Docket:
IMM-3509-12
Citation:
2013 FC 592
Ottawa, Ontario,
this 3rd day of June 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
Carlos Ervey HERNANDEZ LOPEZ
Janet BARRIENTOS GAMINO
Karla Janet HERNANDEZ BARRIENTOS
Marcos David HERNANDEZ BARRIENTOS
Jonatan Elven HERNANDEZ
BARRIENTOS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review made pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27, (the “Act”) of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
“Board”) finding that Mr. Carlos Ervey Hernandez Lopez, his wife Janet
Barrientos Gamino and their three minor children (the “applicants”) are not
Convention refugees, nor persons in need of protection within the meaning of
sections 96 and 97 of the Act.
[2]
The
applicants are citizens of Mexico. The parents have operated a profitable leather
business in Jalisco, Mexico. They allege that they fear for their lives and
that they should be declared refugees under section 97 of the Act.
Facts
[3]
On
December 19, 2008, a group of four armed men, including two police officers,
came to the applicants’ store. They identified themselves as members of the
Zetas gang and demanded the sum of 10,000 pesos as “protection money” to be
paid to them on a monthly basis for having their leather store in a Zetas
territory.
[4]
The
men also threatened to harm the couple’s children if they did not comply or if
they sought help from the police. The men promised to return on January 20th,
2009, to collect the money.
[5]
Mr.
Lopez and Mrs. Gamino noticed surveillance being conducted over their leather
store and some passing by the house of Mrs. Gamino’s parents.
[6]
On
January 20, 2009, the same men who had indicated that they would be back for
protection money arrived in a police truck demanding to be paid. They were
fully armed. Mr. Lopez and Mrs. Gamino had only 8,500 pesos which
they gave to the men. In return, the men vandalized the place and Mr. Lopez was
cut. The men threatened serious harm if Mr. Lopez did not “stop playing
with them”. The men proceeded to steal some merchandise to “cover for the
remaining 1,500 pesos” and left.
[7]
Mr.
Lopez sought help from a well-known lawyer from Colima, Mexico, who had a reputation of helping victims of crime and corruption. The lawyer
suggested that the applicants close down their business and move to another
city. They later decided to move to the city of Monterrey where they had some
friends.
[8]
However,
before they were able to move, three police officers broke into the applicants’
house on January 25, 2009 while Mr. Lopez had gone to pick up the children.
They harassed and beat Mrs. Gamino and showed her a piece of paper
containing the friends’ address in Monterrey. They threatened that they would
find the applicants wherever they may flee. Threats were made that
Mrs. Gamino would be raped and one of her children would be killed if the
business did not open the following day.
[9]
Mr.
Lopez immediately called the lawyer who would have told him that his family was
being watched. Mr. Lopez continued to operate his business while planning the
escape with the help of some friends.
[10]
The
applicants arrived in Canada on February 17, 2009. They claim that their lawyer
filed a report on their behalf after their arrival in Canada in order to get the matter investigated. It looks like nothing happened.
[11]
In
June 2010, Mr. Lopez received a call from their lawyer who told him that she
had been attacked by police officers who had warned her not to help the
applicants. According to the applicant, the lawyer told him that the Zetas knew
they were in Canada and expected that they would be deported back to Mexico. It is that call from their lawyer that led the applicants to file a claim for
refugee protection in Canada. The claim was made in August 2010.
[12]
Mr.
Lopez also testified at the hearing that Mrs. Gamino’s godfather was shot dead
in September 2010 as he was leaving his business located two blocks away
from the applicants’ leather store. His wife and child were also murdered. Mr.
Lopez testified that the lawyer the applicants had hired and Mrs. Gamino’s
sister had later disappeared (around June 3, 2010 and November 2011). Mrs.
Gamino also reported that her mother has had to change telephone numbers three
times. They alleged that these incidents are related to the Zetas who vowed to
seek revenge on the applicants’ family members.
Impugned
decision
[13]
Credibility
is not an issue in this case. The Board found that although the applicants
somewhat exaggerated their claim, they are believed. The only issue here is
whether or not there is in this case a personalized risk. It is accepted by the
applicants that the Board’s finding that there is no connection between the
applicants’ claim and a Convention ground pursuant to section 96 of the Act is
appropriate. They rely on section 97 and, in particular, subparagraph 97(1)(b)(ii).
It reads:
|
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
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(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,
|
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 :
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(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,
|
[14]
The
Board found that, pursuant to subparagraph 97(1)(b)(ii) of the Act,
“[t]he evidence must establish that the claimant would face a risk different
from those faced by the general population”. The Board goes on to find, at
paragraph 19, “that according to the claimants’ testimonies, the risk that the
claimants face is one that is faced generally by others in the country,
specifically those who have money or are perceived to have money”.
[15]
The
question before the Court is therefore whether these facts constitute a
personalized risk or they face in a category of risk of violence that is faced
by the population in general. At the end of paragraph 25 of the Board’s
decision, one finds the gist of the Board’s decision. It reads:
Because
the claimants face a risk based on their profile as business people, and this
risk is the same that other citizens in that country face, the panel finds that
the claimants are not Convention refugees nor are they persons in need of
protection.
Standard
of Review
[16]
It
is not disputed by the parties that the standard of review in this case is that
of reasonableness.
[17]
Both
parties rely on Acosta v Canada (Minister of Citizenship and Immigration),
2009 FC 213, where it was held that the interpretation of the exclusion of
generalized risk of violence under paragraph 97(1)(b) of the Act
involves applying the law to the particular facts and is therefore reviewable
on a standard of reasonableness. Recent cases support that view (Hernandez v
Canada (Minister of Citizenship and Immigration), 2013 FC 107; Malvaez
v Canada (Minister of Citizenship and Immigration), 2012 FC 1476).
[18]
In
reviewing the Board’s decision on the reasonableness standard, the Court will
consider “the existence of justification, transparency and intelligibility
within the decision-making process” and will only intervene if the decision
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v New Brunswick, [2008] 1 SCR
190 at para 47 and Canada (Citizenship and Immigration) v Khosa, [2009]
1 SCR 339 at para 59).
Analysis
[19]
The
Court has reached the conclusion that the Board’s decision fails the standard
of reasonableness, largely for the reasons well articulated by Justice Gleason
in Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC
678, 409 FTR 290 [Portillo].
[20]
As
I read the Board’s decision, it turns a particularized risk into a generalized
one because others would be subjected to the same risk. The fact that others
may be subjected to the same particularized risk does not change the nature of
the risk faced by the applicants.
[21]
It
was the same kind of reasoning that was displayed in Portillo: “The
Board thus concluded that the risk the applicant faced was generalized because
the ‘nature of the crimes faced by the [applicant] is widespread in El Salvador and not specific to him’” (para 34). Justice Gleason went on to state at
paragraph 36:
…
It 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.
I agree.
[22]
I
would have thought that the right approach is that which was described by
Justice Rennie in Lovato v Canada (Minister of Citizenship and Immigration),
2012 FC 143:
[14] …
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. Instead of focusing on
whether the risk is created by criminal activity, the Board must direct its
attention to the question before it: whether the claimant would face a personal
risk to his or her life or a risk of cruel and unusual treatment or punishment,
and whether that risk is one not faced generally by other individuals in or
from the country.
[23]
Not
wanting to go back to a particular country because of violence in that country
is one thing: that defeats the purpose of section 97 of the Act, which is to
offer protection for those who actually face a risk. Similarly, the allegation
that someone is susceptible to extortion cannot do because of its generality.
Conversely, it is not because others may face the same kind of personalized
risk that the nature of the risk changes. As Justice O’Reilly found in Gomez
v Canada (Minister of Citizenship and Immigration), 2011 FC 1093, 397 FTR
170:
[38] 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.
[Emphasis added.]
[24]
In
this case, it was not reasonable to conclude that the risk was generalized
because of the applicants’ profile as business people, a risk faced by other
citizens in that country.
[25]
This
is not to say that every allegation of violence will suffice in order to open
the door of section 97 of the Act. The credibility of the allegation and its
gravity must be examined carefully, an expertise that the Board has and which
will benefit from a measure of deference. But once an allegation has been
received as credible, it will not suffice either to declare that other
individuals might face the same risk for the door to close on section 97. To
the extent the risk has been particularized, the analysis must continue in
order to determine whether or not section 97 finds application. Justice Rennie
captured the notion clearly in Marroquin et al. v Canada (Minister of
Citizenship and Immigration), 2012 FC 1114:
[11] I
find that the Board’s analysis of whether the applicants faced a generalized
risk was unreasonable and the decision must be set aside. As this Court has
consistently held: Portillo v
Canada (Citizenship and Immigration), 2012 FC 678; Vaquerano Lovato v Canada (Citizenship
and Immigration), 2012 FC 143; Guerrero v Canada (Minister of Citizenship and Immigration),
2011 FC 1210; Alvarez Castaneda v
Canada (Minister of Citizenship and Immigration), 2011 FC 724; Barrios Pineda v Canada (Minister of
Citizenship and Immigration), 2011 FC 403, and Aguilar Zacarias v Canada (Minister of
Citizenship and Immigration), 2011 FC 62, that the mere fact that
the persecutory conduct is also criminal conduct which may also be prevalent in
a country does not end the analysis of a claim under section 97. The Board must
consider whether the applicants faced a risk that was different in degree than
that faced by other individuals in El Salvador.
[12] The
applicants’ testimony was found credible, and thus all the allegations were
accepted. The Board therefore accepted that the applicant reported the theft of
his truck to the police, that the Mara 13 became aware of this fact, and that
the applicants fled El Salvador because they feared retaliation by the gang.
This is the precise kind of factual scenario which may go beyond a generalized
risk, as in the cases listed above.
[26]
In
view of the facts as found credible by the Board, the risk cannot be said to be
general. As a result, the decision must be quashed.
JUDGMENT
The application for judicial
review is granted. The matter is referred back to the Immigration and Refugee
Board for reconsideration before a different member of the Board’s Refugee
Protection Division. No question for certification has been proposed and the
Court finds that none arises.
“Yvan Roy”
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