Date:
20130614
Docket:
IMM-8790-12
Citation:
2013 FC 656
Ottawa, Ontario,
June 14, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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DARLEY ALBERTO
SANTANILLA BONILLA; CLAUDIA PATRICIA ARANGO PANTOJA; NICOLAS SANTANILLA
ARANGO; CAMILA SANTANILLA ARANGO
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 9 August 2012 (Decision), which refused the Applicants’ application to be
deemed Convention refugees or persons in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant, Darley Alberto Santanilla Bonilla, and his wife and
children, the Secondary Applicants, are citizens of Colombia. The Secondary
Applicants relied on the claim of Mr. Bonilla, so the Court will refer to him
throughout as “the Applicant”. The Applicant claimed refugee status on 10 June
2011. His narrative is as follows.
[3]
The
Applicant owned and operated a shoe business, Fabriano Gabinelli, in Cali, Colombia. It was a successful business; the company produced shoes and operated a
retail outlet.
[4]
On
28 January 2011, the Applicant received a call on his cell phone from someone
who identified himself as a member of the Revolutionary Armed Forces of
Colombia (FARC). This person asked him to obtain and pay for certain
prescription medications. The Applicant replied that he was in the shoe
business, and that this was not in his line of work at all. The caller told him
that he knew he had a successful business, that he had to comply, and then hung
up.
[5]
On
10 February 2011, the Applicant received another call on his cell phone from
the same person asking if he had obtained the prescription medication. The
Applicant replied that he had not as he had no prescription in order to obtain
it. The caller said that if he could not obtain it, then he would have to make
a payment to the FARC of 20 million pesos. The Applicant replied that he did
not have that amount of money, but the caller said that he knew he had a
successful business and would be able to obtain the money. The caller said that
if the Applicant did not give the FARC what it was demanding, his life and the
lives of his family members would be in danger.
[6]
On
17 February 2011, the Applicant went to the regional attorney’s office to tell
the Colombian authorities about the threats. They told him that their budget
for such cases is limited, and that the best they could do would be to send a
police vehicle to drive near the Applicant’s location from time to time. That
never happened.
[7]
The
Applicant then went to the newspaper El Pais to tell them about the
threats made against him by the FARC. The story was published on 23 February
2011, with the Applicant’s name changed in the story to Jose Santana to protect
his safety.
[8]
On
14 March 2011, the Applicant received an obituary with his name on it at his
retail store. The envelope was sent by FARC via courier. That day, the
Applicant and his family decided to move to his mother’s apartment in Cali.
[9]
On
25 March 2011, the Applicant was in his office when he heard gun shots. Minutes
later he received a call on his cell phone. The same caller told him that they
were not joking, and that they knew where his family was. The Applicant’s car,
which was in the parking lot outside, had been shot multiple times.
[10]
The
Applicant and his family fled Colombia on 27 March 2011. They first went to the
U.S., and then arrived in Canada on 10 June 2011 and filed a refugee claim the
same day. Their claim was denied on 9 August 2012.
DECISION
UNDER REVIEW
[11]
The
RPD found the Applicant was not a Convention refugee because he had not
established a nexus to a Convention ground, and that he was not person in need
of protection because the risk he faced was a generalized rather than a
personalized risk.
Nexus
[12]
The
RPD noted that in order for the Applicant to be considered a Convention
refugee, he had to establish a nexus between himself and one of the five
grounds. The RPD found that the Applicant was a victim of crime, and that he was
not sought out by the extortionists for any reason other than that he was a
successful business owner. The RPD thought that neither “perception of wealth,”
nor “victims of extortion,” provided a basis for a social group and refugee
status.
[13]
The
Applicant’s counsel submitted that he had a nexus to a Convention ground based
on his imputed political opinion. Given the profile of the FARC, and because
the initial demand was for medication, counsel argued there was clearly a
political agenda involved. The RPD accepted that the FARC is a group with a
political agenda, but noted that although the FARC initially demanded
medication, the demands immediately changed to money as soon as the Applicant
stated that he had no access to medication. Further, the threats to his life
were in conjunction with his refusal to pay the FARC the money they demanded.
The RPD found on a balance of probabilities that the FARC were simply
interested in furthering their financial/criminal interests, and that the
objective behind the extortion was purely criminal in nature. The RPD found
that the Applicant was a victim of crime, which did not provide a nexus to a
Convention ground.
Generalized Risk
[14]
The
RPD noted that section 97 of the Act requires a personalized review in the
context of the actual and potential risks to which the refugee claimant is
subject. The RPD said that in cases like this, where the general public is
subject to the risk of crime, the fact that some individuals are more exposed
to the risk, because they live in more dangerous areas or because they are
perceived as being wealthier, does not necessarily make them persons in need of
protection.
[15]
The
RPD found that insufficient reliable and probative evidence was adduced by the
Applicant to support the assertion that the risk he faced was particularized.
The Applicant testified that he was aware of other businessmen being similarly
extorted by the FARC, and in the newspaper article it states that the
“criminals doing extortions have become the headache of the business owners.”
[16]
The
RPD found that the FARC was not even aware of the particular abilities of the
Applicant, as was evidenced by their demanding medication despite the Applicant
having no ability to acquire it. After that, no other demand besides money was
made. The reliable and probative evidence suggested that the FARC was extorting
the Applicant because they were aware that he was a business owner and had a
perceived ability to meet their demands. Any threats that occurred subsequent
to the extortion demands flowed from that initial demand for money.
[17]
The
RPD found that the risk faced by the Applicant was a risk faced generally by
other business owners in Colombia, and was not particularized to him. Although
his extortionists may have known his identity, the threats that occurred flowed
from demands to further their criminal interests and for monetary gain.
Insufficient reliable and probative evidence was adduced to indicate how the
members of the FARC came to know the identities of the Applicant and his
family. Regardless, the RPD noted that it is settled law that the perpetrators
knowledge of a claimant’s identity does not mean that the claimant was not a
victim of generalized violence.
[18]
The
RPD stated that, although the Applicant may have been specifically targeted,
many people in Colombia face a similar risk. To succeed under section 97, the
risk must be a personal or individualized risk and must be likely to occur on a
balance of probabilities, and must not be a risk faced generally by other
individuals in that country. Although the Applicant was subjected personally to
a risk to his life, his testimony and the documentary evidence indicated that
this risk is faced generally by people in Colombia who are perceived to have
the means to pay the demanded money. The threat of extortion and harm for
non-compliance is faced in every part of the country and is faced generally by
all individuals in Colombia – a generalized risk does not have to affect
everyone in the same ways. The evidence in this case indicated that the risk at
issue was a generalized one.
[19]
The
RPD pointed out that the FARC strike terror into the entire Colombian
population and that extortion is part of their modus operandi. The
Applicant was one of their many victims. The RPD considered the case of Vickram
v Canada (Minister of Citizenship and Immigration), 2007 FC 457 [Vickram],
and noted that the Federal Court found that perception of wealth does not
constitute a particularized risk under section 97 of the Act. The RPD was of
the view that the risk of violence from criminal organizations is a generalized
risk faced by all Colombians, and the fact that a specific number of
individuals may be targeted more frequently does not mean that they are not
subject to a generalized risk of violence.
[20]
The
RPD also noted case law stating that it must consider the specific
circumstances of the Applicant. It considered the facts of various cases, and
noted that all people have an identity, and just because that identity becomes
known to a perpetrator does not mean the risk faced is not a generalized one.
It also noted the case of Guifarro v Canada (Minister of Citizenship and
Immigration), 2011 FC 182 [Guifarro], where the Federal Court found
that a sub-group of people facing a certain risk could be in the thousands, and
even if that constituted a very small percentage of the total population the
risk would therefore be considered “general”.
[21]
The
RPD also found that consequential harm experienced by people who are targeted
by criminal organizations does not mean that their risk is not generalized. The
fact that a group of people may be targeted more frequently, or that the
Applicant continued to be pursued after reporting the extortion and that he
faced retaliation for not complying with the demands of the criminals, does not
mean that the risk is not generalized.
[22]
The
RPD said that in a country such as Colombia, plagued with violence, criminality
destabilizes the country and all citizens are subject to that risk. The
documentary evidence suggested that armed groups perpetuate much of the
violence and crime around the country, and that these groups use extortion to
make money. The RPD found that the Applicant was a victim of crime, and this
risk is generally faced by many people who own their own businesses in Colombia. As such, he did not fall under section 97 of the Act.
[23]
The
RPD found that the Applicant was not a Convention refugee or a person in need
of protection under sections 96 or 97 of the Act. As the Applicant’s wife’s and
children’s claims rested entirely upon his, they were also refused.
ISSUES
[24]
The
Applicant raises the following issues in this proceeding:
a.
Did
the RPD err in its interpretation and application of the definition of a
Convention refugee as defined in section 96 of the Act?
b.
Did
the RPD err in its interpretation and application of the definition of a person
in need of protection as defined in section 97 of the Act?
c.
Did
the RPD err in finding that no nexus exists to the definition of a Convention
refugee contained in section 96 of the Act?
d.
Did
the RPD err in its treatment of the issue of generalized risk?
e.
Did
the RPD err by ignoring documentary evidence that was before it?
STANDARD
OF REVIEW
[25]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves fruitless
must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis.
[26]
The
RPD’s application of the definition of Convention refugee in section 96 of the
Act is a question in which the legal and factual issues are inextricably
intertwined. This issue calls into question the RPD’s interpretation of the
definition set out in section 96 of the Act, and calls for the RPD to interpret
its enabling statute, and so the standard of review is reasonableness (see Dunsmuir,
above, at paragraph 54, Smith v
Alliance Pipeline Ltd. 2011 SCC 7 at paragraph 28 and Celgene Corp. v Canada (Attorney General) 2011 SCC 1 at
paragraph 33). The standard of review on the first issue is
reasonableness.
[27]
The
RPD’s application of the facts of the Applicant’s case to the definition of a
person in need of protection under section 97 is a question of mixed fact and
law (Begum v Canada (Minister of Citizenship and Immigration), 2011 FC
10 at paragraph 19). Thus, the standard of review applicable to the second
issue is reasonableness.
[28]
In
Salvagno v Canada (Minister of Citizenship and Immigration), 2011 FC
595, Justice Yvon Pinard said at paragraph 11 that “the standard of review
applicable to the Board's interpretation of the nexus issue is that of
reasonableness.” The third issue is thus reviewable on a reasonableness
standard.
[29]
The
reasonableness standard is also applicable to the RPD’s finding that the
Applicant faced a generalized risk in Colombia. Justice David Near determined
that reasonableness was the appropriate standard of review on this issue in V.L.N. v Canada (Minister of
Citizenship and Immigration) 2011 FC
768, at paragraphs 15 and 16. As Justice André Scott found in Vasquez v Canada (Minister of Citizenship and Immigration)
2011 FC 477, a generalized
risk finding involves questions of mixed fact and law to be
evaluated on a standard of reasonableness (paragraphs 13 and 14). The standard of review
on the fourth issue is reasonableness (see also Innocent v Canada (Minister of Citizenship and Immigration) 2009 FC 1019).
[30]
The
evaluation of evidence is a factual consideration that goes to the RPD’s
consideration of other issues. Thus, this issue is also evaluated on a
reasonableness standard (see Dunsmuir, above).
[31]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY PROVISIONS
[32]
The
following provisions of the Act are applicable in this proceeding:
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Convention
refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political
opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
[…]
Person in
Need of Protection
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
[…]
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Définition
de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
[…]
Personne à
protéger
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.
[…]
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ARGUMENTS
The Applicant
Nexus
[33]
The
Applicant submits that there is no bright line between “crime” on one hand, and
“persecution” on the other. The two concepts are not mutually exclusive; most
acts of persecution are simultaneously criminal acts. For example, if a person
is beaten due to their political opinion, that is persecution, but it is
simultaneously a crime. To merely state that something is a crime does not
automatically mean that it is not persecutory. The key issue is whether there
is a nexus to a Convention ground. The Applicant submits that the RPD erred by
finding crime and persecution to be mutually exclusive. The RPD asked whether
the harm feared was crime or persecution, rather than asking if the harm feared
was connected to one of the Convention grounds.
[34]
The
nexus put forward by the Applicant was that of perceived political opinion,
which is a concept that has been well-recognized by the Court. At paragraph 9
in Ismaylov v Canada (Minister of Citizenship and Immigration), 2002 FCT
30, the Court said at paragraph 9:
The CRDD failed completely to address the issue of
perceived political opinion as a ground for the Applicants' claim. I am
satisfied that this omission on the part of the CRDD constitutes a further
reviewable error.
[35]
Political
opinion may create a nexus, whether the political opinion is perceived or real
(Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689). The RPD, however,
focused on the Applicant’s actual political opinion. It said at paragraph 23 of
the Decision that there “is no evidence before me that the claimant was
questioned in regard to his political views or that the claimant had been involved
politically in Colombia.”
[36]
The
Applicant points out that there was documentary evidence before the RPD that
clearly said that the FARC treats any refusal to accede to extortion demands as
being indicative of an opinion in opposition to their political agenda. A UNHCR
Report says that “Due to the significance of the income derived from ransom and
extortion to fund political-military activities, refusal or inability to pay is
viewed as an act or indication of political opposition, resulting in persecution
and violence” (see page 198 of the Applicants’ Record).
[37]
The
RPD made no reference to the above mentioned document, and it directly
contradicts the conclusion that it reached on this issue. Thus, the RPD erred (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (TD)
at paragraph 17). In Orgona v Canada (Minister of Citizenship and
Immigration), 2001 FCT 346, the Federal Court said at paragraph 31:
In assessing whether mistreatment of the Roma, and
of the applicants, could be considered persecution, the tribunal found much of
the evidence of the applicants lacked credibility in light of certain
documentary evidence. But it made no reference to the significant documentary
evidence which was supportive of the applicants’ claims. In so doing, it
appears to have ignored relevant evidence. Even though it is not necessary to
refer to all of the documentary evidence before it, when evidence which
supports the applicants’ position is not referred to, and when other
documentary evidence is selectively relied upon, the tribunal, in my opinion,
errs in law by ignoring relevant evidence.
[38]
In
Gilvaja v Canada (Minister of Citizenship and Immigration), 2009 FC 598
at paragraph 38:
Further, there is evidence on the record that
contradicts the Board’s decision that state protection would be available to
the applicant. The Board's role was to make findings of fact and arrive at a
reasonable decision based on the evidence, even if conflicting. Certain
passages from the documentary evidence appear to show that there is some desire
by the present government of Mexico to improve the situation, while other
passages suggest that protective measures are ineffective. In this
circumstance, the Board had a duty to explain why it preferred the evidence of
the efforts the state is taking over the evidence that corruption and impunity
continue to be a widespread and pervasive reality in Mexico. Upon reading the
documentary evidence and the Board's decision, it is clear that the Board took
a selective analysis of the documentary evidence.
[39]
In
Goman v Canada (Minister of Citizenship and Immigration), 2012 FC 643 at
paragraph 13 the Court had the following to say on point:
It is well-known and accepted that a decision-maker
does not have to refer to all evidence upon which it relies but at the same
time, when there is relevant contradictory evidence that is unacknowledged by
the decision-maker, a reviewing Court may conclude that the Board ignored or
misapprehended key facts and came to an erroneous decision…
[40]
In
M.P.C.Q. v Canada (Minister of Citizenship and Immigration), 2011 FC 297
at paragraph 8 the Court warned as follows:
Generic statements that “all the evidence” was
considered do not suffice in this case. Before stating that there was no “persuasive
evidence”, the IRB had the duty to meaningfully address the evidence and the
principal Applicant’s statements, especially if these could reasonably be seen
as addressing the IRB’s concerns with the sufficiency of state protection. The
fact that the IRB must address the evidence before it, especially when it
appears as possible “persuasive evidence”, is a well established principle in
immigration law…
[41]
Furthermore,
the more important the evidence, the more likely it is that the RPD erred by
not referencing it (Packinathan v Canada (Minister of Citizenship and
Immigration), 2010 FC 834 at paragraph 9). The Applicant pointed directly
to documentary evidence in his written submissions that the FARC treats any
refusal as political opposition, and submits that it was an error for the RPD
to ignore it. All that the RPD says with respect to the Applicant’s perceived
political opinion is that “I find that insufficient evidence was adduced to
indicate that the claimant has nexus based on imputed political opinion” (paragraph
19 of the Decision). The RPD does not provide any reasoning as to why the
documentary evidence presented by the Applicant is “insufficient.”
[42]
The
RPD also found that because the FARC’s demand immediately changed from
medication to money, this indicated that “the FARC were simply interested in
furthering their financial/criminal interests.” The FARC is a political group
with a political agenda, and it acquires funds through extortion. Just because
the FARC changed its demands to money does not mean it should be simply
considered a criminal organization engaging in criminal activities for
financial reasons; it is still a political group. The political nature of the
FARC is discussed in a variety of documentary materials submitted by the
Applicant. Based on the above, the Applicant submits that it was an error for
the RPD to find there was no nexus to a Convention ground.
[43]
The
test applicable under section 96 is whether there is a serious possibility of
persecution should the Applicant be returned to Colombia. This standard is
lower than a balance of probabilities, but higher than a mere possibility (Chan
v Canada (Minister of Employment and Immigration), [1995] 2 S.C.R. 593 at
paragraph 120). The test under section 97 is a higher standard: that of a
balance of probabilities (Li v Canada (Minister of Citizenship and
Immigration), 2005 FCA 1). As such, the Applicant submits it was an error
for the RPD to only apply the higher section 97 test to his claim, instead of
the lower section 96 test.
Section 97
[44]
The
Applicant submits that the RPD also committed an error in its section 97
analysis by finding that the Applicant faces a generalized, as opposed to a
personal, risk in Colombia. In Pineda v Canada (Minister of Citizenship and
Immigration), 2007 FC 365 [Pineda], the Federal Court said at
paragraphs 13-15:
In short, the risk faced by an applicant ought not
to be a random and generalized risk indiscriminately faced by all persons
living in the country to which the applicant risks to be removed. In this case,
the applicant submitted in his Personal Information Form (PIF) that he had been
personally subjected to danger; yet the RPD did not take this into account and
rather put the accent on the fact that Mr. Pineda had stated in his testimony
that the Maras Salvatruchas recruited across the country and targeted all
levels of society, regardless of the age of the persons contemplated.
[…]
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.
[45]
The
Applicant points out that he was personally and specifically targeted by the
FARC, and he and his family members were personally threatened. Based on Pineda,
the Applicant was “specifically targeted” and this represents a personalized
risk, not a generalized one. As the Court said at paragraphs 36 and 50 in Portillo
v Canada (Minister of Citizenship and Immigration), 2012 FC 678:
As noted, in my view, the interpretation given by
the RPD to section 97 of IRPA in the decision is both incorrect and
unreasonable. 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.
If the Board’s reasoning is correct, it is unlikely that there would ever be a
situation in which this section would provide protection for crime-related
risks. Indeed, counsel for the respondent was not able to provide an example of
any such situation that would be different in any meaningful way from the facts
of the present case. The RPD’s interpretation would thus largely strip section
97 of the Act of any content or meaning.
[…]
Like the claimants in the many cases cited above,
the applicant in this case faced a heightened and different risk not faced by
other young men in El Salvador because the MS had threatened him in order to
obtain retribution for his having spoken to the police and provided Carlos’
mother’s address to them. Carlos was shown to have joined the MS and he
personally made a death threat to the applicant. The applicant’s situation was
thus fundamentally different from that of others, who might be generally at
risk of recruitment, threats or even assault by the MS. The applicant, though,
was found to directly and personally face the risk of death. This is a far cry
from the risk of extortion, recruitment or assault and thus the applicant's
risk is much more significant and more direct than that faced by other men in El Salvador. Accordingly, the RPD’s decision is both unreasonable and incorrect.
[46]
The
decision in Munoz v Canada (Minister of Citizenship and Immigration),
2010 FC 238 at paragraph 32 differentiates between random acts of criminal
violence and those that are targeted. The first represent a generalized risk,
and the second a personalized risk. Similarly, in Diaz v Canada (Minister of
Citizenship and Immigration), 2011 FC 705, the Court said at paragraph 19,
the “Board’s conclusion that the applicant is at no greater risk than other
Salvadorans cannot be justified when it already accepted that he was at risk
and specifically targeted.”
[47]
Furthermore,
in Kaaker v Canada (Minister of Citizenship and Immigration), 2012 FC
1401 at paragraph 51 the Court found that:
The RPD was unreasonable in applying the generalized
risk exception to the Applicant when it had accepted that the Applicant had
been personally targeted for extortion and kidnapping. The RPD cannot reasonably
determine that a claimant faces a risk to his life and simultaneously
find that his risk was generalized because criminal extortion and kidnapping is
rampant in Afghanistan.
See
also Olvera v Canada (Minister of Citizenship and Immigration), 2012 FC
1048 at paragraph 1; Malvaez v Canada (Minister of Citizenship and
Immigration), 2012 FC 1476 at paragraph 16.
[48]
As
the RPD accepted the credibility of the Applicant’s claim, it was unreasonable
for the RPD to find that he was at no greater risk than other Colombians when
it was accepted that he was at risk and had been specifically targeted. The
Applicant points to paragraph 17 of Zacarias v Canada (Minister of
Citizenship and Immigration), 2011 FC 62:
As was the case in Martinez Pineda, the Board
erred in its decision: it focused on the generalized threat suffered by the
population of Guatemala while failing to consider the Applicant’s particular
situation. Because the Applicant’s credibility was not in question, the Board
had the duty to fully analyse and appreciate the personalized risk faced by the
Applicant in order to render a complete analysis of the Applicant’s claim for
asylum under section 97 of the IRPA. It appears that the Applicant was not
targeted in the same manner as any other vendor in the market: reprisal was
sought because he had collaborated with authorities, refused to comply with the
gang’s requests and knew of the circumstance of Mr. Vicente’s death.
[49]
The
Applicant says that the RPD found that, since criminality is prevalent in Colombia, he does not face a personalized risk. This is erroneous, as was pointed out at
paragraphs 27 and 34 of Guerrero v Canada (Minister of Citizenship and
Immigration), 2011 FC 1210:
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.
[…]
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.
[50]
In
Vivero v Canada (Minister of Citizenship and Immigration), 2012 FC 138,
Justice Donald Rennie had the following to say on point at paragraphs 28-29:
It must be remembered that Parliament is presumed
not to have enacted legislation that is devoid of content; thus, the
interpretation of section 97 frequently relied on by the Refugee Protection
Division cannot be supported: for example, it would not protect individuals
from natural disasters, as natural disasters affect everyone; it would not
protect individuals from criminal acts, as all are at risk of extortion. Section
97 would thus be reduced, in its application, to the protection of individuals
who are victimized by criminal acts in countries where the risk of criminality
is not widespread or prevalent. In these cases, state protection, logically, is
likely to be available. In consequence, section 97 would be stripped of any
content and bereft of meaning, a legislative section in search of meaning.
As discussed above, the respondent’s position stems
from a misplaced focus on the reason for the risk - the question is not whether
the risk to a claimant is created by criminal activity, but rather whether the
claimant would be subjected personally to a risk to his or her life or to 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. If the Board
fails to undertake an individualized inquiry to determine those questions the
Court will have basis to intervene.
[51]
The
Applicant also points to paragraphs 7, 9, 13 and 14 of Lovato v Canada (Minister of Citizenship and Immigration), 2012 FC 143:
The Board correctly noted that “consideration of an
application under section 97(1)(b)(ii) of the IRPA requires a personalized
review in the context of the actual and potential risks to which the claimant
is subject.” However, the Board went on to find that “even if the claimant does
face a personalized risk of harm, in cases like this, where the general public
is subject to the risk of crime, a person who is a direct victim of crime is
not automatically a person in need of protection within the meaning of section
97 of the Act.” I find that the Board misunderstood the applicable legal test
under section 97(1)(b)(ii) which rendered its decision unreasonable.
[…]
The Board erred in concluding that the applicant
faced a particular risk of harm but was ineligible for section 97 protection
simply because there is a general risk of criminal or gang activity in El Salvador. Vivero v Canada (Minister of Citizenship and Immigration), 2012 FC 138,
reviewed the basic principles governing the interpretation of section
97(1)(b)(ii) - specifically, that an individualized inquiry must be conducted
in each case, and the fact that the risk to an applicant arises from criminal
activity does not in itself foreclose the possibility of protection under
section 97. The decision under review is not consistent with the jurisprudence,
as it completely negates an admitted situation of individualized risk simply
because the actions giving rise to that risk are also criminal.
[…]
In this case, the Board was guided by an incorrect
understanding of the meaning of section 97(1)(b)(ii). Despite finding that the
applicant was subject to a particularized risk of harm, it concluded that the
risk also affected the population at large because all El Salvadorians are at
risk of violence from the MS. The Board noted: “There was no persuasive
evidence before me that the claimant was targeted for any other reasons than
the reasons I have already indicated”, i.e. those that motivate the MS to
target any member of the population. In this way, the Board incorrectly focused
on the reasons for which the applicant was being targeted, rather than the
evidence that the MS was specifically targeting the applicant to an extent
beyond that experienced by the population at large. As a result, the Board's
decision is unreasonable.
As noted in Vivero, 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. Because the Board failed to properly
undertake this inquiry in this case, the decision must be set aside.
[52]
The
Applicant submits that the RPD made no attempt to distinguish the above
mentioned decisions, and simply ignored them while relying on other, earlier
decisions.
[53]
Further,
the Applicant submitted two reports on country conditions which were ignored by
the RPD: a report entitled “Country Conditions in Colombia Relating to Asylum
Claims in Canada” by Dr. Mark Chernick, and a report entitled “Continued
Insecurity” by James J. Brittain. In Yepes v Canada (Minister of Citizenship
and Immigration), 2011 FC 1357, Justice Robert Barnes said at paragraph 10
that, “Even if the Board’s failure to make factual or credibility findings did
not in this case give rise to a reviewable error, its failure to refer at all
to the evidence of Drs. Brittain and Chernick is a further basis for sending
this matter back for a redetermination…” As the RPD made no reference
whatsoever to these reports, the Applicant submits that it further erred.
The Respondent
Nexus
[54]
The
Respondent points out that this Court has said that while most acts of
persecution are criminal in nature, not all criminal acts can be considered
acts of persecution (Alifanova v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1825 (TD); Sokolov v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1321; Karaseva v Canada
(Minister of Citizenship and Immigration), [1997] FCJ No 1725 (TD)). The
Applicant faced extortion and threats of bodily harm – these are, in essence,
criminal acts.
[55]
There
is ample jurisprudence stating that victims of criminal activity do not
constitute a particular social group (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689; Mason v Canada (Secretary of State), [1995] FCJ No 815
(TD)). A person’s fear of persecution by criminals cannot be the basis of a
valid refugee claim (Suarez v Canada (Minister of Citizenship and
Immigration), [1996] FCJ No 1036 (TD); Valderrama v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1125 (TD)).
[56]
The
Applicant was targeted for extortion based on his actual or perceived wealth.
The FARC was not persecuting him for any real or imputed political opinion, and
the Applicant presented no persuasive arguments in this regard. It was
reasonable for the RPD to find that the Applicant had not established a nexus
to a Convention ground.
[57]
The
fact that the FARC is ideological and involved in political attacks does not
change the fact that the Applicant was targeted based on his refusal to pay
extortion money. Even if one is extorted to pay a war tax, this still does not
give rise to a nexus to a Convention ground. In Caicedo v Canada (Minister of Citizenship and Immigration), 2011 FC 749 at paragraphs 36-37 the
Court had the following to say:
The Board found that the father’s kidnapping, if he was in
fact kidnapped, was for economic reasons, which did not create a nexus to a
Convention ground. Nexus is largely a question of fact, which is within the
Board’s expertise to make: Prato v. Canada (Minister of Citizenship and Immigration), 2005 FC 1088 at para 9. There is ample support in
the case law that extortion for economic reasons may not create a nexus to a
Convention ground: Saint Hilaire v. Canada (Citizenship and Immigration), 2010 FC 178. Still other cases
concluded that extortion for war taxes, or extortion from paramilitary groups,
for example: Ospina
v. Canada (Citizenship and
Immigration), 2010 FC
1035; Montoya
v. Canada (Minister of Citizenship and
Immigration), 2002 FCT
63 do not trigger Convention
grounds.
Given
the case law on this point and the facts before the Board regarding the nature
of the principal applicant’s fear, it was reasonably open to the Board to
conclude that there was no nexus between the father's kidnapping and a
Convention ground.
[58]
Similarly,
the Respondent submits it was reasonable for the RPD in this case to find that
the Applicant’s refusal to pay the FARC does not lead to an imputed political
opinion.
Section 97
[59]
The
Respondent submits that whether or not the Applicant is a victim of generalized
violence is a fact specific assessment. The Applicant cites cases where
judicial review was allowed when protection had been initially denied on the
basis of generalized risk, but those cases need to be considered on their
specific facts. The case law is clear that refugee claimants must still have a
personalized reason to find that their risk does not amount to generalized
risk. In Palomo v Canada (Minister of Citizenship and Immigration), 2011
FC 1163 at paragraphs 19-22:
Although such cases as Martinez Pineda v Canada
(Minister of Citizenship and Immigration), 2007 FC 365, [2000] FCJ No 501
(QL) and Aguilar Zacarias v Canada (Minister of Citizenship and Immigration),
2011 FC 62, [2011] FCJ No 144 (QL) appear to assist Ms. Jimenez Palamo, in both
cases judicial review was granted because the applicant’s personal
circumstances were not considered. As Mr. Justice Simon Noël said at paragraph
17 of Aguilar Zacarias, above:
As
was the case in Martinez Pineda, the Board erred in its decision: it focused on
the generalized threat suffered by the population of Guatemala while failing to
consider the Applicant’s particular situation. Because the Applicant’s
credibility was not in question, the Board had the duty to fully analyse and
appreciate the personalized risk faced by the Applicant in order to render a
complete analysis of the Applicant’s claim for asylum under section 97 of the
IRPA. ...
It is not enough to be wealthy (Prophète v Canada
(Minister of Citizenship and Immigration), 2008 FC 331, [2008] FCJ No 415
(QL), appeal dismissed, 2009 FCA 31, [2009] FCJ No 143 (QL), or to be a
shopkeeper, or a fare collector on a bus (Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213, [2009] FCJ No 270 (QL)).
As Madam Justice Tremblay-Lamer held in Prophète,
above, the Court is faced with an individual who may have a personalized risk,
but one that is shared by many others. The fact that a specific number of
individuals may be targeted more frequently than others does not mean that the
risk is not faced generally within the meaning of section 97.
I adopt the following words of Mr. Justice Crampton
in Paz Guifarro v Canada (Minister of Citizenship and Immigration), 2011
FC 182, [2011] FCJ No 222 (QL), where he said at paragraph 33:
Given
the frequency with which claims such as those that were advanced in the case at
bar continue to be made under s. 97, I find it necessary to underscore that is
now settled law that claims based on past and likely future targeting of the
claimant will not meet the requirements of paragraph 97(1)(b)(ii) of the IRPA
where (i) such targeting in the claimant’s home country occurred or is likely
to occur because of the claimant’s membership in a sub-group of persons
returning from abroad or perceived to have wealth for other reasons, and (ii)
that sub-group is sufficiently large that the risk can reasonably be
characterized as being widespread or prevalent in that country. In my view, a
subgroup of such persons numbering in the thousands would be sufficiently large
as to render the risk they face widespread or prevalent in their home country,
and therefore “general” within the meaning of paragraph 97(1)(b)(ii), even
though that subgroup may only constitute a small percentage of the general
population in that country.
[60]
The
Respondent says that the RPD considered the Applicant’s personal situation and
concluded that he was in the same position as many others. This was a
reasonable conclusion based on the facts and documentary evidence. The RPD’s
interpretation of the law is consistent with the jurisprudence; this Court has
repeatedly found perceived wealth to be insufficient to support a claim under
section 97 (see Guifarro, above; Prophète v Canada (Minister of
Citizenship and Immigration), 2008 FC 331; Kanga v Canada (Minister of
Citizenship and Immigration), 2012 FC 482; Ayala v Canada (Minister of
Citizenship and Immigration), 2012 FC 183). The Respondent submits that
this is a generalized risk, albeit perhaps a heightened one.
[61]
Further,
the existence of an opposing view in the documentary evidence is not enough to
conclude that the RPD’s Decision is unreasonable (Conkova v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 300 (TD)). The
Applicant is merely arguing that alternative inferences should have been made,
and this is not sufficient to justify allowing judicial review where the
standard of review is reasonableness (Sinan v Canada (Minister of
Citizenship and Immigration), 2004 FC 87 at paragraph 11).
[62]
The
Applicant also takes issue with the RPD’s failure to mention Dr. Chernik’s and
Prof. Brittain’s reports on Colombia, but the RPD is assumed to have taken all
the evidence into consideration whether or not it is specifically referred to
in the Decision (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598 (CA)). The fact that the Reasons do not summarize all the
evidence is not a reviewable error (Hassan v Canada (Minister of Employment
and Immigration), [1992] FCJ No 946 (CA)). This was recently reaffirmed by
the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
The
Applicant’s Reply
[63]
The
Applicant reiterates his argument that the RPD erred by not finding a nexus to
a Convention ground based on imputed political opinion, and that the RPD
ignored documentary evidence stating that the FARC imputes a contrary political
opinion to those who do not accede to their extortion demands.
[64]
The
Applicant further submits that none of the cases relied upon by the Respondent
involved evidence before the Board on imputed political opinion such as the
Applicant’s. These cases can be distinguished because the Applicant
specifically drew the RPD’s attention to this documentary evidence in his
written submissions. The RPD ignored this evidence, and this renders the
Decision unreasonable.
ANALYSIS
[65]
In
my view, the RPD committed a fundamental material error in this case that
requires the matter to be returned for consideration.
[66]
In
considering nexus, the RPD confined itself to looking at the evidence as to why
the Applicant was approached and extorted by the FARC. The FARC approached and
threatened the Applicant because it wanted medications and then money. There
was no evidence of any political involvement by the Applicant in opposition to
the FARC, so it was entirely reasonable for the RPD to conclude that “the
reliable and probative evidence suggests the FARC was extorting the claimant
merely because they were aware that he was a business owner and had a perceived
ability to pay their demands.”
[67]
However,
the Applicant’s fear was not that, if returned to Colombia, he would be
extorted by the FARC. His fear was that, if returned to Colombia, he would be killed or otherwise harmed by FARC because he had resisted FARC’s
previous attempts at extortion.
[68]
In
this regard, there was clear evidence before the RPD, in the form of a UNHCR
report from 2005 to the following effect:
Irregular armed actors often kidnap and/or extort
persons deemed to hold an opposing political opinion. They also use kidnapping
and extortion to finance political/military objectives, targeting anyone seen
as a possible source of funds, regardless of the victim’s social status or
political activity. Due to the significance of the income derived from ransom
and extortion to fund political-military activities, refusal or inability to
pay is viewed as an act or indication of political opposition, resulting in
persecution and violence. This is reflected in letters written by the
irregular armed groups demanding payment of a “war tax” (the so-called “vacuna”)
and a threat to mark victims as a military target upon failure or refusal to
pay. [Emphasis added]
[69]
This
report was specifically drawn to the RPD’s attention and the Applicant’s
counsel made submissions on point and asked that the RPD consider perceived
political opinion as a nexus ground. There is no dispute that the Applicant had
no actual political opinion.
[70]
This
issue and this evidence are not addressed in the Decision. They should have
been. The UNHCR report directly contradicts the RPD’s conclusion on the absence
of a political nexus. See Cepeda, above. This means that the RPD failed
to fully consider political nexus and persecution under section 96 of the Act
and moved directly to section 97 considerations. The RPD had an obligation to
consider this issue and the evidence to support it and its failure to do so has
resulted in an unreasonable Decision.
[71]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James Russell”
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