Date:
20130626
Docket:
IMM-9778-12
Citation:
2013 FC 708
Toronto, Ontario,
June 26, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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LUIS FERNANDO RAMOS AGUILAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 of a decision of the Refugee
Protection Division of the Immigration and Refugee Board dated August 28, 2012,
that the applicant Mr. Aguilar is not a Convention refugee or person in need of
protection pursuant to section 96 and subsection 97(1) of the Act.
[2]
The
only issue in this application is whether the Board’s decision to dismiss Mr.
Aguilar’s claim under subsection 97(1), because it found after a review of the
case law that the risk he was facing was “faced generally by other individuals
in or from that country” as described in subparagraph 97(1)(b)(ii), was
reasonable.
[3]
The
Board said at various points after Mr. Aguilar had finished giving testimony at
the hearing that it believed his story. The Board unfortunately failed to do
justice to the detailed story told by Mr. Aguilar in his testimony and in the
ten page single-spaced typed narrative he attached to his Personal Information
Form. The Board’s summary is found at paragraph 2 of its decision:
[2]
The claimant and his brother went to USA in 2000 and over the next few years
they saved enough money to return to Mexico and opened a restaurant in January
2005. Shortly after they opened the restaurant, they begin to face extortion
along with all the other businesses in the area. A few months later in April
2005, they opened another restaurant. In August 2005, the criminals
significantly increased the protection money demanded from the claimant and his
brother. The claimant refused to pay the higher sum and had physical
altercation with the criminals. The claimant reported to the police however the
police told him that they cannot process this because they found no fire
weapons as the claimant alleged. The claimant arrived in Montréal on October
28, 2005 along with his brother. The claimant returned to Mexico and opened another business, a mechanic workshop right beside the restaurant. The
criminals revisited the claimant and the claimant came back to Canada in June 2006. He returned again to Mexico in April 2007 and after other incidents
with the criminals he returned to Canada in April 2009 and claimed protection a
few days later.
[4]
What
is noticeably absent from the Board’s summary are the following critical facts:
a. That in
September 2005, the Applicant was stopped while driving his van, that he was
taken from his vehicle, that he was hit, kicked, and forced onto his knees at
which point one of the men said “Kill him now.”
b. That he heard
the nick-name of one of his assailants (El Memo) and that through only good
fortune he escaped death.
c. That he reported
all this to the police and in particular identified El Memo as one of the
assailants. That the police arrested El Memo but released him within a week
when his “boss” El Jarocho paid a bribe to the police.
d. That the
Applicant when told of this was also told that they wanted to “find me to kill
me.”
e. That the
Applicant and his family then visited Canada for “some time” and upon his
return to Mexico he opened a new business.
f. That in May 2006
the Applicant and his family upon returning to his van from shopping saw a
strange object on the roof of the van and something in the window. Upon
inspection it was found to be a bag into which had been placed a dead and
bloodied animal (probably a cat) and on the back window had been written “We
found you jerk.”
g. He and his
family again left Mexico for Canada. Upon return, the criminals made a demand
for 2,000,000 pesos because he had one of their members arrested and jailed.
He negotiated to pay them 10,000 pesos a month for one year, which he did.
h. After the
payments were made, he mistakenly believed that he would be let be; however, he
was told that “things were not over.”
i.
In
March 2009 while driving in his car with his family, he was followed by a
vehicle and the two men in it, when they came along side him told him to stop.
Fearing the worst, he continued to drive and forcibly crashed into their
vehicle. It was after this that he fled to Canada and sought protection.
[5]
Also
not mentioned by the Board in its summary is that these men are from a gang
called La Hermandad which consists of a group of corrupt policemen and that El Jarocho
was a member of the public security secretariat.
[6]
In
its reasons, the Board noted that the approach to be taken when assessing a
risk under subparagraph 97(1)(b)(ii) of the Act was that which I described in Corado
Guerrero v Canada (Minister of Citizenship & Immigration), 2011 FC
1210:
27
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.
28
My second observation is that too many decision-makers inaccurately
describe the risk the applicant faces and too many decision-makers fail to
actually state the risk altogether. Subparagraph 97(1)(b)(ii) of the Act is
quite specific: The personal risk a claimant must face is "a risk to their
life or to a risk of cruel and unusual treatment or punishment." Before
determining whether the risk faced by the claimant is one generally faced by
others in the country, the decision-maker must (1) make an express
determination of what the claimant's risk is, (2) determine whether that risk
is a risk to life or a risk of cruel and unusual treatment or punishment, and
(3) clearly express the basis for that risk. [emphasis added]
[7]
The
Board’s first error is that it did not follow this directive by identifying the
risk facing Mr. Aguilar with any precision. It appears to have accepted that
Mr. Aguilar faced a risk of violence or death at the hands of the gang members
who had been tracking him, but makes no mention of why they appear so
determined to kill him. Contrary to the focus of the Board on the extortion,
it appears equally plausible that it was revenge for having one of their own
arrested and causing the gang to have to pay a significant amount to release
him from jail.
[8]
In
any event, the Board’s second error is seen in the following passage from its
reasons:
[27] Even
if the criminal [sic] want to take revenge on him for refusing to
cooperate, there is no nexus to the Convention nor there [sic]
personalized risk. This may have heightened the level of risk for the
claimant, I am guided by the Canadian courts that even the heightened risk
is still a generalized risk and this falls under the exception in section 97 of
the Act – a risk generally faced by others. [emphasis added]
[9]
This
Court has not held that all heightened risks due to targeting are still
generalized risks; it has held that heightened risks due to targeting may
still be generalized if, based on the documentary evidence, that heightened
risk is one a sufficiently large number of individuals face. Indeed, this
Court could not make such a pronouncement. Deciding the issue of whether a
heightened risk is faced by a large enough number of individuals in any given
country involves, first, an assessment of the facts unique to each case and
each country.
[10]
Moreover,
the fact that the risk faced by the Applicant arises from or has its genesis in
criminal activity (extortion) does not in itself mean that the risk is one
faced generally by others in Mexico. What is required is that the Board assess
the particular facts and circumstances to determine if the particular risk
facing the Applicant is one generally facing citizens. As was noted by Justice
Rennie in Vivero v Canada (Minister of Citizenship and immigration),
2012 FC 138 at para 25: “[S]ome risks arising from criminal activity will
constitute a general risk, and others will not.” As he later noted at
paragraph 29, the error there, and here, is “a misplaced focus on the reason
for the risk.”
[11]
As
a result of its error, the Board never engages with any of the documentary
evidence about Mexico to assess how many individuals are facing the kind of
risk it seems to accept is facing Mr. Aguilar. It may be that a sufficiently
large number of Mexicans face this kind of imminent and targeted risk of death
or harm by criminals for the reason that the Applicant here does such that it
is a risk generally faced by others, but that determination involves first a determination
of fact based on the documentary evidence about Mexico which the Board must
make. That factual determination cannot simply be taken for granted based on
what is no more than a simple proposition that a heightened risk may still be a
generalized risk. It may, or it mat not be.
[12]
In
summary, what the Board failed to do is accurately describe the risk facing Mr.
Aguilar and then engage in an assessment based on the documentary evidence
about how prevalent that risk is in Mexico.
[13]
For
those reasons, the decision is set aside. Neither party proposed a question
for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is allowed, the
decision under review is set aside, the Applicant’s claim for protection is
referred back to be determined by a differently constituted Panel of the Board,
and no question is certified.
"Russel W.
Zinn"
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