Date:
20131021
Docket:
IMM-2069-13
Citation:
2013 FC 1054
Ottawa, Ontario,
October 21, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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JULIAN AUBREY STEPHEN
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Applicant
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and
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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 of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, dated February 15, 2013.
The RPD determined that the Applicant is not a convention refugee and not a
person in need of protection pursuant to sections 96 and 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA). This application is brought pursuant to subsection 72(1) of the IRPA.
Background
[2]
The
Applicant is a citizen of Saint Lucia. He claims that in March 2009, he was
approached by members of a drug gang and asked to sell drugs on their behalf.
He refused. The following day his mother’s home, where he resided, was broken
into. He reported this to the police who came to the home to investigate.
[3]
In
April 2009, he was again stopped by members of the gang who told him that he
should start working with them to sell drugs. He again refused. The next day
his mother’s house was again broken into, and food and appliances were taken.
He and his mother made a report at the police station and later followed up,
but were advised that the police had nothing to report.
[4]
The
Applicant was not approached again until a year later, in April 2010, when
members of the same gang picked him up, drove him around in a vehicle and again
asked him to sell drugs on their behalf. He refused and was released. He was
again approached in September, October and December 2010. In April 2011, six
gang members came to his home, tied him and his mother up and threatened their
lives if he did not agree to sell drugs on their behalf.
[5]
Following
this incident, his mother immediately moved to another town. The Applicant
continued his employment but no longer slept at home, instead staying with
different family members. The Applicant came to Canada on September 29, 2011
and claimed refugee protection on November 8, 2011.
[6]
By
its decision dated February 15, 2013, the RPD found that the Applicant is not a
convention refugee or a person in need of protection pursuant to section 96 and
subsection 97(1), respectively, of the IRPA (the Decision).
Decision Under
Review
[7]
The
RPD stated that the Applicant testified in a straightforward manner, and that
there were some relevant inconsistencies in his testimony and contradictions
between his testimony and other evidence which were not satisfactorily
explained. With respect to the threats against him, the Applicant did not
submit any affidavits, letters or other supporting documentary evidence other
than a letter from his mother. He also failed to produce police reports to
corroborate his reporting of the two break-ins, his testimony being that he had
tried to obtain them but that they were not provided by the police. The RPD
found that the Applicant had failed to provide “sufficient and credible
trustworthy evidence” that he had been threatened by gang members.
[8]
The
RPD found that the Applicant’s fear in this case was not linked to race, religion
or nationality, political opinion or membership in a particular social group.
He was a victim of crime which did not serve to establish a nexus between his
fear of persecution and one of the convention grounds. Accordingly, his
section 96 claim failed.
[9]
The
RPD next considered whether the harm feared by the Applicant was such that it
posed a risk to his life or a risk of cruel and unusual treatment or punishment
thereby qualifying him as a person in need of protection pursuant to subsection
97(1)(b) of the IRPA. The RPD found, on a balance of probabilities, that the
Applicant was a victim of unknown gang members and was being threatened with
physical harm and perhaps even death but that this is one of the many crimes
which occur in Saint Lucia and was not specific to the Applicant.
[10]
The
RPD found that the fact that the first time the Applicant was approached by the
gang members they called him by his nickname, “Jay”, did not make the risk
personalized, particularly as the Applicant had testified that he was well-known
in the area. The use of his nickname in the first of the nine incidents was alone
not sufficient to personalize the risk.
[11]
The
RPD referenced case law and concluded that, if the risk of violence or injury
or crime is a generalized risk faced by all citizens of Saint Lucia, then the
fact that a specific number of individuals may be targeted more frequently does
not mean that they are not subject to a general risk of violence. The fact
that they share the same risk as other persons similarly situated does not make
the risk a “personalized risk”. As the risk faced by the Applicant was
generalized rather than personalized, it therefore fell within the subsection
97(1)(b)(ii) exclusion.
[12]
The
RPD then considered the question and principles of state protection and found
that the Applicant had not rebutted the presumption, with clear and convincing
evidence, of Saint Lucia’s ability to protect its citizens. The Applicant had reported
two incidents to the police, however he did not produce any corroborative
evidence of these reports. Based on its review of the national documentation
package, the RPD found that on a balance of probabilities Saint Lucia is making serious efforts to protect its citizens and while those efforts may not always
be successful, that did not rebut the presumption of state protection.
Further, that a claimant must approach the state for protection if such
protection might be reasonably forthcoming. The Applicant had not provided a
compelling explanation for failing to pursue state protection opportunities as
he had approached the Saint Lucia police only once and did not approach them
again during the two year period that he was involved in at least nine
incidents. He had also not produced any corroborative documentary evidence,
such as police reports or affidavits, to support his claim.
Issues
[13]
I
would frame the issues as follows:
1. Did
the RPD make an erroneous credibility finding?
2. Did
the RPD err in its finding on generalized risk?
3. Did
the RPD err in finding that the presumption of state protection was not
rebutted?
Standard of
Review
[14]
An exhaustive
analysis is not required in every case to determine the proper standard of
review. Courts must first ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded to a
decision-maker with regard to a particular category of question (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paras 57 and 62 [Dunsmuir]; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 53 [Khosa]).
[15]
Prior
jurisprudence has established that credibility findings, sometimes described as
“the heartland of the Board’s jurisdiction”, are in essence pure findings of
fact that are reviewable on a reasonable standard (Khosa, above, at para
46; Aguilar v Canada (Minister of Citizenship and Immigration), 2013 FC
843 at para 34).
[16]
It
is well settled that the standard of review of a decision on generalized risk
is also reasonableness as it is a question of mixed fact and law (De Jesus
Aleman Aguilar v Canada (Minister of Citizenship and Immigration), 2013 FC
809 at para 20 [De Jesus Aleman Aguilar]; Portillo v Canada (Minister
of Citizenship and Immigration), 2012 FC 678 at para 18 [Portillo]).
Issues of state protection and of the weighing, interpretation and assessment
of evidence are reviewable on a reasonableness standard (Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171 at para 38 [Hinzman];
Burai v Canada (Minister of Citizenship and Immigration), 2013 FC 565 at
para 22; Oluwafemi v Canada (Minister of Citizenship and Immigration),
2009 FC 1045 at para 38).
[17]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it. It is not up to a reviewing court to
substitute its own view of a preferable outcome, nor is it the function of the
reviewing court to reweigh the evidence. (Dunsmuir, above, at para 47; Khosa
above, at para 59).
[18]
Adequacy
of reasons is no longer a stand alone ground of review but is subsumed within
the reasonable analysis (Newfoundland and Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at paras
14-16 [Newfound and Labrador Nurses’ Union]).
[19]
Accordingly,
the standard of review applicable to all of the issues arising from this matter
is reasonableness.
Analysis
Credibility
[20]
The
Applicant submits that it was not clear from the RPD’s reasons whether or not it
found him to be credible. While the RPD states that the Applicant testified
“in a straightforward manner,” it also found that there were some relevant
inconsistencies in his testimony and contradictions between his testimony and
other evidence which were not satisfactorily explained. The Applicant submits
that typically, straightforward testimony is consistent testimony and notes that
the alleged contradictions and inconsistencies are not identified.
[21]
Further,
while in paragraph 10 of its Decision the RPD found that the Applicant had not
provided sufficient, critical and trustworthy evidence that he had been
threatened by gang members, in paragraph 15, it found, on a balance of
probabilities, that the Applicant was a victim of alleged unknown gang members
and was threatened with physical harm and perhaps even death states, but that this
was one of the many crimes which occurs in Saint Lucia and was not specific to the
Applicant. The Applicant submits that these two inconsistent findings on
credibility cannot be reconciled thereby rendering the Decision unintelligible
and unreasonable. As the finding of whether the Applicant was credible or not
goes to the heart of the reasons, the Decision cannot stand (Hilo v Canada (Minister
of Employment and Immigration), [1991] FCJ No 228 (QL) (CA) [Hilo]; Yotheeswaran
v Canada (Minister of Citizenship and Immigration), 2012 FC 1236 [Yotheeswaran];
Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC
302 (CA) [Maldonado]).
[22]
The
Respondent acknowledges the inconsistency between paragraphs 10 and 15 of the
Decision but submits that the RPD stated the basis for its Decision at
paragraph 9 which was that the Applicant had failed to provide sufficient and
credible trustworthy evidence of the alleged harm or risk and failed to provide
an explanation for not having provided affidavits or letters from friends or
relatives supporting his claim of threats of harm other than one letter from
his mother.
[23]
Further,
although the Applicant testified in a straightforward manner, this finding
addresses only his manner of presentation. There are reasons to doubt his
story, in large part due to a lack of evidence. Further, as the RPD rejected
the claim based on an insufficiency of evidence and not on a credibility
finding, Hilo, above, has no application.
[24]
In
my view, having regard to the whole of the RPD’s reasons, it is not possible to
determine with any certainty whether or not the RPD found the Applicant to be
credible.
[25]
The
RPD starts its analysis by stating that where a claimant swears to the truth of
certain allegations, this creates a presumption that those allegations are true
unless there is reason to doubt their truthfulness. While no case law is cited,
this principle is in keeping with the Court’s decision in Maldonado,
above at page 305.
[26]
Later,
the RPD states that the claimant testified in a straightforward manner “and”
that there were some relevant inconsistencies in his testimony with
contradictions between his testimony and other evidence before it which had not
been satisfactorily explained. Yet, the RPD does not identify these
inconsistencies or contradictions which leaves open the question of how, or if,
they affect the Applicant’s credibility.
[27]
The
fact that the Applicant testified in a “straightforward manner” may, or may
not, speak to credibility. On the one hand, such a manner may suggest that the
testimony being given flowed smoothly because it was truthful. On the other
hand, it may simply be that an applicant practiced his or her testimony thereby
achieving a straightforward manner. The point being that, without more, little
can be gleaned from this statement as to the Applicant’s credibility.
[28]
However,
while the Decision lacks intelligibility with respect to its assessment of the
Applicant’s credibility, this does not affect the ultimate outcome. That is
because regardless of whether the RPD found the Applicant to be credible, or
not, it continued to conduct both a section 96 and 97 analysis. The
Applicant does not challenge the RPD’s finding or its conclusion that he is not
a convention refugee as there is no nexus between his alleged fear and a
section 96 convention ground.
[29]
As
regards to the section 97 analysis, the RPD stated that it found, on a balance
of probabilities, that the Applicant was a victim of unknown gang members and
was being threatened with physical harm and perhaps even death. Thus, it must
be inferred that for the purposes of its section 97 analysis, the RPD found the
Applicant to be credible.
Generalized
Risk
[30]
The
Applicant submits that the RPD’s finding of generalized risk was made without
proper analysis and was therefore unreasonable.
[31]
Specifically,
that the RPD failed to perform, in the manner previously proposed in Portillo,
above, an assessment of whether the risk facing the Applicant was personalized and
that its reasoning failed to take into account the true nature of the risk.
[32]
The
Applicant submits that the risk was personalized as he was targeted because of
his particular characterization of being well-known, making him a good
candidate to be a drug dealer. The fact that the gang members called him by
his nickname, “Jay”, when they approached him on the first of nine occasions was
an indication that he was being personally targeted. His refusal to cooperate
resulted in him being placed at risk.
[33]
Further,
the Applicant submits that there was no analysis of how common it is for
persons from Saint Lucia to be approached to sell drugs, the repercussions for
those who refuse nor was there any basis to support the RPD’s view that these
situations are prevalent.
[34]
The
Respondent submits that the evidence tendered by the Applicant in support of
his claim is limited to his testimony, his PIF, two letters from his mother, a
statutory declaration concerning domestic abuse situations in Saint Lucia prepared and filed in another matter, and, the general country condition documents. The
RPD reasonably found that this evidence was insufficient to support the
Applicant’s claim that his risk was personalized.
[35]
The
Respondent also submits that the RPD did identify the risk and correctly
concluded that it was generalized. The Applicant described the risk in his PIF
as being threatened by drug dealers because they asked him to sell drugs for
them which he refused. This is the same risk described in the RPD’s reasons.
Further, the RPD reasonably rejected the argument that the Applicant was
subjected to heightened or personalized risk because he was called by his name
on the first of nine occasions when he was approached to sell drugs. The RPD
relied on the documentary evidence which established that crime relating to
drug trafficking is prevalent in Saint Lucia, the risk faced by the Applicant is
therefore, the same risk faced by the general population.
[36]
Further,
the Respondent submits that there is no objective evidence to support the
Applicant’s position that his risk was personalized due to being targeted by
drug dealers because he was well known and therefore would be a good drug
dealer himself. This is not alleged in his PIF and his testimony was that it
could be a possibility. Nor was there evidence that his refusal placed him at
a higher risk.
[37]
In
my view, the RPD reasonably found that the Applicant was subject to a
generalized risk and, therefore, fell within the subsection 97(1)(b)(ii)
exclusion.
[38]
In
Portillo, Justice Gleason proposed a framework for the analysis required
under subsection 97(1)
of the IRPA as follows:
[40] 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.
[41] 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. Several of the recent
decisions of this Court (in the first of the above-described line of cases)
adopt this approach.
[39]
The
RPD’s characterization of the nature of the risk was reasonable based on the
evidence before it. It found that there was no persuasive evidence that the
Applicant was targeted for any other reason than that he was approached by an
unknown gang of men to sell drugs for them. This is consistent with the Applicant’s
PIF where he stated, “I have been threatened by drug dealers because they asked
me to sell drugs for them and I refused to do that”. At his hearing, when
asked if he knew why the gang persisted for two years in their efforts to have
him join them, his response was, “I’m not sure, but I would say a possible
reason could be that they think I know many people”. When questioned by his
own counsel who asked whether the gang’s initial approach in 2009, was “random”
or whether he was “specifically approached”, the Applicant responded that he
was specifically approached because they addressed him by his nickname.
[40]
The
RPD found that the Applicant was a victim of unknown gang violence and was
being threatened with physical harm or perhaps even death but that this is one
of the many crimes which occur in Saint Lucia and is not specific to the
Applicant. Further, because he was well known in the area, the fact that he
was called “Jay” at the first encounter with the gang did not, alone,
constitute personalized risk since he was not called that on the following
incidents.
[41]
The
jurisprudence cited by the RPD supports its finding that if the risk of
violence or injury is a generalized risk faced by all citizens in Saint Lucia,
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 (Innocent v Canada (Minister of Citizenship
and Immigration),
2009 FC 1019 [Innocent]; Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331 [Prophète];
Rodriguez v
Canada (Minister of Citizenship and Immigration), 2012 FC 11 [Rodriguez]).
The fact that they share the same risk as other persons similarly situated does
not make the risk personalized (Rodriguez, above at para 35).
[42]
It
is clear that an analysis under subsection 97(1)(b)(ii) is largely contextual and
entails a case-by-case determination of the particularized risk faced by a
claimant (De Munguia v Canada (Minister of Citizenship and Immigration),
2012 FC 912 at para 25; Vivero v Canada (Minister of Citizenship and
Immigration),
2012 FC 138 at para 11).
Where
the general public is subject to a risk of crime, the fact that some
individuals are more exposed to the risk than others whether because of
perceived wealth (Innocent, above; Prophète, above; Rodriguez, above) or because
they live in more dangerous areas (Innocent, above) or otherwise does
not necessarily make them persons in need of protection under section 97.
[43]
The
jurisprudence has also recognized that a generalized risk can become
personalized. In that regard, the RPD has a duty to conduct an individual and
thorough analysis of the facts presented, examining all aspects of the risk
stemming from those facts and determining whether the risk has become
personalized even if the claimant was initially a random target. In Pineda
v Canada (Minister of Citizenship and Immigration), 2011 FC 403 [Pineda],
which is factually distinct from the present case, Justice Snider states the
following:
[12] I acknowledge that, on a basic level, the
Applicant is a victim of crime. However, the facts of this case are unusual in
that the Applicant claims to have been personally and directly targeted by
MS-18. The Board did not question the credibility of this aspect of his claim.
In other words, this is not a generalized fear of being targeted by MS-18 just
because the Applicant is a citizen or because of his profile as a doctor. The
nature of the risk he now faces is not the same as the risk he faced prior to
treating the gang member - before he treated the gang member, he was
susceptible to extortion or violence, whereas now he is specifically and
individually targeted for his perceived actions, unlike the general population.
[13] In virtually all of the cases cited by the
Respondent, the applicants were not targeted personally per se. While the gangs
may have known their names, their personal information, and may have even
threatened them or assaulted them on a number of occasions, the nature of the
threat was still generalized. The gang could have gone after anyone with
perceived wealth, or any young person who may be recruited into their gang.
These people were essentially means to an end for the gang members. I doubt
that it really mattered whether person A or person B gave the gang the money
for which they were searching, even if both parties were personally threatened.
Similarly, I doubt that it really mattered whether person C or person D joined
their cause, provided that they continued to increase their membership. The
situation before me is fundamentally different. The Applicant presented a story
to the Board of being at risk because he was perceived to be a person who
"ratted out" an individual gang member.
[44]
The
above case clearly reflects a scenario where the Applicant was specifically and
individually targeted for his perceived actions, unlike the general
population. However, it also establishes that just because gang members may
have known a victim’s name, personal information, or threatened or assaulted
them on numerous occasions, is not for that reason alone sufficient to
personalize the risk (Pineda, above, at para 13; Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213 at para 14 [Acosta]).
[45]
Here,
the RPD considered the only evidence offered by the Applicant as to his
personalized risk, being the fact that he was well-known and that when he was
initially approached, the gang referred to him by his nickname. In my view,
the RPD reasonably found that this alone does not constitute personalized risk.
The very fact that he was well-known, by his own evidence, would explain why
they called him by his nickname and, in any event, case law has held that
reference to a victim’s name and personal information is insufficient by itself
to render the risk personal (Pineda, above; Acosta, above).
[46]
The
RPD reasonably based its finding that there was no personalized risk on the
lack of evidence to support that claim. As Justice Gagné stated in Gonzalez
v Canada (Minister of Citizenship and Immigration), 2013 FC 426 [Gonzalez]
at paras 17-18:
[17] Essentially, our case law indicates that
the alleged risk may [be] personalized either because of its targeted or
unusual nature (as opposed to a random and systematic risk) or because of its
extent. In Perez, above, at paragraph 34, the Court mentioned that
repetitive nature of the threats against the applicants was a continuation of
the extortion and the generalized risk of violence that all citizens of the
country face. Similarly in Pineda, above, at paragraphs 12-15, the Court
determined that the continual threats and assaults against the applicant over
an extended period of time should have been considered by the RPD before it
determined that the applicant was not subjected to a risk greater than the risk
faced generally by the population at large (see also Ventura v Canada
(Minister of Citizenship and Immigration), 2011 FC 1107, at paragraph 19).
In Perez, above, at paragraph 34, Justice Kelen distinguished Pineda by
stating that unlike in that case, "[t]here is no evidence that the maras
personally targeted the applicants or that they face a greater risk then other
small business owners or persons perceived to be relatively wealthy".
[18] In this case, the RPD took into
consideration the fact that there were multiple extortion demands that
sometimes included death threats. However, it was reasonable to find that these
facts were not enough to place the applicants outside the generalized risk of
violence and to demonstrate that, on the balance of probabilities, Mr. Gonzalez
had been targeted by a gang or likely would be in the future. The applicants
did not raise any fact other than those that were noted by the RPD and have not
satisfied me of how, or at what point, their risk became personalized. Given
the absence of such facts, I can only find that the RPD's finding does not fall
"within the range of possible, acceptable outcomes which are defensible in
respect of facts and law" (Dunsmuir v New Brunswick, 2008 SCC 190
at paragraph 47).
[47]
That
is also the situation in this case. This is not a situation where the RPD
failed to consider the individual circumstances of the Applicant and, based on
the evidence before it, the RPD reasonably found that the Applicant did not
face personalized risk of harm but that his risk was generalized and, therefore
fell, within the subsection 97(1)(b)(ii) exclusion.
[48]
As
the finding on generalized risk alone is sufficient to uphold the RPD’s
decision, the state protection issue need not be addressed (Gonzalez Ventura v Canada (Minister of Citizenship and Immigration), 2012 FC 10 at para 62).
[49]
I
also find that while the RPD made several minor errors in its Decision, such as
referring to the risk as one faced generally by the population of “Hungary”, reading
the decision as a whole indicates that these were clerical errors insufficient to
render the Decision void (Adams v Canada (Minister of Citizenship and
Immigration), 2008 FC 256 at paras 17-18; Chen v Canada (Minister of Citizenship and
Immigration),
2012 FC 1218 at para 17).
[50]
The
Decision was reasonable and as such falls within the range of possible
acceptable outcomes and is defensible in respect to the facts and law.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“Cecily Y. Strickland”
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