Docket: IMM-12646-12
Citation:
2014 FC 642
Ottawa, Ontario, July 2, 2014
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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MARIO SALVATORE BOZZETA ORE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
INTRODUCTION
[1]
This is an application under s. 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 of the Immigration and Refugee
Board [RPD or the Board], dated November 8, 2012 [Decision], which refused the
Applicant’s application to be deemed a Convention refugee or a person in need
of protection under s. 96 and 97 of the Act.
BACKGROUND
[2]
The Applicant is a citizen of Peru who came to Canada on September 27, 2011 after suffering threats, violence and extortion at the
hands of a criminal gang, Los Malditos de Atahualpa. He made a claim for
refugee protection at Fort Eerie upon his arrival, but this claim was rejected
by the RPD on November 8, 2012. The Board found that the Applicant’s reasons
for fleeing Peru had no nexus to a Convention ground of protection, and that
the risk he faced in Peru was a generalized risk, making him ineligible for
protection pursuant to s. 97(1)(b)(ii) of the Act.
[3]
The basic facts are not in dispute. The
Applicant was working as a taxi driver in Callao, Peru in February 2011 when
two men hired him to take them to Lima. The Applicant says he recognized one of
the men as a former school mate. On the way, they put a gun to his head, beat
and robbed him and stole the taxi. They threatened to kill him if he went to
the police, and left him on the side of the road. The Applicant was picked up
by a passer-by and taken for medical care. He reported the incident to the
police at the insistence of the taxi owner, who went along to attest to the
Applicant’s story. The Applicant’s submissions to the RPD included a police
report dated February 21, 2011 describing these events, as well as a medical
report describing the head injuries he received on February 20, 2011.
[4]
On March 22, 2011, the Applicant received a
phone call from the perpetrators demanding $10,000 and threatening to kidnap
one of his children if he did not comply. As he did not have the money, he
decided to go to live at his aunt’s home in Chancha Mayo. The Applicant says in
his Personal Information Form [PIF] that a man attempted to kidnap one of his
children as they were leaving school on May 6, 2011, but was thwarted by the
quick reaction of some other parents. The Applicant’s common law wife reported
this to the police the same day. The police report says the perpetrator said “tell your father that we are going to kill him” and
that he came on behalf of “Morote,” one of the men who stole the taxi. After
this, the Applicant returned home as his children were afraid.
[5]
The record includes another police report dated
May 15, 2011 describing an attack on the Applicant by two inebriated men who
also said they came on behalf of “Morote.” They beat him, threatened his life,
and demanded that he withdraw the report about the car theft. A police officer
attended the scene but was unable to locate the perpetrators. The police took
the Applicant to the hospital, and the record includes a medical report dated
May 15, 2011 citing “trauma due to blows.”
[6]
On June 1, 2011, the Applicant took his family
to live in Huanchaco, Trujillo, thinking they would be safer, but he says the
perpetrators found them there. They harassed his family while he was at work
and said they were going to kill him because he had gone to the police. The
Applicant and his wife went to ask the police about progress in their
investigation, but were told there were no results yet and theirs was not the
only report the police had to investigate. They decided to return to Callao, as they were “going from place to place without protection.”
[7]
Finally, on July 30, 2011, the Applicant was
attacked outside a supermarket by two men who beat him and tried to put him in
a car. He escaped with the help of some bystanders who came to his aid. He
provided a police report of the same date to the RPD. It says that the men, one
of whom was “Morote,” pointed a revolver at his head, threatened to kill him,
and demanded he withdraw the report about the car theft.
[8]
The Applicant left Peru soon after this, on
August 18, 2011, and travelled to Canada through Mexico and the United States. He says he is afraid to return to Peru because his life is in danger and the
authorities there do not have the means or the will to protect him.
DECISION UNDER REVIEW
[9]
The RPD identified the determinative issues in
the claim as nexus and generalized risk. It found that the Applicant had been a
victim of crime, which did not provide a nexus to a Convention ground of
refugee protection. The claim was therefore analyzed under s. 97 of the Act.
The Board found that the Applicant faced a generalized risk and was excluded
from protection pursuant to s. 97(1)(b)(ii).
[10]
The Board noted that when asked why he was
targeted, the Applicant acknowledged that he would have been perceived to have
money. He testified that the perpetrators believed that he owned the taxi, and
when asked if the gang members would target any taxi driver he replied that
they kill cab drivers and are in the business of extorting. He said they were
hired killers who extort, and if you do not accede to their demands, the
consequences follow. The Board therefore found that “[t]he
fears of the claimant relate to the fact that he did not pay the extortion
demand, and moreover, he reported the perpetrators to the police.”
[11]
The Board cited statistics showing that crime is
high and increasing in Peru, including homicides and drug trafficking. It
considered the documentary evidence and found that:
[18] Documentation in the National
Documentation Package on Peru supports that there are gangs that operated in
the vicinity where the claimant lived. It is clear from the evidence that there
are risks associated with living in Honduras [sic] and particularly with being
perceived as prosperous. Extortion is part of the gang culture, according to
the documentary evidence, and unfortunately violence accompanies this. The risk
that the principal claimant faces is as a consequence of his departure from Peru and his failure to accede to the extortion demands and the fact that he reported the
perpetrators to the police.
[12]
The RPD cited several cases from this Court –
including Paz Guifarro v Canada (Citizenship and Immigration), 2011 FC
182 [Paz Guifarro], Ventura De Parada v Canada (Citizenship and
Immigration), 2009 FC 845 [De Parada], Prophète v Canada
(Citizenship and Immigration), 2008 FC 331 [Prophète (FC)], Ramirez
Aburto v Canada (Citizenship and Immigration), 2011 FC 1049, Chavez
Fraire v Canada (Citizenship and Immigration), 2011 FC 763, and Flores
Romero v Canada (Citizenship and Immigration), 2011 FC 772 – and found that
these cases supported the view that the Applicant faces a generalized risk. The
Board found that:
[24] The act of criminality is established
on the demand of payment and implicit or explicit threat of reprisal for
failure to pay. The fact that the threat is implemented or the victim reports
the extortion does not bring them outside of the operative words of subsection
97(1)(b)(ii), namely whether the threat they face is generalized. The
preponderance of caselaw follow the foregoing cases. Though certain groups may
be targeted more frequently or repeatedly [emphasis in original] because
of their perceived wealth, occupation, or business ownership, for example,
everyone tin the country is deemed at risk because of the general conditions
there.
CONCLUSION
[25] The Board concludes that the claimant
had extortion demands placed on him as he was perceived to have money.
Moreover, what transpired as a consequence was directly related to the fact
that he did not accede to those demands, and also reported the criminality to
the police.
[13]
In light of these findings, the Board found that
the Applicant was not eligible for protection pursuant to s. 97(1)(b)(ii), “as his fears of the above noted gang, as a business owner, is
a risk faced generally by others in Peru.”
ISSUES
[14]
The sole issue in this proceeding is whether the
Board erred in its interpretation and application of the concept of
“generalized risk” under s. 97 of the Act.
STANDARD OF REVIEW
[15]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] 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 settled in a satisfactory
manner by past jurisprudence, the reviewing court may adopt that standard of
review. Only where this search proves fruitless, or where the relevant
precedents appear to be inconsistent with new developments in the common law
principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[16]
While there is mixed jurisprudence on this point
(see Portillo v Canada (Citizenship and Immigration), 2012 FC 678 [Portillo]),
I think the preponderance of authority is that the RPD’s interpretation and
application of s. 97(1)(b) of the Act regarding whether a claimant faces a
“generalized risk” is subject to review on a standard of reasonableness: see Paz
Guifarro, above, at paras 18-19; Lozano Navarro v Canada (Citizenship
and Immigration), 2011 FC 768 at paras 15- 16; Garcia Vasquez v Canada
(Citizenship and Immigration), 2011 FC 477 at paras 13-14; contra Innocent v Canada (Citizenship and Immigration),
2009 FC 1019 at paras 36-37 [Innocent].
[17]
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 para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
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
[18]
The following provisions of the Act are
applicable in these proceedings:
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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,
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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 :
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(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
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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;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
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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
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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 :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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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;
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(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(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,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(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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ARGUMENT
Applicant
[19]
The Applicant argues that the Board erred in its
interpretation of the concept of generalized risk, particularly in light of
this Court’s most recent decisions on this issue.
[20]
The Applicant notes that the Board specifically
accepted that the risks he faces are a consequence of his departure from Peru,
his failure to accede to extortion demands, and the fact that he reported the
perpetrators to the police (Decision at para 18), but found nevertheless that
the risk was generalized (Decision at para 24). He argues that this is
precisely the type of reasoning that has been rejected by this Court in a
number of recent cases, where the Court has found that it is problematic to
find that an individual has been specifically targeted and then go on to
conclude that they face a generalized risk: see Kaaker v Canada (Citizenship
and Immigration), 2012 FC 1401 at paras 47-49 [Kaaker]; Malvaez v
Canada (Citizenship and Immigration), 2012 FC 1476 at paras 12, 16, 23 [Malvaez].
The Applicant says these cases are more recent than those relied upon by the
Board, none of which was more recent than 2011.
[21]
The Applicant says that the Board made no
negative credibility findings, and accepted that he was targeted and was at
risk. He argues that according to the cases cited above, an interpretation of
s. 97 that would deny him protection despite these facts is not in keeping with
the intent of that provision, empties it of any application in the criminal
context, and is simply wrong.
Respondent
[22]
The Respondent argues that the Board reasonably
concluded that the risk of extortion the Applicant faces is a generalized one
in Peru. In the Respondent’s view, it is well-established at law that in a
country where crime is prevalent, victims of crime are usually deemed to be at
“generalized risk” and do not qualify for protection: Prophète v Canada
(Citizenship and Immigration), 2009 FCA 31 at para 10; Innocent,
above, at paras 66-67.
[23]
Contrary to the Applicant’s submissions, the
Board did not find that he was specifically targeted by the gang, the
Respondent says. Rather, it found that he was extorted because he was a
business owner who was perceived to have money, which is a risk faced generally
by others in Peru, and that the incidents that consequentially occurred were
directly related to his refusal to accede to the extortion demands as well as
his reports to the police. Thus, the Board did not find that he was being
specifically or personally targeted as was found in Portillo, Kaaker,
or Malvaez, all above. It found that he refused to pay an extortion
amount, reported his perpetrators to the police, and faced risk as a
consequence of doing so. As found in Wilson v Canada (Citizenship and Immigration), 2013 FC 103 at paras 5-8 [Wilson], the Applicant’s
refusal to pay and the subsequent violence he experienced is “part of the ongoing criminal act of extortion” (at para
5). It was reasonable for the Board to find that the Applicant faces a
generalized risk since anyone who refuses extortion demands would be subject to
reprisals. Moreover, even if an applicant has been “personally
and directly targeted” on occasion, this does not by itself mean that
the risk is not generalized in nature: see Fernandez Ramirez v Canada (Citizenship and Immigration), 2012 FC 69 at para 20 [Ramirez]; Olmedo Rajo v Canada (Citizenship and Immigration), 2011 FC 1058 at paras 34-36 [Olmedo Rajo].
[24]
The Respondent argues that a determination under
s. 97(1)(b)(ii) is highly dependent on the particular facts of the case. In the
Respondent’s view, it is apparent that the Board understood the facts of the
claim and reasonably found that the Applicant faced a generalized risk faced by
others in Peru: Rodriguez v Canada (Citizenship and Immigration), 2012
FC 11 at para 77 [Rodriguez]; Innocent, above, at paras 38-42.
Applicant’s Reply Submissions
[25]
The Applicant argues that, contrary to the
Respondent’s assertions, the Board did find that he had been personally
targeted. This was inherent in the Board’s finding that the Applicant faces a
risk because he did not accede to the gang’s extortion demands and reported the
perpetrators to police. The only way for the RPD to have found that the
Applicant was not specifically targeted would have been to make negative
credibility findings, which it did not do.
[26]
The Applicant says it is absurd to find that a
refugee claimant has been personally targeted, and is at risk, but yet should
be denied protection. He quotes Justice Shore’s observation that “[t]he risk of an individual who is being targeted is
qualitatively different from the risk of an individual who has a strong
likelihood of being targeted” (Balcorta Olvera v Canada (Citizenship and Immigration), 2012 FC 1048 at para 40 [Balcorta Olvera],
quoted in Kaaker, above, at para 49). The Applicant submits that the
Board’s Decision is contrary to the case law and the intention of s. 97, and
should therefore be set aside.
ANALYSIS
Background
[27]
This application raises a difficult issue that
the Court has had to deal with many times: under s. 97(1)(b)(ii) of the Act,
when is a risk faced personally by an applicant a risk that is “not faced
generally by other individuals” in or from the applicant’s country of former
habitual residence?
Former Divergence
[28]
As several members of the Court have observed,
two “lines” or “branches” of cases have emerged with respect to whether, or in
what circumstances, individuals targeted by criminal gangs for extortion or
forced recruitment will qualify for protection under s. 97(1)(b) of the Act:
see Portillo, above at paras 37-39 (Gleason); De Jesus Aleman Aguilar
v Canada (Citizenship and Immigration), 2013 FC 809 at paras 61-62
(Strickland) [Aleman Aguilar]; Kaaker, above at para 46 (Shore).
[29]
In Portillo, above, Justice Gleason
observed at paras 38-39:
[38] On one hand, in several cases similar
to the present, the Court has overturned RPD decisions where the claimant had
been personally targeted for violence by one of the criminal gangs operating in
Central or South America (see e.g. Pineda (2012); Lovato v Canada
(Minister of Citizenship and Immigration), 2012 FC 143 at para 7, [2012]
FCJ No 149 (Rennie) [Lovato]; Guerrero v Canada (Minister of
Citizenship and Immigration), 2011 FC 1210, [2011] FCJ No 1477 (Zinn) [Guerrero];
Dias v Canada (Minister of Citizenship and Immigration), 2011 FC 705,
[2011] FCJ No 914 (Beaudry); Gomez v Canada (Minister of Citizenship and
Immigration), 2011 FC 1093, [2011] FCJ No 1601 (O'Reilly) [Gomez]; Uribe
v Canada (Minister of Citizenship and Immigration), 2011 FC 1164, [2011]
FCJ No 1431 (Harrington); Vasquez v Canada (Minister of Citizenship and
Immigration), 2011 FC 477, [2011] FCJ No 595 (Scott) [Vasquez]; Barrios
Pineda v Canada (Minister of Citizenship and Immigration), 2011 FC 403,
[2011] FCJ No 525 (Snider) [Barrios Pineda]; Zacarias v Canada
(Minister of Citizenship and Immigration), 2011 FC 62, [2011] FCJ No 144
(Noël) [Zacarias]; Munoz v Canada (Minister of Citizenship and
Immigration), 2010 FC 238, [2010] FCJ No 268 (Lemieux) [Munoz]; Pineda
v Canada (Minister of Citizenship and Immigration), 2007 FC 365, [2007] FCJ
No 501 (de Montigny) [Pineda (2007)]).
[39] Opposite conclusions were reached in
the other group of cases, where the Court upheld the RPD's decisions in
situations where gangs made threats of future harm to the claimants but the
threats were found to be insufficient to place the claimant at any greater risk
than others in the country (see e.g. Rodriguez v Canada (Minister of
Citizenship and Immigration), 2012 FC 11, [2012] FCJ No 6 (Russell); Rajo
v Canada (Minister of Citizenship and Immigration), 2011 FC 1058, [2011]
FCJ No 1277 (Kelen); Chavez Fraire v Canada (Minister of Citizenship and
Immigration), 2011 FC 763, [2011] FCJ No 967 (Zinn); Baires Sanchez v
Canada (Minister of Citizenship and Immigration), 2011 FC 993, [2011] FCJ
No 1358 (Crampton); Guifarro; and Carias v Canada (Minister of
Citizenship and Immigration), 2007 FC 602, [2007] FCJ No 817 (O'Keefe)). In
several of these cases, however, the RPD did not make a determination like it
did in the present case to the effect that the applicant had been personally
targeted and was at risk of death. Thus, the two lines of cases do not
necessarily conflict with each other.
[30]
One could add the following to the first list: Castaneda
v Canada (Minister of Citizenship and Immigration), 2011 FC 724 (Hughes); Portillo,
above; Malvaez, above (Martineau); Balcorta Olvera, above
(Shore); Tomlinson v Canada (Citizenship and Immigration), 2012 FC 822
(Mactavish); Escamilla Marroquin v Canada (Citizenship and Immigration),
2012 FC 1114 (Rennie); Kaaker, above; Roberts v Canada (Citizenship
and Immigration), 2013 FC 298 (Gagné); Hernandez Lopez v Canada
(Citizenship and Immigration), 2013 FC 592 (Roy); Aleman Aguilar,
above; De La Cruz v Canada (Citizenship and
Immigration), 2013 FC 1068 (de Montigny), among others.
[31]
The following cases, among others, could be
added to the second list: Vickram v Canada (Citizenship and Immigration),
2007 FC 457 (de Montigny); Prophète (FC) (Tremblay-Lamer); Cius v
Canada (Citizenship and Immigration), 2008 FC 1; Rodriguez Perez v
Canada (Citizenship and Immigration), 2009 FC 1029 (Kelen) [Perez (2009)];
Acosta v Canada (Citizenship and Immigration),
2009 FC 213 (Gauthier); De Parada, above (Zinn); Perez v Canada
(Citizenship and Immigration), 2010 FC 345 (Boivin); Palomo v Canada
(Citizenship and Immigration), 2011 FC 1163 (Harrington); Ascencio
Ventura v Canada (Citizenship and Immigration), 2011 FC 1107 (Near) [Ventura];
Ramirez, above (Shore); Triqueros Ayala v Canada (Citizenship and
Immigration), 2012 FC 183 (Hughes); Wilson, above (Simpson); De
Munguia v Canada (Citizenship and Immigration), 2012 FC 912 (O’Keefe) [De
Munguia]; Neri v Canada (Citizenship and Immigration), 2013 FC 1087
(Strickland).
[32]
As I recently pointed out in Correa v Canada (Citizenship and Immigration), 2014 FC 252 at para 45 [Correa], the
differences between these two lines of cases arise both from different facts
and different approaches to interpreting and applying the language of s.
97(1)(b)(ii). I agree with Justice Gleason that whether or not personal
targeting is found to have occurred has been an important and even decisive
factor in many cases, but there have also been cases where a denial of the
claim has been upheld despite a finding of personal targeting or circumstances
that clearly demonstrate it. The Respondent in the present matter cites several
examples, including Rodriguez, Wilson, Ramirez, and Olmedo
Rajo, all above. I rely here upon the analysis provided in Correa,
above, for the assessment of the relevant jurisprudence.
[33]
My conclusion in Correa, above, was that
while a full consensus has yet to emerge, I think that there is now a
preponderance of authority from this Court that personal targeting, at least in
many instances, distinguishes an individualized risk from a generalized risk,
resulting in protection under s. 97(1)(b). Since “personal targeting” is not a
precise term, and each case has its own unique facts, it may still be the case
that “in some cases, personal targeting can ground
protection, and in some it cannot” (Rodriguez, above, at para 105
quoted with approval in Pineda v Canada (Minister of Citizenship and
Immigration), 2012 FC 493 at para 16. However, in my view, there is an
emerging consensus that it is not permissible to dismiss personal targeting as
“merely an extension of,” “implicit in” or “consequential harm resulting from”
a generalized risk. That is the main error committed by the RPD in this case,
and it makes the Decision unreasonable.
Application to the Facts of this Case
[34]
There were no adverse credibility findings and
the Board accepted that the Applicant had:
(a) Been extorted and robbed at
gunpoint in the taxi;
(b) Made denunciations to the police;
(c) Been extorted again with the
threats to take his children;
(d) Gone to the police again; and
(e) Been assaulted
on July 30, 2011 and had escaped from his assailants who tried to put him into
a car.
[35]
The Board also accepted that the extortionists
knew he had gone to the police.
[36]
The core of the Board’s analysis is found in
paragraphs 24 to 26 of the Decision:
[24] The act of criminality is established
on the demand of payment and implicit or explicit threat of reprisal for
failure to pay. The fact that the threat is implemented or the victim reports
the extortion does not bring them outside of the operative words of subsection
97(1)(b)(ii), namely whether the threat they face is generalized. The
preponderance of caselaw follow the foregoing cases. Though certain groups may
be targeted more frequently or repeatedly because of their perceived
wealth, occupation, or business ownership for example, everyone in the country
is deemed at risk because of general conditions there.
CONCLUSION
[25] The Board concludes that the claimant
had extortion demands placed on him as he was perceived to have money.
Moreover, what transpired as a consequence was directly related to the fact
that he did not accede to those demands, and also reported the criminality to
the police.
[26] The following general principles
apply. A generalized risk need not be experienced by every citizen in the
county. The word “generally” is commonly used to mean “prevalent” or
“widespread.” Other general principles that have been accepted by the Federal
Court include repeated victimization, continued pursuit for not complying with
the demands, and retaliations after reporting the perpetrators to the police.
[emphasis in orginal] [footnotes not produced]
[37]
It is clear that the Board classifies the risk
that the Applicant faces as “general” because the Applicant was initially
extorted as someone perceived to have money, and goes on to find that “what transpired as a consequence was directly related to the
fact that he did not accede to those demands, and also reported the criminality
to the police.”
[38]
This line of reasoning has been rejected by the
Court. See Correa, above.
[39]
As the transcript makes very clear, the risk
that the Applicant fears is death at the hands of the gang who extorted and
attacked him. He does not fear extortion. The Board does not question the
objective basis for the Applicant’s fear of death but appears to accept this as
a general risk. The threat to the Applicant’s life has moved well beyond the
general to the specific threat of death. The Board fails to appreciate this and
the matter needs to be reconsidered in light of the more recent jurisprudence
of the Court.
[40]
Counsel agree that there is no question for
certification and the Court concurs.
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