Date:
20140204
Docket:
IMM-2256-13
Citation:
2014 FC 116
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, February 4, 2014
PRESENT: The Honourable Mr. Justice Simon
Noël
BETWEEN:
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ANTONIO DAVID CESSA
MANCILLAS, JUAN MARIO CESSA CAMACHO ET
MARIA DE LOURDE
CESSA MANCILLAS
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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 ORDER AND ORDER
I. Introduction
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision, dated March
4, 2013, by a member of the Refugee Protection Division (RPD), of the Immigration
and Refugee Board (IRB) of Canada, in which it was determined that the
applicants are neither Convention refugees for the purposes of section 96
of the IRPA, nor persons in need of protection under section 97 of the IRPA.
II. Facts
[2]
Juan Mario Cessa Camacho
(the principal applicant), his son Antonio David Cessa Mancillas and daughter
Maria De Lourde Cessa Mancillas (together, the applicants) are citizens of
Mexico.
[3]
In
February 2008, the principal applicant began receiving threatening calls
from individuals from the Los Zetas criminal gang extorting money from him. At
first the principal applicant ignored the calls, but they started again in June 2008.
The principal applicant then began paying the amounts demanded every month.
[4]
Short
of money, he had to interrupt the payments in September 2008. His driver
was subsequently assaulted and his car later stolen. In December 2008, the
principal applicant told the Zetas that he was bankrupt and, on December
25, 2008, the principal applicant’s daughter was kidnapped and a ransom
(of 3,000,000 pesos) was demanded. The principal applicant sold one of his
businesses and borrowed money to pay the ransom demanded in exchange for his
daughter’s release, which took place on January 1, 2009.
[5]
Faced
with other threats by telephone, the applicants left their hometown, moving
elsewhere in the country and later fleeing the country. The principal applicant
and his daughter arrived in Canada on January 18, 2009, while his son
arrived a month later. The principal applicant’s wife and another son remained
in Mexico. The principal applicant claimed refugee protection on
May 26, 2009, following which his daughter and son did the same on
January 14, 2010, and January 21, 2010, respectively.
III. Impugned
decision
[6]
The
RPD member stated that she was satisfied as to the applicants’ identity.
[7]
The
member indicated that she found the applicants to be credible witnesses with
respect to the events they had experienced in Mexico. Accordingly, she
considered these events to be established facts. Nonetheless, she determined
that the applicants were neither refugees nor persons in need of protection
based on problems related to the applicants’ credibility and because the risk
they faced was not prospective but generalized.
[8]
First,
according to the RPD, the applicants are not refugees because they failed to
establish a nexus between their fear and one of the Convention grounds, given
that having been victims of crime does not constitute a ground for the purposes
of section 96 of the IRPA.
[9]
Second,
the member found that the applicants were not persons in need of protection
because they had not established, on a balance of probabilities, the existence
of a prospective risk. Indeed, the principal applicant acknowledged that he did
not fear being prosecuted and imprisoned for unpaid loans because most of the loans
had in fact been repaid. In addition, the RPD did not believe that the Zetas
would continue pursuing the applicants four years after they had left Mexico, especially
given that the principal applicant no longer had anything left to give them, as
he had in the past. The applicants’ enviable financial situation may have
exposed them to a greater risk at one time, but that was no longer the case
today. Moreover, several members of the applicants’ family had remained in
Mexico since then, for all of these years, without once having been threatened.
The RPD was of the view that if the Zetas really wanted to go after the
applicants, the gang would have gone after other members of their family. Thus,
the applicants had failed to establish that they would be personally subjected
to a danger of torture or a risk to life or a risk of cruel and unusual
treatment or punishment if they were to return to Mexico.
[10]
Furthermore,
the applicants do indeed face a generalized risk for the purposes of
sub-paragraph 97(1)(b)(ii) of the IRPA because it is a risk faced
by anyone living in Mexico, a country that is dealing with a serious crime
problem. Indeed, their membership in a subgroup of the population, namely, the
wealthy, in no way diminishes the reality that the risk of extortion is a
generalized risk in Mexico.
IV. Applicants’
arguments
[11]
The
applicants submit that the decision is unreasonable because the member
contradicted herself regarding the applicants’ credibility, failed to properly
assess the prospective risk they faced and erred in finding that there was a
generalized risk.
[12]
With
respect to credibility, the member specifically stated in the first lines of
the decision that she was satisfied that the applicants were credible
witnesses. How can she, on the one hand, make such a statement, and on the
other, cast doubt on their credibility?
[13]
With
respect to prospective risk, the member never explained why the Zetas criminal
gang would not pursue the applicants; she certainly ought to have supported the
reasoning behind her interpretation of how the gang would react. Moreover,
given that the member had declared the applicants’ testimony to be credible, she
could not then claim that it was “implausible” that the Los Zetas would
continue to threaten the principal applicant by telephone. These are
contradictory findings.
[14]
On
the issue of generalized risk, the member failed to warn the applicants at the
start of the hearing that this would be a determinative issue and did not
question them on the subject. Consequently, the applicants were denied the
opportunity to express themselves with regard to the concept of generalized
risk.
V. Respondent's
arguments
[15]
The
respondent contends that the RPD member’s decision is reasonable.
[16]
First,
on the issue of lack of prospective risk, the applicant argues that the RPD was
required to conduct an objective assessment of risk in order to determine
whether there is an existing or future risk. In this case, the RPD acknowledged
the applicants’ credibility with regard to what had happened to them in the
past, but nothing indicated that they would still be under threat from the criminal
gang four years after having left Mexico. As the RPD stated, the applicants no
longer have anything that is likely to be of interest to the Zetas and
furthermore, numerous people connected to the applicants still live in Mexico
and have never been threatened by this gang. In addition, the applicant himself
confirmed that he no longer feared being imprisoned for unpaid debts.
[17]
Second,
as for the lack of personalized risk, the respondent notes that the fact of
being a victim of crime does not constitute grounds for the purposes of
section 96 of the IRPA and asserts that the applicants failed to establish
that their circumstances were different from those of the rest of the Mexican
population under subparagraph 97(1)(b)(ii) of the IRPA. Therefore,
the member had given consideration to the fact that the applicants had
personally been victims of extortion in the past, but that this did not
establish that they would face a personalized risk today. The principal
applicant himself acknowledged that he had been targeted because of his
financial success. This does not, however, make their risk personalized.
VI. Issues
[18]
This
application raises two issues in dispute:
1. Did
the RPD member err in finding that there was no prospective risk?
2. Did
the RPD member err in finding that there was no personalized risk?
VII. Standard
of Review
[19]
Both
issues raised in this application are reviewable on a reasonableness standard,
given that they involve the application of law to the facts by the member (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47, [2008] SCJ No 9) with regard to both the
issue of prospective risk (see Bondar v Canada (Minister of Citizenship and Immigration), 2010 FC 972
at paras 7-8,
[2010] FCJ No
1214) and that of personalized risk (see Perez v Canada (Minister of Citizenship and Immigration), 2009 FC 1029 at para 24, [2009] FCJ No 1275).
VIII. Analysis
A. Did the RPD
member err in finding that there was no prospective risk?
[20]
The
RPD’s finding regarding the lack of prospective risk is reasonable. As the
respondent noted, in order for their application to succeed, it was up to the
applicants to establish that if they were to return to Mexico they would face
an objective risk to their lives, present or prospective (Bondar v Canada (Minister of Citizenship and Immigration), 2010 FC 972 at para 7, [2010] FCJ No 1214; Canada (Attorney General) v Ward, [1993] 2 SCR 689 at para 47, 103 DLR (4th) 1; Sanchez v Canada
(Minister of Citizenship and Immigration), 2007 FCA 99 at para 15, [2007] FCJ No 336).
[21]
Several
times in their memorandum, the applicants emphasize that the RPD member, in her
decision, acknowledged their credibility as witnesses and that is was therefore
unreasonable for her to later conclude that the were not credible. However, upon
reading the decision, the member clearly did find the applicants credible, but
she also outlined the nature of that credibility: “the panel would like
to point out that it finds that the claimants were credible and trustworthy
witnesses with respect to the events that they experienced in Mexico. [Emphasis
added.] These last six words are important in this sentence as they circumscribe
the credibility granted to the applicants to the events they had already experienced
(in the past). Furthermore, the RPD’s decision in no way questions these past
events, which it deems to be established facts. It is therefore incorrect to
claim that the RPD contradicted itself on the applicants’ credibility in its
decision.
[22]
Thus,
the RPD, which acknowledged the past difficulties experienced by the
applicants, also needed to be satisfied that if they were to return to Mexico
they would face an objective risk, whether present or prospective. However, the
applicants failed to discharge their burden. The applicants state, in their
memorandum of fact and law, that the member had no evidence to establish that
the Zetas criminal gang was after them. This may be true, but neither did she
have any evidence to support the contention that the gang was still after the
applicants, and that is what the applicants had to establish. Indeed, having
regard to the evidence in the record, it was reasonable for the RPD to conclude
that if the Zetas had sought revenge, they would have done something in the past
four years. Yet the applicants’ remaining family members in Mexico have never
had any problems in that regard. In addition, the determination in the decision
with respect to the unlikelihood of the family receiving threats from the Zetas
is, all things considered, reasonable and supports the finding that the
prospective risk advanced by the applicant is implausible. Moreover, given that
the principal applicant had been a victim of extortion, it was reasonable to
believe that, absent any evidence to the contrary, he would no longer be a
target of interest to the criminal gangs because he no longer had anything to
offer them. What is more, the principal applicant has himself acknowledged
having repaid the loans he had taken out in order to pay the ransom. It was
therefore reasonable to infer that, on this point, a return to Mexico would not
pose an objective, present or prospective risk.
[23]
The
lack of evidence regarding a present or prospective risk was sufficient to deny
the claim and the RPD’s finding in that regard is reasonable.
B. Did
the RPD member err in finding that there was no personalized risk?
[24]
The
response to the first issue being determinative to uphold the RPD’s decision –
given that the absence of prospective risk is sufficient to deny a claim for
refugee protection – this Court is under no obligation to answer the
second issue in dispute. However, for reasons of thoroughness and clarity, I
would like to add the following clarifications included below.
[25]
As
the respondent has argued, even if the applicants had been able to establish
that they would be subjected to a risk if they were to return to Mexico, the
risk they allege in these proceedings does not make them refugees or persons in
need of protection. Indeed, the applicants assert that they were victims of
extortion and acknowledge having been targeted by criminals because of their
affluence. But the case law has already established that being a victim of
crime does not constitute a ground of persecution under section 96 of the IRPA
(see, for example, ML v
Canada (Minister of Citizenship and Immigration), 2009 FC 770 at para 15, [2009] FCJ No 931). Furthermore, Madam
Justice Gagné, in Gonzalez
v Canada (Minister of Citizenship and Immigration), 2013 FC 426 at
para 16, [2013] FCJ No 483, stated the
following on the subject of wealthier victims:
16. … nothing in the evidence
indicates to me that the RPD should have determined that the prospective risk
that the applicants would face, if they were to return to their country, would differ
from the risk facing all wealthy citizens. In other words, the simple fact that
the risk materialized in the past, in a relatively random manner, does not make
it a prospective personalized risk.
The same can be said of this case,
given that the evidence in the record does in fact state that extortion is a
fairly common practice in Mexico that is not targeted at anyone in particular.
The entire population of Mexico are potential victims. In addition, for the
purposes of subparagraph 97(1)(b)(ii) of the IRPA, the applicants
had to demonstrate that they faced a personalized risk that was not also
generally faced by others in the country, which they failed to do in this case.
[26]
I
would further add that the fact that the RPD failed to indicate at the beginning
of the hearing that generalized risk was to be one of the subjects addressed is
not fatal to the decision. It simply shows that generalized risk was discussed
even though it was not necessary to have done so. Indeed, the determination
regarding the lack of evidence of any present or prospective risk was
determinative.
[27]
In
short, even if the RPD had been persuaded that the applicants would face a
prospective risk, the risk invoked by them was not, in light of the record, a personalized
risk. This is why the RPD’s finding regarding the lack of personalized risk in
this case is reasonable.
[28]
Accordingly,
the decision of the RPD member in this case is reasonable and does not warrant
the intervention of the Court.
[29]
The
parties were invited to submit a question for certification, but none was
submitted.
ORDER
THE COURT ORDERS AND
ADJUDGES that the application for judicial review be dismissed. No question
is certified.
“Simon Noël”
________________________
Judge
Certified
true translation
Sebastian
Desbarats, Translator
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