Docket: IMM-2847-13
Citation: 2014 FC 124
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, February 14,
2014
Present: The Honourable Mr. Justice Annis
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BETWEEN:
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JACINTO YAU WAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
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 by the Refugee Protection
Division (the panel) of the Immigration and Refugee Board, dated March 11, 2013
(the decision) rejecting the applicant’s refugee claim. The applicant seeks to
have the decision set aside and referred back before a differently constituted
panel.
II. Background
[2]
The applicant, a citizen of Panama of Chinese ethnicity,
was born in China with a mixed Chinese/Panamanian father and he immigrated to
Panama at around age 30, where he married and had four daughters with his wife.
He bought and operated a hardware business that specialized in expensive power
tools in a disadvantaged neighbourhood 10 kilometres from the capital city. Between
2003 and 2009, his business was robbed eight times by Panamanian criminal gangs
and the Chinese mafia. He allegedly made a complaint to the police, in vain.
[3]
In February 2009, during a robbery where he was
allegedly beaten and his daughter kidnapped, the applicant signed an
acknowledgment of debt for the amount of $50,000 USD, payable in June 2009.
[4]
In March 2009, the applicant and his daughter
travelled to the United States where they applied for and obtained a Canadian
visa for six months. In May 2009, they arrived in Toronto, Canada. In June
2009, they went to Montreal, where the applicant’s three other daughters and
his wife joined them. They claimed refugee protection, alleging that they
feared the Panamanian criminal gangs and the Chinese mafia who wanted to extort
money from the applicant's business.
III. Impugned
decision
[5]
The panel decided that the applicant was not
targeted because of his Chinese ethnicity, but rather because he was seen as a
businessman who is a source of illegal and rapid gains. The panel's view is
that the applicant’s Chinese race and ethnicity are not at issue in the
numerous robberies that he was subject to, especially considering that one of
the agents of harm identified, the Chinese mafia, was of the same ethnicity as
the applicant and his family. The panel noted that the applicant had not proven
that his alleged fear, that of being found by the Chinese mafia because he had
signed an acknowledgment of debt of $50,000 and that of being killed because he
had not paid that debt, had a link with one of the five Convention grounds and
section 96 of the IRPA.
[6]
By conducting an analysis under section 97 of
the IRPA, the panel noted that the applicant's testimony was consistent and
unexaggerated and that he appeared credible. With respect to paragraph 97(1)(b)
of the IRPA, the panel found that while the applicant was personally exposed to
a risk because of the acknowledgment of debt that he signed, his risk would not
be different from that of the other merchants who were the numerous victims of
the greed of the Panamanian criminal gangs. This means that the applicant's
fear is the same as a large sub group of the population, i.e. the merchants. This
fear that the applicant would be exposed to is thus a generalized risk, the
same as the population would be exposed to or at least those who are perceived
as being able to provide the criminals with a rapid source of illegal gains
through extortion.
[7]
However, the panel determined that the fear of
the applicant's young daughters is different from their father's, in that they
are of Chinese ethnicity and their names and physical appearance are characteristics
and make them easily identifiable as part of the Chinese community. The
evidence on the record shows that criminal gangs in Panama specialize in
kidnapping children of Asian businessmen that may afterward be found killed. Thus,
their fear is linked with two of the five Convention grounds, that of race and
belonging to a particular social group, the family. Further, their alleged
fear, i.e. being kidnapped and murdered, constitutes persecution.
[8]
The evidence on file shows that protection in
Panama would not be adequate given the inertia of the police when the applicant
complained relating to his Chinese ethnicity and the treatment of Chinese
persons and their children by the authorities and the population. Moreover, the
risk that the applicant's daughters run would be the same throughout Panama,
considering that there is no location in Panama where the applicant's daughters
could seek refuge without the serious possibility of facing persecution.
[9]
Therefore, the panel found that applicant's
daughters are Convention refugees.
IV.
Issue
Is
the panel’s decision that the applicant does not face a personalized risk under
section 97 of the IRPA reasonable?
V. Standard of review
[10]
A decision of the panel
regarding whether the perception of richness is a particular risk under section
97 is a question of mixed fact and law that is reviewable on a standard of reasonableness
(see e.g. Acosta v Canada (Minister of Citizenship and Immigration),
2009 FC 213 at para 9, [2009] FCJ No 270 (QL); Pineda v Canada (Minister of
Citizenship and Immigration), 2012 FC 493, at para 5, [2012] FCJ No 520
(QL) (Pineda)).
VI. Parties'
submissions
The
applicant
[11]
The applicant refers to paragraph 15 of Pineda
v Canada (Minister of Citizenship and Immigration) 2007 FC 365 [2007] FCJ No 501, for the notion that “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 personalized risk if he were to return to [his
country of origin].” In this case, the fact that the applicant signed an acknowledgment
of debt means that he is exposed to a personal risk. The applicant argued that
since Panama is a very small country it would be very easy for the Chinese
mafia to find him.
The respondent
[12]
The respondent argues that the victims of crime
are not a social group within the meaning of the Convention, based on Rizkallah
v Canada (Minister of Employment and Immigration), (1992) 156 NR 1 (FCA).
[13]
As for the notion of generalized risk versus personalized
risk, the respondent refers to Prophète v
Canada (Minister of Citizenship and Immigration), 2008 FC 331, [2008] FCJ No 415 (QL), rendered
by Justice Tremblay-Lamer, which was affirmed by the Court of Appeal, for the
principle that the Court may be faced with an individual who may be exposed to
a personalized risk, but a risk shared with several other individuals, and that
in such a situation the risk is general, although a specific number of individuals
may be targeted by such a risk.
[14]
The applicant alleged that he faces a
personalized risk because of the fact that he signed an acknowledgment of debt.
The respondent submitted that the simple fact that the applicant had personally
been the victim of crime in Panama does not mean that he is entitled to protection
under section 97 of the IRPA. It is up to the applicant to show
that other individuals who find themselves in a similar situation are not generally
exposed to the same risk. In this case, it is a generalized risk that other
persons in the same neighbourhood are exposed. The fact that the applicant signed
an acknowledgment of debt does not mean that his situation differs from that of
the other citizens of Panama.
[15]
The fact that the applicant had been a victim of
a widespread problem in Panama and that he did not demonstrate that he was personally
targeted, i.e. for reasons other than pecuniary, means that the panel was right
to find that his risk was generalized.
VII. Analysis
[16]
The determination of the panel’s facts and
findings as to the degree of personalized risk under subparagraph 97(1)(b)(ii)
of the IRPA were summarized in paragraphs 13 and 17 of its decision as follows:
[translation]
[13] The applicant’s testimony contained the
following elements: the applicant fears the Chinese and Panamanian criminal
gangs because they targeted him for the purpose of stealing his money. He is
perceived, as are the other merchants, as a source of
illegal and rapid gains.
His Chinese race and ethnicity are not at issue in the numerous robberies of
which the applicant and his family were victims, as one of the agents of harm
identified, the Chinese mafia, was of the same ethnicity as the applicant and
his family. The applicant did not testify that he had a fear related to his
Chinese ethnicity.
…
[17] After analyzing the documentary and testimonial evidence, the panel,
who conducted an analysis under paragraph 97(1)(b) of the IRPA, is of
the view that the applicant would face a generalized risk if he were to return
to Panama, since he did not establish, despite his personal circumstances, that
his risk would be different than that of the other merchants, with any mistaken
ethnicity, who are also at risk with criminal gangs.
[17]
Although the applicant and his family were
seriously threatened, I find that the panel’s decision falls within the range
of reasonable and acceptable outcomes by finding that the risk that the
applicant would face is not sufficient to distinguish it from the other
merchants who were subject to extortion by gangs in the exclusion described
under subparagraph 97(1)(b)(ii) of the IRPA.
[18]
As a general comment on this issue, I do not
think that the method used to extort money, i.e obligating the applicant to
sign a promissory note, should be analyzed in such cases. Extortion through threats
of violence does not really differ from the application of force by any means when
goods or money are unlawfully stolen or will be stolen.
[19]
We must also remember that most of the crimes are
personalized by their very nature. The crime of extortion, which is raised in
the context of refugee claims, is based on personalized threats of severe
violence or of cruel or unusual treatment, so as to induce the victim’s payment
by causing him to fear for his life. In a country such as Panama where
extortion is endemic, the issue is whether the personalized threats raise a sufficient
risk to distinguish the applicant’s situation from that of the general
population.
[20]
Because crimes of extortion based on violence or
threats of violence are always “personalized", the use of this term to describe
the exceptional risk described in subparagraph 97(1)(b)(i) may
create confusion. Subparagraph 97(1)(b)(ii) speaks of a risk that
must be superior to those experienced generally by the other persons who are
part of the same group as the applicant. In this case, the group that the
applicant belongs to is the merchants in Panama.
[21]
The question that the panel addressed in this
matter was whether the applicant had provided sufficient evidence to meet his
burden of showing that the crime of extortion that he was facing represented a
threat to his life or a risk of cruel and unusual treatment sufficient to
differentiate it from the risk that the other owners of businesses in the
country experienced, which also subject to extortion by gangs.
[22]
Therefore, the key element in such cases involving
threats or future dangers is the evaluation of risk in relation to that
suffered by the general population, victim of the same offence.
[23]
Gomez v Canada (Minister
of Citizenship and Immigration), 2011 FC 1093, [2011] FCJ No 1601 (QL), is a
particularly appropriate case that shows the process of risk assessment in such
circumstances. Specifically, the fact that Mr. Gomez had signed a promissory
note of $50,000 for his attackers, because they kidnapped his wife and
daughters, means that the matter is relevant insofar as it resembles the circumstances
of this case. I quote paragraphs 34 to 38:
[34]
The applicants also suggest that where a risk exists for the entire population,
that risk is no longer generalized if a person is individually targeted (Pineda
v Canada (Minister of Citizenship and Immigration), 2007 FC 365 [Pineda]).
Similarly, a claimant who has been targeted personally by a known adversary no
longer qualifies as a victim of “random” threats and extortion (Munoz v
Canada (Minister of Citizenship and Immigration), 2010 FC 238).
[35]
Justice Paul Crampton recently considered the analysis to be applied to these
types of claims (Guifarro v Canada (Minister of Citizenship and
Immigration), 2011 FC 182 [Guifarro]). In Guifarro, the
claimant was a victim of extortion by the Mara-18 in Honduras. After he stopped
paying the gang, gang members assaulted him.
[36]
According to Justice Crampton, the Board does not err when it rejects an
application for protection under s 97 after finding that the alleged risk is
shared by a sub-group of the population that is sufficiently large that the
risk can reasonably be characterized as being widespread or prevalent in that
country. This result is valid even where that sub-group of persons may be
specifically targeted, such as persons perceived to be wealthy.
[37]
Similarly, Justice Michael Kelen has observed in Perez v Canada (Minister
of Citizenship and Immigration), 2009 FC 1029 at para 34 [Perez 2],
that when a claimant is initially harassed by a criminal gang because he or she
owns a business, and then receives a threat for failing to pay money to the
gang, this is simply a continuation of the extortion, not a personalized risk.
[38] In my view, the
circumstances of this case are closer to Pineda and Munoz, above,
than to Guifarro and Perez 2, above. The applicants were
originally subjected to threats that are widespread and prevalent in El
Salvador. However, subsequent events showed that the applicants were
specifically targeted after they defied the gang. The gang threatened to kidnap
Mr. Tobias Gomez’s wife and daughter, and appear determined to collect the
applicants’ outstanding “debt” of $40,000. The risk to the applicants has gone
beyond general threats and assaults. The gang has targeted them personally.
[24]
As already noted above, I do not think that it
is useful to speak of a threshold of risk that is reached where the life of an
applicant is targeted “personally” because of the confusion created by this
standard. In my view, the panel’s task is to determine whether there is
sufficient evidence to find that the attackers will carry out the threats in a
way that differentiates the applicant’s situation and that generally faced by
the other individuals who experienced less concrete threats of violence.
[25]
However, it is not because of the wording of the
threshold of risk that I chose not to apply Gomez, above, to this matter,
but rather for two other reasons. First, I would like to distinguish the facts of
Gomez, above, that seemed to have foreshadowed a greater risk for the
applicant than in this case. I reproduce the facts of Gomez, above, so
as to compare them to the facts of this case:
[8]
In August 2008, a Mara-18 member threatened to kidnap his daughter, Daniela.
The next month, Mr. Tobias Gomez claims he received a telephone call informing
him that the head of the gang wanted $50,000 or the gang would kidnap his wife
and daughters. Gang members subsequently visited the store to remind him to pay
the $50,000.
[9]
Luis also claims that the gang threatened him. In 2008, he was approached by a
gang member who told him that he knew where he lived and went to school. Luis
claims that gang members followed him home, demanded that he join the gang, and
threatened him with death if he refused. When he resisted, they punched him.
Luis also claimed he was abducted at gunpoint and threatened that if he did not
join the Mara-18 within 24 hours, he would be shot. Luis went into hiding until
September 2008 when he fled to the United States.
[10] That same
month, the other applicants left El Salvador for the United States. While
there, they learned that gang members had visited Mr. Tobias Gomez’s father
demanding that he pay the $50,000 “debt”. He withdrew $10,000 from his savings
account, and then was beaten.
[26]
Second, I am of the view that one must show deference
when the Court makes the decision to replace the panel’s decision by its own, especially
when addressing the issue of the degree of risk run by the applicant. It is
difficult to assess the nature of the violence and the degree of the
applicant’s in relation to the other victims of this type of crime.
[27]
As a result, this is an assessment on which opinions
may vary considerably, even when it is based on recognized facts. It is also a
task and a subject that fall directly within the area of expertise of the court,
for example as concerns the conditions of the country and experience of the
court in this area drawn by other cases (for example, as it relates to country
conditions and the experience of the Board in these matters from other cases).
[28]
In Dunsmuir v
New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada set
out the standard of review and its basis in the following terms:
[47] Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result.
Instead, they may give rise to a number of possible, reasonable conclusions.
Tribunals have a margin of appreciation within the range of acceptable and
rational solutions. A court conducting a review for reasonableness inquires
into the qualities that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process.
But it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[48] The move towards
a single reasonableness standard does not pave the way for a more intrusive
review by courts and does not represent a return to pre-Southam formalism. In
this respect, the concept of deference, so central to judicial review in administrative
law, has perhaps been insufficiently explored in the case law. What does
deference mean in this context? Deference is both an attitude of the court and
a requirement of the law of judicial review. It does not mean that courts are
subservient to the determinations of decision makers, or that courts must show
blind reverence to their interpretations, or that they may be content to pay
lip service to the concept of reasonableness review while in fact imposing
their own view. Rather, deference imports respect for the decision-making
process of adjudicative bodies with regard to both the facts and the law. The
notion of deference "is rooted in part in a respect for governmental
decisions to create administrative bodies with delegated powers" (Canada
(Attorney General) v Mossop, 1993 CanLII 164 (SCC), [1993]
1 S.C.R. 554, at p. 596, per L'Heureux-Dubé J., dissenting). We agree with
David Dyzenhaus where he states that the concept of “deference as respect”
requires of the courts “not submission but a respectful attention to the
reasons offered or which could be offered in support of a decision”: “The
Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The
Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in
Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49).
[49] Deference in
the context of the reasonableness standard therefore implies that courts will
give due consideration to the determinations of decision makers. As Mullan
explains, a policy of deference "recognizes the reality that, in many
instances, those working day to day in the implementation of frequently complex
administrative schemes have or will develop a considerable degree of expertise
or field sensitivity to the imperatives and nuances of the legislative
regime": D.J. Mullan, "Establishing the Standard of Review: The
Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p. 93. In short,
deference requires respect for the legislative choices to leave some matters in
the hands of administrative decision makers, for the processes and
determinations that draw on particular expertise and experiences, and for the
different roles of the courts and administrative bodies within the Canadian
constitutional system.
[29]
For the purposes of comparison, there are cases
where the degree of violence perpetrated by gangs is such that the victim of extortion
is subject to a degree of risk of loss of life or cruel and unusual treatment
to the point where the Court may find that the panel’s assessment is sufficiently
unreasonable so that does not fall within the range of acceptable and rational solutions.
[30]
For example, in Lovato
v Canada (Minister of Citizenship and Immigration), 2012 FC 143, [2012] FCJ No 149 (QL), Rennie J.
set aside the panel’s decision where one of the uncles of the applicant had
been killed and then the same attackers threatened the applicant with death if
ever he did not make the extortion payments. Similarly, in Guerrero v Canada (Minister of Citizenship and
Immigration), 2011 FC 1210, [2011] FCJ
No 1477 (QL), the applicant’s grandmother was killed before his eyes, and
then the same attackers threatened him. In this case, Zinn J. reversed the
panel’s decision, indicating at paragraph 34 that “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” [Emphasis
added].
[31]
In these circumstances, because of the deference
due to the panel, who is specialized in the analysis of risk, I do not find
that the applicant’s personal situation is such that I can set aside the
panel’s decision as not falling within the range of possible acceptable
outcomes which are defensible in respect of the facts and law.
[32]
Consequently, the application is dismissed.
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