Docket: IMM-6840-13
Citation:
2014 FC 752
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 28, 2014
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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RENE MARTINEZ GRANADOS
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ANA LIDIA FLORES DE MARTINEZ
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision by the Refugee Protection Division of the Immigration and Refugee
Board (panel or RPD) dated August 30, 2013, that the applicants are not
“Convention refugees” or “persons in need of protection” under sections 96 and
97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act).
[2]
The applicants are citizens of El Salvador. They
left their country in October 2005 because of death threats, extortion and
attacks by members of the Mara 18 group, a criminal gang (Group). The applicants
were operating a grocery store in a rural municipality when, in July 2005,
members of the Group forced them to pay a monthly extortion fee. The male applicant
filed a complaint with the police, but to no avail. The applicants paid the fee
until October. However, because their son fell ill, they missed a payment,
which led to an attack and new threats. The applicants left their country and
entered the United States illegally, via Guatemala and Mexico, in October
2005. They remained there without status until April 6, 2011, the
date on which they arrived in Canada.
[3]
The panel does not challenge the applicants’
credibility or the fact that, since their departure, other members of the
family have had problems with the Group. In 2006, the home of the male
applicant’s mother was set on fire intentionally and his brother was shot. In
November 2012, the male applicant’s brother was robbed. Finally, the
applicants’ daughter, a student who still lives in El Salvador, but in a city
other than the city in which her parents lived, received a handwritten note
stating that she had to begin a relationship with a member of the Group or pay
them $15 to pursue her studies.
[4]
The panel’s finding that section 96 of the Act
does not apply in this case is not challenged by the applicants. The remaining
issue is the application of section 97. The issue is essentially whether the
panel committed a reviewable error by determining that the applicants’
prospective risk is generalized and whether there is an internal flight
alternative (IFA) in the city of San Salvador. The panel believes that “being a victim of crime and violence is a risk that is ‘prevalent’
or ‘widespread’ in El Salvador and is one that is faced generally by all
residents of that country.” Furthermore, the panel does not believe that
the members of the Group from the town that the applicants left in 2005 are still
interested in the applicants eight years later. The panel noted that the
applicants are no longer operating a business and that between 2006 and 2012, their
family members did not suffer any hardship. Also, there is no evidence that the
problems experienced by the male applicant’s brother or by the applicants’
daughter were connected to the applicants’ failure to continue to pay the
extortion fee. According to the panel, the male applicant’s brother was
attacked in 2012 because he was a messenger—someone perceived as having money
in his possession, while the applicants’ daughter received a threatening note
because a gang member was interested in her.
[5]
There is no need to intervene in this case. The
applicants’ disagreement is not about the applicable law but instead about the
application of those principles and the interpretation of the facts in the
record. The panel’s decision is reasonable in all respects.
[6]
First, note that, in Prophète v Canada
(Minister of Citizenship and Immigration), 2009 FCA 31, the Federal Court
of Appeal stated that in countries where crime is rampant or widespread and
where criminals target various groups, the fact that certain groups may be more
likely to be victims of crime does not necessarily exclude them from the
generalized risk category. What is necesary is that the risk analysis be “individualized”.
In Portillo v Canada (Minister of Citizenship), 2012 FC 678 at paragraphs
38-39 (Portillo), Madam Justice Gleason noted that “[o]n 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”
(citations omitted), while she also noted the following: “[o]pposite 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.”
(citations omitted).
[7]
In my view, this is not a case where the Portillo
principles are determinative of the outcome of the refugee claim. This is
not a situation where merchants threatened by a criminal gang leave their
country and claim refugee protection a few weeks or months later. It is more
than eight years later. Determining person in need of protection status is an
exercise that is essentially prospective. Even in accepting that the applicants
feared being the subject of reprisals by members of the Group at a certain
point in time, that fear does not appear well-founded today if the panel’s
reasoning, which is not arbitrary or capricious in this case, is accepted.
[8]
In fact, in the decision under review, the panel
explained that the applicants do not face a personalized risk given the time
that has elapsed since the threats, the extortion and the attacks. The
applicants’ main problem is establishing a causal connection. Yes, there is a
generalized risk, but the incidents since 2005 have no apparent connection with
the applicants’ refusal to pay the extortion fee. The panel justified its
reasoning with the fact that there is no evidence in the record that the Group intentionally
set the mother’s house on fire in 2006 in retribution, which supports the finding
of insufficient causality; furthermore, she still lives in the same village and
no new incidents have occurred. Regarding the attack on the male applicant’s
brother in 2012, the panel noted that it occurred “when he was working as a
messenger on a motorbike”. Similarly, there is no
connection between the note received by the applicants’ daughter and their own
problems with the Group. Finally, both of the applicants’ sons who, like their
sister, live in San Miguel, which is two hours from where the applicants lived
before, have had no problems with the Group. Because several years have passed
since the last sign of interest from the Group, it was not unreasonable to find
that the risk was only generalized.
[9]
The panel’s finding that the applicants face only
a “generalized risk” therefore seems to me to be an acceptable outcome in light
of the applicable law and the evidence in the record. In this case, the
applicants did not demonstrate to the panel’s satisfaction that they would
still be personally targeted by the Group, after more than eight years, if they
were to return to El Salvador, and more particularly, if they were to
settle in another part of their country.
[10]
Regarding the existence of an IFA, the panel
found that the applicants could move to San Salvador. With respect to the
first component of the test, even though the applicants argue that the Group
has a national presence and that the Group [translation]
“has the human, financial and physical means and resources to operate
throughout El Salvador”, there is, however, no
evidence that the Group would use such resources to find them. That finding
seems reasonable to me. With respect to the second component, the panel
considered the specific circumstances of the applicants. It found that the high
unemployment rate and the lack of family or friends in San Salvador are
not sufficient reasons to render San Salvador unreasonable as an internal
flight alternative. In addition, the panel noted that the applicants are young
and have work experience in El Salvador, Canada and the United States. I can find
no unreasonableness in the panel’s finding that the second component of the
test was also satisfied.
[11]
For all of these reasons, this application for
judicial review must be dismissed. Counsel raised no question of law of general
importance.
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