Docket: IMM-7486-14
Citation:
2015 FC 517
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 21, 2015
PRESENT: The Honourable Mr. Justice Noël
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BETWEEN:
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EDILA MAGALY
ARTIGA DE HERNANDEZ, JOSUE CRISTOBAL HERNANDEZ ESCOBAR, JOSHUA DEREK
HERNANDEZ ARTIGA
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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
I.
Introduction
[1]
This is an application for judicial review by Edila
Magaly Artiga De Hernandez [female applicant], Josue Cristobal Hernandez
Escobar [male applicant] and Joshua Derek Hernandez Artiga [minor son] under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA), of a decision dated October 2, 2014, by the Refugee Protection
Division [RPD] of the Immigration and Refugee Board of Canada rejecting the
applicants’ claim for refugee protection under sections 96 and 97 of the IRPA.
II.
Alleged facts
[2]
The applicants are citizens of El Salvador, and
their minor son is an American citizen.
[3]
The male applicant alleges that he worked as a fare
collector on a bus that ran between Suchitoto and San Salvador. In November 2008,
the bus he was working on was stopped by members of La Mara Salvatrucha [the Maras].
The Maras asked him to hand over the money he had collected that day, and told
him that he would have to hand over a certain amount every month from then on
or he would be killed. The Maras also demanded that he join their group. After
discussing the Maras’ demands with the owner of the bus company, the latter
agreed to pay the requested amount, treating it as a fee.
[4]
The male applicant alleges that on December 28,
2008, after handing over the money to the Maras, the latter increased the
amount demanded to US$2,500 per month. The male applicant says he quit the bus
company the next day and went into hiding at his uncle’s place in El Barrio,
Cucatlan, El Salvador, until April 2009.
[5]
The male applicant alleges that he returned home
in January 2009, and the female applicant informed him that the Maras had come
to the house on January 20, 2009, to ask her questions about him, and that they
had hit her.
[6]
The applicants left El Salvador in April 2009 for
the United States, where they remained until April 2012, when they came to
Canada and applied for refugee status. On October 2, 2014, the claim for
refugee protection was rejected. This is the impugned decision.
III.
Impugned decision
[7]
The RPD found the applicants’ testimony
credible. It identified their fear as stemming from the Maras’ demands for
money from the male applicant, and from their demands that he join their group.
The RPD was of the opinion that this fear was not related to one of the
Convention grounds under section 96 of the IRPA. No risk of torture was raised.
Consequently, the applicants’ refugee protection claim was assessed only under
paragraph 97(1)(b) of the IRPA.
[8]
In its analysis, the RPD wrote that the male
applicant served as a messenger between the Maras and the bus company, and that
he was not required to pay the amount demanded out of his own pocket. It also
took into account the fact that the male applicant did not know whether the
company had continued to pay the money demanded after he left the company in
December 2008. The RPD noted that there was nothing to indicate that the Maras
had shown any interest in the applicants for the last five years.
[9]
In terms of its assessment of the documentary
evidence, the RPD wrote that the issue of criminal gangs in El Salvador, which
includes the Maras, is systemic, and extortion is widespread. The RPD believes
that despite the fact that the applicants were personally exposed to the risk
of death threats while they were in El Salvador, there is nothing to suggest
that there is any such prospective risk from the Maras. The RPD added that in
view of the documentary evidence in the record, the applicants could be exposed
to the same risks faced by the general population in El Salvador if they
returned, in terms of criminal actions by the Maras. Thus, the RPD concluded
that the adult applicants’ refugee protection claims cannot be allowed under
paragraph 97(1)(b) of the IRPA.
[10]
In regard to the minor son, the RPD noted that
it was sensitive to his situation, and that he is an American citizen, but that
there is no indication that he would be subject to risk under sections 96 and
97 of the IRPA. Accordingly, the RPD concluded that the applicants are not
refugees within the meaning of sections 96 and 97 of the IRPA.
IV.
Parties’ submissions
[11]
The applicants affirm that the risk they face is
a personalized risk given the threats that the male applicant received from the
Maras. The male applicant submits as well that he is not just afraid of the Maras;
he is also afraid because he did not collaborate with them. The respondent
replies that the RPD’s conclusion is reasonable because the determination of
refugee status is essentially a prospective exercise, and the RPD noted that
the Maras had not shown any interest in the applicants for more than five years.
The respondent adds that the documentary evidence demonstrates that the
applicants face a generalized, not a personalized, risk, and that the
documentary evidence shows that crime is systemic in El Salvador.
[12]
The applicants also argue that the RPD did not
mention in its decision the letter from the male applicant’s employer, which
mentions that the applicants had to leave the country because of the death
threats from the Maras. Because this evidence was not assessed by the RPD, the RPD
failed to determine whether the male applicant was exposed to a higher risk of
harm than that faced by the general population. The respondent replies that the
RPD is presumed to have taken into account all of the documentary evidence, and
that it was not required to comment on all of it.
[13]
The applicants add that the RPD did not take
into account the fact that, according to the documentary evidence, the Maras
are highly vindictive and are present throughout El Salvador. According to the
respondent, the RPD’s decision is clear, and it took into account the
documentary evidence because it mentions the issues in El Salvador.
[14]
The male applicant also claims that the RPD
failed to identify the risk he faces and therefore it did not review in detail
the death threats he had received. The respondent replies that, contrary to the
male applicant’s claim, the RPD qualified and determined the risk faced by the
applicants and therefore did not commit any error in its analysis.
V.
Issue
[15]
After reviewing the arguments presented by the
parties and their respective records, I would express the issue in dispute as
follows:
- Did the RPD err
in finding that the applicants would not be personally exposed to
prospective risk under paragraph 97(1)(b) of the IRPA?
VI.
Standard of review
[16]
The issue raised by this case is one of
application of the law to the facts in the case. Thus, the standard of
reasonableness is the one that applies (Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213 at para 12; Roberts v Canada
(Minister of Citizenship and Immigration), 2013 FC 298 at para 13). This
Court will intervene only if the decision is unreasonable in that it does not
fall “within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47).
VII.
Analysis
[17]
Justice Gleason explained the test that is to be
applied under paragraph 97(1)(b) of the IRPA as follows in Portillo v
Canada (Minister of Citizenship and Immigration), 2012 FC 678 at paras 40
and 41:
[40] In my view, the essential starting
point for the required analysis under section 97 of the 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 the IRPA, as noted by Justice Zinn in Guerrero
at paras 27-28, “. . . 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 characterizations 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 the 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 the IRPA. Several of the recent decisions of this Court (in the first of the
above-described line of cases) adopt this approach.
[18]
The Federal Court of Appeal also held as follows
in Prophète v Canada (Minister of Citizenship and Immigration), 2009 FCA
31 at paragraph 7 [Prophète]:
The examination of a claim under subsection 97(1)
of the Act necessitates an individualized inquiry, which is to be conducted on
the basis of the evidence adduced by a claimant “in the context of a present or
prospective risk” for him (Sanchez v. Canada (Minister of Citizenship and Immigration),
2007 FCA 99 at paragraph 15) (emphasis in the original). . . .
[19]
The first step in the test that has been
developed therefore involves defining the nature of the risk that the male
applicant faces. Contrary to the applicants’ claims, the RPD adequately defined
the risk he faced:
[translation]
The panel is of the view that, in light of
the evidence in the record, the applicants have failed to establish that they
fear persecution related to one of the five grounds under the Convention. Their
fear is related to demands for money by the Maras, made to the
applicant, and their demand that he join their group (Male Applicant’s Record
[AR], page 8 at para 9).
[20]
The RPD analyzed the applicants’ situation in
terms of whether they faced a persistent and future risk, by assessing whether
they still faced a risk in El Salvador and whether they would be personally at
risk if they had to return to El Salvador. The RPD asked the male applicant
about whether the bus company for which he had worked had continued to pay the
money demanded by the Maras after he left. The applicant responded that he did
not know. The RPD then asked the applicants whether their respective families
knew if the Maras were still looking for them. The applicants had replied that
they had not received any indication that the Maras had continued looking for
them after they left in 2009. The RPD then took into account the fact that the
male applicant had only served as a messenger between the Maras and the bus
company, and that the money that the Maras had demanded did not come out of his
pocket, but rather out of the bus company’s coffers. These findings of the RPD
are reasonable.
[21]
In addition, the transcript of the hearing shows
that the bus company for which the male applicant worked had not existed since
at least September 2012 (Certified Tribunal Copy [CTC], page 292, as well as
page 288). At the hearing, the RPD also discussed the fact that the male
applicant had not had any contact with the owner of the company since he quit,
and that the male applicant showed no interest in what had happened to the
company since he left (CTC at pages 287-291). The RPD also adequately
recognized that the male applicant had personally been exposed to a
personalized risk in the past, but noted that there was no indication that he
was still at risk today or would be in the future. Thus, the RPD correctly
completed the first step of the test (Cessa Mancillas v Canada (Minister of
Citizenship and Immigration), 2014 FC 116 at para 20).
[22]
The second step of the test is aimed at
comparing the risk faced by the applicant with the risk faced by the general
public in El Salvador to determine whether the risks are of a similar nature
and degree. In this case, the RPD correctly noted the documentary evidence that
the issue of criminal gangs in El Salvador, including the Maras, is systemic
and endemic, and that recruitment and extortion efforts are widespread. This
type of documentary evidence is not sufficient to ground a section 97 claim absent proof that might link this
general documentary evidence to the applicant’s specific circumstances (Prophète
v Canada (Minister of Citizenship and Immigration), 2008 FC 331 at para 17 (Prophète
FC), appeal dismissed, see Prophète, above). Thus, the RPD
correctly concluded that the applicants had failed to demonstrate a prospective
risk in relation to the Maras and that, in view of the evidence in the record,
should they return to El Salvador, the applicants would only be exposed to the
same risks, that is to say, criminal actions faced by the population in general.
The RPD demonstrated a good understanding of the facts, presented its concerns
to the applicants at the hearing and made a reasonable decision.
[23]
Moreover, the male applicant’s fear, namely, the
Maras’ demands for money and the demand to join their group, is more closely related
to a fear of crime. On a number of occasions, the Court has specified that the
fear of crime is a generalized fear, not a personalized one (Prophète FC, above at para 23; Acosta v Canada (Minister of Citizenship and
Immigration), 2009 FC 213 at para 16).
[24]
Moreover, in Morales Gonzalez v Canada
(Minister of Citizenship and Immigration) 2010 FC 991 (Morales), a
similar decision to the one before us, the applicant, a man from El Salvador, was
forced, under the threat of death, to pay one hundred dollars a month to the
Maras. He paid the amounts demanded of him, personally, for eight months before
leaving El Salvador with his wife and child
for Canada. In that decision, Bédard J. wrote:
I understand that the applicant is likely to
be subject to extortion and threats again from gangs if he returns to El
Salvador, but his risk is comparable to that which the general public is
subject to. The fact that he has already been a victim of extortion by the
Maras is not sufficient to make his risk recognized as a personalized risk,
because all citizens of El Salvador are subject to a risk of extortion by gangs.
The evidence does not support a finding that a person who has already been a
victim of extortion by gangs is more likely to again be subject to extortion. Therefore,
I consider that the Board’s finding is reasonable: it is based on the evidence,
is well articulated and falls within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
at para. 47) (at para. 18).
[25]
It is pertinent to note that in the case before
us, the events that prompted the applicants to flee El Salvador happened over a
three-month period, from November 2008 to January 2009, compared to the eight
months in Morales. Moreover, the male applicant in this case was only an
intermediary, and was not personally paying the amounts demanded by the Maras,
contrary to the situation faced by the applicant in Morales. Thus, the
RPD made no error in its assessment of the personal risk faced by the male
applicant, and of the risks faced by the general population in El Salvador (Montano
v Canada (Minister of Citizenship and Immigration), 2013 FC 207 at para.
11).
[26]
Finally, the male applicant claims that the RPD
failed to assess the letter from his former employer at the bus company,
specifying that he quit the company because he feared for his life, and that it
consequently failed to assess whether the male applicant faced a higher risk of
harm than the general population. First, the RPD is presumed to have considered
all of the evidence in the record (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR 35 at para 16; Rahal
v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at para 39)
and is not required to comment on all of it (Herrera Andrade v Canada
(Minister of Citizenship and Immigration), 2012 FC 1490 at paras 10-11). In
this case, contrary to the male applicant’s claims, the letter in question was
discussed at the hearing before the RPD (CTC page 288). The RPD also specified
in its decision that it had taken all of the documentary evidence in the record
into account. Thus, the RPD did a complete assessment of the evidence contained
in the record during the hearing.
[27]
The RPD demonstrated a good understanding of the
facts; it shared these concerns with the applicants at the hearing and properly
determined that the applicants did not face a personalized risk as defined
under paragraph 97(1)(b) of the IRPA.
VIII.
Conclusion
[28]
The RPD applied the correct test under paragraph
97(1)(b) of the IRPA. It reasonably concluded that the applicants had
not established a current and prospective risk in regard to the Maras, and that
they would only be exposed to the same risk of criminal actions as the rest of
the general population in El Salvador. The intervention of the Court is
therefore not warranted.
[29]
The parties were invited to submit questions for
certification, but none were submitted.
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