Docket: IMM-5041-13
Citation:
2015 FC 667
Ottawa, Ontario, May 22, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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JOSE ENRIQUE
MANZANARES GALEAS
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant’s claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board). He now applies for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a 49 year old man, born and
raised in Honduras. He has a common law spouse and three children in Honduras.
[4]
In 2004, the applicant began working as a collections
agent, requiring him to travel to all areas of the city on a motorcycle to
collect money.
[5]
In March 2007, members of the Mara 18 gang made
extortion demands on the applicant. He complied with these demands and made
payment of approximately $50 US to gang members on three or four occasions. He
eventually ceased making payments in early 2007.
[6]
The applicant reported the threats related to
his non-compliance of extortion demands to the authorities. The authorities
recommended that he change residence. He did and moved his family to another
neighbourhood in Tegucigalpa.
[7]
Despite the change of residence, the applicant
continued receiving threats. The gang threatened his children on their way to
school and at one point, held him up at gunpoint and robbed him of his
motorcycle. Immediately following the robbery, the applicant flagged down a
nearby police patrol car and accompanied the police in their patrol car to
search for the robbers. The applicant was unable to spot the gang’s robbers.
[8]
The applicant’s company replaced his motorcycle,
but it was later stolen from his residence’s indoor parking garage. He believes
it was gang related because he was potentially spotted by the gang or some of
their associates as he rode around in the back of the police vehicle.
[9]
The threats against the applicant increased in
severity. In March 2008, the applicant left his work as a collections agent,
fled Honduras and left behind his family. He travelled through Guatemala and
Mexico and illegally entered the United States. He settled there until coming
to Canada in June 2012.
[10]
The applicant’s brother was also living
illegally in the United States and was deported to Honduras in 2010.
Subsequently, the applicant’s brother was extorted by gang members due to his
family ties with the applicant. The applicant’s brother complained to the
police, but no action was taken. The applicant alleges that his brother was
assassinated on February 16, 2012 by gang members while riding to work on his
motorcycle. He provided a death certificate and a news story about the killing
to the Board. After his brother’s murder, the applicant was fearful of getting
deported to the same fate.
[11]
On June 15, 2012, the applicant came to Canada
and sought refugee protection, on the basis that if he were to return to
Honduras, he would be at the mercy of gang members. The applicant also reported
that his family has received repeated threats from gang members during his
absence from Honduras.
II.
Decision Under Review
[12]
The Board released its negative decision on July
16, 2013 ruling that the applicant was not a Convention refugee under section
96 of the Act and not a person in need of protection under section 97 of the
Act.
[13]
The Board determined the main issues in this
case were credibility and generalized risk. It found the applicant was
generally a credible witness and provided evidence to substantiate his claims.
It further mentioned that although there was one omission in the applicant’s
Personal Information Form (PIF) narrative, in light of the overall ring of
truth of the applicant’s testimony, it did not draw a negative inference.
[14]
The Board also stated although the applicant did
not seek refugee protection during his stay in the United States, it accepted
his evidence for not claiming in the United States due to his brother’s
deportation and his subsequent murder in Honduras.
[15]
Insofar as section 96 is concerned, the Board
found the applicant is not a Convention refugee because his fear is not by
reason of any Convention ground; rather the applicant was pursued for reasons
of criminality.
[16]
Insofar as section 97 is concerned, the Board
found the risk that the applicant faces can be characterized as “a risk of extortion by gang members” due to his
perceived wealth working as a collections agent. The Board was not persuaded
that this risk would be different from a general risk faced by other business
persons. The Board acknowledged the documentary evidence related to extortion
and kidnapping by the Mara and that Honduras is considered to be one of the
most violent countries in the world with a murder rate of almost 20 homicides
per day. Further, it made the following findings.
[17]
First, the Board found on a balance of
probabilities, the applicant was a target because of his wealth or perceived
wealth; however, being wealthy does not necessarily make him someone in need of
protection.
[18]
Second, the Board found that just because the
applicant had reported to the police regarding the threats and robberies by the
Mara, the mere fact of reporting does not make this a particularized risk.
[19]
Third, the Board found the evidence does not
support on a balance of probabilities that the motorcycle thefts were related
or that the applicant was being systematically targeted for extortion. It
stated, based on documentary evidence, in a country with widespread gang
criminality such as Honduras, “the general population
runs a generalized risk of falling victim to this type of activity.”
[20]
The Board acknowledged the mixed jurisprudence
on the subject matter of generalized risk and stated that it was guided by
several of this Court’s decisions which support the finding of generalized risk
as it relates to ongoing victimization of an individual at the hands of a
criminal organization such as Acosta v Canada (Minister of Citizenship and
Immigration), 2009 FC 213, [2009] FCJ No 270.
[21]
In conclusion, the Board rejected the applicant’s
claim stating that the applicant is not a Convention refugee or a person in
need of protection.
III.
Issues
[22]
The applicant raises the following issues:
1.
Was the Board’s generalized risk finding
unreasonable as a result of:
a)
The Board’s making an erroneous finding of fact
in a perverse or capricious manner without regard for the material before it?
b)
The Board’s failure to properly characterize the
risk alleged by the applicant?
c)
The Board’s generalized risk finding being
logically inconsistent with its own credibility finding?
[23]
The respondent raises one issue: that the
applicant has failed to establish a reviewable error.
[24]
I would rephrase the issues as follows:
A.
What is the standard of review?
B. Was the Board’s decision reasonable?
IV.
Applicant’s Written Submissions
[25]
The applicant submits the Board’s generalized
risk findings are usually questions of mixed law and fact, so the appropriate
standard of review for these findings is usually reasonableness. However, the
standard will rise to one of correctness when the Board’s finding engages a
question of the interpretation of paragraph 97(1)(b) as a matter of law (see Portillo
v Canada (Minister of Citizenship and Immigration), 2012 FC 678 at
paragraph 18, [2012] 1 FCR 295 [Portillo]; and VLN v Canada (Minister
of Citizenship and Immigration), 2011 FC 768 at paragraph 15 to 16, [2011]
FCJ No 968).
[26]
In support of his position, the applicant
submits three arguments: i) the Board made an erroneous finding of fact in a
perverse or capricious manner without regard for the material before it; ii)
the Board failed to properly characterize the risk faced by the applicant; and
iii) the Board’s generalized risk finding was logically inconsistent with the
Board’s credibility finding.
[27]
First, the applicant submits the Board failed to
mention or analyze the evidence that he was targeted because he was a police
informant. Here, the Board found the risk faced by the applicant can be
characterized as a risk of extortion due to his perceived wealth. However, the
applicant’s written and oral testimony demonstrate that the risk he faced was a
risk of death from being personally targeted by the Mara for having reported
them to the police. He argues the Board minimized his testimony regarding his
risk of being a police informant, which led the Mara to target and mark him for
death.
[28]
The applicant quotes paragraph 17 of Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425, 157
FTR 35 [Cepeda] describing this Court’s guidance on when it would be
permissible to infer that a finding by a decision-maker was made “without regard to the evidence.” He argues the Board
here failed to satisfy the burden to explain its contradictory finding to what
was provided in his testimony. He states the Board focused only on the
documentary evidence which supported its finding of extortion being a
widespread problem in Honduras, but remained silent on the abundant evidence
that indicated the threat against the applicant escalated to one against his
life when the gang perceived him as a police informant. Further, the Board
ignored the evidence that his brother died because the applicant informed the
police on the gang.
[29]
Second, the applicant submits the Board failed
to properly conduct a generalized risk inquiry. He argues it is a three step
process in determining whether the risk faced by a refugee claimant is one
generally faced by others in the country: the decision maker must i) make an
express determination of what the claimant’s risk is; ii) determine whether
that risk is a risk to life or a risk of cruel and unusual treatment or
punishment; and iii) clearly express the basis for that risk (see Guerrero v
Canada (Minister of Citizenship and Immigration), 2011 FC 1210 at paragraph
28, [2013] 3 FCR 20 [Guerrero]).
[30]
Here, the applicant argues the Board erred in
the first step in this inquiry by characterizing the risk the applicant faces
as a risk of extortion by gang members due to his perceived wealth. He argues
if the risk faced by him was merely a risk of extortion, he would not need to
be excluded from protection under subparagraph 97(1)(b)(ii) of the Act, as his
claim would simply not qualify under section 97 to begin with.
[31]
The applicant submits the risk faced by a
refugee claimant becomes personal to them when that risk is brought about by a
special reason particular to the claimant. In Portillo, that special
reason, as in the case at hand, was the applicant being perceived by a gang as
a police informant. By defying a gang or snitching on them, a generalized risk
could turn into a personalized one (see Pineda v Canada (Minister of Citizenship
and Immigration), 2011 FC 403 at paragraphs 12 to 14, [2011] FCJ No 525).
Therefore, the Board failed in its obligation to examine whether, in the
particular circumstances of the applicant, the general risk faced by him from
criminality had escalated to a personal risk because of his specific
circumstances.
[32]
Third, the applicant submits it is logically
inconsistent for the Board to find his testimony to be credible but find the
risk he faces was merely a risk of being extorted. He argues that he testified that
he was targeted for killing by the Mara as a result of being perceived as a
police informant and for the Board to find him merely in danger of being
extorted is illogical.
V.
Respondent’s Written Submissions
[33]
The respondent submits the Board’s decision with
respect to the section 97 analysis is a question of mixed fact and law and it
is reviewable on a standard of reasonableness (see Dunsmuir v New Brunswick,
2008 SCC 9 at paragraphs 53 to 56, [2008] SCJ No 9 [Dunsmuir]; and Gabriel
v Canada (Minister of Citizenship and Immigration), 2009 FC 1170 at
paragraph 10, [2009] FCJ No 1545 [Gabriel]).
[34]
The respondent submits the Board’s decision was
reasonable. The Board found that the applicant was a victim of crime who feared
retaliation from a group of criminals after he refused to continue paying their
extortion demands. It argues that the Court has held victims of criminal
activity or personal revenge do not constitute a particular social group within
the meaning of the Convention (see Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 at 730 to 732 and 738 to 739; and Ruiz v Canada (Minister
of Citizenship and Immigration), 2003 FC 1177 at paragraphs 17 to 19,
[2003] FCJ No 1507).
[35]
The respondent submits the Board’s analysis and
characterization of the applicant’s risk was reasonable. The applicant was
afraid because he refused to pay extortion demands and this is a fear of crime.
Here, the threat to the applicant’s life started before his motorcycle was
robbed from him and hence, occurred before he reported the theft. It argues as
in the recent cases of Wilson v Canada (Minister of Citizenship and
Immigration), 2013 FC 103 at paragraph 5, [2013] FCJ No 78 and Paz
Guifarro v Canada (Citizenship and Immigration), 2011 FC 182 at paragraph 28,
[2011] FCJ No 222 [Paz], an applicant’s refusal to pay gang members and
their subsequent violence is part of the ongoing criminal act of extortion,
since anyone who refuses to pay is subject to reprisals. It argues the present
case is analogous to Paz, where this Court refused judicial review of a
similarly situated applicant. Here, the Board found the mere fact of reporting
did not make the applicant’s risk personalized and the applicant did not
establish both thefts of motorcycles were related. In the present case, the
applicant failed to demonstrate that what he was experiencing was beyond what
others in the area were experiencing.
[36]
In the respondent’s further memorandum, it
argues persecution is distinct from random and arbitrary violence as a result
of criminal activity or a personal vendetta. Victims of crime cannot generally
establish a link between their fear of persecution and a Convention ground (see
Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, affirmed in 2009 FCA 31).
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[37]
The Board’s generalized risk findings under
section 97 concern questions of mixed law and fact. Here, both the applicant
and the respondent submit the applicable standard of review for the Board’s
assessment of generalized risk is the standard of reasonableness (Dunsmuir
at paragraphs 53 to 56; Gabriel at paragraph 10).
[38]
Where previous jurisprudence has determined the
standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (Dunsmuir at paragraph 57). I
agree with Mr. Justice Yvon Pinard’s review in Gabriel of the existing
jurisprudence that the standard of reasonableness should be applied where this
Court is asked to review a Board’s finding under section 97:
[10] In Prophète v. Minister of Citizenship and Immigration, 2008 FC 331, this Court, at paragraph 11, held that interpretation
of section 97 of the Act is a pure question of law, reviewable on the standard
of correctness. However, the question certified in that decision was declined
by the Federal Court of Appeal on the basis that “[t]he examination of a claim
under subsection 97(1) of the Act necessitates an individualized inquiry” (Prophète v. Minister of Citizenship and
Immigration, 2009 FCA 31, at paragraph 7). This
reason has since been interpreted by my colleague Justice Johanne Gauthier as “clearly”
indicative that the inquiry under 97 is not one of pure law (Acosta
v. Minister of Citizenship and Immigration, 2009 FC 213). Accordingly, the appropriate
standard of review is reasonableness because the issue is one of mixed fact and
law (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at paragraph
53). Thus, if the decision falls within a range of possible, acceptable
outcomes that are defensible in respect of the facts and law it is reasonable
(Dunsmuir, at paragraph 47).
[Emphasis added]
[39]
The standard of reasonableness means that I should
not intervene if the Board’s decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47).
Here, I will set aside the Board’s decision only if I cannot understand why it
reached its conclusions or how the facts and applicable law support the outcome
(see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the
Supreme Court held in Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 59 and 61, [2009] 1 S.C.R. 339, a court reviewing for
reasonableness cannot substitute its own view of a preferable outcome, nor can
it reweigh the evidence.
B.
Issue 2 - Was the Board’s decision reasonable?
[40]
The applicant’s arguments largely hinge on the
characterization of his risk under section 97. He is at issue with i) the
Board’s assessment of evidence, ii) the Board’s characterization of the risk
based on the evidence, and iii) the effect of the Board’s credibility finding
on the characterization of his risk. He argues the Board ignored contrary
evidence and unreasonably determined the risk he faces being a general risk of
extortion. He states this characterization is inconsistent with the Board’s
positive credibility finding and hence, makes the decision illogical and
unreasonable. The respondent takes the position that the Board’s characterization
of risk was reasonable based on the evidence before it.
[41]
First, I find the Board did not ignore evidence
in the process of assessing the applicant’s risk under section 97. A
decision-maker is not obliged to refer to every piece of evidence in its
analysis; or else, it would impose too onerous a burden. In determining if a
decision-maker is unreasonable to not refer to certain pieces of evidence, Mr. Justice
John Evans stated the following in Cepeda:
15 The Court may infer that the
administrative agency under review made the erroneous finding of fact “without
regard to the evidence” from the agency’s failure to mention in its reasons
some evidence before it that was relevant to the finding, and pointed to a
different conclusion from that reached by the agency. Just as a court will only
defer to an agency’s interpretation of its constituent statute if it provides
reasons for its conclusion, so a court will be reluctant to defer to an agency’s
factual determinations in the absence of express findings, and an analysis of
the evidence that shows how the agency reached its result.
16 On the other hand, the reasons
given by administrative agencies are not to be read hypercritically by a court
(Medina v. Canada (Minister of Employment and Immigration) (1990), 12
Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every
piece of evidence that they received that is contrary to their finding, and to
explain how they dealt with it (see, for example, Hassan v. Canada
(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. A statement by the agency in its reasons for decision that, in
making its findings, it considered all the evidence before it, will often
suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
[Emphasis added]
[42]
Here, the Board examined the evidence of
personal circumstance presented by the applicant, as well as documentary
evidence. Unlike what the applicant submits, the Board did not ignore the
evidence of him being possibly perceived as a police informant. In specifics, the
Board found that just because the applicant had reported to the police
regarding the threats and robberies by the Mara, the mere fact of reporting
does not indicate a particularized risk. Therefore, the Board did not ignore
evidence in the process of characterizing the applicant’s risk.
[43]
Second, I find the Board was unreasonable in
characterizing the risk faced by the applicant. Mr. Justice Russel Zinn
examined the steps a board should undertake in determining generalized risk in Guerrero
at paragraph 28:
Paragraph 97(1)(b) of the Act is quite
specific: The personal risk a claimant must face is “a risk to their life or to
a risk of cruel and unusual treatment or punishment.” Before determining
whether the risk faced by the claimant is one generally faced by others in the
country, the decision-maker must (1) make an express determination of what
the claimant’s risk is, (2) determine whether that risk is a risk to life or a
risk of cruel and unusual treatment or punishment, and (3) clearly express the
basis for that risk.
[Emphasis added]
[44]
Here, the applicant is at issue with the first
step and argues the Board failed to properly characterize his risk. He argues
the risk he faces is not merely a risk of extortion, rather the generalized
risk faced by him from criminality had escalated to a personalized risk because
he was perceived as a police informant. On the other side, the respondent takes
the position that the Board’s characterization is proper because the applicant’s
risk is a fear of an ongoing criminal activity due to his refusal to pay
extortion demands.
[45]
In my view, the main question in determining the
reasonableness of the Board’s characterization of risk is whether or not by
reporting to the police, the applicant became personally targeted.
[46]
In Portillo, Madam Justice Mary J. L. Gleason
reviewed the following two cases in establishing what factual circumstances
would likely elevate a generalized risk to a personalized risk:
43 Similarly, in Guerrero,
Justice Zinn found that the RPD had mischaracterized the risk faced by the
claimant as a risk of general criminality, even though the gang members, who
were trying to recruit the claimant, had violently killed his grandmother
before his eyes. Justice Zinn held that the RPD had seriously minimized the
nature of the threat faced by the claimant and quashed the Board’s decision. In
so doing, he noted at para 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”.
44 To somewhat similar effect, in Gomez
at para 38, Justice O’Reilly set aside a decision of the RPD in circumstances
where the claimants were victims of extortion, threatened kidnapping and
assault. He noted:
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 [one of the
applicant’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.
[Emphasis added]
[Emphasis added]
[47]
The present case is similar to Portillo
because in Portillo, the Board determined that “the
applicant faced a risk of death from the MS but did not elaborate that this was
due to his having been a suspected police informant.” (Portillo
at paragraph 48). Here, the Board did not find the applicant faces a risk of
death and rather what the applicant faces is extortion. I find the Board
committed a reviewable error in not factoring the consequence of the applicant
being a perceived police informant in its analysis of the characterization of
risk.
[48]
In my view, the case at bar is analogous to the
above two cases examined by Justice Gleason in Portillo, the cases of Guerrero
and Gomez v Canada (Minister of Citizenship and Immigration), 2011 FC
1093, [2011] FCJ No 1601, O’Reilly J [Gomez]. Here, the applicant’s risk
has escalated from threats to being specifically targeted by the gang, such as
threats to his children and the death of his brother. This demonstrates the
risk faced by the applicant has escalated from a generalized risk to a
personalized risk. Therefore, I find the Board’s characterization unreasonable.
[49]
As for the applicant’s third argument with
respect to the effect of a positive credibility finding in the determination of
risk under section 97, I disagree with the applicant because the logic
suggested by the applicant is conceptually flawed. A positive credibility
finding does not necessitate a finding of personalized risk under section 97.
It simply indicates the Board accepted the evidence submitted by the applicant.
These two determinations are distinct and separate. Here, the applicant
essentially disagrees with the assessment by the Board based on the evidence,
which I have already dealt with above.
[50]
Therefore, I find the Board’s analysis under
section 97 was unreasonable because of the erroneous characterization of the
applicant’s risk.
[51]
The application for judicial review is therefore
allowed and the matter is referred to a different panel of the Board for redetermination.
[52]
Neither party wished to submit a proposed
question of general importance for my consideration for certification.
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