Docket: IMM-7164-14
Citation:
2015 FC 434
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal,
Quebec, April 9, 2015
Present: The Honourable Mr. Justice Shore
|
BETWEEN:
|
|
JUNIOR ENRIQUE
MIRANDA MEJIA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Preliminary
[S]ection 97 must not be interpreted in a
manner that strips it of any content or meaning. If any risk created by “criminal
activity” is always considered a general risk, it is hard to fathom a scenario
in which the requirements of section 97 would ever be met. Instead of focusing
on whether the risk is created by criminal activity, the Board must direct its
attention to the question before it: whether the claimant would face a personal
risk to his or her life or a risk of cruel and unusual treatment or punishment,
and whether that risk is one not faced generally by other individuals in or
from the country. Because the Board failed to properly undertake this inquiry
in this case, the decision must be set aside.
(As explained by Justice Donald J. Rennie in
Lovato v Canada (Minister of Citizenship and Immigration), 2012 FC 143 at
para 14 (Lovato))
II.
Introduction
[1]
This is an application under subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) against
a decision of the Refugee Protection Division (RPD) refusing the applicant’s
refugee claim under sections 96 and 97 of the IRPA.
III.
Facts
[2]
The applicant is a merchant and citizen of Honduras.
[3]
Since February 2015, the applicant operated a cell
phone repair store in the city of Sigualtepeque, Honduras.
[4]
Between March 10 and 22, 2014, the
applicant was a victim of death threats and extortion of a [translation] “war
tax” by members of the Maras 18.
[5]
On March 21, 2014, the applicant discussed with merchants
from his neighbourhood so as to form an association to resist the Maras 18. As
a result of these discussions, the applicant presented himself at the police
station accompanied by another member of the merchants’ association, so as to
file a complaint against the Maras 18.
[6]
On April 9, 2014, a group of the Maras 18 went
to the applicant’s store looking to kill him. The applicant was not there at
the time.
[7]
Fearing for his life, the applicant left
Honduras on April 20, 2014, and presented a refugee claim at the Canada-USA
border on July 3, 2014.
[8]
A hearing was held before the RPD on September 3,
2014.
IV.
Decision under review
[9]
In a decision dated September 19, 2014, the
RPD found that the applicant is not a “person in need
of protection” under subparagraph 97(1)(b)(ii) of the IRPA because
of the lack of credibility and the generalized nature of risk to which he is
exposed.
A.
Applicant’s credibility
[10]
The RPD agreed that the applicant operated a cell
phone repair store between February 2014 and April 2014 and that he was a
victim of extortion on three occasions by the Maras 18 between March 10 and 22,
2014.
[11]
However, the RPD rejected the applicant’s claim
that he would be exposed to a personalized risk provided in section 97 of the
IRPA for creating a merchants’ association against the Maras 18.
[12]
Specifically, the RPD determined that:
[translation]
As the applicant was confronted with questions,
he invented answers and dug himself deeper into contradictions. The panel does
not believe that the Maras 18 came to get him on April 9, 2014, because
they became aware that he had proposed to create an association to bring
together merchants against the Maras 18 by seeking out police protection.
(RPD’s decision at para 13)
B.
Generalized risk
[13]
The RPD determined that the applicant was personally
exposed to a prospective risk of extortion. Moreover, the RPD found that it was
a generalized risk, which is similar to the same risk as that to which Honduran
merchants are generally exposed.
V.
Statutory provisions
[14]
The following sections of the IRPA apply to the
determination of the applicant’s refugee status:
|
Convention
refugee
|
Définition de
« réfugié »
|
|
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
|
96. A qualité de réfugié au sens de la Convention — le réfugié — la
personne qui, craignant avec raison d’être persécutée du fait de sa race, de
sa religion, de sa nationalité, de son appartenance à un groupe social ou de
ses opinions politiques :
|
|
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
|
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
|
|
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
|
|
Person in need of protection
|
Personne à protéger
|
|
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries of nationality
or, if they do not have a country of nationality, their country of former
habitual residence, would subject them personally
|
97. (1) A qualité de personne à protéger la personne qui se trouve
au Canada et serait personnellement, par son renvoi vers tout pays dont elle
a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait
sa résidence habituelle, exposée :
|
|
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
|
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
|
|
(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
|
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
|
|
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
|
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
|
|
(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
|
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres
personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement
pas,
|
|
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
|
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
|
|
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
|
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
|
(2) A person in
Canada who is a member of a class of persons prescribed by the regulations as
being in need of protection is also a person in need of protection.
|
(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
|
VI.
Issues
[15]
This application presents the following issues:
a)
Are the RPD’s credibility findings reasonable?
b)
Are the RPD’s findings on generalized risk
reasonable?
VII.
Parties’ arguments
A.
Applicant’s arguments
[16]
The applicant argued that the RPD made unreasonable
findings by conducting a microscopic examination of issues peripheral to the
applicant’s refugee claim (Attakora v Canada (Minister of Employment and
Immigration), [1989] FCJ 444; Papaskiri v Canada (Minister of
Citizenship and Immigration), 2004 FC 69 at paras 31-33).
[17]
According to the applicant, the RPD’s findings are
not supported by the evidence in the record. In particular, the RPD erred in
finding that the applicant provided contradictory testimony regarding the creation
of a merchants’ association against the Maras 18.
[18]
Then, the applicant claimed that it is unreasonable
for the RPD to agree, on the one hand, that the applicant was personally
targeted by the Maras 18 as a merchant and to conclude, on the other hand, that
the risk he is exposed to is a generalized risk.
[19]
Further, the applicant alleges that the RPD neglected
to consider the impact of his opposition to the Maras 18 in light of the documentary
evidence, which shows that the members of the Maras 18 retaliate violently
against those who dispute their authority.
[20]
Finally, the applicant argued that the personal
threat to the applicant’s life was not reasonably assessed by the RPD.
B.
Respondent’s arguments
[21]
First, the respondent argued that the RPD’s
finding that the applicant is not credible with respect to his alleged
prospective risk is reasonable, given the contradictions in the applicant’s
evidence.
[22]
Furthermore, the respondent claims that it was open
to the RPD not to accept the explanations provided by the applicant in his
testimony.
[23]
Then, the respondent argued that it is well established
that individuals who fear being the victims of extortion are not Convention
refugees. It was reasonable for the RPD to find that the risk alleged by the
applicant, i.e. that he was threatened, attacked and extorted by criminalized
groups, is part of the generalized risk to which most citizens of Honduras are
exposed and specifically business owners or merchants.
VIII.
Standard of review
[24]
It is well-established case law that issues
relating to credibility, and those relating to generalized risk, are questions of
fact or questions of mixed fact and law, which are reviewable on the standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47-50
(Dunsmuir); Canada (Citizenship and Immigration) v Khosa, [2009]
1 SCR 339 (Khosa); Pineda v Canada (Minister of Citizenship and
Immigration), 2012 FC 493 at para 5; Olvera v Canada (Minister of
Citizenship and Immigration), 2012 FC 1048 at para 28) (Olvera).
[25]
Therefore, the Court must limit its review of
the RPD’s decision to “justification, transparency and
intelligibility within the decision-making process and also with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law” (Dunsmuir, above
at para 47).
IX.
Analysis
A.
Are the RPD’s credibility findings reasonable?
[26]
The assessment of the applicant’s credibility is
at the heart of the RPD’s jurisdiction, who is in the best position to weigh
the testimony and the evidence, as a whole (Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ 732). From this perspective, it is
not the role of this Court to substitute its opinion for the RPD’s credibility findings
(Chen v Canada (Minister of Citizenship and Immigration), 2005 FC 767 at
para 24; Khosa, above at para 59).
[27]
Then, the minor or secondary inconsistencies in the
applicant’s evidence should not induce the RPD to find that the applicant had a
general lack of credibility if the documentary evidence confirms the
plausibility of his story (R.K.L. v Canada (Minister of Citizenship and
Immigration), [2003] FCJ 162 at para 13 (R.K.L.)).
[28]
In this case, the RPD found that the applicant is
not credible with respect to his fear of personally being the target of
retaliation by the Maras 18 for attempting to form a merchants’ association (RPD’s
decision at para 6 to 13).
[29]
First, the RPD rejects the applicant’s testimony
relating to the date of formation and the composition of the merchants’
association. According to the RPD, the applicant testified inconsistently with
respect to the exact time when the decision to form the association and file a
complaint with the police was made. Furthermore, the RPD seems to draw a negative
inference from the fact that ultimately, four of the merchants never showed up
to accompany the applicant to file a complaint with the police.
[30]
Second, the RPD raised doubts as to the circumstances
surrounding the complaint filed with the police by the applicant. In particular,
the RPD observed that, initially, the applicant claimed that he did not file a
complaint with the police for the reason that the person in charge was absent
but that, further, the applicant indicated at question 2(c) of his Claim for
Refugee Protection Form (CRPF) that he did not complain of the extortion against
him, because the police was not able to protect him.
[31]
These findings led the RPD to conclude that the
applicant was inventing answers as he was confronted with questions, thus undermining
his credibility.
[32]
Following a careful reading of the file brought
before the RPD and the transcript of the hearing, the Court noted that the RPD’s
negative findings on the applicant’s credibility are problematic in some ways.
[33]
From the transcript of the hearing before the
RPD, it emerges that the applicant provided explanations addressing each of the
deficiencies and inconsistencies perceived by the RPD. In particular, the
applicant testified the following:
•
Following discussions with other merchants from
his neighbourhood on the threats and the extortion against him by the Maras 18,
he attempted to form a merchants’ association;
•
He testified that he alone was explicitly
targeted by the Maras 18 in the group, but that he had nevertheless succeeded
in convincing the other merchants to unite since they were all at risk of being
threatened by the Maras 18;
•
In the beginning, five or six merchants were
ready to commit with the applicant. Their objective was to go to the police station
together three days later to report the Maras 18. The applicant explained
that the merchants were afraid and that, in the end, when the time came for the
association to meet, it was only the applicant and another merchant who came to
the police station to file a report;
•
The applicant explained that once he came to the
police station, the police officer refused to accept his report since the person
in charge was absent and that it was for that reason that he indicated at
question 2(c) of his CRPF that he did not file a complaint with the police and
that the police was not able to protect him;
•
In response to this same question, the applicant
also indicated that his friend Eleyo was killed by members of the Maras 18 after
his report to the police.
[34]
The RPD is obligated to consider the explanations
provided by the applicant which are not obviously implausible and to provide
reasons “in clear and unmistakeable terms” so as to reject these explanations with respect to the
whole of the evidence before it (R.K.L., above at para 9 and 20; Hilo
v Canada (Minister of Citizenship and Immigration), (1991), 130 NR 236 (FCA)
at para 9; Ullah c Canada (Minister of Citizenship and Immigration),
2005 FC 1018 at para 17; Owusu-Ansah v Canada (Minister of Employment and
Immigration), [1989] FCJ 442).
[35]
With respect to its reasons, the RPD did not
support in clear and precise terms the basis of its rejection of the explanations
provided by the applicant. Furthermore, the Court is of the view that the RPD’s
credibility findings are not anchored in the evidence in the record.
B.
Generalized risk
[36]
For the purposes of the analysis under section 97
of the IRPA, the applicant must establish that he is personally exposed to a risk
that those living in the applicant’s same country of origin or ordinary
residence are not generally exposed to, independent of the fact that this personalized
risk is shared by many (Loyo de Xicara v Canada (Minister of Citizenship and
Immigration), 2013 FC 593 at para 14; Flores c Canada (Ministre de la
Citoyenneté et de l’Immigration), 2015 CF 201 at para 10).
[37]
Case law establishes a two-step analysis for the
interpretation of paragraph 97(1)(b) of the IRPA. First, the RPD must
characterize and describe the nature of the risk to which the applicant was
exposed, then compare the nature and seriousness of the risk with that which a
significant part of the population of the country is exposed. If the applicant’s
risk is distinct, he will then have the right to claim the protection of
section 97 of the IRPA (Portillo v Canada (Minister of Citizenship and
Immigration), 2012 FC 678 at para 41 (Portillo)).
[38]
According to the RPD file, the risk alleged by the
applicant is the prospective risk of retaliation and threats to his life to
which he is exposed because of the knowledge of the Maras 18 of the applicant’s
attempt to form a merchants’ association in March 2014. At the hearing, the
applicant testified that he was the only one among the merchants in the
association who had been threatened and extorted, which places him plausibly
outside the generalized risk to which are exposed the other merchants in his
neighbourhood (RPD transcript, Tribunal Record, at p 210).
[39]
Moreover, in its reasons, the RPD characterized
the risk to which the applicant is personally exposed as the risk of falling
victim to extortion. This characterization led the RPD to find that the
applicant is exposed to a generalized risk, similarly encountered by other Honduran
merchants, thus excluding him from the definition of “person
in need of protection” under paragraph 97(1)(b)(ii).
[40]
Therefore, while recognizing that the RPD’s
characterization of risk implicitly flows from previous credibility findings, the
Court finds that the heart of the applicant’s characterization of risk and of
his claim are not reasonably analyzed by the RPD. In coming to a finding of generalized
nature of risk feared by the applicant, the RPD unduly minimized the nature of
the risk to which the refugee claimant was exposed.
[41]
According to case law, an individual who has
been expressly targeted cannot then be considered to be exposed to a general risk
(Olvera at para 40).
[42]
In this case, there is an incongruity between
the recognition by the RPD of the personalized nature of the risk experienced
by the applicant and the conclusion that it is a generalized risk.
[43]
In this respect, the Court adopted the reasoning
adopted by Justice Donald J. Rennie and by Justice Mary J. L. Gleason in the Portillo
decision at para 42:
[42] For example, in Lovato, Justice Rennie
set aside the RPD’s decision for being unreasonable because the RPD
inappropriately characterized the nature of the risk faced by the claimant as
the risk of gang violence. On the facts, the applicant and his family members
were victims of extortion by the MS, one of his uncles had been killed by them,
and the applicant received threats that his family would be killed should he
fall short in making the extortion payments. Justice Rennie noted at para 13
that the evidence demonstrated that “the MS was specifically targeting the applicant
to an extent beyond that experienced by the population at large.” He continued
at para 14:
[S]ection 97 must not be interpreted
in a manner that strips it of any content or meaning. If any risk created by “criminal
activity” is always considered a general risk, it is hard to fathom a scenario
in which the requirements of section 97 would ever be met. Instead of
focusing on whether the risk is created by criminal activity, the Board must
direct its attention to the question before it: whether the claimant would face
a personal risk to his or her life or a risk of cruel and unusual treatment or
punishment, and whether that risk is one not faced generally by other
individuals in or from the country. Because the Board failed to properly
undertake this inquiry in this case, the decision must be set aside.
[Emphasis added.]
[44]
While recognizing that in case law the term “generally” may apply to a sub-group of the population
(such as Honduran merchants), the Court adopts the reasoning made by Justice
Gleason in Portillo:
It is simply untenable for the two
statements of the Board to coexist: if an individual is subject to a personal
risk to his life or risks cruel and unusual treatment or punishment, then that
risk is no longer general. If the Board’s reasoning is correct, it is unlikely
that there would ever be a situation in which this section would provide
protection for crime-related risks.
(Portillo, above at para 36; see also:
Martinez Granados v Canada (Minister of Citizenship and Immigration),
2014 FC 752 at para 6)
[45]
As expressed by Justice Russell Zinn in Guerrero
v Canada (Minister of Citizenship and Immigration),
2011 FC 1210 at para 34: “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”.
[46]
The tension between a personalized risk and a generalized
risk was also expressed by Justice James Russell in Correa v Canada (Minister
of Citizenship and Immigration), 2014 FC 252 at para 46:
While a full consensus has yet to emerge, I
think that there is now a preponderance of authority from this Court that
personal targeting, at least in many instances, distinguishes an individualized
risk from a generalized risk, resulting in protection under s. 97(1)(b). Since “personal
targeting” is not a precise term, and each case has its own unique facts, it
may still be the case that “in some cases, personal targeting can ground
protection, and in some it cannot” (Rodriguez, above, quoted with
approval in Pineda v. Canada (Minister of Citizenship and Immigration),
2012 FC 1543 [Pineda (2012)]. However, in my view there is an
emerging consensus that it is not permissible to dismiss personal targeting as “merely
an extension of,” “implicit in” or “consequential harm resulting from” a
generalized risk. That is the main error committed by the RPD in this case,
and it makes the Decision unreasonable.
[Emphasis added.]
[47]
Section 97 must not be interpreted in a manner
that strips it of any content or meaning (Lovato, above at para 14; Vivero
v Canada (Minister of Citizenship and Immigration), 2012 FC 138 at para 138).
[48]
The Court found that with respect to its analysis
under section 97 of the IRPA, the RPD did not reasonably weigh the evidence in
support of the applicant’s claim that he would be perceived by the Maras 18 as
a threat to their authority for having created the merchants’ association.
[49]
The Response to Information Requests HND104464.FE,
contained in the RPD’s national documentation package (NDP) (March 24,
2014), described the risk of retribution experienced by those who are perceived
by Maras 18 as threats to their authority, including the merchants:
Agence France-Presse (AFP) reports that,
following the imposition of a curfew by the maras in an area of Tegucigalpa,
there were no complaints regarding threats from maras, and that the chief of
police stated that “people may be keeping quiet out of fear” (4 Feb. 2013). La
Prensa quotes a carrier from San Pedro Sula who stated that [translation] “we
are not filing reports because we do not know if the person whom we will report
is an extortionist or a murderer” (La Prensa 7 May 2013). La Prensa also refers
to the case of a merchant who was allegedly murdered by the maras less than 24
hours after reporting that he had been a victim of extortion (ibid.). The
merchant’s family stated that the gangs returned a few days after the funeral
for the purposes of extortion, after having threatened to kill them (ibid.).
[Emphasis added.]
(Honduras: Areas where gangs operate (2012-June
2013), Research Directorate, Immigration and Refugee Board of Canada, Ottawa, June 18,
2013, Tribunal Record at p 131)
[50]
Furthermore, the Response to Information
Requests under HND103940.E of the NDP describes the retribution by the members
of the Maras toward those who they consider are challenging their authority:
According to an article published by Agence
France-Presse (AFP), the maras have divided Honduran cities into [translation] “zones
or ‘territories’“ that are then disputed between M-18 and MS-13 (12 June 2011).
Gutiérrez Rivera, writing in the Bulletin of Latin American Research in
2010, says that, in disputes over territory (also known as rifa del barrio),
gangs “exercise and test territorial authority upon others,” usually with
violence, and retaliate to perceived challenges to their authority (2010, 499).
She explained that these territorial disputes are largely associated with
the collection of [translation] “resources,” such as the “war tax” on public
transportation providers, kidnappings, threats and theft (25 Jan. 2012) from
individuals and businesses (Wilkinson 2010, 393). For example, Juan J.
Fogelbach, a researcher at the US Office of Refugee, Asylum, and International
Operations, indicates that, in recent years, there has been an increase in the
burning of buses and the killing of bus drivers (2011, 438). He notes that the
violence has been reported to be the means by which gangs “compel bus owners to
make extortion payments” (Fogelbach 2011, 438). Additionally, Gutiérrez Rivera
points out that gangs use violence to “impose local order” or “street level
politics” (2010, 495).
[Emphasis added.]
(Honduras: Areas of operation of Mara
Salvatrucha (MS-13) and Mara 18 (M-18) (also known as the 18th Street gang) in
Honduras, Research Directorate, Immigration and Refugee Board of Canada,
Ottawa, February 3, 2012, Tribunal Record at p 131)
X.
Conclusion
[51]
In light of the above, the Court finds that the RPD’s
decision that the applicant is not a person in need of protection is unreasonable.
[52]
The application is allowed and the matter is
referred back to a differently constituted panel for a new hearing.
Email this Content