Valderrama v. Canada (Minister of Citizenship and Immigration), docket IMM-444-98

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docket IMM-444-98

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Date: 19980805

Docket: IMM-444-98

BETWEEN:

LIZ GARCIA VALDERRAMA and

ALBERTO DE JESUS YANEZ MOLINA

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

REED, J.

[1] The male applicant, Alberto de Jesus Yanez Molina, (herein after "the applicant") seeks to have a decision of the Convention Refugee Division of the Immigration and Refugee Board ("the Board") set aside on the ground that it erred in law when it refused to find him to be a convention refugee. His claim for such status is based on membership in the social group of "successful businessmen opposed to corruption and unwilling to pay bribes". He claims he was persecuted and will face persecution in Venezuela because of his political opinion, which opinion is that he believes in the rule of law and opposes corruption.

[2] Counsel for the applicant's argument relies basically on the decision in Canada (Attorney General) v. ;Ward, [1993] 2 S.C.R. 689 and Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593. In the Ward decision the Supreme Court identified three categories of social group to which protection under the Convention might apply:

(1) groups defined by an innate or unchangeable characteristic;

(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3) groups associated by a former voluntary status, unalterable due to its historical permanence.

[3] That decision also made it clear that state complicity was not necessary to find that persecution existed; a state's inability to protect the individual was enough.

[4] In rendering his dissenting decision in Chan, Mr. Justice LaForest elaborated on the second of the above noted categories, indicating that actual association in a specific group was not necessary:

As I believe apparent at the time of that decision, only a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group. The general underlying themes of the defence of human rights and anti-discrimination were to remain the paramount consideration in determining a claimant's membership in any particular social group. (para 83, emphasis added).

....

Upon reflection, it is apparent that it may seem possible to conclude that for a refugee to fall within the parameters of the second Ward category, such claimant would have to establish some type of voluntary association with a specific group. In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. Such a claimant is in no manner required to associate, ally, or consort voluntarily with kindred persons. (para 87, emphasis added).

[5] Counsel for the applicant argues that the Board in this case never assessed whether the applicant was a member of a social group whose members were being denied fundamental human dignity, fundamental human rights. He argues that the Board did not assess whether the social group in which the applicant states he is a member comes within the second category described in Ward. He argues that the Board focussed on the first category only and asked whether the applicant as a "successful businessman" was a member of a group defined by an innate characteristic.

[6] The Ward decision is also relied upon for its description of what constituted a political opinion for Convention purposes. The definition of political opinion accepted in Ward was: "Any opinion on any matter in which the machinery of state, government, and policy may be engaged". Counsel argues that the Board in its analysis ignored the fact that the state complicity is not required for persecution to exist and that a political opinion for Convention purpose may be the political conviction that paying a bribe to the police who are charged with upholding the law is wrong, that to ignore the rule of law is wrong. He argues that the Board focussed instead on whether the opinion could be characterized in a formal sense as "anti-government".

[7] Counsel seeks to distinguish the cases that have held that victims of extortion do not fall within a social group, on the ground that they were decided before the Chan decision. These cases are: Soberanis v. MCI (8 October 1996) IMM-401-96 (FCTD) (a small business proprietor subjected to extortion in Guatamala), Calero v. MEI (8 August 1994) IMM-3396-93 (FCTD) (victims of organized crimes in Ecuador), Wilcox v. MEI (2 November 1993) A-1282-92 (FCTD) (fear of extortion in Peru), Mortera v. MEI (8 December 1993) (FCTD) (landlord in the Philippines), Karpounin v. MEI (10 March 1995) IMM-7368-93 (FCTD) (extortion victims in the Ukraine), Vetoshkin v. MCI (9 June 1995) IMM-4902-94 (FCTD) (extortion of a Russian in Chechnya), Rodriguez v. MCI (26 September 1997) IMM-4573-96 (FCTD) (family members of a group targeted because of illicit drug activities).

[8] He argues that the decisions respecting domestic violence are better sources of analysis: Navarez v. MCP, [1995] 2 F. C. 55 (FCTD) and Diluna v. MEI (14 March 1995) IMM-3201-94 (FCTD).

[9] I am not persuaded that counsel for the applicant's analysis of the consequences of the Ward and Chan decisions is correct. In the first place, Mr. Justice LaForest's decision in Chan was a dissenting decision. The majority decided that case on quite a different basis, i.e., that the evidence did not establish the credibility of the applicants alleged fear. But even accepting the proposition that the court as a whole would adopt Mr. Justice LaForest's position, this does not establish that victims of extortion fall within a Convention social group. In Ward, Mr. Justice LaForest made it clear that the Convention does not cover all those who may at one time or other have suffered or fear that they will suffer human rights abuses. He rejects as falling within the social group categories "an association of people ... merely by virtue of their common victimization as objects of persecution." At page 732 of the Ward decision the following passage is found:

As explained earlier, international refugee law was meant to serve as a "substitute" for national protection where the latter was not provided. For this reason, the international role was qualified by built-in limitations. These restricting mechanisms reflect the fact that the international community did not intend to offer a haven for all suffering individuals. The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e., individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance, although both of these cases might seem deserving of international sanctuary.

Similarly, the drafters of the Convention limited the included bases for a well-founded fear of persecution to "race, religion, nationality, membership in a particular social group or political opinion". Although the delegates inserted the social group category in order to cover any possible lacuna left by the other four groups, this does not necessarily lead to the conclusion that any association bound by some common thread is included. If this were the case, the enumeration of these bases would have been superfluous; the definition of "refugee" could have been limited to individuals who have a well-founded fear of persecution without more.

[10] Mr. Justice LaForest, at pages 738-9, describes the difference between a group that falls within the Convention and one that does not by reference to the distinction between what one is and what one does.

... Perhaps the most simplified way to draw the distinction is by opposing that which one is against what one does, at a particular time. For example, one could consider the facts in Matter of Acosta, in which the claimant was targeted because he was a member of a taxi-driver co-operative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in a immutable or fundamental way.

The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve the results.

[11] Mr. Justice LaForest then refers to the three categories described above and, with respect to the second category, states that it "could encompass, for example, human rights activists".

[12] I turn then to the facts of the case and the Board's decision. I do not read that decision in the same way that counsel for the applicant does. In my view, there is a fundamental error in counsel's argument when he describes the group to which the applicant belongs as "successful businessmen who also oppose corruption". The facts disclose that it is "successful businessmen" who are being subjected to persecution (extortion). The group targeted for extortion includes not only those opposed but also those not opposed to corruption (or those who pay even though they may be opposed). The persecutory acts (extortion) are not directed solely or primarily at those opposed to corruption. There is simply no nexus between the class that is the subject of the extortion and a Convention social group. The Board understood that this was the case and that was the essence of its decision.

[13] I turn then to the argument based on persecution as a result of a political opinion. That argument falls on the same ground as that based on being a member of a social group. The evidenciary basis of the claim does not support the argument that the persecution arises because of opposition to corruption. Extortion is visited on all those successful business people who are targeted. One can frame this differently, as counsel for the respondent has done, and say that it was made clear in Ward that the relevant consideration is the perception of the alleged persecutor, not the fact that the applicant considers his stand against violence and corruption to be political. The alleged persecutor is not targeting the applicant because he is opposed to corruption but because he is a successful businessman who has money.

[14] Also, while the Board had evidence before it that corruption is a problem in Venezuela, there was little evidence that corruption within the government or otherwise was officially condoned by the government. The applicants in this instance reported only the initial extortion demand to state authorities in Venezuela but not the resulting mistreatment arising from a failure to meet the demand. Implicit in the Board's decision is a finding that the applicants failed to demonstrate that Venezuela could not protect them if given an opportunity to do so.

[15] Counsel's argument that the female applicant's claim was wrongly assessed by the Board falls, whether based on the male applicant's claim, or assessed independently, for the same reasons that apply to the male applicant's claim.

[16] For the reasons given this application must be dismissed.

"B. Reed"

Judge

Toronto, Ontario

August 5, 1998

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-444-98

STYLE OF CAUSE: LIZ GARCIA VALDERRAMA and

ALBERTO DE JESUS YANEZ MOLINA

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

DATE OF HEARING: THURSDAY, JULY 30, 1998

PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA

REASONS FOR ORDER BY: REED, J.

DATED: WEDNESDAY, AUGUST 5, 1998

APPEARANCES:

Mr. Alistair A. Boulton

For the Applicants

Ms. Brenda Carbonell

For the Respondent

SOLICITORS OF RECORD: Larson Suleman Sohn Boulton

Barristers & Solicitors

P.O. Box 26

609 West Hastings St., 6th Floor

Vancouver, British Columbia

V6B 4W4