Docket: IMM-4938-11
Citation: 2012 FC 183
Toronto, Ontario, February 8,
2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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FRANCISCO MISRAIN TRIGUEROS AYALA
ZUSELL TANYALESLY ESCOBAR DE TRIGUEROS
YENSI DAYANA TRIGUEROS ESCOBAR KEYLLY
ZUCELL TRIGUEROS ESCOBAR ANDREA ABIGAIL TRIGUEROS ESCOBAR
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review to set aside a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada dated July
12, 2011, wherein the Applicants’ claim for refugee protection in Canada was
rejected. For the reasons that follow, I am dismissing this application.
[2]
The
Applicants are a family – husband, wife and three daughters – all citizens of Guatemala. They
entered Canada on July 11,
2010 on visitors’ visas and filed refugee claims on August 3, 2010. They ran a
small business in Guatemala. Their claim was based on fear relating to
threats of extortion by a criminal gang, which threats were backed up with
threats of violence and rape. The principal male Applicant complained to the
police, then to the public minister, and then to the public prosecutor. He
received promises that the matter would be investigated and that surveillance
would be conducted. Not having heard further from the authorities for a period
of several days, the family left Guatemala and, via the United
States, came to Canada.
[3]
The
Board determined that the risk to which the Applicants were exposed was a
generalized risk and that the Applicants had not established a link to any of
the grounds provided for in the Convention that would allow them to establish a
refugee claim in Canada.
[4]
There
is a good deal of jurisprudence in the Court in which distinctions are made
between generalized risk and personal risk. The use of the word generally
was explained by Snider J in Osorio v Canada (Minister of
Citizenship and Immigration), 2005 FC 1459 at paragraph 26:
26 Further, I can see nothing in s.
97(1)(b)(ii) that requires the Board to interpret "generally" as
applying to all citizens. The word "generally" is commonly used to
mean "prevalent" or "widespread". Parliament deliberately
chose to include the word "generally" in s. 97(1)(b)(ii), thereby
leaving to the Board the issue of deciding whether a particular group meets the
definition. Provided that its conclusion is reasonable, as it is here, I see no
need to intervene.
[5]
In
Sanchez v Canada (Minister of Citizenship and Immigration), 2011 FC
993, Crampton J (as he then was) explained that generalized risk does not need
to affect everyone the same way. At paragraph 23 he wrote:
23 In my view, it was reasonably open
to the Board to conclude, based on its finding that violence at the hands of
the Maras Salvatrucha gang is a risk faced widely by people in El Salvador,
that the risk faced by Mr. Baires Sanchez is a risk "faced generally by
other individuals in or from El Salvador," as contemplated by paragraph
97(1)(b)(ii) of the IRPA. The fact that the particular reason why Mr. Baires
Sanchez may face this risk may differ from the particular reason why others
face this risk is of no consequence, given that (i) the nature of the risk is
the same, namely, violence (including murder); and (ii) the basis for the risk
is the same, namely, the failure to comply with the MS-13's demands, whether
they be to join their organization, to pay extortion money, or otherwise. As
the Board appropriately recognized, "[a] generalized risk does not have to
affect everyone in the same way."
[6]
In
Castaneda v Canada (Minister of
Citizenship and Immigration), 2011 FC 724, I considered a situation
where a generalized risk became personalized. I wrote at paragraphs 4 and 5:
4 However the Applicant is in a
situation that makes his risk personal. He was unable to make the payments
demanded by the gang. Members of the gang beat him with a variety of
implements, shot him at least four times and left him for dead. Miraculously he
was transported to hospital, was in a coma for about a year and, eventually
recovered. He fled first to the United States where he did not make claim
for asylum, then came to Canada.
5 The evidence is clear as to how
widespread and vicious the gang is not only in Honduras but elsewhere. The evidence, which came
from the Applicant and really only could come from him, is that if he were to
return to Honduras the gang would not just pursue him for money but would seek
to kill him since he represented the gang's failure to kill people which they
targeted. He was, in effect, living proof of their ineptitude.
[7]
Very
recently, Rennie J of this Court in Vaquerano Lovato v Canada (Minister of
Citizenship and Immigration), 2012 FC 143 reviewed a number of cases dealing
with generalized risk and personalized risk. He determined at paragraph 13 of
his Reasons that:
…the Board incorrectly focused on the
reasons for which the applicant was being targeted, rather than the evidence
that the [gang] was specifically targeting the applicant beyond that
experienced by the population at large.
[8]
I
believe that the distinction made by Rennie J is an important one. Where a
portion, not necessarily a majority, of the population is subjected to threats
of extortion and violence, the evidence must demonstrate that the Applicants
have experienced something that is beyond what has been experienced by the
population that is otherwise subjected to such threats.
[9]
Here,
the evidence is that small business owners such as the Applicants are
frequently targeted in Guatemala by criminal gangs
seeking payments of money. The gangs back up their demands with threats of
violence. One source estimates that at least twenty percent (20%) of small
business in Guatemala makes such
payments in the face of threats of violence. In the circumstances of the
present case, the Applicants would be in that twenty percent. There is no
evidence that they have been exposed to or suffered risk greater than that to
which the twenty percent were exposed.
[10]
In
the present case, the Board gave careful consideration to the issue as to
whether the risk to which the Applicants were exposed was a generalized or
personal risk, and concluded that it was generalized. The Supreme Court of
Canada in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 and most recently
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, has emphasized that in a judicial review,
deference must be given to the decision of a tribunal having expertise in the
matter, and that reasons must not be examined microscopically. Abella J, for
the Court, in the Newfoundland case wrote at
paragraphs 15 and 16:
15 In assessing whether the decision
is reasonable in light of the outcome and the reasons, courts must show "respect
for the decision-making process of adjudicative bodies with regard to both the
facts and the law" (Dunsmuir, at para. 48). This means that courts should
not substitute their own reasons, but they may, if they find it necessary, look
to the record for the purpose of assessing the reasonableness of the outcome.
16 Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees' International
Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R.
382, at p. 391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
[11]
I
am satisfied that, in the present case, the Board’s decision was reasonable and
that the reasons are adequate. The application is dismissed; neither Counsel
requested a certified question; there is no reason to order costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is dismissed;
2.
No
question is certified; and
3.
No
Order as to costs.
“Roger
T. Hughes”
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