Date: 20120416
Docket: IMM-1242-11
Citation: 2012 FC 441
Toronto,
Ontario, April 16, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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JOSE LUIS HERNAN MARTINEZ SAMAYOA
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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 ORDER AND ORDER
[1]
The
present Application concerns a decision of the Refugee Protection Division
(RPD) in which the Applicant’s claim for refugee protection under s. 97 of the IRPA
was rejected based on the finding that his evidence of fear of the criminal
gangs the MS-13 and the Mara-18 in Guatemala does not establish a personalized
risk, but rather a generalized risk that does not qualify for protection as set out in s. 97(1)(b)(ii).
[2]
At the time of the
hearing before the RPD the Applicant was 32 years age. He was born in Guatemala, was raised in a Christian family, and attended a Christian
college. At the age of thirteen, the Applicant began to be harassed by other
children, at first simply because of his religiosity and refusal to join in
misdeeds. When he was seventeen he was asked by his adolescent bullies to join
them as a member of the Mara; he refused and, and as a result, at age nineteen
was attacked by the Mara. The Applicant immediately fled Guatemala for the United States, and subsequently made his claim for
protection in Canada.
[3]
The
Applicant was unrepresented by Counsel at the hearing of his claim before the
RPD. As a result, Counsel for the Applicant makes the principal argument that
the Applicant was not afforded a fair hearing on the ground that the RPD Member failed to inform the
Applicant of the crucial and complex legal and evidentiary issues with respect
to what constitutes generalized risk as opposed to personalized risk if he were
required to return to Guatemala.
[4]
With respect to the
fairness argument, the critical elements of the RPD Member’s decision are as
follows:
According to section 97(1)(b)(ii) of the Act,
refugee protection is limited to those who face a specific risk that is not
generally faced by others in or from that country.
The claimant testified that he has a fear
for his life at the hands of organized criminal groups, particularly the MS-13
and Mara-18. The claimant was almost seventeen when he was first approached by
the Maras and asked to join them, but he refused;
subsequently, at the age of nineteen, he was beaten and threatened to be
killed. The panel considered the claimant’s psychological report and is
cognizant of the impact that his problems with the Maras have had on him. The claimant is 31 years old now; however,
he was in his teens when he was initially approached by the Maras. They continued to pursue him; at the age of nineteen, he
was beaten by the Mara and threatened with further harm to him and members of
his family. The panel sympathizes with the claimant in that he encountered
problems with the Mara in his late teens and early adulthood; however, the
panel finds that the risk feared by the claimant is generally faced by other
citizens in Guatemala. While the panel accepts the Court has mixed opinion on
this matter, the panel finds direction from conclusion made by Justice Boivin
in Perez [Perez v Canada (Minister of Citizenship and Immigration),
2010 FC 345], a case which specifically deals with the issue of forced recruitment.
Albeit the country in this case was Honduras, the claimant also feared recruitment by
the same criminal gang, accompanied by threats and violence. In this case, the
panel finds there was insufficient evidence that the claimant was treated
differently from others who are the target of recruitment by gangs in Guatemala. Justice Boivin concluded that the fact that the fact that
the recruitment is personal does not necessarily mean that the risk is
personalized, nor does it mean that the activity is not faced generally by
other individuals. The claimant testified regarding the widespread violence at
the hands of the organized criminal groups in the area where he had lived as
well as in other areas within Guatemala. The Board’s documentary evidence confirms
the prevalence of deadly violence in Guatemala, especially at the hands of gang
members.
The panel finds that this case falls
under the exception of paragraph 97(1)(b) in that the risk of harm the claimant
faces is generalized.
[…]
Based on the foregoing, the panel
determines that the risk faced by the claimant is generalized rather than
personalized risk, and, as such, the claimant’s risk of harm falls under
paragraph 97(1)(b)(ii) exception. Therefore, the panel determines that the
claimant is neither a Convention refugee nor a person in need of protection.
[Footnotes
omitted]
[Emphasis
added]
(Decision,
paras. 13-15 and 22)
[5]
Thus, the issue of
generalized and personalized risk was determinative of the Applicant’s claim.
As can be seen from the RPD Member’s decision, it is a complex subject. The
transcript reveals that at the hearing the RPD Member made an effort to explain
key evidentiary requirements of advancing a claim for protection, however, the
effort did not include an explanation of generalized risk:
MEMBER: Now, I am going to go over the issues in
regard to your claim. What I mean by issues is, there are areas that we need
to get clarification on and also, some answers to questions.
[…]
MEMBER: In order to accept you as a convention
refugee or a person in need of protection, you have to show me that you have a
well founded fear of prosecution based on one of the five grounds in the
convention definition, okay?
CLAIMANT: Okay.
MEMBER: And those grounds are race, religion, political
opinion, nationality, or membership in a particular social group. So, if you
belong to any of those five, you know, classes, then you fit the definition of
… to be considered as a convention refugee.
Okay, were you persecuted in Guatemala because of any of these five … based on these five grounds?
CLAIMANT: No.
MEMBER: Okay. So what that means is that you do
not have nexus to the convention definition, okay? You understand?
CLAIMANT: Yes.
[…]
MEMBER: Okay, so in the alternative, when you do
not fit in the definition of convention refugee, what we do is we also consider
you as a person in need of protection.
CLAIMANT: Okay.
MEMBER: Okay. A person of need … in order to
qualify as a person in need of protection, you will need to show me that you
would face a risk to your life or a risk of unusual or cruel treatment or
punishment or a danger of torture upon return to Guatemala,
okay?
CLAIMANT: Okay.
MEMBER: So, these are two ways we consider people
in need of protection.
Either they qualify as a convention
refugee, or they qualify as a person in need of protection.
CLAIMANT: Okay.
MEMBER: Okay, since you told me that you were not
persecuted because any of those five grounds, you do not fit in the definition
of convention refugee. So, I am going to consider your claim in the
alternative as a person in need of protection.
CLAIMANT: Okay.
[…]
MEMBER: Okay, so basically what I need to know,
since you are stating that you face a risk to your life, I need to know what
you fear, whom you fear, and why the person or persons, or the group or groups
you fear, would wish to harm you. Okay?
CLAIMANT: Okay.
MEMBER: Now the main issues regarding your claim
include:
Delay in claiming, because you have been
out of your country for some time.
CLAIMANT: Yes.
[…]
MEMBER: And then the other issue is failure to
claim elsewhere. Since you were in the United
States, I am going to be
asking you question, why did you not file refugee claim in the United States.
CLAIMANT: Okay.
MEMBER: And then there is going to be
credibility. Okay, credibility is an issue in all refugee protection claims
and it refers to that what you have written and what you will say, if I believe
it, okay?
CLAIMANT: Okay.
MEMBER: And in assessing credibility, we also see
if there are any omissions or if there are any contradictions, or if there are
any inconsistencies in your evidence, okay? For example, you may have told the
immigration officer something, but you wrote something different in your
narrative and you may come and tell me something different at the hearing. So,
that will be contradiction or inconsistencies in your testimony, or in your
evidence, okay?
Now the other issue that I am going to
consider, is state protection. If you were having problems in Guatemala, did you go to the police? And if you did go to the police,
what was the result of your efforts after going to the police, okay … and why
do you believe police cannot protect you due to your problems in Guatemala.
And then I am going to also try to … I
will have to establish who is the agent of persecution, like whom you fear, you
know. What group of people, what is their profile, why, you know, like those
people want to harm you.
So those are the issues, okay?
(Certified Tribunal Record, pp. 185-188)
MEMBER: Sir, I understand what you are saying,
but the point is, whether you have shown through evidence that you fear
criminality. These people they recruit people, young people, and if they do
not comply with them, they threaten them, they hurt them, correct? And then,
your family has been extorted of money, or they have been … attempts have been
made on them to extort money.
CLAIMANT: Yes.
MEMBER: That is what you have shown. And that is
generalized risk of harm, which is criminality, which is … not like… any
Guatemalan citizen would be prone to because these are criminals, these are
criminal groups MS 13 and 18.
(Certified Tribunal, pp. 209)
[6]
In response to
Counsel for the Applicant’s fairness argument, Counsel for the Respondent
correctly states that a self-represented claimant is not entitled to a higher
degree of procedural fairness (Turton v Minister of Citizenship and
Immigration, [2011] FCJ No 1526; Adams v Minister of Citizenship and
Immigration, 2007 FC 529). On this basis, Counsel for the Respondent argues
that: the Applicant knew he had the burden to prove his claim under s. 97;
generalized risk is a feature of that burden; and the RPD Member was under no
obligation to spell this out to the Applicant.
[7]
However, it is also
correct that: a self-represented claimant must be pointed to “salient points of
law and procedure” (Wagg v Canada, [2003] FCJ No 1115); ensuring a fair
hearing is paramount; and the content of procedural rights afforded to a party
is context-dependent and is to be determined on a case-by-case basis (Law v
Canada (Minister of Citizenship and Immigration), 20076 FC 160 at para. 19;
Nemeth v Canada (Minister of Citizenship and Immigration), 2003 FCT 590,
at para. 13; Kamtasingh v. Canada (Minister of Citizenship and Immigration),
2010 FC 45).
[8]
Given the nature of
the Applicant’s claim, and given that generalized risk was the focus placed on
it by the RPD Member, I find that the Applicant was not accorded procedural
fairness because the RPD Member failed to reasonably inform the Applicant of
the legal and evidentiary features of the concept of generalized risk. As a
result, I find that the decision under review as made in reviewable error.
[9]
As a result, Counsel
for the Applicant advances no question for certification, however Counsel for
the Respondent advances the following question: Does procedural fairness
require the Refugee Protection Division of the IRB to explain the applicant’s
evidentiary burden to the applicant when s/he is unrepresented?
[10]
In my opinion the
question is not appropriate for certification because it does not raise a
matter of general importance. The law on the issue is well established as
explained in the reasons provided: the content of procedural rights afforded to
a party is context-dependent and is to be determined on a case-by-case basis.
In the present case the breach of procedural fairness was based on its facts.
ORDER
THIS COURT
ORDERS that the decision presently under review is set aside, and the
matter is referred back to a differently constituted panel for redetermination.
There is no
question to certify.
“Douglas R. Campbell”
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