Docket: IMM-7468-11
Citation: 2012 FC 716
Calgary, Alberta, June 7, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
|
|
JORGE ALBERTO MUNOZ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
ORDER AND ORDER
[1]
The
present Application concerns a decision of the Refugee Protection Division
(RPD) in which the Applicant, a citizen of El Salvador, was determined not to
be a Convention Refugee or a person in need of protection. The Applicant claims
refugee protection based on his fear of the gang in El Salvador called the MS-18.
The Applicant owned a small food store and was forced to pay weekly extortion to
the gang. When he was unable to make his payments the Applicant was badly
beaten, and his life threatened. The RPD found that there was no nexus on
Convention grounds and that the Applicant faced a generalized risk.
[2]
The
RPD accepted the Applicant’s evidence with respect to his claim to be “reliable
and trustworthy” (Decision, p. 2). The details of the Applicant’s personal
experience with the MS-18 are important because they form the basis for his
claim that should he be required to return to El Salvador, it is probable he
will be killed. The undisputed details are as follows:
From 2003 forwards the Applicant
and his wife were forced to pay weekly extortion for protection by MS 18. MS 18
referred to it as “rent”. They had little money and they struggled to pay the
rent but they managed to set aside some money in order to meet their demands
because they were afraid of being killed.
The Applicant and his family
lived this way for several years, until October of 2006, when the Applicant was
unable to make a monthly payment. The Applicant was on his way home from his
second job and he was ambushed by seven gang members. They beat him with
sticks, belts, fists, anything they could find The Applicant suffered multiple
injuries across his entire body and nearly died. He was in the hospital for
three days. As evidence of his injuries the Applicant provided a medical report
which can be found at page 40 of his disclosure which was before the Board as
Exhibit 5 and is attached to his Affidavit as Exhibit B. After the Applicant
was discharged from hospital he was again threatened by MS 18 that if he went
to the police either he or a family member would be killed. The Applicant was
also advised that he still owed his rent for the month of October, which he
paid.
Time went by and the Applicant
continued to make payments, sometimes late, owing to the economic hardships
that he faced. Finally in September of 2008 the situation became unsustainable.
The Applicant simply could no longer pay them their rent and in fact fell three
months behind in his payments. Knowing that his life was now at risk the
Applicant was forced to leave his home, his family and the job he had for 20
years. The Applicant went and stayed with his younger brother who lived in
another town until he could find a way to leave the country. The Applicant’s
cousin, who owned a business, provided him with some work and he sent money
back to his family so they could continue to pay the rent while he was in
hiding. In October of 2008 the Applicant was fortunate enough to get a work
visa to come to Canada where he decided to make a refugee claim.
The Applicant is currently
sending money back to his family and his wife continues to be targeted by MS 18
and is forced to pay rent on their store every week. Further, his family
members have been directly threatened by MS 18 members that if the Applicant
returns to El Salvador he will be killed. The Applicant’s young daughter has
written a letter outlining the threats she receives in relation to him. This
letter can be found at page 6 of Exhibit B to the Applicant’s Affidavit. On one
occasion MS 18 even put a gun to the Applicant’s daughters chest on her way to
school and told her they had unfinished business with the Applicant. In
desperation, the Applicant’s wife even tried to file a police report on behalf
of their daughter even though they knew it would not help. This report was
filed in November of 2010 and can be found at page 11 of Exhibit B to the
Applicant’s Affidavit.
(Applicant’s Memorandum, paras. 4
– 7)
[3]
I
agree with Counsel for the Applicant that, as a matter of law, the RPD was
required to meet the criteria with respect to proving a claim under s. 97 of
the IRPA as identified by Justice Zinn in Guerrero v Canada (Minister
of Citizenship and Immigration), 2011 FC 1210 at paragraphs 26 – 28:
Parsing this provision, it is
evident that if a claimant is to be found to be a person in need of protection,
then it must be found that:
a. The claimant is in
Canada;
b. The claimant would be
personally subjected to a risk to their life or to cruel and unusual treatment
or punishment if returned to their country of nationality;
c. The claimant would
face that personal risk in every part of their country; and
d. The personal risk the
claimant faces “is not faced generally by other individuals in or from that
country”
All four of these elements must
be found if the person is to meet the statutory definition of a person in need
of protection; it is only such persons who are permitted to remain in Canada.
The majority of cases turn on
whether or not the last condition has been satisfied, that is, whether the risk
faced by the claimant is a risk faced generally by others in the country. I
pause to observe that regrettably too many decisions of the RPD and of this
Court use imprecise language in this regard. No doubt I too have been guilty of
this. Specifically, many decisions state or imply that a generalized risk is
not a personal risk. What is usually meant is that the claimant's risk is one
faced generally by others and thus the claimant does not meet the requirements
of the Act. It is not meant that the claimant has no personal risk. It is
important that a decision-maker finds that a claimant has a personal risk
because if there is no personal risk to the claimant, then there is no need to
do any further analysis of the claim; there is simply no risk. It is only after
finding that there is a personal risk that a decision-maker must continue to
consider whether that risk is one faced generally by the population.
My second observation is that too
many decision-makers inaccurately describe the risk the applicant faces and too
many decision-makers fail to actually state the risk altogether. Subparagraph
97(1)(b)(ii) 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]
The evidentiary burden rested with
the Applicant to prove the existence of each of the four criteria identified on
a balance of probabilities, and the RPD had an obligation to determine whether
the Applicant had met the evidentiary burden. It is agreed that the requirement
on the Applicant to establish that no Internal Flight Alternative exists only
arises when an established personal risk is found not to be generalized.
[4]
With
respect to the second criteria specified by Justice Zinn, being the nature of
the Applicant’s personalized risk, in the decision under review the RPD made
the following two statements:
You stated in your Personal
Information Form (“PIF”) and testimony that most neighbouring businesses were
also forced to pay extortion to the Maras, like you. The truck drivers who
made deliveries to your shop also had to pay. You stated that you had two
friends extorted by the Maras, who were murdered. Based on the evidence and
your testimony about others also targeted for extortion, I do not find that
your risk is particularized. Regarding your personal circumstances, when you
were asked why you were targeted for extortion, you stated it was because of
your store. You also testified that you had never been extorted before and had
never had problems with the Maras before 2003. In my view, the only reason you
were targeted is because of your store and the belief that you had money. When
you failed to pay, you were assaulted, and when you failed to pay a second
time, you feared further reprisals. Now that your wife continues to work in
the store, she, too, is required to pay and is not being held accountable for
you debt. There are no circumstances here that distinguish your risk from
that of other shopkeepers similarly targeted. [Emphasis added] (Decision
paragraph 14)
and:
It was argued that your case was
no longer generalized once you ceased to pay and you were beaten and threatened
and your family was threatened thereafter. Now, because of your non-compliance
in payment, you will face retribution, which is not generally faced by others.
In my view, retribution for non-payment of extortion always forms part of the crime
of extortion. Fear of this is the reason people pay. If there was no
retribution or consequence for non-payment, obviously people would not pay. I
do not, therefore, find that retribution for non-payment can be separated from
the crime of extortion. As stated, in Ventura de Prada, the individuals
also experienced retribution for non-compliance, but this was still a
generalized risk. (Decision, paragraph 19)
With respect to the RPD’s statement
at paragraph 19, Counsel for the Applicant makes the following argument:
This is, with respect, flawed and
over simplistic reasoning. The entire decision is assessed on the premise that
the risk the Applicant faces in El Salvador is one of extortion and that the
risk of death the Applicant faces due to his non-compliance, is merely a
by-product of the extortion and not the actual risk itself. The risk the
Applicant faces is not one of extortion but a risk of death due to his failure
to meet the demands of Mara 18. The two are obviously not the same. In this
case, the retribution would be the death of the Applicant at the hands of hyper
violent international gang. In another case the retribution may not potentially
be as dire. It depends on the specific factual circumstances.
(Applicant’s Memorandum of
Argument, p. 2)
[5]
I
agree with this argument. Despite the detailed and cogent evidence produced by
the Applicant on the second criterion, the RPD made no precise finding as to
the nature of the personal risk advanced by the Applicant, which, in turn,
negated the obligation on the part of the RPD to determine whether that risk
was probable in El Salvador should he be required to return to El Salvador.
[6]
With
respect to the fourth criterion identified by Justice Zinn, being whether the
personal risk the claimant advances is not faced generally by other individuals
in or from El Salvador, Counsel for the Applicant makes the following argument:
In this case, the Board should
have assessed whether the potential retribution to the Applicant from MS 18
amounted to a risk to his life and then gone on to assess whether that
particular risk was personal and not one faced generally by others in the
country. There was no attempt to do either. Further, there is no evidence
before the Board that a significant subset of the population in El Salvador is
facing death for their failure to pay Mara 18 extortion demands.
(Applicant’s Memorandum of
Argument, p. 3)
[7]
I
also agree with this argument. In my opinion the RPD did not exhibit an
understanding of the need to clearly define the characteristics and the size of
the population against whom the Applicant’s experience is being compared in
arriving at the conclusion that the Applicant’s risk is generalized. Justice
Crampton (as he then was) clearly identifies this requirement in Guifarro v Canada
(Minister of Citizenship and Immigration), 2011 FC 82, at paragraphs 32
– 33:
Given the conjunctive nature of
the two elements contemplated by paragraph 97(1)(b)(ii), a person applying for
protection under section 97 must demonstrate not only a likelihood of a
personalized risk contemplated by that section, but also that such risk
"is not faced generally by other individuals in or from that
country." Accordingly, it is not an error for the RPD to reject an
application for protection under section 97 where it finds that a personalized
risk that would be faced by the applicant is a risk that is shared by a
sub-group of the population that is sufficiently large that the risk can
reasonably be characterized as being widespread or prevalent in that country.
This is so even where that sub-group may be specifically targeted. It is
particularly so when the risk arises from criminal conduct or activity.
Given the frequency with which
claims such as those that were advanced in the case at bar continue to be made
under s. 97, I find it necessary to underscore that is now settled law that
claims based on past and likely future targeting of the claimant will not meet
the requirements of paragraph 97(1)(b)(ii) of the IRPA where (i) such targeting
in the claimant's home country occurred or is likely to occur because of the
claimant's membership in a sub-group of persons returning from abroad or
perceived to have wealth for other reasons, and (ii) that sub-group is
sufficiently large that the risk can reasonably be characterized as being
widespread or prevalent in that country. In my view, a subgroup of such
persons numbering in the thousands would be sufficiently large as to render the
risk they face widespread or prevalent in their home country, and therefore
"general" within the meaning of paragraph 97(1)(b)(ii), even though
that subgroup may only constitute a small percentage of the general population
in that country.
[Emphasis added]
My only observation with respect to
Justice Crampton’s statement about the size of the sub-group in which a risk
might be “widespread or prevalent” in a country is that it depends on the
circumstances of each individual case.
[8]
In
the present case I find that the RPD failed to clearly define the characteristics
and size of the population against whom the Applicant’s experience is being
compared. It is not enough to say, as did the RPD in paragraph 14 of the
decision as quoted above, that the sub-group is “other shopkeepers similarly
targeted”. With regard to the evidence accepted by the RPD, the critical questions
that remained unanswered in the making of this finding are: who are the persons
that face the risk to life or cruel and unusual treatment or punishment in
common with the Applicant; what is the size of that population of people; and
do the characteristics and size of that population, or sub-group, make the
Applicant’s risk personal or generalized?
[9]
Defining
the characteristics of the sub-group is particularly important. In the present
case the following features of a potential sub-group were established by the
Applicant: shopkeepers who are extorted; and who have not met extortion
demands; and who have suffered severe bodily harm and death threats; and who
continue to receive death threats communicated through family members, together
with death threats directed against family members. It was for the RPD to
determine whether persons who have had the same experience as the Applicant form
a sub-group of a character and size sufficient to make the Applicant’s risk a
generalized risk.
[10]
In
the sub-group determination just described, a point might be found where a
personalized as opposed to a generalized risk exists. In the present case, on
the evidence produced by the Applicant, the turning point might be found where
the Applicant’s conduct of not paying money in response to extortion demands
drew particular attention to him personally, or perhaps when the extortion
threats became actualized in extreme violence and escalating death threats
against the Applicant and his family. It was for the RPD to determine whether
these, or any other turning point existed.
[11]
As
a result I find that the decision under review was rendered in reviewable
error.
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 on the following direction:
Because the RPD’s decision is being
set aside only for failure to apply the evidence according to law:
1. The
redetermination be conducted on the basis of the evidence produced before the
RPD to date, and any other evidence which either the Applicant or Respondent
might produce; and
2. The
redetermination be conducted on the basis that the Applicant’s evidence
produced to date is “reliable and trustworthy”.
There is no question to certify.
“Douglas
R. Campbell”
Email this Content