Docket: IMM-3018-11
Citation: 2012 FC 138
Ottawa, Ontario, February 2,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JAVIER CAMARGO VIVERO
ANTONIA FLORIDO MARTINEZ
MIGUEL CAMARGO FLORIDO
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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
decision arises from an application for judicial review of a March 23, 2011
decision by the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the Board) that found that the applicants were neither
Convention (United Nations’ Convention Relating to the Status of
Refugees, [1969] Can TS No 6) refugees under section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) nor persons in need of
protection under section 97 of the IRPA.
[2]
The
issue before this Court is whether the Board erred in its analysis under
section 97(1)(b)(ii) of the IRPA. A second issue arises from the
Board’s findings on state protection; however, as the Board reasonably
concluded that the applicants would not be subject to a risk not faced
generally by other individuals in Mexico, the state protection issue need not be
addressed. The third ground of review, breach of the principles of natural
justice, was abandoned by the applicants at the outset of argument.
Facts
[3]
The principal
applicant, Javier Camargo Vivero (applicant), his spouse and their minor child
are originally from Cordoba,
Veracruz, Mexico. The applicant was a
self-employed auto-mechanic and his wife a self-employed graphic designer. On
November 12, 2008, he was kidnapped, assaulted and held for a one million peso
ransom by ‘Los Zetas’ (Zetas), a criminal gang in Mexico. His wife raised
almost half of that in order to secure his release. The applicant was then
instructed by the Zetas to pay 20,000 pesos each month in order to prevent harm
to himself, his wife and child. He was told not to go to the police. He was
told that his telephone would be monitored. He was told that he would be
watched. He testified that both he and his home were, on occasion, under
surveillance.
[4]
The
applicant spoke about the situation with some of his clients who were police
officers. He was told by these officers that nothing could be done but to pay
the ransom or close his business and move away. He thus did not report the
kidnapping, the assault or the extortion threats to the police. By July 2009,
the Zetas had increased the monthly extortionary rate to 25,000 pesos. The
applicant testified that he thought of moving to another part of Mexico, but feared reprisals
from the Zetas for closing his business and avoiding them. In the early hours
of January 15, 2010, the applicants left their home, most of their possessions
and drove to the airport. They arrived in Canada and made a claim for refugee status that
day.
[5]
The
Board refused the claims on March 23, 2011, the same day as the hearing, and
rendered its written decision on April 11, 2011, finding that:
….there
is no nexus to a Convention ground. That is to say, you do not fear the Los
Zetas criminal gang on the basis of your nationality or your race or your
religion or your political opinion. I do not find that you are members of a
particular social group in terms of your fear of Los Zetas. You are victims of
kidnapping, assault, death threats and extortion. In other words, you are
victims of crime in Mexico. Victimization alone cannot form the
basis of your membership in a particular social group. I am not of the view the
principal claimant’s status as a successful businessman in Mexico forms the basis of a particular social group.
[6]
The Board
further developed this finding, and added that:
There
was no evidence before me demonstrating that you were targeted by Los Zetas for
any reason other than your perceived wealth. The Zetas were looking for anyone
who could pay them. The motivation to target you was purely financial, with
your perceived wealth being the probable cause. As such, your fear results from
criminality which does not constitute a fear of persecution based on a
Convention ground as was found in the cases of Larenas and Vikram….
[7]
Having
concluded that a claim under section 96 had not been established, the Board
then considered whether the criteria of section 97 of the IRPA had been
satisfied. The Board stated:
….I
must assess your claims under subsection 97(1) of the Act on a balance of
probabilities. I note that there is no evidence of continued threat or risk
from these particular gang members. While you believe there would be serious
consequences if Los Zetas found you in Mexico, there is no evidence that they continue
to actively search for you. This confirms my conclusion that their main
interest in you was money. While I accept that you continue to fear those who
kidnapped and extorted you, I find that the risk you face is unfortunately a
generalized one. In a country in which there is a high crime rate, that
undermines the security of all citizens. The particular facts of the
claimant must be distinguished in order to satisfy the requirements of section
97(1) of the Act. In other words, you must face a more personalized risk than
other Mexicans, including other small business owners and families. Even if
I found that your perceived wealth placed you at a higher risk than lower
income individuals, your case is still not made out.
[Emphasis added]
[8]
After
also finding that the applicants had not rebutted the presumption of state
protection with clear and convincing evidence, the Board concluded that the applicants
did not fall within the scope of section 97 of the IRPA.
Overview
[9]
The
issue before the Court was whether there is a divergence in the jurisprudence
with respect to section 97, as set forth in Annex A to this Judgment.
[10]
The
thrust of the applicant’s argument was that there were two lines of divergent
authority with respect to section 97(1)(b)(ii) and the ambit or extent of the
proviso that the risk “… is not faced generally by other individuals in or from
that country.” It was argued that certain decisions hold that acts of ordinary
criminality can satisfy the second part of the test, and that under a second
line of authority, acts of criminality cannot satisfy the test.
[11]
In
my view, there is no divergence in the jurisprudence; rather differences in the
outcomes of section 97 cases stem from the need for an individualized inquiry
in each case. In every instance, the Board must determine if all the
requirements of section 97 are met, which includes a determination of whether
the claimant would personally face a risk to their life or to a risk of cruel
and unusual treatment or punishment, and whether that risk is faced
generally by other individuals in or from that country. It is therefore an
error to fail to consider whether the claimant faces a personalized risk, or to
conflate that question with whether the risk is a general risk. It is also an
error to conflate the risk with the reason for it; thus, the fact that the risk
arises from criminal activity is not itself relevant to the question of whether
the requirements of section 97 are met.
[12]
In
this case, however, the Board did conduct an individualized inquiry and found
that the applicants were not subject to a risk that was not faced generally by
other individuals in Mexico. This conclusion was
reasonably open to the Board, and the application must therefore be dismissed.
Analysis
[13]
In
many decisions of this Court, the Court has upheld findings that claimants
faced only a general risk faced by other individuals in their country. For
example, in Carias v Canada (Minister of Citizenship and Immigration), 2007 FC 602, Justice
John O’Keefe held at paragraph 25:
The
applicants are members of a large group of people who may be targeted for
economic crimes in Honduras on the basis of their perceived wealth.
The applicants submitted that the Board erred in imposing too high a standard
upon them in requiring that they prove that they would be personally at risk.
Given the wording of subparagraph 97(1)(b)(ii) of IRPA, the applicants had to
satisfy the Board that they would be personally subjected to a risk that was
not generally faced by others in Honduras.
[14]
Carias
was favourably cited shortly
thereafter by Justice Danièle Tremblay-Lamer in Prophète v Canada (Minister of
Citizenship and Immigration), 2008 FC 331, where she held at paragraph 23:
Based
on the recent jurisprudence of this Court, I am of the view that the applicant
does not face a personalized risk that is not faced generally by other
individuals in or from Haiti. The risk of all forms of criminality is
general and felt by all Haitians. While a specific number of individuals may be
targeted more frequently because of their wealth, all Haitians are at risk of
becoming the victims of violence.
[15]
This
Court would also follow this line of reasoning in cases such as Marshall v Canada (Minister of
Citizenship and Immigration), 2008 FC 946; Cius v Canada (Minister of
Citizenship and Immigration), 2008 FC 1; Acosta v Canada (Minister of
Citizenship and Immigration), 2009 FC 213; and Paz Guifarro v Canada (Minister of Citizenship
and Immigration),
2011 FC 182. A passage from Acosta is particularly instructive. Justice
Johanne Gauthier (now of the Court of Appeal) wrote at paragraph 16:
The applicant referred to a passage of the documentary
evidence which confirms that bus fare collectors are frequently subject to
extortion by the Gang. However, the Board examined this country documentation
and found it to clearly indicate the prevalence of gang related violence in a
variety of sectors. It is no more unreasonable to find that a particular group
that is targeted, be it bus fare collectors or other victims of extortion and
who do not pay, faces generalised violence than to reach the same conclusion in
respect of well known wealthy business men in Haiti who were clearly found to
be at a heightened risk of facing the violence prevalent in that country.
[16]
The
genesis of what was argued to be an alternative approach to section 97(1)(b)(ii)
lies in Martinez Pineda v Canada (Minister of Citizenship and Immigration),
2007 FC 365. In that case, the applicant had been threatened by armed members
of the Maras Salvatruchas on several occasions, both at his home and at
university. In setting aside the decision Justice Yves de Montigny wrote at
paragraphs 13 and 15:
In short, the risk faced by an applicant ought not to be a
random and generalized risk indiscriminately faced by all persons living in the
country to which the applicant risks to be removed. In this case, the applicant
submitted in his Personal Information Form (PIF) that he had been personally
subjected to danger; yet the RPD did not take this into account and rather put
the accent on the fact that Mr. Pineda had stated in his testimony that
the Maras Salvatruchas recruited across the country and targeted all levels of
society, regardless of the age of the persons contemplated.
[…]
Under these circumstances, the RPD’s finding is patently
unreasonable. It cannot be accepted, by implication at least, that the
applicant had been threatened by a well-organized gang that was terrorizing the
entire country, according to the documentary evidence, and in the same breath
surmise that this same applicant would not be exposed to a personal risk if he
were to return to El Salvador. It could very well be that the Maras
Salvatruchas recruit from the general population; the fact remains that Mr.
Pineda, if his testimony is to be believed, had been specifically targeted and
was subjected to repeated threats and attacks. On that basis, he was subjected
to a greater risk than the risk faced by the population in general.
[17]
In
the subsequent decision of Surajnarain v Canada (Minister of Citizenship
and Immigration),
2008 FC 1165, Justice Eleanor Dawson, (now of the Court of Appeal) analyzed section
97(1)(b)(ii) and its underlying objectives. Justice Dawson noted that the
concept embedded in section 97(1)(b)(ii) was not new, but had its antecedence
in the Immigration Act, R.S.C. 1985, c-2 and the Regulations which
required a claimant to establish “an objectively identifiable risk, which risk
would apply in every part of that country and would not be faced generally by
other individuals in or from that country.” Justice Dawson turned next, at
paragraph 17, to the guidelines published by the Department of Citizenship and
Immigration which informed the interpretation of various elements contained in
the definition of the post-determination refugee claimants in Canada (PDRCC)
class:
The Department of Citizenship and Immigration published
guidelines to assist officers in the interpretation of the various elements
contained in the definition of the PDRCC class. With respect to the
requirement that the risk “would not be faced generally by other individuals”
the guidelines instructed officers that:
The threat is not restricted to a risk
personalized to an individual; it includes risks faced by individuals that may
be shared by others who are similarly situated. Neither are risks restricted by
ethnic, political, religious or social factors as the concept of persecution is
in the Convention refugee definition. Whether or not the risk is
associated with a “Convention” ground, a person may fall within the scope of
this definition. Notwithstanding this, the limitation imposed by the
PDRCC definition in the phrase “which risk… would not be faced generally by
other individuals in or from that country” applies. Any risk that
would apply to all residents or citizens of the country of origin cannot result
in a positive decision under this Regulation. [emphasis added]
[Emphasis in original]
[18]
Justice
Dawson concluded that the Board must consider whether the risk is faced
generally by all other persons living in the country.
[19]
A
decade earlier, in Sinnappu v Canada (Minister of Citizenship and
Immigration), [1997] 2 FC 791, Justice Donna McGillis also referred to the
guidelines, at paragraph 37, to help articulate the scope of the requirement
under what is now section 97(1)(b)(ii):
In particular, the PDRCC class guidelines emphasize that the
criteria in subsection 2(1) of the Regulations are not only restricted to "a
risk personalized to an individual", but also include a risk faced by
others similarly situated. Furthermore, the guidelines interpret the
exclusionary phrase in the Regulations that the risk must not be "faced
generally by other individuals", as meaning a risk faced by all residents
or citizens of that country. Indeed, during his cross-examination, Gilbert
Troutet, a specialist in PDRCC class applications, stated that the exclusion
would apply only "in extreme situations such as a generalized disaster of
some sort that would involve all of the inhabitants of a given country. And if
such a situation does occur, the [respondent] has specific programs to cover
such situations."
[Footnote omitted]
[20]
In Aguilar
Zacarias v Canada (Minister of Citizenship and Immigration), 2011 FC 62, Justice
Simon Noël found at paragraph 17 that the Board erred by failing to consider
whether the risk faced by the applicant was different from the general risk
created by ordinary criminal activity:
As was the case in Martinez Pineda, the Board erred
in its decision: it focused on the generalized threat suffered by the
population of Guatemala while failing to consider the
Applicant’s particular situation. Because the Applicant’s credibility was not
in question, the Board had the duty to fully analyse and appreciate the
personalized risk faced by the Applicant in order to render a complete analysis
of the Applicant’s claim for asylum under section 97 of the IRPA. It appears
that the Applicant was not targeted in the same manner as any other vendor in
the market: reprisal was sought because he had collaborated with authorities,
refused to comply with the gang’s requests and knew of the circumstance of Mr.
Vicente’s death.
[21]
I understand
Aguilar Zacarias to require the Board to consider both whether there is
a personal risk and whether that risk is not faced generally by others
in the country.
[22]
To
conclude, in Corado Guerrero v Canada (Minister of Citizenship and
Immigration), 2011 FC 1210, Justice Russel Zinn observed at paragraph 27 that
many cases of the Board and this Court have offered confusing reasoning on this
point, and he made several helpful comments about the proper analysis to
undertake in determining a section 97 claim:
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.
[23]
Justice
Zinn also noted that decision-makers are often imprecise about the risk itself;
thus, the Board sometimes fails to identify the risk, or conflates the risk
with the reason for it, both of which constitute an error. He stated at
paragraph 29:
An
example of the sort of decision I am addressing is that under review. The
closest the decision-maker in this case comes to actually stating the risk she
finds this applicant faces is the following: “[T]he harm feared by the
claimant; that is criminality (recruitment to deliver drugs)….” But this is
not the risk faced by the applicant, and even if it were, the decision fails to
state how this meets the test of risk set out in subparagraph 97(1)(b)(ii) of
the Act. At best, the risk as described forms part of the reason for the risk
to the applicant’s life. When one conflates the reason for the risk with the
risk itself, one fails to properly conduct the individualized inquiry of the
claim that is essential to a proper s. 97 analysis and determination.
[24]
The respondent
asserts that a risk of violence from criminal activity is a risk faced
generally by individuals in Mexico and therefore cannot support a section 97 claim. However, Corado
Guerrero, above, holds that position to be contrary to the requirement of
an individualized inquiry in each case, and to the line of cases to which I
have referred finding a personal risk arising from criminal gang activity: Martinez
Pineda; Aguilar Zacarias; Barrios Pineda v Canada (Minister of
Citizenship and Immigration), 2011 FC 403; and Alvarez Castaneda v Canada
(Minister of Citizenship and Immigration), 2011 FC 724.
[25]
I agree
with the reasons of Justice Zinn quoted in the paragraphs above. The fact that
the risk faced by an applicant arises from criminal activity does not in itself
mean that the risk is one faced generally by other individuals in the country -
rather, each case must be assessed on its facts to determine if the
requirements of section 97 are met, as some risks arising from criminal
activity will constitute a general risk, and others will not.
[26]
In
this case, the Board did undertake in individualized inquiry and concluded that
the prospective risk faced by the applicants was no more than the general risk
faced by other individuals in Mexico. The Board based this conclusion on the finding that the
Zetas did not appear to be continuing to search for the applicant, and
therefore that gang did not present a continued threat:
…I
note that there is no evidence of continued threat or risk from these
particular gang members. While you believe there would be serious
consequences if Los Zetas found you in Mexico, there is no evidence that they
continue to actively search for you. This confirms my conclusion that their
main interest in you was money. While I accept that you continue to fear those
who kidnapped and extorted you, I find that the risk you face is
unfortunately a generalized one. In a country in which there is a high
crime rate, that undermines the security of all citizens. The particular facts
of the claimant must be distinguished in order to satisfy the requirements of
section 97(1) of the Act…
[Emphasis
added]
[27]
Because
the Board did not accept the evidence that the Zetas would continue to pursue
the applicant, the Board concluded that the future risk faced by the applicants
was no more than the general risk of violence from criminal activity faced by
all Mexicans. These findings were specific to the applicants’ circumstances,
and they were reasonably open to the Board. The Court therefore has no basis
to intervene.
Conclusion
[28]
It
must be remembered that Parliament is presumed not to have enacted legislation
that is devoid of content; thus, the interpretation of section 97 frequently
relied on by the Refugee Protection Division cannot be supported: for example, it
would not protect individuals from natural disasters, as natural disasters
affect everyone; it would not protect individuals from criminal acts, as all
are at risk of extortion. Section 97 would thus be reduced, in its application,
to the protection of individuals who are victimized by criminal acts in
countries where the risk of criminality is not widespread or prevalent. In
these cases, state protection, logically, is likely to be available. In
consequence, section 97 would be stripped of any content and bereft of meaning,
a legislative section in search of meaning.
[29]
As
discussed above, the respondent’s position stems from a misplaced focus on the
reason for the risk - the question is not whether the risk to a claimant is
created by criminal activity, but rather whether the claimant would be
subjected personally to a risk to his or her life or to 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. If the Board fails to
undertake an individualized inquiry to determine those questions the Court will
have basis to intervene.
[30]
In
this case, the Board’s decision can be upheld, but not for the reason that
citizens of Mexico are at a general risk
of violence from criminal activity - a section 97 claim could potentially
succeed based on a risk from gang violence in Mexico, depending on the circumstances. However,
in this case the applicants’ circumstances were considered, and the Board
reasonably concluded that they faced no more than a risk faced generally by
others in Mexico. The application is
therefore dismissed.
[31]
No
questions were proposed for certification and none arise.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No question has been proposed
for certification.
"Donald
J. Rennie"
ANNEX A
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Person in need of protection
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
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable
or, because of that risk, unwilling to avail themself of the protection of
that country,
(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,
(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
Person in need of protection
(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.
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Personne à protéger
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) 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) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(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) 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) la menace ou le
risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux
ou de santé adéquats.
Personne à protéger
(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.
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