Docket: IMM-777-11
Citation: 2011 FC 950
Ottawa, Ontario, July 29, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ALBA ROSA BANGUERA PALACIOS
AND VICTOR MANUEL BANGUERA PALACIOS
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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
I. Overview
[1]
Ms.
Alba Rosa Banguera Palacios and her son, Victor, sought refugee protection in Canada after
fleeing their country of origin, Colombia. They claimed to be
targeted by the FARC guerrilla group. FARC killed Ms. Banguera Palacios’ cousin
and kidnapped Victor for eleven days.
[2]
A
panel of the Immigration and Refugee Board dismissed the applicants’ claim,
finding that they were not persecuted on grounds recognized by the Refugee
Convention. Rather, they were targeted because of their perceived wealth.
Further, the Board found that the risk of being a victim of crime is a general
one in Colombia, not one
that is personal to the applicants.
[3]
Ms.
Banguera Palacios argues that the Board erred by not recognizing that she was persecuted
as a member of a particular social group and by finding that the risk to her
and Victor in Colombia was a
generalized one. She asks me to quash the Board’s decision and order a new hearing.
However, I cannot find a basis for overturning the Board’s decision and must,
therefore, dismiss this application for judicial review.
[4]
The
issues are:
1. Did
the Board err in its finding that Ms. Banguera was not targeted as a member of
a particular social group?
2. Did the Board err in
its finding that the risk in Colombia was a generalized one?
II. Factual Background
[5]
Ms.
Banguera Palacios alleges that, in March 2008, while driving between Cali and Buenaventura with her
cousin, their vehicle was stopped by masked men who shot and killed her cousin,
robbed her and kidnapped Victor. His captors called later with ransom demands.
[6]
Victor
claims that his captors were members of FARC. Luckily, eleven days after the
kidnapping, he escaped.
[7]
The
applicants left Colombia and travelled through Central America to Mexico. They
arrived in Canada in October
2009. Since they left Colombia, Ms. Banguera Palacios
claims that her parents have received anonymous telephone threats.
III. The Board’s Decision
[8]
Ms.
Banguera Palacios claimed that she was targeted because of her race, perceived
political opinion, and membership in a particular social group, namely,
unmarried Afro-Colombian women with children.
[9]
However,
the Board found that the applicants did not have a political opinion on the
situation in Colombia. Nor were
they targeted because their family was headed by a single mother. Further,
there did not appear to be a racial aspect to their claim.
[10]
Instead,
the Board found that the risk the applicants faced was based either on actual
or perceived wealth. This risk was particularly acute in the case of persons,
like the applicants, who had returned to Colombia after spending a number of
years in the United
States.
The Board concluded that any risk the applicants faced was unconnected to a
Convention ground.
[11]
The
Board referred to UNHCR Eligibility Guidelines for Colombia that
highlighted the risk to women of certain profiles and the particular risk faced
by Afro-Colombians and children due to race, gender or a combination of
factors. The Board found, however, that the circumstances described in this
documentary evidence did not apply to the applicants. As urban-dwelling people
with financial resources, the Board found that the applicants did not face a
risk of the kind of targeting discussed in the UNHCR report – i.e., guerrilla
recruitment or internal displacement.
[12]
Instead,
the Board found that FARC targeted the applicants simply because of their
perceived wealth. As this did not establish a nexus to a Convention ground, the
Board rejected their claim under s 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], (see Annex A for statutory
references); Cius v Canada (Minister of Citizenship and Immigration),
2008 FC 1.
[13]
The
Board then considered the applicants’ claim for protection under paragraph
97(1)(b). The Board acknowledged that the applicants had been
specifically targeted, but noted that the risk they faced was experienced
generally by others in Colombia. The Board found that
kidnapping and extortion by criminal groups, including FARC, was pervasive in Colombia.
[14]
While
the applicants had stated that their situation was unique because they had
returned from the United States and were perceived to be wealthy, the Board
noted that perceived wealth is not a basis for a claim under section 97: Prophète
v Canada (Minister of Citizenship and Immigration), 2009 FCA 31.
[15]
Thus,
the Board found that even though the applicants’ fear was credible, they did
not face a personal risk different from that faced by the general population of
Colombia.
Accordingly, the applicants’ claims under both sections 96 and 97 were refused.
IV. Issue One - Did the Board err
in its finding that Ms. Banguera Palacios was not targeted as a member of a
particular social group?
[16]
The
applicants submitted that they had been targeted on the basis of race,
perceived political opinion and, for Ms. Banguera, membership in a particular
social group, namely, unmarried Afro-Colombian women with children.
[17]
As
I read the Board’s decision, it addressed all of these possibilities. It also
explored them in questions to the applicants at the hearing. There was simply
no evidence to support a connection to any of the proposed Convention grounds.
[18]
The
applicants rely heavily on the 2010 UNHCR Eligibility Guidelines. Those
guidelines note that “Colombian women with certain profiles, in particular
those living in areas affected by the armed conflict, are at risk on account of
their membership in a particular social group. These include women victims of
violence at the hands of illegal armed groups, forcibly recruited women,
indigenous women or women of Afro-Colombian descent, and women who are victims
of domestic violence.”
[19]
However,
I cannot find that the Board erred when it found that this evidence was not
applicable to the applicants given that they lived in the city and had
financial resources. Therefore, I cannot conclude that the Board erred in finding
that that there was insufficient evidence to support the applicants’ refugee
claim on the basis of membership in a particular social group.
V. Issue Two - Did the Board err
in its finding that the risk in Colombia was a
generalized one?
[20]
A
generalized fear of crime is insufficient to justify granting protection under
section 97. A claimant must establish that there is a personalized risk based
on his or her personal circumstances: Jean et al v Canada (Minister of
Citizenship and Immigration), 2010 FC 674 at para 32; Marcelin
Gabriel v Canada (Minister of Citizenship and Immigration), 2009 FC
1170 at paras 13-18 [Marcelin-Gabriel].
[21]
Even
a high risk that a person will be targeted as a victim of crime is not
necessarily a particularized risk: Cius v Canada (Minister of
Citizenship and Immigration), 2008 FC 1 at paras 22-25. Further, the
class of relatively wealthy people from Colombia is too wide and does not
satisfy the requirement for a personalized risk: Marcelin Gabriel, above
at paras 21-23; Rodriquez Perez v Canada (Minister of
Citizenship and Immigration), 2009 FC 1029 at para 35; Saint Hilaire
v Canada (Minister of
Citizenship and Immigration), 2010 FC 178 at para 17.
[22]
Based
on the law and the evidence before it, I cannot find any error in the Board’s
conclusion that the risk faced by the applicants was a generalized one, not
coming within the protection provided under s 97 of IRPA.
VI. Conclusion and Disposition
[23]
I
can find no error in the Board’s conclusions that the applicants’ claim did not
fall within sections 96 or 97 of IRPA. Accordingly, I must dismiss this
application for judicial review. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex “A”
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Immigration
and Refugee Protection Act, SC 2001, C-27
Convention
refugee
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition
de « réfugié »
96. A qualité de réfugié au sens
de la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
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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