Date: 20110811
Docket: IMM-422-11
Citation: 2011 FC 993
Ottawa, Ontario, August 11,
2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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MANUEL ALONSO BAIRES SANCHEZ,
DORA ALICIA GONZALEZ LOPEZ,
IVAN ALONSO BAIRES GONZALEZ and
VALERIA ELIZABETH GONZALEZ
LOPEZ
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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]
The
principal Applicant, Mr. Baires Sanchez, is a citizen of El Salvador. He claims
that his life will be in danger if he is forced to return to El Salvador.
Specifically, he alleges that a gang called the Maras Salvatrucha, also known
as the “MS,” the “MS-13” and the “MSX 13,” has threatened him with death for
refusing to join the gang. Shortly after his arrival in Canada in July
2008, he claimed refugee protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
In
December 2010, the Refugee Protection Division of the Immigration and Refugee
Board rejected his claims and the dependent claims of his common-law spouse and
their children.
[3]
The
principal issue in this case is whether the Board erred in concluding that the risks alleged by Mr.
Baires Sanchez are risks that are “faced generally by other individuals in or
from” El
Salvador,
as contemplated by paragraph 97(1)(b)(ii) of the IRPA. The Applicants also
alleged that the Board erred by failing to consider, or by failing to refer in
its decision, to short written submissions that the Applicants sent to the Board
shortly after its oral hearing on December 14, 2010.
[4]
For
the reasons that follow, I have concluded that the Board did not err by
concluding that the risks faced by Mr. Baires Sanchez are risks faced generally
by other individuals in or from El Salvador. I have also concluded
that the Board’s failure to consider, or to refer in its decision, to the
above-mentioned written submissions did not constitute a reviewable error. Accordingly,
this application will be dismissed.
I. Background
[5]
Mr.
Baires Sanchez claimed that his problems with the MS-13 began in February 2002,
when the gang attempted to recruit him to do “little jobs”, such as stealing
and kidnapping innocent people. When he initially refused to join them, he
allegedly was beaten, threatened with death, told that they were watching him,
and told that they would shortly return for his answer. After he experienced essentially
the same thing three days later, he hid in his parents’ home until he fled to
the United
States
in March 2002.
[6]
Subsequent
to his departure, he claims that members of the gang continued to inquire about
him and told his parents that they intend to kill him “at the first chance they
have.”
II. The Decision
under Review
[7]
The
Board began its analysis by briefly dismissing Mr. Baires Sanchez’s claim under
section 96 of the IRPA, after it concluded that he had been a victim of crime,
rather than a victim of persecution linked to his race, religion, nationality,
political opinion or membership in a particular social group.
[8]
With
respect to his claim under section 97 of the IRPA, the Board referred to
documentary evidence reporting upon the prevalence of deadly violence in El Salvador, especially
at the hands of gang members. It also noted that Mr. Baires Sanchez had (i)
testified that violence and criminality by the MS-13 is widespread in El Salvador; and (ii)
provided documentary evidence to substantiate this fact. After reviewing some
of the documentary evidence in this regard, the Board concluded that the risks faced
by Mr. Baires Sanchez were both personal and generalized, in the sense that
they were risks faced generally by all Salvadorans. Accordingly, the Board rejected
his claim under section 97.
[9]
The
Board then proceeded to reject the dependent claims of Mr. Baires Sanchez’s
common-law spouse and their children.
III. Standard
of Review
[10]
The
issue that the Applicants have raised with respect to the Board’s assessment of
their claims under section 97 of the IRPA is a question of mixed fact and law (Acosta
v Canada (Minister of
Citizenship and Immigration), 2009 FC 213, at paras 9-11). Such
questions are reviewable on a standard of reasonableness (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras 51-55). The same is true with respect to
the Board’s interpretation of the words “not faced generally by other
individuals in or from that country”, in paragraph 97(1)(b)(ii) of the IRPA (Guifarro
v Canada (Minister of Citizenship and Immigration), 2011 FC 182, at paras
13-19).
[11]
The
issue that the Applicants have raised regarding the Board’s failure to consider
written submissions that they sent shortly after the Board’s hearing is a
question of whether the Board reached its decision without regard to the
material before it, as contemplated by paragraph 18.1(4)(d) of the Federal
Courts Act, RSC 1985, c F-7. This is reviewable on a standard of
reasonableness (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339, at para 46). To the extent that the Applicants
have also suggested that their written submissions were not even forwarded to
the Presiding Member of the Board who considered their applications, this would be a question of procedural
fairness that is reviewable on a standard of correctness (Dunsmuir, above, at paras
55, and 79; Khosa, above, at para 43).
IV. Analysis
A.
Did the
Board err in concluding that the risks alleged by Mr. Baires Sanchez are risks
faced generally by other individuals in or from El Salvador?
[12]
The
Applicants submitted that the Board erred by finding that the risks that Mr.
Baires Sanchez will face if he is required to return to El Salvador are risks
that are faced generally by all Salvadorans. I disagree.
[13]
In
support of their position, the Applicants relied on this Court’s decision in Pineda
v Canada (Minister of
Citizenship and Immigration), 2007 FC 365. There, my colleague Justice
de Montigny quashed a decision of the Board on the basis that the Board (i) had
failed to take into account the applicant’s evidence that he had been
personally subjected to danger; and (ii) had unreasonably concluded that the
risk he would face if he were to return to El Salvador was the same as the risk
faced by any other person in that country (Pineda, above, at paras 8 and
13-17). However, in the case at bar, the Board explicitly addressed the claims
of personal risk alleged by Mr.
Baires Sanchez and found that risk to be both personal and generalized in
nature.
[14]
Since
the decision in Pineda, above, this Court has had occasion to revisit the
distinction between personalized and generalized risk on several occasions. Some
of those occasions involved facts that are more similar to the facts in the
case at bar than are those in Pineda, above.
[15]
For
example, in Prophète v Canada (Minister of Citizenship and
Immigration), 2008 FC 331, Justice Tremblay-Lamer specifically addressed
the second of the two conjunctive elements contemplated by paragraph
97(1)(b)(ii), in circumstances in which the first of those elements (personal
risk) had been established. In this regard, she observed:
[18]
The difficulty in analyzing personalized risk in situations of
generalized human rights violations, civil war, and failed states lies in
determining the dividing line between a risk that is “personalized” and one
that is “general”. Under these circumstances, the Court may be faced with an applicant
who has been targeted in the past and who may be targeted in the future but
whose risk situation is similar to a segment of the larger population. Thus,
the Court is faced with an individual who may have a personalized risk, but one
that is shared by many other individuals.
[16]
Justice
Tremblay-Lamer proceeded to find that the applicant in the case before her faced
a risk that was faced generally by other individuals in or from Haiti, because
“[t]he risk of all forms of criminality is general and felt by all Haitians.”
She added: “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” (Prophète,
above, at para 23).
[17]
In
recognizing that a heightened risk faced by a sub-group of the population can
nevertheless be characterized as being a generalized risk, Justice
Tremblay-Lamer noted that this approach had been adopted in Osorio v Canada
(Minister of Citizenship and Immigration), 2005 FC 1459, at para 26; Cius
v Canada (Minister of Citizenship and Immigration), 2008 FC 1, at para
23; and Carias v Canada (Minister of Citizenship and Immigration),
2007 FC 602, at paras 23-25. That approach has since been followed in De
Parada v Canada (Minister of Citizenship and Immigration), 2009 FC 845, at
para 22; Acosta v Canada (Minister of Citizenship and Immigration), 2009
FC 213, at paras 15-16; Guifarro, above, at paras 30-33; Gabriel v
Canada (Minister of Citizenship and Immigration), 2009 FC 1170, at para
20; and Perez v Canada (Minister of Citizenship and Immigration),
2010 FC 345, at para 39.
[18]
In
Osorio, above, Justice Snider stated that there is nothing in paragraph 97(1)(b)(ii)
which requires the Board to interpret the word “generally” as applying to all
citizens. She added: “The word ‘generally’ is commonly used to mean ‘prevalent’
or ‘widespread’. Parliament deliberately chose to include the word ‘generally’
in subsection 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.” Justice Snider
proceeded to find that it was reasonably open to the Board to conclude that the
risk faced by the principal applicant in that case was “general”, because it
“is difficult to define a broader or more general group within a nation than the
group consisting of ‘parents’” (Osorio, above, at para 25).
[19]
The
Applicants urged the Court to distinguish the above-mentioned line of cases on
the basis that the Board found that the risk that would be faced by Mr.
Baires Sanchez is a risk that is “faced generally by all people in El
Salvador” (emphasis added), rather than simply by the subset of the population
consisting of “young males.” They asserted that this conclusion was not borne
out by the evidence.
[20]
I
disagree.
[21]
When
the Board’s decision is read as a whole, it is clear that the Board concluded
that the risk that young males in El Salvador face when they rebuff efforts by
the MS-13 to recruit them is a risk of essentially the same type of violence that
is faced generally by individuals in that country who do not comply with the
gang’s demands. For example, after noting that Mr. Baires Sanchez testified
that he has a fear for his life at the hands of the MS-13, the Board proceeded
to observe, at paragraph 12 of its decision, that “being a victim of violence
and other crimes at the hands of criminal or organized gangs in El Salvador is
a risk faced generally by all citizens and residents of El Salvador.” After
reviewing some of the documentary evidence which described, among other things,
the broad range of violence and other criminal activities engaged in by the MS-13,
the Board essentially repeated this observation, and drew a parallel with the
risk of violence that was at issue in Prophète, above. Later, at paragraph
18 of its decision, the Board repeated that “[t]he personal nature of the
consequences the claimant and his family experienced are an escalation of
threats and violence stemming from the claimant’s refusal to join the gang.”
[22]
Among
other things, the documentary evidence reviewed by the Board reported that the
violence perpetrated by the MS-13 in El Salvador includes murder,
extortion, rape and robbery. The Board also quoted one estimate that over
25,000 people belong to street gangs in that country, and that the MS and the
Mara 18 have between 10,000 and 13,500 members in El Salvador. In addition,
the Board referred to three cases in which this Court upheld the Board’s
finding that the risks faced by victims of the Maras Salvatrucha were
generalized in nature.
[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.”
[24]
That
said, the Board did in fact specifically recognize, at paragraph 14 of its
decision, that Mr. Baires Sanchez “may face a greater risk of being targeted
because he fits the profile of those who are targeted for recruitment by the
MS.” It essentially repeated this observation at paragraph 23 of its reasons.
Given the conclusions that it reached regarding the similar nature of that risk
and the risk faced by other members of the general population at the hands of
the MS-13, it was not necessary for the Board to specifically find that the
risk faced by young males is “prevalent or widespread.” Had it done so, its
conclusion would not have changed.
[25]
The
Board’s finding that young males may face a somewhat greater risk of violence
at the hands of the MS-13 was not inconsistent with its conclusion that the
risk of such violence is not faced generally by other individuals in or
from El Salvador, as contemplated by paragraph 97(1)(b)(ii) (Prophète v
Canada (Minister of Citizenship and Immigration), 2009 FCA 31, at para 10; De
Parada, above; Acosta, above; Cius, above; Guifarro,
above; Perez v Canada (Minister of Citizenship and Immigration),
2009 FC 1029, at paras 34-35). This is because the nature of the violence faced
by younger males and by the general population is similar, as is the context in
which the risk of such violence arises, namely, a refusal to comply with the
gang’s demands.
[26]
Indeed,
given that the evidence before the Board demonstrated that young males face a
widespread risk of recruitment by the Maras Salvatrucha, and violence if they
do not comply with those recruitment attempts, it was not necessary for the Board
to find that the risk faced by Mr. Baires Sanchez is a risk faced generally by all
citizens and residents of El Salvador. Based on the
jurisprudence discussed at paragraphs 17 and 18 above, it would have been
reasonably open to the Board to reject Mr. Baires Sanchez’s application for
protection under section 97 on the basis that the risk he faced was a risk that
is “prevalent or widespread” in El Salvador, because young males comprise a
substantial subset of the general population.
[27]
It
bears emphasizing that, given the conjunctive nature of the test set forth in
paragraph 97(1)(b)(ii), it is not sufficient for an applicant for protection
under section 97 to establish that he or she faces a personalized risk that has
manifested itself in the form of escalating and targeted reprisals for failing
to comply with demands that may initially have been made on a random basis. The
applicant must go further and also establish that the risk of actual or
threatened similar violence is not faced generally by other individuals in or
from that country. In this latter regard, the applicant must demonstrate that
the risk he or she faces is not prevalent or widespread in his country of
origin, in the sense of being a risk faced by a significant subset of the
population.
B. Did the Board err in failing
to consider or to address in its decision the written submissions made by the
Applicants subsequent to its hearing?
[28]
The
Applicants submitted that the Board erred by failing to make any reference
whatsoever to the short written submissions that they sent to the Board shortly
after their hearing on December 14, 2010. Those submissions addressed both
section 96 and section 97 of the IRPA.
[29]
With
respect to section 97, the Applicants submitted that Justice Snider’s decision
in Osorio, above, was superseded by Justice Dawson’s decision in Surajnarain
et al v Canada (Minister of Citizenship and Immigration), 2008 FC
1165, at paras 9-20. There, Justice Dawson observed that it did not appear that
Justice Snider’s attention has been drawn to prior jurisprudence, such as Sinnappu
v Canada (Minister of Citizenship and Immigration), [1997] 2 FC 791, at
para 37 (TD). In the latter case, Justice McGillis reviewed guidelines that had
been issued by the Department of Citizenship and Immigration in respect of the
second part of the conjuctive test in what is now paragraph 91(1)(b)(ii), and
concluded that this part of the test contemplates a risk faced by all residents
or citizens of an applicant’s country of origin. Justice Dawson then adopted
that test, rather than the “prevalent or widespread” test that was articulated
by Justice Snider in Osorio, above.
[30]
In
my view, it was not unreasonable for the Board to fail to refer to the
Applicants’ supplementary written submissions dated December 14, 2010, and in
particular to the decisions in Surajnarain, above, and Sinnappu,
above. This is because the Board ultimately adopted the precise test that was
set forth in those decisions. That is to say, the Board rejected the
Applicants’ claims under section 97 on the ground that the risk faced by Mr.
Baires Sanchez is one that is “faced generally by all individuals in El
Salvador” (emphasis added). The Board articulated this precise test a number of
times in its decision.
[31]
That
said, as I have noted above, the Board also recognized that the risk faced by
Mr. Baires Sanchez may be “greater … because he fits the profile of those who
are targeted for recruitment by the MS.” As recognized by the jurisprudence
mentioned at paragraph 25 above, it was not inconsistent for the Board to find
that the risk faced by Mr. Baires Sanchez may be greater than the risk faced by
individuals who are not young males, while also finding that such risk is faced
generally by others his country, as contemplated by paragraph 97(1)(b)(ii) of
the IRPA. Indeed, for the reasons discussed at paragraph 26 above, it would have
been reasonably open to the Board to dismiss Mr. Baires Sanchez’s application
under section 97 of the IRPA on the basis that the risk he faces is a risk
faced by a subset of the population consisting of young males who are potential
targets of recruitment by the Maras Salvatrucha (Smith v Alliance Pipeline Ltd, 2011 SCC 7, at paras 38-39).
[32]
The
Applicants further submitted that they have no idea as to whether their written
submissions dated December 14, 2010 were ever received and read by the Presiding
Member of the Board. They asserted that this was both procedurally unfair and
unreasonable.
[33]
I
agree that the Board erred by not acknowledging receipt of the Applicants’
supplementary written submissions. However, for the reasons discussed at
paragraphs 30 and 31 above, I am satisfied that the Board’s error was not
material. In short, even if it is the case that those supplementary submissions
were not forwarded to, and read by, the Presiding Member, I am satisfied that
this did not affect the conclusions reached by the Board in respect of the
Applicants’ claims under section 97 of the IRPA (Mobil Oil Canada Ltd v
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at para 53;
Yassine v Canada (Minister of Employment and Immigration), [1994] FCJ No
949, at paras 10-11).
V. Conclusion
[34]
The
application for judicial review is dismissed.
[35]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed.
“Paul S. Crampton”
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