Date: 20110526
Docket: IMM-5676-10
Citation: 2011 FC 622
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, May 26, 2011
PRESENT: The Honourable Madam Justice
Bédard
BETWEEN:
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ANGEL RICARDO RUANO SANCHEZ
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review filed under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated September 29, 2010, in which the Board found that the applicant was neither
a Convention refugee nor a person in need of protection.
[2]
The applicant is a
citizen of Honduras. He submits that, on a few occasions, he was approached by
members of a street gang (the MS-13), who asked him to join the gang. He always
refused their invitation. On August 30, 2005, he was again approached by
members of the street gang, who, in response to his refusal to join them, beat
him, robbed him and threatened to kill him.
[3]
The applicant left
Honduras on September 8, 2005, to go to Mexico. He then entered the United
States, where he lived from February 2006 to October 2008. He arrived
in Canada on November 6, 2008, and claimed refugee protection that same
day.
[4]
The Board’s decision to
deny his refugee protection claim was made on the basis of various factors.
[5]
First, the Board found
that the applicant had not established that he could be forcibly recruited and
that he would be of any interest to these gangs should he return to Honduras. The
Board based its finding on two factors. It found that the applicant had
admitted that he was not specifically targeted by the gangs and that the gangs preyed
on everyone. It also quoted an excerpt from the National Documentation Package
for Honduras, which described “the number of [young] gang members” as being high and the factors that contribute to
attracting young people to these gangs. From that, the Board concluded that a
number of young people were available to join gangs in Honduras.
[6]
The Board then found
that the applicant had not demonstrated, on a balance of probabilities, “that
he could be subjected to a risk to his life that would not be faced
indiscriminately by other people in his country”. The Board was of the opinion
that this was a generalized risk in Honduras.
[7]
The Board also
concluded that the behaviour of the applicant, who had stayed in the United
States for two years and nine months without seeking refugee protection, was
not consistent with the applicant’s alleged fear of returning.
[8]
The Board also found
that the applicant had not submitted any evidence that might suggest that he
would risk being persecuted on one of the Convention grounds.
[9]
This application for
judicial review raises the following issues:
1)
Did the Board err in
finding that the applicant was not subject to a personalized risk and that the
risk he faced was generalized?
2)
Did the Board err in
determining that the applicant’s stay in the United States without seeking
refugee protection there was inconsistent with his alleged fear of returning?
[10]
It is my view that the
Board drew a conclusion that had a determinative influence on its decision, but
that was not supported by the evidence.
[11]
The Board found that
the risk to which the applicant was subjected was faced indiscriminately by
other people in his country. Without it being said outright, it appears from
the decision that the other “people” to which the Board refers are likely young
men, since it cited an excerpt from Perez v Canada (Citizenship and
Immigration), 2010 FC 345 (available on CanLII) (Perez), in which
the Court recognized that a risk may be generalized if it concerns a subgroup
of the population.
[12]
In this case, the risk
claimed by the applicant is clearly related to his fear of retaliation for his
refusal to join a street gang. Yet, the evidence on file does not deal with the
forced recruitment of young people practised by street gangs. Given that the
risk alleged by the applicant was clearly related to his fear of retaliation
for his refusal to join a street gang, the Board could not, in the absence of
evidence, conclude that the risk faced by the applicant was generalized. The
documentary evidence dealing with the number of young people who are street
gang members and the factors that push them to join a gang was not relevant in
supporting a finding of generalized risk related to forced recruitment or the
fear of retaliation for refusing to join.
[13]
The applicant’s
testimony was also not conclusive. When asked the following question by the
Board member, [translation] “Do you know whether they prey to some extent on everyone?”, the
applicant replied, [translation] “Yes, of course they do; they prey on everyone”. This affirmation seems
far from sufficient to support a conclusion that the risk faced by the
applicant was generalized.
[14]
The facts in this
matter are different from those in Perez; Garcia Arias v Canada
(Citizenship and Immigration), 2010 FC 1029 (available on CanLII); and Morales
Gonzalez v. Canada (Citizenship and Immigration), 2010 FC 991 (available on
CanLII), where the Board’s findings that there was a generalized risk were
supported by the evidence.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the
application for judicial review is allowed and that the file is referred back
to the Immigration and Refugee Board so that the applicant’s claim for refugee
protection can be reconsidered by a differently constituted panel.
“Marie-Josée Bédard”
Certified true
translation
Johanna Kratz,
Translator
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