Date: 20110215
Docket: IMM-3097-10
Citation: 2011 FC 182
Ottawa, Ontario, February 15,
2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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OSMAN JOSE PAZ GUIFARRO
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Applicant
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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
Applicant, Mr. Osman Jose Paz Guifarro, is a citizen of Honduras. He claims
that his life will be in danger if he is forced to return to Honduras. In short, he
alleges that a gang known as the “Mara 18” and the “MS-18” has threatened him
with death for refusing to pay a “war tax” that it repeatedly demanded from
him. Upon his arrival in Canada in February 2008, he claimed refugee
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001,
c. 27 (IRPA).
[2]
In
May 2010, the Refugee Protection Division (RPD) of the Immigration and Refugee
Board rejected the Applicant’s claims.
[3]
The
single issue in this case is whether the risks alleged by Mr. Guifarro are
risks that are “faced generally by other individuals in or from” Honduras, as
contemplated by paragraph 97(1)(b)(ii) of the IRPA.
[4]
For
the reasons that follow, I have concluded that the risks alleged by Mr.
Guifarro are in fact risks that are faced generally by other individuals in Honduras.
Accordingly, this application will be dismissed.
I. Background
[5]
Mr.
Guifarro owned a cargo transportation business in Honduras, which he
started in November 2002. In July 2004, he was approached by members of the
Mara 18 and told to pay a war tax. He originally refused to pay the tax.
However, in September 2004 he gave into the gang’s demands. He paid the tax on
a monthly basis until January 2005, when the gang demanded more money, which
the Applicant claims he could not afford. He therefore told the gang that he
would rather give up his business than accede to their demands.
[6]
On
February 12, 2005, the Applicant claims he was assaulted and robbed by members
of the Mara 18. He reported the incident to the police, who arrested three men.
However, he claims that two of these men were released two days later, after
having been beaten during their detention. The Applicant claims that this
caused them to blame and threaten the Applicant that he would pay for having
reported them to the police. He further claims that, on March 15, 2005, he was
again beaten and that he sustained injuries to most of his upper body.
[7]
On
March 28, 2005, the Applicant fled to the United States. He remained
there until he came to Canada on February 23, 2008 and submitted a
refugee claim.
II. The Decision
under Review
[8]
The
RPD began its assessment of the risks claimed by Mr. Guifarro by noting that he
had indicated that the Mara 18 gang targets all businesses and the working
class. It then observed that, in Ventura De Parada v. Canada (Minister of
Citizenship and Immigration), 2009 FC 845, at para. 22, my colleague
Justice Zinn confirmed “that an increased risk experienced by a subcategory of
the population is not personalized where that same risk is experienced by the
whole population generally, albeit at a reduced frequency.”
[9]
The RPD then noted that the documentary evidence indicates that
there is a serious gang problem in Central America, and notably so in Honduras. It observed
that the major gangs are the MS-13 and the MS-18, that those gangs are
responsible for a large percentage of violent crimes committed in Honduras, and that
they are well structured criminal gangs which engage in extortion and robberies.
It further noted that the MS-13 and MS-18 are heavily armed, that they have
little value for life, and that revenge killings are common.
[10]
After
reviewing the documentary evidence, the RPD accepted that the Applicant “was
subjected personally to a risk to his life” and that the MS-18 “threatened him
if he did not accede to their demands for money.”
[11]
However,
the RPD concluded that the Applicant does not meet the requirements set forth
in paragraph 97(1)(b)(ii) of the IRPA because “[e]xtortion is part of the
Maras’ modus operandi and constitutes a widespread risk for all citizens
who are working in Honduras,” particularly those who are perceived to have
money.
III. Standard
of Review
[12]
The
issue raised by the Applicant 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 typically reviewable on a standard of reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 51-55).
[13]
That
said, to assess this issue, the RPD was required to interpret the words “not
faced generally by other individuals in or from that country,” in paragraph
97(1)(b)(ii) of the IRPA.
[14]
In
Dunsmuir, the Supreme Court observed: “Deference will usually result
where a tribunal is interpreting its own statute or statutes closely connected
to its function, with which it will have particular familiarity” (Dunsmuir,
above, at para. 54). The Court then proceeded to state, at para. 55, that a
consideration of the following factors “will lead to the conclusion that the
decision maker should be given deference and a reasonableness test applied”:
(i) whether the statute in question contains a privative clause (i.e., a
statutory direction from Parliament indicating the need for deference); (ii) whether
the administrative regime in question is discrete and specialized; (iii)
whether the decision-maker has special expertise; and (iv) whether the question
of law is of “central importance to the legal system … and outside the …
specialized area of expertise” of the decision-maker.
[15]
In
Canada (Minister of Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 25, Justice Binnie, speaking for a
majority of the Supreme Court, elaborated upon this point as follows:
Dunsmuir recognized that with or without a privative clause, a measure of
deference has come to be accepted as appropriate where a particular decision
had been allocated to an administrative decision maker rather than to the
courts. This deference extended not only to facts and policy but to a
tribunal’s interpretation of its constitutive statute and related enactments
because ‘there might be multiple valid interpretations of a statutory provision
or answers to a legal dispute and that courts ought not to interfere where the
tribunal’s decision is rationally supported’ (Dunsmuir, at para. 41).
[16]
Justice Binnie proceeded to apply, in the context of paragraph
67(1)(c) of the IRPA, the “contextualized analysis” described in Dunsmuir and
found that the appropriate standard of review to apply in connection with the
IAD’s approach to paragraph 67(1)(c) is reasonableness (Khosa, above, at
paras. 55-58).
[17]
In
Smith
v. Alliance Pipeline Ltd., 2011 SCC 7, at paras. 28 and 37, and in Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, at para.
34, and the
Supreme Court reiterated the view that an administrative tribunal’s interpretation
of its home statute “will usually attract a reasonableness standard of review.”
[18]
In
my view, the following considerations support the view that a reasonableness
standard of review should be applied in reviewing the RPD’s interpretation and
application of paragraph 97(1)(b)(ii) of the IRPA to the specific factual
situations with which it may be presented:
a.
The
existence of subsection 162(1) of the IRPA and the fact that decisions of the
RPD are reviewable only if this Court grants leave to commence judicial review
suggest that some level of deference should be extended to the RPD in this
regard (Khosa, above, at paras. 55 and 56; Canada (Minister of
Citizenship and Immigration) v. Pearce, 2006 FC 492, at para. 24).
b.
In
assessing claims for protection under section 97 of the IRPA, the RPD is
required to develop and exercise considerable expertise in connection with
often difficult issues of fact, mixed fact and law, and “the imperatives and
nuances of the legislative regime” (Khosa, above, at para. 25).
c.
The
nature of the question of that has been raised in the case at bar is not of
“central importance to the legal system … and outside the … specialized
area of expertise” of an immigration officer (Dunsmuir, above, emphasis
added). In contrast to constitutional questions, true questions of
jurisdiction, questions that are at the heart of the administration of justice
and questions regarding the jurisdictional lines between two or more competing
specialized tribunals (Dunsmuir, above, at paras. 58-61), the interpretation
and application of section 97 of the IRPA is a narrow legal exercise that
arises solely in the highly specialized area of immigration and refugee law. Moreover,
in this context, the interpretation of paragraph 97(1)(b)(ii) is “clearly
intertwined with the factual matrix in which [it] arise[s]” (Ramsawak v.
Canada (Minister of Citizenship and Immigration), 2009 FC 636, at para. 13;
Smith, above, at para. 32; Acosta, above, at para. 11; Osorio
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1459, at para.
26).
d.
The
existing jurisprudence supports the adoption of a reasonableness standard (Khosa,
above, at para. 53; Osorio, above; Ventura De Parada, above, at
para. 19; Acosta, above; Carias v. Canada (Minister of
Citizenship and Immigration), 2007 FC 602, at para. 20).
e.
The
parties have not identified any considerations, as contemplated by Dunsmuir,
Khosa and Smith, above, which suggest that a standard of
correctness should be applied in reviewing this issue. The fact that a
reasonableness standard of review might allow for alternative interpretations
of paragraph 97(1)(b)(ii) does not preclude such a standard from being adopted
(Smith, above, at paras. 38 and 39).
[19]
Based
on all of the foregoing, I find that reasonableness is the appropriate standard
of review to apply in connection with the RPD’s interpretation and application
of paragraph 97(1)(b)(ii) to the facts in the case at bar. However, nothing
turns on this, as I have determined that even on a correctness standard, the
RPD did not err.
IV. Analysis
A.
Did the
RPD err in concluding that the risks alleged by Mr. Guifarro are risks faced
generally by other individuals in or from Honduras?
[20]
The
Applicant submitted that the RPD erred by finding that he faces a generalized
risk, rather than a personalized one. I disagree.
[21]
In
support of his position, the Applicant relied on this Court’s decision in Pineda
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 365. However, that case is
distinguishable. There, my colleague Justice de Montigny quashed a decision of
the RPD on the basis that the RPD (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 he would not be in personal danger if he were
to return to El Salvador (Pineda, above, at paras. 13-17). By contrast,
in the case at bar, the RPD explicitly noted the Applicant’s evidence that he
had been the subject of personal attacks and specifically accepted that the
Applicant “was subjected personally to a risk to his life … if he did not
accede to [the Mara 18’s] demands for money.”
[22]
The
jurisprudence that is more directly relevant to the case at bar is set forth in
Prophète v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331. That case addresses 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) has been
established. There, Justice Tremblay-Lamer 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
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.
[23]
Justice
Tremblay-Lamer proceeded to find that the applicant in the case before her did
not face a risk that was not 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).
[24]
In
concluding that a heightened risk faced by a sub-group of the population can
nevertheless be characterized as being a generalized risk, Justice
Tremblay-Lamer followed a similar approach that was embraced in Osorio,
above; Cius v. Canada (Minister of Citizenship and Immigration),
2008 FC 1; and Carias, above. That approach has since been followed in Ventura
De Parada, above, and Acosta, above.
[25]
In
Osorio, above, at para. 26, Justice Snider stated there is nothing in
paragraph 97(1)(b)(ii) that requires the RPD to interpret the word “generally”
as applying to all citizens. She then added: “The word ‘generally’ is commonly
used to mean ‘prevalent’ or ‘widespread’. Parliament deliberately chose to
include the word ‘generally’ in s. 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 RPD 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).
[26]
In
Cius, above, at paras. 18 and 23, Justice Beaudry reached a similar
conclusion. After accepting that people who are perceived to be wealthy “are
more frequent targets of criminal activity,” he nevertheless found the risk
faced by such persons to be generalized.
[27]
Likewise,
in Carias, above, at paras. 25 and 27, Justice O’Keefe found that
membership in “a large group of people who may be targeted for economic crimes
in Honduras on the basis
of their perceived wealth” is not a sufficient basis upon which to ground a
claim under section 97.
[28]
Essentially
the same approach was adopted by Justice Gauthier in Acosta, above, when
she held:
[16] […] It is no more unreasonable to find that a
particular group that is targeted, be it bus fare collectors or other victims
of extortion … 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.
[29]
The
approach adopted in the foregoing line of cases was followed by Justice Zinn in
Ventura De Parada, above, when he observed:
[22]
I agree with my colleagues that an increased risk experienced by a subcategory
of the population is not personalized where that same risk is experienced by
the whole population generally, albeit at a reduced frequency. I further
am of the view that where the subgroup is of a size that one can say that the
risk posed to those persons is
wide-spread or prevalent then that is a generalized risk.
[23]
That is precisely what the Board found in this case. The subgroup of the
population of El Salvador that the Applicants were found to belong to was
described by the Board as “business people” whom it stated were those who
“operate a business, work for a business or own and operate transportation
units in El Salvador.” That is a very large subgroup,
encompassing almost all in the country who legitimately work for a
living. That determination, based on the evidence was not unreasonable;
neither was the finding of generalized risk.
[30]
In
my view, the reasoning adopted in the cases discussed above is equally
applicable to the case at bar. In short, I am satisfied that it was reasonably
open to the RPD to conclude that (i) the risk faced by the Applicant “is one
faced generally by many individuals in Honduras … who are perceived to have
money,” and (ii) therefore the Applicant is not a person protected by section
97. Indeed, I am satisfied that the RPD, which specifically purported to apply
the interpretation of paragraph 97(1)(b)(ii) articulated in Ventura De
Parada, above, correctly applied that interpretation.
[31]
In
my view, the basis for the RPD’s conclusion, which was otherwise entirely
sound, was reinforced when the Applicant acknowledged, during the RPD’s
hearing, that it is “fair to say that the Mara 18 were after people with money”
(Certified Tribunal Record, at p. 22).
[32]
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.
[33]
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.
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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