Date: 20110119
Docket: IMM-3293-10
Citation: 2011 FC 62
Ottawa, Ontario, January 19,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
|
|
GABINO OLEGARIO AGUILAR ZACARIAS
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
These
Reasons for Judgment and Judgment deal with the judicial review of a decision
of the Immigration and Refugee Board, Refugee Protection Division (the “Board”),
dated May 21, 2010, in which a Board member denied Gabino Olegario Aguilar
Zacarias (the “Applicant) status as a Convention refugee or a person in need of
protection under the statutory regime of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”).
[2]
Leave
for judicial review was granted by Madam Justice Mactavish on October 19, 2010.
The Facts
[3]
The
Applicant is a citizen of Guatemala. He first arrived in Canada as a
temporary worker and later claimed asylum in Canada. His claim
arises from the persecution he suffered at the hands of a street gang by the
name of Maras Salvatruchas
(the “MS gang”), more particularly by one of its members nicknamed “Gordo”, or
Chubby in English. The Applicant ran a business selling chickens in a market, and
also worked part-time in a fast food restaurant.
[4]
The
Applicant’s first brush with Chubby occurred when Chubby came to the market one
day and proceeded to extort money from the Applicant. This extortion was
accompanied with threats to the Applicant’s life and his family’s. Initially, the
Applicant complied with the requests for payments. Over time, Chubby’s demands became
more frequent and additional pressure was put on the Applicant when Chubby revealed
to the Applicant that the MS gang were familiar with the daily activities of
his wife and children. As a result, the Applicant and his wife were later mugged
by the gang members.
[5]
Growing
tired of this extortion and undue pressure, the Applicant realized other
vendors in the market were also being targeted by the gang. The Applicant,
together with Evedardo Pastor Vicente, another stand owner in the market,
proceeded to warn the market’s security service, who then informed the police
of the ongoing extortion suffered by the Applicant and other vendors. Shortly
thereafter, Chubby was arrested and detained, but was later released. During
his detention, other gang members informed the Applicant and Mr. Vicente that
they knew who was at the source of the complaint and that Chubby was not happy
with the situation. Pressure on the Applicant was accentuated, and more threats
to his life were made.
[6]
While
seeking another market to work from, Mr. Vicente and the Applicant were once
again confronted by Chubby and other gang members. Mr. Vicente was shot during
this incident and died from his wounds. The Applicant escaped and moved his
family, but decided to no longer live among the family. He never returned to
his stall at the market. He kept his part-time work at the restaurant, and asked
to be assigned to work where he would have no contact with the public. He was subsequently
transferred to other locations of the restaurant chain, as it appeared that
Chubby had tried to track him down at his place of work. The Applicant later
quit his job completely after realizing Chubby persevered in trying to find
him.
[7]
The
Applicant moved his family to another village, where he was again extorted by
the MS gang. Villagers informed him the MS gang had previously tracked down
individuals in this village. Fearing for his life, he then decided to move to Canada as a
temporary worker, and later sought asylum.
The contested decision
[8]
In
its decision, the Board concluded that the Applicant was not a Convention
refugee or a person in need of protection under sections 96 and 97 of the IRPA.
It did accept the Applicant’s testimony and deemed his story to be credible.
The Board proceeded to analyze the documentary evidence pertaining to the
Applicant’s story and the country conditions in Guatemala.
[9]
In
light of this Court’s decision in Gyawali v Minister of Citizenship and
Immigration, 2003 FC 1099, the Board concluded that the Applicant’s valid
status as a temporary worker constituted a good reason for not making his
refugee claim at the first occasion. It ruled that the Applicant’s subjective
fear remained constant and consistent and that the delay in making his claim
was not at issue.
[10]
The
Board concluded that while this subjective fear was indeed present, the
Applicant faced a risk of persecution that is faced by the population in general.
This generalized risk spawned from the breadth of gang activities in Guatemala. The
Applicant would thus be part of a specific category of people, mainly vendors,
which are targeted generally by street gangs. As such, the risk faced by the
Applicant was not deemed to be within the range of possibilities provided by
section 97 of the IRPA. Furthermore, there was no nexus to a Convention
grounds. Consequently, his claim for asylum was rejected.
Position of the Parties
[11]
The
Court has identified one determinative issue in the present judicial review,
that of the particularized risk faced by the Applicant.
[12]
The
Minister submits that the risk faced by the Applicant is generalized and shared
by the population, in light of the intense gang presence in Guatemala. This is the
case as other vendors were targeted by the MS gang and that they are active in
every part of the country. Persecution should be distinguished from suffering
as a result of a criminal act (Prato v Minister of
Citizenship and Immigration, 2005 FC 1088). Furthermore, the Applicant did
not demonstrate that he suffered a personalized risk not generally faced by
others in Guatemala.
[13]
The
Applicant indicates that the risk he faces is indeed personalized: he was
extorted by identifiable members of a gang, whose members later made
considerable efforts to locate the Applicant specifically. The Applicant
likened his case to that of Munos v Minister of Citizenship and Immigration,
2010 FC 238, as the analysis under section 97 requires an individualized inquiry
to address the risk faced by the Applicant. He argues that the Board did not
proceed to such an analysis, omitting to consider important facts such as his knowing
about the killing of Mr. Vicente, his reporting of gang activities to the
police and the MS gang’s efforts to track him down. Where such a critical
analysis is omitted, the Board commits a reviewable error (Sanchez v
Minister of Citizenship and Immigration, 2008 FC 426). The Applicant goes
further to state that his dissention against the MS gang amounts to a political
opinion and should have been analyzed under section 96. The Court does not need
to address the merit of this last argument, as the determination of the
personalized risk is sufficient to address the present matter.
Standard of Review
[14]
The
first issue to address is evidently that of the applicable standard of review.
As the issue of the determination of a generalized risk is of a mixed nature of
fact and law, the applicable standard of review is that of reasonableness (Dunsmuir
v New Brunswick, 2008 CSC 9; Acosta v Canada (Citizenship
and Immigration), 2009 FC 213).
Analysis
[15]
In
its decision, the Board focused on the risk to the general population of Guatemala arising from
gang activity in the country. The Board dealt with the facts of the case in an
objective manner: it believed the Applicant and gave weight to his testimony
that he had been personally persecuted by the MS gang, particularly by Chubby.
[16]
In
light of the facts of the case at bar, this Court relies on Justice de Montigny’s
decision in Martinez Pineda v Canada (Citizenship
and Immigration), 2007 FC 365. In this case, Mr. Pineda was persecuted by
the same gang, but in El Salvador. At paragraph 15,
Justice de Montigny noted that:
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. (My emphasis)
[17]
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.
[18]
As
such, the present application for judicial review is granted and the matter is
to be sent to the Board for redetermination by a newly constituted panel.
[19]
No
question of general importance has been suggested and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
- The
application for judicial review is granted. The matter is to be sent for
redetermination before a newly constituted panel of the Board. No question is
certified.
“Simon Noël”
Email this Content