Docket: IMM-4046-16
Citation:
2017 FC 390
Ottawa, Ontario, April 21, 2017
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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KEYSI JAVIER
MEJIA RAMOS
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Applicant
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And
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MINISTER OF
IMMIGRATION,
REFUGEES AND
CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Mr. Mejia Ramos, applies under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] for review of a decision of the Refugee Protection Division
[RPD] of the Immigration and Refugee Board dated September 7, 2016 [Decision]. The
RPD determined that Mr. Mejia Ramos was not a Convention refugee under section
96 of the IRPA, as there was no link to a Convention ground. It then
found that he had not established he was a person in need of protection under
section 97 because the risk he faced was one faced generally by the population
of El Salvador.
[2]
Mr. Mejia Ramos is a twenty-year-old citizen of
El Salvador. He says he fears members of the Mara Salvatrucha gang, who
murdered his friend Jaime in 2012, at which time Mr. Mejia Ramos was 16 years
old. Shortly thereafter, the gang began extorting money from Mr. Mejia Ramos
while he was walking to and from school. They told him to keep quiet about the
extortions or he “would end up like Jaime.” Although,
Mr. Mejia Ramos did not witness the murder, he inferred from this statement
that the gang had murdered Jaime and would kill him if he did not pay.
[3]
The RPD accepted Mr. Mejia Ramos was a citizen
of El Salvador. It made no negative credibility findings. The determinative
issues were that there was no nexus to a Convention ground and that he did not
face a personalized risk. Both findings were based on the RPD determination
that Mr. Mejia Ramos was a victim of crime that was not specific or
individualized to him.
[4]
Mr. Mejia Ramos challenges only the section 97
finding made by the RPD.
[5]
For the reasons that follow, I will dismiss the
application. The decision-making process was transparent, intelligible and
justified. It enabled Mr. Mejia Ramos to know why the RPD came to the
conclusion it did. In my view, that conclusion falls within the range of
acceptable, possible outcomes which are defensible on the facts and law.
II.
The RPD Decision
[6]
The RPD noted that section 97 was based on an
objective assessment of risk, and that the evidence must establish a specific,
individualized risk for a claimant rather than generalized human rights
violations in a country. The RPD also noted that being a victim of crime does
not make someone automatically qualify under section 97. There must be evidence
establishing, on the balance of probabilities, that the claimant faces a
specific, individualized risk of harm.
[7]
The RPD found the extortions were not personal
to Mr. Mejia Ramos; the gang extorted him because he had money. In arriving at
that determination the RPD relied upon several facts:
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that Mr. Mejia Ramos did not know the names of
the gang members;
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the gang members did not know Mr. Mejia Ramos’
name;
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Mr. Mejia Ramos’ mother, with whom he lived, had
not been threatened as the gang did not know where they lived;
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Mr. Mejia Ramos did not witness the murder;
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Mr. Mejia Ramos never spoke to the gang about
Jaime;
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Mr. Mejia Ramos never reported anything to the
authorities;
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the last contact Mr. Mejia Ramos had with any
gang member was in July 2012.
[8]
After considering the facts, the RPD determined
that Mr. Mejia Ramos “has not established that he was
personally targeted. There was no persuasive evidence before the panel that the
claimant was targeted for any other reason than that the gang wanted his
money.” The RPD concluded that, “on a balance of
probabilities, the risk the claimant faces is generalized and one which is
faced generally by the population of El Salvador.”
III.
The Issue
[9]
The only issue is whether the RPD erred in
determining Mr. Mejia Ramos did not face a personal risk under section 97 of
the IRPA: is the risk to Mr. Mejia Ramos personal or, is it a
generalized risk? Both sides submit this question is reviewable on a standard
of reasonableness. I agree as it is a mixed question of fact and law: Correa
v Canada (Citizenship and Immigration), 2014 FC 252 at para 19 [Correa].
[10]
The Decision is reasonable if there is
justification, intelligibility and transparency within the decision-making
process and the decision falls within the range of possible, acceptable
outcomes defensible on the facts and law: Dunsmuir v New Brunswick, 2008
SCC 9 at para 47.
IV.
The positions of the parties
A.
Mr. Mejia Ramos
[11]
Mr. Mejia Ramos argues that the RPD erred in
finding he did not face a personal risk of harm if returned to El Salvador. He
has not challenged the RPD section 96 assessment. He notes inconsistencies
between the Decision and the evidence before the RPD. For example, the RPD said
the demands for money were made by unknown members of the Maras whereas Mr.
Mejia Ramos had testified that although he did not know their names, he knew
the nicknames of two gang members and he knew they were Maras members because
of their tattoos.
[12]
Mr. Mejia Ramos says the Maras knew he was a
friend of Jaime. Both his testimony before the RPD and his Basis of Claim [BOC]
narrative indicate that he had no problems in his community until after Jaime
was killed. Gang members then asked him for money 6 or 7 times over several
weeks while he was on his way to school. He says they clearly associated him
with Jaime. He fears returning to El Salvador because he would have to live in
the same small community that he left as he does not have any family members in
other parts of the country. In the same community he would face the same problems
from the Maras.
[13]
Counsel for Mr. Mejia Ramos says the RPD
accepted his story as credible but then ignored significant aspects of it in
finding that he only faced a generalized risk and did not provide a clear
explanation as to why some evidence was accepted and other evidence was rejected.
For example, Mr. Mejia Ramos testified that he knew the nicknames of two of the
gang members—“Sonpopo” and “Chilingo”—yet the RPD said the extortion demands were
made by unknown members of the Maras. Also, Mr. Mejia Ramos testified that the
extortion demands started after Jaime’s death and the gang “clearly associated” him with Jaime, in whose company
he had been seen the night before the murder, but the RPD made no reference to
that evidence.
[14]
In his affidavit, Mr. Mejia Ramos said he
thought Sonpopo and his friends were members of Maras and they extorted him
because they knew, as a friend of Jaime’s, that he would be particularly afraid
of them. Importantly, he states that the gang said to him that he should pay
because, if he did not, “the same thing could happen to
him as to his friend Jaime.” Counsel for Mr. Mejia Ramos claims that
statement personalizes the extortion not only by adding a death threat but also
by making a direct tie to Jaime. The risk is said to be personal because no
other group has a risk arising from association with a murdered friend.
[15]
Mr. Mejia Ramos also fears returning to El
Salvador because he says the gang will think he reported them to the
authorities.
[16]
Counsel for Mr. Mejia Ramos says the RPD is not
following more recent cases addressing personalized risk. He relies on
jurisprudence where the RPD found that applicants who fled their countries
because of extortion and death threats from gang members were found by the RPD
to face only a generalized risk existed but, on review, this Court reversed the
RPD and granted judicial review: Correa; Barragan Gonzalez v Canada
(Citizenship and Immigration), 2015 FC 502; Mejia v Canada (Citizenship
and Immigration), 2015 FC 434 and Puerto Rodriguez v Canada (Citizenship
and Immigration), 2015 FC 1360.
[17]
In particular, counsel points to Correa
at paragraphs 83 and 84 where Mr. Justice Russell set out several principles
that should be considered when determining whether a risk is generalized or
personal. He also notes that Correa involved fear of persecution in El
Salvador.
B.
The Minister
[18]
The Minister agrees that the facts are not in
dispute and that there are no credibility issues. The Minister notes, though,
that the onus is on Mr. Mejia Ramos to show he faces a personal risk and he did
not do so. The facts relied on by the RPD—such as the gang not knowing Mr.
Mejia Ramos’ name or where he lived and his last contact with any gang member being
in July 2012—reasonably led to a conclusion that the targeting of Mr. Mejia
Ramos was not personal. The documentary evidence shows that crime, including
robberies, is prevalent in El Salvador and the gang problem is widespread.
There was no persuasive evidence that Mr. Mejia Ramos was targeted for any
other reason than that the gang wanted money.
[19]
Counsel for the Minister says the RPD identified
the correct test and applied it properly to the facts. Acknowledging that the
cases in this area are very fact specific, the Minister submits that the facts
alleged by Mr. Mejia Ramos line up most closely with the jurisprudence that has
found the risk to be generalized. The gang knows very little about Mr. Mejia
Ramos—not his name or his address. In the cases where a personalized risk has
been found there has been very clear, personal targeting. The facts are not
nearly as clear in this case. The testimony by Mr. Mejia Ramos that he knew the
nicknames of two gang members is not the same as knowing their identities. It
was reasonable for the RPD to determine that he did not know the identity of
those who attacked him.
[20]
The Minister urges comparison of the facts in
this case with cases where a personalized risk has been found, saying that the
facts here are not sufficient to find personalized risk; rather, they line up
with the cases where the RPD and this court found a generalized risk.
C.
Analysis
(1)
Was the RPD decision that there was no valid s.
97 claim reasonable?
[21]
The section 97 evaluation is forward-looking.
The question is whether the targeting of Mr. Mejia Ramos was of a nature such that
he will remain a target if returned to El Salvador. In that sense, the RPD
finding that Mr. Mejia Ramos was vulnerable to extortion is not inconsistent
with being targeted simply for money. The question is whether or not the RPD
finding that Mr. Mejia Ramos was not personally targeted was reasonable.
[22]
In Correa, Mr. Justice Russell reviewed
the case law in this court related to extortion by gangs, as it was said to
diverge. He noted that in Mr. Correa’s case there was personal, specific targeting.
The gang had conducted surveillance of the house, had photos of Mr. Correa and
his wife in various locations and had threatened to kill Mr. Correa if he went
to the police. They knew where he worked, called him by telephone and tried to
kidnap him. The gang also continued to look for Mr. Correa after he fled.
[23]
Justice Russell determined that although the
risk to Mr. Correa may have started out as extortion, it fundamentally changed
to a risk that he and his family would be killed or severely harmed because he
had refused the gang’s demands and had reported them to the police. As Justice
Russell said, there was a clear pattern of escalating violence that put Mr.
Correa and his family in extreme danger.
[24]
None of those elements of serious, specific
personal risk are present in this case. Here, Mr. Mejia Ramos paid the
extortion money, he did not report the gang to the police and the gang never
threatened his family. In fact, other than the one comment that he should pay
so he would not end up like his friend Jaime, there was no threat. The RPD
acknowledged that Mr. Mejia Ramos said the Maras killed Jaime but it balanced
that against his testimony that he did not witness the murder or mention Jaime
to the gang. When the RPD asked Mr. Mejia Ramos whether he had any reason to
believe the Maras were still interested in him four years after his last
contact with them, his answer was they can still recognize him.
[25]
In Portillo v Canada (Citizenship and
Immigration), 2012 FC 678 [Portillo], Madam Justice Gleason, a
member of this court at the time, reviewed a number of cases involving section
97 determinations. She concluded that “the essential
starting point for the required analysis under section 97 of IRPA is to first
appropriately determine the nature of the risk faced by the claimant. This
requires an assessment of whether the claimant faces an ongoing or future risk”.
Once the nature of the risk has been determined, then it is to be compared to
that faced by a significant group in the country to determine whether the risks
are of the same nature and degree: Portillo at paras 40 and 41.
[26]
In Correa, Mr. Justice Russell, in
applying the first step of the test, examined the nature of the risk faced by
Mr. Correa. He distinguished it as being not one of extortion, which was the
initial threat, but rather “as someone who had been
specifically and personally targeted, whose life and family had been threatened
and attacked, and who had refused demands and reported the gang to the police.”
He observed that the Board had confused the reasons for the targeting with the
risk itself. Instead of looking at the original reason of extortion, the Board
ought to have considered Mr. Correa’s risk at the time. In that case it would
have seen that events transformed the initial extortion risk from that experienced
generally as a crime to a very personal one, as evidenced by the surveillance
photos and death threats that included Mr. Correa’s family.
[27]
Here, the RPD had no evidence that the risk
faced by Mr. Mejia Ramos escalated or changed in any way; the extortions
continued and were paid by Mr. Mejia Ramos until he fled. The RPD noted that
the country condition documentation showed that robbery was commonly faced in
El Salvador. It concluded that a demand for money from a criminal gang is a generalized
risk similar to that faced by other people in El Salvador who may have money.
Without more evidence from Mr. Mejia Ramos, that was a reasonable conclusion
for the RPD to draw. Clearly, targeting a vulnerable school boy for extortion
is different from targeting someone who has witnessed a murder. Given the
overall lack of knowledge the gang possessed about Mr. Mejia Ramos there was no
evidence before the RPD suggesting that the gang had any interest in pursuing
him. After he fled it does not appear any further incidents occurred. His
mother was not threatened and he never received any telephone calls or threatening
letters demanding money. It was reasonably open to the RPD to conclude that, at
the time of the hearing, Mr. Mejia Ramos did not face any risk to his life or
of cruel and unusual treatment or punishment beyond the risk faced by other
residents of El Salvador generally.
(2)
Was a sur place claim available to Mr.
Mejia Ramos?
[28]
In his written memorandum and at the RPD hearing,
Mr. Mejia Ramos said he cannot be returned because the gang will believe that
while he was gone he reported them to the authorities and they will kill him.
That fear, which resembles a sur place claim, was implicitly rejected by
the RPD. Given the RPD’s emphasis that Mr. Mejia Ramos never witnessed or spoke
to the gang about Jaime’s murder and never went to the police, it appears to
have found that this fear is purely speculative on the part of Mr. Mejia Ramos.
There is no evidence the gang would believe he reported either the extortions
or the murder to the authorities. The BOC narrative submitted by Mr. Mejia
Ramos did not mention this fear; it said he feared the gang would extort him if
he returned.
[29]
The RPD had before it no evidence on which it
could determine, on an objective basis, that Mr. Mejia Ramos would be targeted
for reporting the gang to the authorities. The evidence is that Mr. Mejia Ramos
did not report the original extortions to the police and that, other than his own
fear, Mr. Mejia Ramos put forward no evidence to ground a section 97 claim.
V.
Conclusion
[30]
The RPD arrived at a decision that was
reasonable given the evidence. It fell within the range of possible, acceptable
outcomes that are defensible on the facts and law. The decision-making process
was justified, transparent and intelligible, as it was clear why the RPD made
the decision it did. Mr. Mejia Ramos did not present any evidence to show the
gang wanted anything other than money from him. The fact that he was once
targeted need not stop the RPD from reasonably concluding that he would face no
greater risk than the rest of the population if returned to El Salvador.
[31]
The application is dismissed. Neither party
suggested a question for certification and none arises on these facts.
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