Correa v. Canada (Citizenship and Immigration)

Correa v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-03-14
Neutral citation
2014 FC 252
File numbers
IMM-8793-12
Notes
A correction was made on March 25, 2015.
Reported Decision
Decision Content
Date: 20140314
Docket: IMM-8793-12
Citation: 2014 FC 252
Ottawa, Ontario, March 14, 2014
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
OCTAVIO ENRIQUE JIMENEZ CORREA
YESENIA ELINESE CABALLERO MACHACON
MICHELLE CAROLINA JIMENEZ CABALLERO
DANNA SOPHIA JIMENEZ CABALLERO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board [RPD or the Board], dated July 26, 2012 [Decision], which refused the Applicants’ application to be deemed Convention refugees or persons in need of protection under s. 96 and 97 of the Act.
BACKGROUND
[2] The Applicants came to Canada on September 15, 2011 from the United States and claimed refugee protection. They are Colombian citizens, with the exception of the youngest child, who is a citizen of the United States. Octavio Correa (Mr. Correa) was a successful businessman in the city of Cartagena who was allegedly forced to flee with his family after becoming the victim of attempted extortion and threats from an armed gang. The other Applicants are his wife and two children, whose claims for protection were entirely reliant on the facts alleged by Mr. Correa.
[3] Mr. Correa alleges that
[4] in January 2004, four unknown men claiming to belong to a group that protects business owners arrived at his front door and told Mr. Correa that he had to pay one million pesos each month in order to receive protection. They explained that they had been watching Mr. Correa and knew all there was to know about him and his family. If he did not collaborate, they threatened to hurt his family. He was also told that if he went to police, he would be signing a death sentence for each member of his family.
[4] The next day, an employee at Mr. Correa’s place of business explained that a man had come looking for him, and had said that a money collector would come monthly for “protection” payments. The employee also admitted to having given other men information about Mr. Correa when asked at gunpoint on two occasions. Later that day, Mr. Correa reported the crime to police.
[5] Several days later, Mr. Correa received a call in which he was told that he had made a terrible mistake by going to police, and that he would suffer the consequences. As a result, Mr. Correa decided to close his business.
[6] In February 2004, the Applicants’ home was broken into by two unknown men who gagged everyone, pushed Mr. Correa around and vandalized the home. The men demanded payment of the money the next day and stole valuables from the home. That same night, the family fled to the city of Barranquilla. While away, Mr. Correa learned from neighbours that men unknown to them had asked about Mr. Correa’s whereabouts. Mr. Correa also received 10 to 12 calls from the paramilitaries in which they stated that they would find him and get their money.
[7] When Mr. Correa returned to Cartagena in May 2004 in order to collect money from customers, two men attempted to kidnap him at gunpoint. Although he was able to escape, a taxi driver who intervened to help him was shot and killed in the incident.
[8] The Applicants subsequently applied for American visas and fled to the United States in January 2005, where they remained without status for several years while waiting for things to blow over in Colombia. When the Applicants realized that things were not calming down, they learned that it was too late for them to make an asylum claim in the United States. They then waited for the “infamous amnesty,” which they say never came.
[9] In July 2011, they made the decision to come to Canada. On September 15, 2011 they arrived in Fort Erie, Ontario where they made their claim for refugee protection.
DECISION UNDER REVIEW
[10] The RPD found that Mr. Correa was not a Convention refugee because he had not satisfied the burden of establishing a serious possibility of persecution on a Convention ground, and that he was not a person in need of protection because the risk he faced was a generalized risk rather than a personalized risk.
[11] As well, the RPD found that since the youngest minor claimant is a citizen of the United States and no evidence was adduced to indicate that she has a fear of persecution in the United States, she is not a Convention refugee or a person in need of protection.
[12] The RPD determined with respect to the s. 96 claim that the determinative issues were subjective fear and nexus. The RPD found that it was unreasonable for the Applicants to have lived in the United States for almost six years without status, knowing that the family could be deported at any time. Mr. Correa’s explanation that he did not make a claim in the United States because he had not intended to remain there was not found to be reasonable. If Mr. Correa was genuinely fleeing Colombia in fear for his life, the RPD member found it reasonable that he would have pursued every option to attempt to legalize his status so as to avoid deportation. As a result, the RPD member drew a negative inference about Mr. Correa’s credibility relating to his subjective fear.
[13] The RPD also found that no nexus had been established to one of the five Convention refugee grounds of race, religion, nationality, real or imputed political opinion, or membership in a particular social group. The demands for money and, flowing from his non-compliance with their demands, the threats Mr. Correa received, did not provide a link to any of the Convention refugee grounds. Rather, the RPD found that Mr. Correa had been targeted by the extortionists because he was the owner of a business who had perceived wealth. The RPD rejected, due to insufficient evidence, the claim that the persecution Mr. Correa feared had a nexus to an imputed political opinion because he had spoken out against the group to a businessman in the region and had reported the incident to police. The RPD found that since the only demand was for money, the objective behind the extortion was purely criminal in nature, which does not provide the Applicants with a nexus to a Convention refugee ground.
[14] The RPD also rejected the s. 97 claim. The Board found that to succeed under s. 97, the risk at issue must be a personal or individualized risk, must be likely to occur on a balance of probabilities, and must be one that “would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country.” The RPD found that although Mr. Correa testified that he believes he was threatened with death because he refused to comply with the extortionists’ demands to pay them, insufficient reliable evidence was adduced to support the assertion that the risk faced by Mr. Correa was particularized. Rather, the RPD noted that so many other business owners in the region were required to pay money to this group or face consequences that the police have a form letter that they provide to anyone who reports threats of extortion. The Board noted that Mr. Correa did not recognize the men who tried to kidnap him, nor did those men refer to him by name. Based on the totality of the evidence, the RPD member found that Mr. Correa was a victim of attempted extortion and the resulting threat of harm or risk to life is a generalized risk faced by others who are perceived to be successful business people in Colombia and refuse to submit to the criminal demands of the groups. While accepting that Mr. Correa was subjected personally to a risk to his life, the Board found that the documentary evidence and testimony of Mr. Correa revealed that the risk he faced as a result of being a target of extortion is faced generally by other people in Colombia who are perceived to have the means to pay the demanded money.
[15] The RPD noted that a generalized risk does not have to affect everyone in the same way. The fact that Mr. Correa had been identified personally as a target did not necessarily remove him from the generalized risk category, since the nature of the risk is one that is faced generally by others in the country. Furthermore, consequential harm experienced by persons who are targeted by criminal elements does not necessarily mean that their risk is personalized where the risk of actual or threatened violence is faced generally by others and is not specific to the Applicants.
[16] Based on the above concerns relating to subjective fear, nexus and personalized risk, the RPD did not find that Mr. Correa was a Convention refugee or person in need of protection under sections 96 or 97 of the Act. As Mr. Correa's wife's and children's claims rested entirely upon his, they were also refused.
ISSUES
[17] The Applicants raise the following issue in this application:
a. Did the Board err in law in determining that the Applicants faced a “generalized risk” in Colombia?
STANDARD OF REVIEW
[18] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48 [Agraira].
[19] The RPD's finding on the issue of whether Mr. Correa faced a generalized risk in Colombia involves questions of mixed fact and law and is reviewable on a standard of reasonableness: Lozano Navarro v Canada (Minister of Citizenship & Immigration), 2011 FC 768 at paras 15 and 16; Garcia Vasquez v Canada (Minister of Citizenship & Immigration), 2011 FC 477 at paras 13 and 14; see also Innocent v Canada (Citizenship and Immigration), 2009 FC 1019.
[20] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY PROVISIONS
[21] The following provisions of the Act are applicable in these proceedings:
97(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
[…]
97(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
[…]
ARGUMENT
Applicants
[22] The Applicants submit that the RPD’s finding of generalized risk was based on its interpretation of the events experienced by the Applicants in Colombia. The Board, the Applicants submit, found that the Applicants’ risk in Colombia was generalized because, in essence, it stemmed from criminal activity (extortion), which was faced by Colombian business owners generally.
[23] The Applicants argue that the analysis of Justice Rennie in Lovato v Canada (Minister of Citizenship and Immigration), 2012 FC 143 [Lovato] applies to the case at bar. There the Court found that the Board had erred in its interpretation of s. 97(1)(b)(ii) of the Act:
[5] With regards to section 97, the Board accepted that the applicant faced a particular risk of harm from the MS, but concluded that because this risk was generally faced by others in El Salvador, the requirements of section 97 were not met.
[…]
[9] The Board erred in concluding that the applicant faced a particular risk of harm but was ineligible for section 97 protection simply because there is a general risk of criminal or gang activity in El Salvador. Vivero v Canada (Minister of Citizenship and Immigration), 2012 FC 138, reviewed the basic principles governing the interpretation of section 97(1)(b)(ii) - specifically, that an individualized inquiry must be conducted in each case, and the fact that the risk to an applicant arises from criminal activity does not in itself foreclose the possibility of protection under section 97. The decision under review is not consistent with the jurisprudence, as it completely negates an admitted situation of individualized risk simply because the actions giving rise to that risk are also criminal.
[10] The facts of this case are similar to those in Pineda v Canada (Minister of Citizenship and Immigration), 2007 FC 365. In that case, the applicant was a young man from El Salvador who claimed to have been targeted for recruitment and then threatened by the MS over a period of several months. The Board did not make any unfavourable findings about the applicant’s credibility, but relied on the applicant’s admission that gangs recruited throughout the country and across society. On the basis of this admission, the Board found the risk to be generalized and denied the claim.
[11] In Pineda, Justice de Montigny made the following statement at paragraph 15:
Under these circumstances, the RPD’s finding is patently unreasonable. 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.
[12] In Guerrero v Canada (Minister of Citizenship and Immigration), 2011 FC 1210, Justice Russel Zinn observed at paragraph 34 that the requirement that the risk is not faced generally by other individuals in or from that country means that:
persons who face the same or even a heightened risk as others face of random or indiscriminate violence from gangs [may not be] eligible for protection. However, where a person is specifically and personally targeted for death by a gang in circumstances where others are generally not, then he or she is entitled to protection under s. 97 of the Act if the other statutory requirements are met.
[13] In this case, the Board was guided by an incorrect understanding of the meaning of section 97(1)(b)(ii). Despite finding that the applicant was subject to a particularized risk of harm, it concluded that the risk also affected the population at large because all El Salvadorians are at risk of violence from the MS. The Board noted: “There was no persuasive evidence before me that the claimant was targeted for any other reasons than the reasons I have already indicated”, i.e. those that motivate the MS to target any member of the population. In this way, the Board incorrectly focused on the reasons for which the applicant was being targeted, rather than the evidence that the MS was specifically targeting the applicant to an extent beyond that experienced by the population at large. As a result, the Board’s decision is unreasonable.
[14] As noted in Vivero, section 97 must not be interpreted in a manner that strips it of any content or meaning. If any risk created by “criminal activity” is always considered a general risk, it is hard to fathom a scenario in which the requirements of section 97 would ever be met. Instead of focusing on whether the risk is created by criminal activity, the Board must direct its attention to the question before it: whether the claimant would face a personal risk to his or her life or a risk of cruel and unusual treatment or punishment, and whether that risk is one not faced generally by other individuals in or from the country. Because the Board failed to properly undertake this inquiry in this case, the decision must be set aside.
[24] The Applicants submit that the facts of the case at bar cannot be distinguished from those of Lovato, above. In both cases, the Applicants argue, the claimants were the victims of extortion demands backed by threats. As well, both sets of claimants reported to police, and were then subjected to violence by the gangs. Therefore, the Applicants submit that, as in Lovato, above, the RPD incorrectly focused on the reasons for which Mr. Correa was being targeted, rather than the evidence that the Los Paisas was specifically targeting the Applicants to an extent that was beyond what was experienced by the population at large.
[25] The Applicants submit that the RPD focused on the reasons for the targeting – extortion – and noted only that sanctions for “non-compliance” with extortion demands were generalized. The RPD failed to acknowledge or analyze the fact that the Applicants were specifically targeted for violence after and because they had reported the gang to the police against the express orders of the gang. The Applicants argue that the evidence did not show that such treatment affected the population at large, nor did the RPD find that it did. As a result, the Applicants submit that the RPD’s analysis of generalized risk was unreasonable.
Respondent
[26] The Respondent first points to s. 97 of the Act, noting that it provides protection to individuals that face a risk that is both personal and not generalized. With respect to the personal nature of the risk, the Respondent submits that a two-stage inquiry is required. First, s. 97(1) states that the applicant must be “personally” subject to the risk. Second, s. 97(1)(b)(ii) states that the otherwise personal risk set out in s. 97 must not be faced “generally by other individuals” from that country. The Respondent submits that the two requirements are conjunctive – it must be both personal and not faced generally. Therefore, a risk may be faced by an applicant personally, but also be faced generally by others, meaning the applicant would not be entitled to protection.
[27] The Respondent notes that this Court has consistently held that a risk “faced generally” means one that is “prevalent or widespread” (Osorio v Canada (Minister of Citizenship & Immigration), 2005 FC 1459 at para 26 [Osorio]; Rodriguez v Canada (Minister of Citizenship & Immigration), 2012 FC 11 at paras 92-93 [Rodriguez]; Paz Guifarro v Canada (Minister of Citizenship and Immigration), 2011 FC 182 at para 32 [Paz Guifarro]). It does not mean that it has to be faced by the entire population (Osorio, above, at para 26). The Respondent points out that the Court has specifically applied this analysis to sub-groups of a population that are “perceived to have wealth” (Paz Guifarro, above, at para 33).
[28] The Respondent further notes that where an applicant is personally targeted, this does not necessarily mean the risk is no longer “generally faced by other individuals.” Rather, depending on the situation in the applicant’s home country, personal targeting could be a risk that is generally faced by others or it may not be. It is a question that depends on the evidence in each case.
[29] While acknowledging that there are cases going both ways on this issue, the Respondent submits that there are a number of cases where this Court has held that targeting from a gang is generalized risk even if it is repeated and done in retaliation for approaching the police or not complying with extortion demands: see for example: Rodriguez, above; Paz Guifarro, above, at paras 5-6, 32; Ascencio Ventura v Canada (Minister of Citizenship and Immigration), 2011 FC 1107 at para 20; De Munguia v Canada (Minister of Citizenship and Immigration), 2012 FC 912 at paras 5, 36; compare with Vivero v Canada (Minister of Citizenship and Immigration), 2012 FC 138 at paras 9-11; Burgos Gonzalez v Canada (Minister of Citizenship and Immigration), 2013 FC 426 at para 15; Rodriguez, above, at paras 70-71; Portillo v Canada (Citizenship and Immigration), 2012 FC 678 at para 39 [Portillo]. The outcome will depend on the particular circumstances of the applicant’s risk and the particular circumstances in the applicant’s home country.
[30] The Respondent submits that while the reasons for an applicant’s targeting may be unique to them, the risk is still generalized if the nature and basis of the risk is the same as that faced by others in the country. In support of this submission, the Respondent relies on Baires Sanchez v Canada (Minister of Citizenship & Immigration), 2011 FC 993 [Baires Sanchez] at para 23:
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.”
[31] In the present case, the Respondent submits that the nature of the risk (risk of violence) and the basis for the risk (failure to cooperate with the gang) is the same as that faced by other business owners in Colombia.
[32] The Respondent argues that the Board’s finding that the risk faced by the Applicants is faced generally by other people in Colombia who are perceived to have the means to pay the demanded money shows an interpretation and application of s. 97(1)(b)(ii) that is consistent with the jurisprudence discussed above.
[33] The RPD weighed the relevant facts relating to Mr. Correa’s situation, including that “so many” other business owners were required to pay money to this group or face consequences, that extortion or tax was something that “all or most” businesses had to pay, that the incidents involved different people who Mr. Correa did not recognize, that Mr. Correa was aware of similar instances of attempted abduction, that extortion constitutes a widespread risk for all citizens of Colombia and that criminal groups continue to expand and consolidate their presence across Colombia, using crimes such as kidnapping and extortion to make money. The RPD then concluded that the personal risk faced by the Applicants was one that was “faced generally by other people in Colombia who are perceived to have the means to pay the demanded money.”
[34] In response to the Applicants’ arguments, the Respondent says that the situation in Lovato, above, can be distinguished from the present case. In that case, the error identified by Justice Rennie was the Board’s failure to conduct an individualized assessment of the Applicants’ risk, as the RPD had held that they faced a risk of crime and therefore it must be excluded by s. 97(1)(b)(ii). Justice Rennie held that merely because it is a risk of crime does not automatically mean it is excluded by s. 97(1)(b)(ii) – an individual analysis of risk is required (Lovato, above, at para 9).
[35] In the present case, the Respondent submits that the RPD gave a detailed individual analysis and determined, on the basis of all the evidence, that the specific risks faced by the Applicants were faced generally by others. The Respondent notes that while the facts in Lovato, above, may be similar to the present case, the issue is about the requirement for individualized inquiry rather than a generalized finding that all criminal victimization is excluded.
[36] The Respondent submits that, consistent with other jurisprudence of this Court (see, for example, Portillo, above), the RPD expressly identified and characterized the risk Mr. Correa was facing in a number of places throughout the Decision:
The claimant was approached and demanded to pay extortion monies to a criminal group and as a result of his non-compliance, he was threatened and a victim of attempted abduction.
[37] After considering the evidence, the RPD determined that this was a risk faced generally by others from Colombia:
[30] Based on a totality of the evidence, I find that the claimant was a victim of attempted extortion and the resulting threats of harm or risks to life for non-compliance, is a generalized risk faced by others who are perceived to be successful business people in Colombia and refuse to acquiesce to the criminal demands of the groups.
[38] The Respondent notes that while Mr. Correa tries to distinguish his situation by emphasizing that he was threatened as retaliation for going to the police, the RPD made reference to this allegation throughout the Decision and was clearly aware of this particular circumstance. Furthermore, the Respondent notes that the Applicants have not cited any documentary evidence to demonstrate that this type of targeting by gangs is not a prevalent or widespread risk in Colombia.
[39] Finally, the Respondent submits that the RPD is entitled to deference, and based on the jurisprudence cited by the Board, its conclusions were within the range of acceptable outcomes.
ANALYSIS
[40] This application raises a seemingly intractable issue that the Court has had to deal with many times: under s. 97(1)(b)(ii) of the Act, when is a risk faced personally by an applicant a risk that is “not faced generally by other individuals” in or from the applicant’s country of nationality or former habitual residence?
Former Divergence
[41] As several members of the Court have observed, two “lines” or “branches” of cases have emerged with respect to whether, or in what circumstances, individuals targeted by criminal gangs for extortion or forced recruitment will qualify for protection under s. 97(1)(b) of the Act: see Portillo, above at paras 37-39 (Gleason); de Jesus Aleman Aguilar v Canada (Minister of Citizenship and Immigration), 2013 FC 809 at paras 61-62 (Strickland) [Aleman Aguilar]; Kaaker v Canada (Minister of Citizenship and Immigration), 2012 FC 1401 at para 46 (Shore) [Kaaker].
[42] In Portillo, above, Justice Gleason observed at paras 38-39:
38 On one hand, in several cases similar to the present, the Court has overturned RPD decisions where the claimant had been personally targeted for violence by one of the criminal gangs operating in Central or South America (see e.g. Pineda (2012); Lovato v Canada (Minister of Citizenship and Immigration), 2012 FC 143 at para 7, [2012] FCJ No 149 (Rennie) [Lovato]; Guerrero v Canada (Minister of Citizenship and Immigration), 2011 FC 1210, [2011] FCJ No 1477 (Zinn) [Guerrero]; Dias v Canada (Minister of Citizenship and Immigration), 2011 FC 705, [2011] FCJ No 914 (Beaudry); Gomez v Canada (Minister of Citizenship and Immigration), 2011 FC 1093, [2011] FCJ No 1601 (O'Reilly) [Gomez]; Uribe v Canada (Minister of Citizenship and Immigration), 2011 FC 1164, [2011] FCJ No 1431 (Harrington); Vasquez v Canada (Minister of Citizenship and Immigration), 2011 FC 477, [2011] FCJ No 595 (Scott) [Vasquez]; Barrios Pineda v Canada (Minister of Citizenship and Immigration), 2011 FC 403, [2011] FCJ No 525 (Snider) [Barrios Pineda]; Zacarias v Canada (Minister of Citizenship and Immigration), 2011 FC 62, [2011] FCJ No 144 (Noël) [Zacarias]; Munoz v Canada (Minister of Citizenship and Immigration), 2010 FC 238, [2010] FCJ No 268 (Lemieux) [Munoz]; Pineda v Canada (Minister of Citizenship and Immigration), 2007 FC 365, [2007] FCJ No 501 (de Montigny) [Pineda (2007)]).
39 Opposite conclusions were reached in the other group of cases, where the Court upheld the RPD's decisions in situations where gangs made threats of future harm to the claimants but the threats were found to be insufficient to place the claimant at any greater risk than others in the country (see e.g. Rodriguez v Canada (Minister of Citizenship and Immigration), 2012 FC 11, [2012] FCJ No 6 (Russell); Rajo v Canada (Minister of Citizenship and Immigration), 2011 FC 1058, [2011] FCJ No 1277 (Kelen); Chavez Fraire v Canada (Minister of Citizenship and Immigration), 2011 FC 763, [2011] FCJ No 967 (Zinn); Baires Sanchez v Canada (Minister of Citizenship and Immigration), 2011 FC 993, [2011] FCJ No 1358 (Crampton); Guifarro; and Carias v Canada (Minister of Citizenship and Immigration), 2007 FC 602, [2007] FCJ No 817 (O'Keefe)). In several of these cases, however, the RPD did not make a determination like it did in the present case to the effect that the applicant had been personally targeted and was at risk of death. Thus, the two lines of cases do not necessarily conflict with each other.
[43] One could add the following to the first list: Castaneda v Canada (Minister of Citizenship and Immigration), 2011 FC 724 (Hughes) [Castaneda]; Portillo, above; Malvaez v Canada (Minister of Citizenship and Immigration), 2012 FC 1476 (Martineau) [Malvaez]; Olvera v Canada (Minister of Citizenship and Immigration), 2012 FC 1048 (Shore) [Olvera]; Tomlinson v Canada (Minister of Citizenship and Immigration), 2012 FC 822 (Mactavish) [Tomlinson]; Marroquin v Canada (Minister of Citizenship and Immigration), 2012 FC 1114 (Rennie) [Marroquin]; Kaaker, above; Roberts v Canada (Minister of Citizenship and Immigration), 2013 FC 298 (Gagné) [Roberts]; Hernandez Lopez v Canada (Minister of Citizenship and Immigration), 2013 FC 592 (Roy) [Hernandez Lopez]; Aleman Aguilar, above; Martinez De La Cruz v Canada (Minister of Citizenship and Immigration), 2013 FC 1068 (de Montigny) [De La Cruz], among others.
[44] The following cases, among others, could be added to the second list: Vickram v Canada (Minister of Citizenship and Immigration), 2007 FC 457 (de Montigny) [Vickram]; Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331 (Tremblay-Lamer) [Prophète FC]; Cius v Canada (Minister of Citizenship and Immigration), 2008 FC 1 [Cius]; Perez v Canada (Minister of Citizenship and Immigration), 2009 FC 1029 (Kelen) [Perez (2009)]; Acosta v Canada (Minister of Citizenship and Immigration), f2009 FC 213 (Gauthier) [Acosta]; De Parada v Canada (Minister of Citizenship and Immigration), 2009 FC 845 (Zinn) [De Parada]; Perez v Canada (Minister of Citizenship and Immigration), 2010 FC 345 (Boivin) [Perez (2010)]; Palomo v Canada (Minister of Citizenship and Immigration), 2011 FC 1163 (Harrington) [Palomo]; Ventura v Canada (Minister of Citizenship and Immigration), 2011 FC 1107 (Near) [Ventura]; Ramirez v Canada (Minister of Citizenship and Immigration), 2012 FC 69 (Shore) [Ramirez (2012)]; Ayala v Canada (Minister of Citizenship and Immigration), 2012 FC 183 (Hughes) [Ayala]; Wilson v Canada (Minister of Citizenship and Immigration), 2013 FC 103 (Simpson) [Wilson]; De Munguia v Canada (Minister of Citizenship and Immigration), 2012 FC 912 (O’Keefe) [De Munguia]; Neri v Canada (Minister of Citizenship and Immigration), 2013 FC 1087 (Strickland) [Neri].
[45] In my view, the differences between these two lines of cases arise both from different facts and different approaches to interpreting and applying the language of s. 97(1)(b)(ii). I agree with Justice Gleason that whether or not personal targeting is found to have occurred has been an important and even decisive factor in many cases, but there have also been cases where a denial of the claim has been upheld despite a finding of personal targeting or circumstances that clearly demonstrate it. The Respondent in the present matter cites several examples, including: Rodriguez, Paz Guifarro; Ventura; De Munguia; Perez (2009), all above.
[46] While a full consensus has yet to emerge, I think that there is now a preponderance of authority from this Court that personal targeting, at least in many instances, distinguishes an individualized risk from a generalized risk, resulting in protection under s. 97(1)(b). Since “personal targeting” is not a precise term, and each case has its own unique facts, it may still be the case that “in some cases, personal targeting can ground protection, and in some it cannot” (Rodriguez, above, quoted with approval in Pineda v. Canada (Minister of Citizenship and Immigration), 2012 FC 1543 [Pineda (2012)]. However, in my view there is an emerging consensus that it is not permissible to dismiss personal targeting as “merely an extension of,” “implicit in” or “consequential harm resulting from” a generalized risk. That is the main error committed by the RPD in this case, and it makes the Decision unreasonable.
Interpretation of s. 97(1)(b)(ii): towards a common approach
[47] The Court of Appeal has considered the proper interpretation of s. 97(1)(b)(ii) only once, in Prophète v. Canada (Minister of Citizenship and Immigration), 2009 FCA 31 [Prophète FCA]. While the Court in that case declined to answer the certified question, it provided brief but important guidance in doing so that assists with finding a common approach.
[48] The question certified in Prophète FC, above, was as follows:
Where the population of a country faces a generalized risk of crime, does the limitation of section 97 (1)(b)(ii) of the IRPA apply to a subgroup of individuals who face a significantly heightened risk of such crime?
[49] In declining to answer this question, the Court of Appeal made the following observations:
4 The certified question correlates with the appellant's position. Mr. Prophète, a citizen of Haiti, sought asylum in Canada alleging persecution in the form of vandalism, extortion and threats of kidnapping. Although the appellant recognized the upheaval faced generally by Haitian citizens, he submitted that being a businessman put him and other business persons especially at risk because those with money or those perceived to have money were at greater risk than the general population which, for the most part, lived in poverty. According to the appellant, as soon as a significantly heightened risk is not faced by the rest of the population, that risk is not captured by the exclusion of subparagraph 97(1)(b)(ii) of the Act because that risk is no longer a risk faced generally by other individuals in or from a given country (appellant's memorandum of fact and law at paragraph 90).
5 For the following reasons, the appeal will be dismissed.
[…]
7 The examination of a claim under subsection 97(1) of the Act necessitates an individualized inquiry, which is to be conducted on the basis of the evidence adduced by a claimant "in the context of a present or prospective risk" for him (Sanchez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 99 at paragraph 15) (emphasis in the original). As drafted, the certified question is too broad.
8 Taking into consideration the broader federal scheme of which section 97 is a part, answering the certified question in a factual vacuum would, depending on the circumstances of each case, result in unduly narrowing or widening the scope of subparagraph 97(1)(b)(ii) of the Act.
9 For these reasons, we decline to answer the certified question.
10 In the case at bar (Prophete v. Canada (Citizenship and Immigration), 2008 FC 331), there was evidence on record allowing the Applications Judge to conclude:
[23] ... that the applicant does not face a personalized risk that is not faced generally by other individuals in or from Haiti. The risk of all forms of criminality is general and felt by all Haitians. 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.
[Emphasis added]
[50] In my view, careful attention should be paid to the reason the Court of Appeal gave for declining to answer the certified question: it was concerned that doing so in the circumstances would unduly narrow or broaden the interpretation of s. 97(1)(b)(ii) as it applied to victims of criminal gangs. In view of this, I think it necessary to avoid both extremes in interpreting the provision. At one end of the spectrum this would mean emptying s. 97(1)(b) of any protection for victims of criminal gangs. At the other end would be an interpretation that is so broad that essentially all those with a real and personal risk related to these gangs qualify for protection. The latter may be more in line with Canada’s international human rights obligations, but, in my view, it cannot be reconciled with the language of s. 97(1)(b).
[51] Some interpretations applied to the provision by the RPD and, it must be said, the Court in some cases, have come dangerously close to emptying it of any meaning for victims of criminal gangs, contrary to the Court of Appeal’s direction in Prophète FCA, above. In other cases, this Court has rightly warned against such a result, usually while noting that the RPD’s reasoning in the decisions under review would, if accepted, have this result: see Lovato, above, at para 14 (Rennie); Portillo, above, at para 36 (Gleason); Tomlinson, above, at para 16 (MacTavish); Vivero, above, at para 28 (Rennie); De La Cruz, above, at para 42 (de Montigny). In several cases, the Respondent has been asked to provide examples of who would be protected from gang violence under s. 97(1)(b), and either could not provide an example or took the view that protection would only be available in the most extreme cases, such as when a gang had been contracted to kill someone. In Guerrero v. Canada (Minister of Citizenship and Immigration), 2011 FC 1210 [Guerrero] Justice Zinn responded as follows to the latter position, which the Respondent advanced on the basis of the Court’s reasoning in Baires Sanchez, above:
34 I do not accept that protection under the Act is limited in the manner submitted by the respondent. This is not to say that persons who face the same or even a heightened risk as others face of random or indiscriminate violence from gangs are eligible for protection. However, where a person is specifically and personally targeted for death by a gang in circumstances where others a