Rodriguez v. Canada (Citizenship and Immigration)

Rodriguez v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-01-04
Neutral citation
2012 FC 11
File numbers
IMM-2409-11
Decision Content
Federal Court
Cour fédérale
Date: 20120104
Docket: IMM-2409-11
Citation: 2012 FC 11
Ottawa, Ontario, January 4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ERNESTO BATALLA RODRIGUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 15 March 2011 (Decision), which refused the Applicant’s claim for protection under sections 96 and 97 of the Act.
BACKGROUND
[2] The Applicant is a citizen of Mexico. He fled to Canada on 4 November 2008 and claimed refugee protection on 3 September 2009.
[3] When he lived in Mexico, the Applicant co-owned a restaurant with his business partner, Michelle Martinez (Martinez). In June 2006, the Applicant was approached by two members of the La Familia Cartel Texcoco (La Familia), an emerging drug cartel and crime syndicate. The two cartel members, who the Applicant knew as El Roberlee and El Richard, demanded that he pay La Familia 4,000 pesos (approximately $300) as a “tax” every month. The Applicant agreed and began paying La Familia.
[4] Some time later, two men – who the Applicant knew as El Rabano and Tarzan – approached him at his restaurant. These men identified themselves as La Familia members and demanded that he increase his payment to $500 per month. The Applicant refused to pay this increase, as it would represent more than ten percent of his take-home earnings. El Rabano and Tarzan also demanded that the Applicant permit La Familia to sell drugs in his restaurant, which he refused to allow. When these demands were made, Martinez was away from the restaurant, in the USA. Two weeks later, four men came to the Applicant’s restaurant; one of these men was called “El Commandant” by the other three. This man had formerly been in charge of an anti-kidnapping section of the police in Texcoco. El Commandant told the Applicant that if he did not pay the money demanded, he would be killed. The four men also beat the Applicant.
[5] On 28 May 2007, after he refused to pay the increased amount and allow La Familia to sell drugs in his restaurant, the Applicant was beaten by the side of the road outside Texcoco. The Applicant recognized one of the people beating him as El Rabano, and he believes that La Familia was responsible for this attack. During the beating, someone stabbed the Applicant in the stomach. Because of the injuries he suffered, the Applicant had to spend approximately seven months in hospital recuperating. He was unable to run the restaurant during this time so Martinez took on the management responsibilities. She agreed to pay the increased amount La Familia had demanded.
[6] After the Applicant was discharged from the hospital, he and Martinez decided that it was not worth it for them to continue operating the restaurant, so they decided to sell it. It took some time to find a willing buyer but, in March 2008, they sold the restaurant. The Applicant moved to the neighbouring state of Guerrero. While he was in Guerrero, the Applicant received a telephone call from El Commandant whose voice he recognized from their previous encounter. El Commandant told him that it was a mistake to sell the restaurant without informing the cartel and that the Applicant still owed the cartel money. After receiving this phone call, the Applicant fled to Canada on 4 November 2008 and claimed refugee status on 3 September 2009.
[7] The RPD heard the Applicant’s claim on 15 March 2011. At the hearing, the Applicant, his counsel, the RPD panel member, and an interpreter were present. In oral reasons delivered at the end of the hearing, the RPD rejected the Applicant’s claim for protection.
DECISION UNDER REVIEW
[8] After the hearing, the RPD concluded that the Applicant was not a convention refugee under section 96 of the Act or a person in need of protection under section 97 of the Act. The RPD found that the Applicant had not established a nexus to a Convention ground, so his claim under section 96 of the Act failed. The RPD also found that the Applicant did not face a personalized risk of torture or cruel and unusual treatment or punishment on return to Mexico, so he was not a person in need of protection under section 97 of the Act.
[9] The RPD found that the Applicant’s identity was established through a certified copy of his passport and went on to consider the substance of his claim.
Allegations
[10] The RPD noted that the Applicant claimed to have owned a restaurant in Mexico and that he had been extorted by La Familia and threatened with death if he did not give them what they wanted. It briefly reviewed the circumstances of the restaurant’s sale, the phone call from El Commandant, and the Applicant’s flight to Canada.
[11] The RPD found that the Applicant was a credible and trustworthy witness and believed his story.
Convention Refugee
[12] The RPD found the Applicant’s claim under section 96 of the Act failed because he had not established a nexus to a convention ground. Though the RPD accepted his story that he had been extorted by La Familia, the Applicant’s fear of extortion was not linked to race, religion, nationality, political opinion, or membership in a particular social group. The RPD noted that the Applicant had made submissions that he was a member of a particular social group – business owners – and that he had an imputed political opinion because he had a different political opinion from La Familia. The RPD also noted the Applicant’s submissions that El Commandant was formerly a police commander and that La Familia had the ability to put pressure on politicians.
[13] The RPD pointed out that this Court has held that victims of crime, corruption, or vendettas generally fail to establish a link between their fear of persecution and a Convention ground. The RPD pointed to Leon v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 1253; Calero v Canada (Minister of Employment and Immigration), [1994] FCJ No 1159; Vargas v Canada (Minister of Employment and Immigration), [1994] FCJ No 802; and Marincas v Canada (Minister of Employment and Immigration), [1994] FCJ No 1254. The Applicant was a victim of crime without a nexus to a Convention ground so that his claim for protection under section 96 failed.
Generalized Risk
[14] After it concluded that the Applicant was not a Convention refugee within the meaning of section 96, the RPD separately analyzed his claim under section 97 of the Act and concluded that, because the risk the Applicant faced on return to Mexico was generally faced by the population there, he was not personally at risk. Without a personalized risk, his claim his claim under section 97 failed.
[15] The RPD said that simply being at risk to life is not enough to make a claimant a person in need of protection under section 97 of the Act. The Act specifically excludes people from the definition of “person in need of protection” who face risks that are generally faced by other people in the country (see subparagraph 97(1)(b)(ii) of the Act). Even though the Applicant faced a personalized risk to life, or a risk of cruel and unusual treatment or punishment, this risk was also one that was faced generally by others in Mexico. This brought the Applicant within the exception under subparagraph 97(1)(b)(ii) of the Act.
[16] In analysing the Applicant’s claim under section 97, the RPD reviewed his allegations of extortion. It also noted that the documentary evidence before it indicated that La Familia was a well-organized and brutal criminal organization which had been characterized as an emerging drug cartel. The RPD said that generalized risk has to do with the nature of the harm a claimant faces and that the exception under subparagraph 97(1)(b)(ii) includes risks associated with crime, violence, extortion, corruption, abuse of authority, human rights violations, general insecurity, terrorism, suicide bombing, political extremism and activities of armed groups. It also noted that two Responses to Information Requests – included in the documentary package before it – indicated that crime was widespread in Mexico. The Applicant was a victim of crime, but the crimes he was a victim of – extortion and assault – were widespread in Mexico.
[17] Hence, the RPD found that the Applicant’s fear was a generalized one. It pointed out that this Court has interpreted generalized risk to mean “prevalent” or “widespread” without requiring that a risk be faced by all citizens in a country to amount to a generalized risk. The RPD considered Vickram v Canada (Minister of Citizenship and Immigration) 2007 FC 457, and said that this Court had upheld the RPD’s determination that a claimant who faces a risk of criminal activity is at no greater risk than the general population. The RPD also said that this Court held that the perception of wealth does not constitute a particularized risk.
[18] Though Vickram was not precisely the same as the case before it, the RPD found that the risks of violence, injury, and crime are generalized risks faced by everyone in Mexico. While some individuals such as the Applicant may be targeted more frequently, this does not remove them from the generalized risk category.
[19] The RPD noted that the Applicant had suggested that Pineda v Canada (Minister of Citizenship and Immigration) 2007 FC 365 [Martinez Pineda] was applicable to his case. However, the RPD took the position that Martinez Pineda was not consistent with the predominant line of cases, including Acosta v Canada (Minister of Citizenship and Immigration) 2009 FC 213, Perez v Canada (Minister of Citizenship and Immigration) 2010 FC 345, and Guifarro v Canada (Minister of Citizenship and Immigration) 2011 FC 182. The fact that victims of generalized violence have an identity that is known to perpetrators of violence does not mean that those victims face a personalized risk.
[20] The RPD also reviewed Guifarro, above, and said that it is settled law that claims based on targeting because a claimant is a member of a group that is perceived to be wealthy, where that group is large enough to make the risk widespread, will not meet the requirements of subparagraph 97(1)(b)(ii). Though a group may be a small portion of the population of the country of reference, what matters is that the risk is widespread or prevalent.
[21] The RPD found that the Applicant was personally subject to a risk of harm under section 97 involving extortion and gang violence. However, on the evidence before the RPD, the Applicant’s risk on return was a generalized one. The Applicant was therefore not a person in need of protection under section 97 of the Act.
STATUTORY PROVISIONS
[22] The following provisions of the Act are applicable in this proceeding:
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries;
…
Person in Need of Protection
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,
…
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; […]
…
Personne à protéger
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,
…
ISSUES
[23] The Applicant raises the following issues:
a. Whether the RPD erred in its interpretation of subparagraph 97(1)(b)(ii) of the Act; and
b. Whether the RPD failed to appreciate the particularized nature of the threat he faced on return.
STANDARD OF REVIEW
[24] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[25] In Osorio v Canada (Minister of Citizenship and Immigration) 2005 FC 1459, Justice Judith Snider concluded at paragraph 26 that the standard of review on a tribunal’s interpretation of subparagraph 97(1)(b)(ii) is reasonableness. In Dunsmuir, above, the Supreme Court of Canada held at paragraph 54 that a tribunal’s interpretation of its enabling statute will generally be accorded deference. The Supreme Court of Canada upheld this approach in Smith v Alliance Pipeline Ltd. 2011 SCC 7 at paragraph 26. Most recently, in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association 2011 SCC61, the Supreme Court of Canada held at paragraph 30 that the standard of review on a tribunal’s interpretation of its home statute is reasonableness, unless the interpretation falls into the enumerated categories for which the correctness standard applies: constitutional questions, questions of central importance to the legal system as a whole, questions on the jurisdictional lines between specialized tribunals, and true questions of vires. The interpretation of 97(1)(b)(ii) does not fall into any of these categories, so the standard of review on the first issue is reasonableness.
[26] In V.L.N. v Canada (Minister of Citizenship and Immigration) 2011 FC 768, Justice David Near found that the standard of review with respect to a finding of generalized risk was reasonableness (see paragraphs 15 and 16). In Vasquez v Canada (Minister of Citizenship and Immigration) 2011 FC 477, Justice André Scott found that a finding of generalized risk involves a question of mixed fact and law and is to be evaluated on a standard of reasonableness. The standard of review on the second issue is reasonableness (see also Innocent v Canada (Minister of Citizenship and Immigration) 2009 FC 1019).
[27] 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 paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at paragraph 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.”
ARGUMENTS
The Applicant
[28] The Applicant does not take issue with the RPD’s conclusion that he is not a Convention refugee; he confines his arguments solely to the RPD’s conclusion that he was not a person in need of protection under section 97 of the Act.
The RPD Erred in its Interpretation of 97(1)(b)(ii)
Martinez Pineda is Good Law
[29] The Applicant notes that the RPD rejected Martinez Pineda, above. He says that the cases the RPD relied on to reject Martinez Pineda – Acosta, Perez, and Guifarro, above, – are distinguishable or were decided in error.
[30] Martinez Pineda was about a claimant who was repeatedly threatened by a street gang in El Salvador after he refused to become a member of that gang. The Applicant notes that Martinez Pineda was recently applied by Justice Simon Noël in Zacarias v Canada (Minister of Citizenship and Immigration) 2011 FC 62. In addition to Zacarias, the Court has followed and applied Martinez Pineda in Castaneda v Canada (Minister of Citizenship and Immigration) 2011 FC 200, Lamour v Canada (Minister of Citizenship and Immigration) 2011 FC 322, and M.A.C.P. v Canada (Minister of Citizenship and Immigration) 2011 FC 81. Though this Court distinguished Martinez Pineda in those cases on its facts, the Applicant says that the Court followed the reasoning.
The Cases Relied on by the RPD are Distinguishable or Wrong
[31] The Applicant argues that Acosta, Perez, and Guifarro are either distinguishable on their facts or were wrongly decided. He says that Acosta – a case where the applicant was a bus-fare collector who was threatened after missing an extortion payment – is distinguishable from Martinez Pineda on its facts. Justice Johanne Gauthier had this to say in Acosta, at paragraph 17:
Finally, here, the Board found the risk faced by Mr. Acosta was “a result of where he happened to be, or not to be, on the day the Mara wanted their money” (para. 18) whereas Mr. Pineda had been targeted not as a victim of the Gang but rather for recruitment into the Gang.
[32] Unlike Acosta, Martinez Pineda is factually similar to the facts in this case. The Applicant was not randomly targeted by La Familia; he was specifically targeted for extortion because he owned a restaurant where La Familia wanted to sell drugs. He says that letting La Familia sell drugs through his restaurant would amount to complicity in its acts and participation in its criminal enterprise. La Familia’s attempt to get him to allow them to sell drugs in his restaurant is therefore equivalent to recruitment, which makes Martinez Pineda applicable.
[33] The Applicant also argues that Guifarro and Perez, which the RPD relied on to support its analysis of section 97, were wrongly decided because they followed the approach laid out by Justice Snider in Osorio, above. On subparagraph 97(1)(b)(ii), Justice Snider said at paragraph 26 of her decision:
[…] I can see nothing in s. 97(1)(b)(ii) that requires the Board to interpret “generally” as applying to all citizens. 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.
[34] The Applicant says that this approach is wrong and merits reconsideration. He says the cases which rely on this approach are wrongly decided. The RPD’s interpretation of 97(1)(b)(ii) was unreasonable because it relied on these wrongly decided cases. The Applicant says that “generalized risk” should be interpreted to mean “a risk faced by all citizens in the country of reference.” The RPD’s interpretation of “generalized risk” to include risks faced by groups smaller than the entire population of the country of reference was in error. The Applicant says that his interpretation of generalized risk is supported by a textual and contextual analysis of section 97, the legislative history of section 97, and the spirit of the Act.
[35] The Applicant points to the Post-Determination Refugee Claimants in Canada (PDRCC) class established in the former Immigration Act, RSC 1985, c. I-2. To be eligible to remain in Canada under that class, claimants had to establish that removal would subject them to “an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country.” He notes that the Citizenship and Immigration Canada (CIC) Guidelines on that class said that:
The threat is not restricted to a risk personalized to an individual; it includes risks faced by individuals that may be shared by others who are similarly situated. […] Any risk that would apply to all residents or citizens of the country of origin cannot result in a positive decision under this regulation.
[36] Because these guidelines indicate that a risk to all citizens in a country would exclude a claimant from the PDRCC class, the Applicant argues that “generalized risk” in subparagraph 97(1)(b)(ii) of the Act must mean a risk that is faced by all citizens in the country of reference.
[37] The Applicant notes that Justice Donna McGillis considered those Guidelines in Sinnappu v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 173. Justice McGillis said in her decision that the guidelines interpret “generalized risk” under the PDRCC class to mean a risk faced by all residents or citizens of that country.
[38] The Applicant refers to a paper produced by the Legal Services Branch of the Immigration and Refugee Board entitled “Consolidated grounds in the Immigration and Refugee Protection Act” from which he quotes the following passage:
If the risk faced by a person stems from a general risk in that country, the person is not protected under section 97(1)(b). Protection is limited to those who face a specific risk not faced generally by others in the country. There must be some particularization of the risk to the person claiming protection as opposed to an indiscriminate or random risk faced by the claimant and others.
A claim based on natural catastrophes such as drought, famine, earthquakes, etc. will not satisfy the definition as the risk is generalized. However, claims based on personal threats, vendettas, etc. may be able to satisfy the definition (provided that all the elements of s. 97(1)(b) are met) as the risk is not indiscriminate or random.
In a civil war situation a claimant would be required to adduce some evidence that the risk faced is not an indiscriminate risk faced generally in that country, but linked to a particular characteristic or status. In a refugee claim, a claimant fleeing a situation of civil war may be able to establish a claim where the risk of persecution is not individualized but is group-based harm that is distinguishable from the general dangers of civil war. There is a requirement of some targeting although the targeted group can be large and there can be several opposing targeted groups. Similarly, the PDRCC Guidelines did not require individualized targeting, but would exclude victims of random violence in a civil war situation if all residents were subject to that random violence. This approach to risk arising from civil war is consistent with the IRB’s Chairperson’s Civil War Guidelines and appears to be consistent with the intent of 97(1)(b)(ii).
Therefore, individuals who face a serious and credible risk may not be able to benefit from protection under s. 97(1)(b) as long as the risk is faced generally by citizens in that country irrespective of their personal characteristics or status [references omitted].
[39] The Applicant says that this passage demonstrates that subparagraph 97(1)(b)(ii) only operates to exclude from protection claimants who face a risk that is faced by all the citizens in the country of reference.
[40] The Applicant also says that Parliamentary committee debates around the Act support his interpretation of generalized risk. He notes that Gerry Van Kesssel, the Director General, Refugees at the time the Act was before the Standing Committee on Citizenship and Immigration said that the “concept of personal risk as opposed to general risk faced by the entire population is contained in the convention refugee definition and in the convention against torture.” This, the Applicant says, demonstrates that “generalized risk” is risk that is faced by all people in the country of reference.
[41] The Applicant also says that, where an individual is personally targeted, this is enough to take that person out of the exclusion from generalized risk. Though the risk that person faces may be faced by a significant portion of the population, personal targeting is enough to particularize the risk and make the 97(1)(b)(ii) exclusion from protection inoperative. The Applicant says that this is consistent with the UNHCR’s interpretation of “generalized violence.” This interpretation also accords with the spirit of the Act, which the Applicant says is primarily about saving lives and offering protection. Further, this accords with an interpretation of the Act which is consistent with the Charter of Rights and Freedoms.
[42] To interpret section 97 as not extending protection to persons in danger who have been personally targeted simply because they form part of a larger segment of the population affected by the same risks would conflict with the wording and spirit of the Act. The Applicant says that this would lead to arbitrary results based on a subjective prior determination of the existence of sufficiently large at-risk group. An interpretation of “generalized risk” which falls short of a risk faced by all citizens in the country would result in a protection gap and would not be consistent with international law. This interpretation would also mean that nobody fleeing persecution from organized crime could ever make a successful claim under section 97.
[43] Osorio, above, was therefore wrongly decided and, because the RPD relied on cases that followed the reasoning in Osorio, its interpretation of subparagraph 97(1)(b)(ii) was unreasonable. The Decision should therefore be returned for reconsideration.
The RPD Failed to Appreciate the Nature of the Threat the Applicant Faced
[44] In the alternative, the Applicant argues that the RPD failed to appreciate the fact that he was specifically and personally targeted. He says that the RPD focused on the fact that he faced extortion and ignored the fact that he was also at risk because of his refusal to allow La Familia to sell drugs in his restaurant. The Applicant says that La Familia’s demand to sell drugs in his restaurant is tantamount to recruitment into the cartel and his refusal is the same as refusing to join La Familia. This puts him into the same situation as the claimant in Martinez Pineda, above, who refused to join the Maras Salvatruchas gang over an extended period. The RPD should have made a finding that was consistent with Martinez Pineda because the facts of that case are similar.
[45] Although the risk of extortion was generalized, the Applicant says that when he refused to allow La Familia to sell drugs in his restaurant, this sufficiently particularized the risk to him to ground a finding of risk under section 97. The RPD erred, as it did in Martinez Pineda, by focussing on the generalized threat to the population in Mexico while at the same time failing to consider the Applicant’s particular situation. The Decision is unreasonable on this basis.
[46] The Applicant says that the RPD also failed to appropriately link the country documentation which was before it to his situation. He says that, if it had done so, the RPD would have concluded that he faced a risk which was different from that faced by the general population in Mexico.
The Respondent
The RPD’s Decision Was Reasonable
[47] The Respondent says that the RPD assessed the Applicant’s personal risk in the context of the evidence and reached a reasonable conclusion that he had not made out a case under section 97. The RPD did not ignore the evidence which was before it and did not err in its analysis of this Court’s jurisprudence. The RPD’s conclusion that the Applicant faced a generalized risk of harm was open to it on the facts and the law. Since the standard of review on a determination under section 97 is reasonableness, this Court should not interfere in the Decision.
The RPD’s Interpretation of Paragraph 97(1)(b) was Reasonable
[48] The Respondent notes that section 97 only extends protection to claimants where the risk they face is particularized and is not generally faced by other individuals in the country of reference. When the RPD finds that there is a generalized risk, it need not examine state protection.
[49] The analysis under paragraph 97(1)(b) must be grounded in the circumstances of each case. Where a person is a victim of crime, Innocent, above, teaches that this is insufficient on its own to extend protection under section 97 of the Act. This Court has rejected the Applicant’s argument that it is wrong per se not to extend protection to individuals who have been targeted by criminal organizations because they form part of a larger segment of the population affected by the same risks.
[50] The Respondent also relies on Innocent, above, at paragraph 49 for the proposition that simply because members of a group may be at higher risk of targeting for crime and violence because they are wealthy does not mean those people have a sufficiently personalized risk to make them persons in need of protection. The targeting and extortion of business people is not enough to establish a personalized risk (see De Parada v Canada (Minister of Citizenship and Immigration) 2009 FC 845).
[51] In this case, the RPD assessed the Applicant’s personal circumstances, considered this Court’s decision in Martinez Pineda, above, and decided that that case did not apply. Martinez Pineda was not about the proper interpretation of 97(1)(b). Justice de Montigny found on the specific facts in that case that the RPD failed to appreciate the specific nature of the risk faced by the claimant. Further, the cases the Applicant relies on to show that Martinez Pineda is good law – Aguilar Zacharias, Castenada, Lamour, and M.A.C.P., all above – stand only for the proposition that each case must be assessed on its own facts. Those cases do not stand for the proposition that Martinez Pineda applies to all cases.
[52] The Respondent says that it was not an error for the RPD to rely on the cases that it did; it did not have to decide the Applicant’s case according to Martinez Pineda. The RPD’s finding that La Familia was not seeking to recruit the Applicant, but was only interested in his business and his money, was open to it on the facts.
[53] The Respondent also argues that the Applicant’s attempt to overturn Osorio in this case is baseless. Justice Paul Crampton noted in Guifarro, above, that Prophète v Canada (Minister of Citizenship and Immigration) 2008 FC 331 [Prophète 1] was decided in a similar way to Osorio. The same approach taken by Justice Danièle Tremblay-Lamer in Prophète 1, which was similar to that taken by Justice Snider in Osorio, has been upheld by the Federal Court of Appeal (see Prophète v Canada (Minister of Citizenship and Immigration) 2009 FCA 31 [Prophète 2]).
[54] In Arias v Canada (Minister of Citizenship and Immigration) 2010 FC 1029, Justice Marie-Josée Bédard considered Prophète 2, Osorio, and Innocent. The Respondent says that, in that case, Justice Bédard rejected the claimant’s assertion that the tribunal erred in determining that the risk he faced was comparable to that facing the general population. The evidence in that case showed that the claimant was part of a subgroup of young men who were more at risk of gang recruitment than the general population. This was insufficient to show that the claimant faced a personalized risk.
[55] The Respondent says that in Innocent, Justice Robert Mainville rejected the same arguments the Applicant has raised in this case based on the PDRCC Guidelines, the Consolidated Grounds in the Act, the legislative history of the Act, and UNHCR’s interpretation of “generalized violence.” The Respondent points to Justice Mainville’s consideration of Sinnappu, Innocent, both above, where he wrote at paragraph 53 that
We note that the guidelines dealt with the wording of the former Regulations and certainly do not bind the Court with respect to interpreting subparagraph 97(1)(b)(ii) of the Act as it reads now. That being said, it is important to note that, subsequent to 1994, there were significant regulatory and statutory amendments concerning the PDRCC class.
[56] The Respondent also refers to Prophète 2 where the Federal Court of Appeal found that it was open to the judge hearing the judicial review application to find that 97(1)(b)(ii) applied to a specific number of individuals, or subclass of individuals, who are targeted more frequently because they are wealthy. The Applicant has not addressed Prophète 2 and there is no reviewable error in the RPD’s interpretation of subparagraph 97(1)(b)(ii) of the Act.
The RPD’s Assesment of the Applicant’s Risk was Reasonable
[57] The Respondent says that the RPD’s findings of fact are not in question, even though the Applicant says that the RPD failed to appreciate the fact that he was personally targeted. The Applicant has not asserted that the RPD ignored or misconstrued the documentary evidence about the conditions in Mexico.
[58] Contrary to the Applicant’s assertion, the RPD appreciated the fundamental dynamics of this case. It did not ignore the Applicant’s refusal to allow La Familia to sell drugs in his restaurant. It was open to the RPD to find that this was not recruitment into the gang but was a form of extortion, and that extortion was a risk generally faced by all people in Mexico. Unlike Martinez Pineda, where the claimant was targeted for recruitment over a long period of time, the Applicant in this case was not targeted for recruitment. The risk the Applicant faced was solely connected to his business.
[59] The RPD’s Decision falls within the Dunsmuir range and so should not be disturbed by this Court.
The Respondent’s Further Memorandum
[60] The Respondent says that the Applicant does not dispute the RPD’s analysis of the conditions in Mexico or argue that the RPD inappropriately considered country conditions in this case.
[61] In his Memorandum of Argument, the Applicant says that the cook at his restaurant was kidnapped and executed by La Familia members who came to collect on the “taxes” the Applicant owned. This event was not in the Applicant’s PIF narrative submitted prior to the hearing. This event was only raised at the hearing, where the Applicant said that the cook was kidnapped, murdered, and found three days later. The Applicant testified that he was told this by the cook’s wife and he believed La Familia was responsible.
[62] It was reasonable for the RPD to conclude that the Applicant faced a generalized risk of crime, given that he faced the same risk of extortion from La Familia as other business owners. The Respondent notes that, when asked how being a businessman made him different from other victims of crime, the Applicant said “No, in nothing except that simply I had a restaurant and they stabbed me. That’s it. There is no difference except that they threatened me.”
[63] The Respondent says that the Applicant has asked this Court to examine his case from a theoretical point of view, when the appropriate approach is to examine the application of subparagraph 97(1)(b)(ii) on the specific facts. There was no error in the RPD’s analysis of the relevant subparagraph; the Applicant had to bring himself within the exception under subparagraph 97(1)(b)(ii), and it was reasonable for the RPD to conclude that he had not.
[64] In Osorio, above, Justice Snider said that common sense must govern the application of subparagraph (97(1)(b)(ii). The RPD, in this case, found that “generally” is commonly used to mean “prevalent” or “widespread.” It was reasonable for the RPD to rely on Osorio in interpreting 97(1)(b)(ii) as it did and to conclude that the fact that some people share the same risk as other similarly situated persons does not give them a personalized risk.
[65] The Respondent notes that Osorio has been considered a number of times by this Court, including in Prophète 1, above. The Federal Court of Appeal declined to answer the certified question in Prophète 1, saying that answering that question could unduly narrow or widen subparagraph 97(1)(b)(ii), depending on the circumstances of the case.
[66] In Innocent, above, Justice Mainville emphasized that 97(1)(b)(ii) is highly fact dependent and that, to the extent the RPD’s analysis and conclusions are reasonable, this Court should not interfere.
[67] The Respondent says that Martinez Pineda, above, and Osorio are not in conflict. In S.M. v Canada (Minister of Citizenship and Immigration) 2011 FC 949, Justice Snider said at paragraphs 17 to 19 that
One of the key elements of a s. 97(1) analysis is the characterization of the risk faced by a claimant. If the risk can be associated to a Convention ground, it should be considered under s. 96. Where, as in this case, the Board concludes that there is no nexus between the risk and a Convention ground, the Board must consider whether the risk falls within s. 97(1) of the Act. For s. 97(1) purposes, the Board must first evaluate the risk to determine whether it is the type of risk that is generally faced by citizens in the country (Diaz v. Canada (Minister of Citizenship and Immigration), 2010 FC 797 at para 40). It is at this first step that the Applicant failed to make her case to the Board.
Someone who is attacked and fears that attacks may occur in the future will no doubt see the attack as personalized. However, if that initial attack was based on a generalized risk, it would likely not be unreasonable for the Board to find that any future risk of an attack was a risk faced generally by the population. That was the situation considered by the Court in Prophète v Canada (Citizenship and Immigration), 2008 FC 331 (aff'd 2009 FCA 31). If however, the first attack took place for a unique or individualized reason, it may be that the risk is not generalized (see, for example, Pineda, above).
On the particular facts of this case, the Board’s conclusion was reasonably open to it. First, the Board reasonably characterized the risk faced by the Applicant as one of extortion. The Applicant's attempt to characterize it otherwise to my mind is not persuasive because, whether the ultimate money will come from the Applicant or her brother, the fact is that she is being targeted for the purpose of extorting money. Second, the Board reasonably found that a risk of extortion by criminal gangs is one faced generally by individuals in El Salvador who are perceived to be wealthy. Finally, the Board correctly applied the jurisprudence, including Prophète, that states that even i