Category: State Protection

The Court set aside a decision based on state protection holding that the intention of the state was not sufficient to show that state protection was available.

The court set aside a decision denying the applicant refugee status holding that the tribunal erred by failing to consider evidence that negated the finding of state protection.

The Court set aside a finding of generalized risk noting: 29 The tribunal relied on the Vickram and ProphËte cases in support of its finding the risk the applicants were facing was "generally faced by other individuals in Mexico". 30 The Vickram case involved an Indo-Guyanese claimant whose refugee claim was refused. He had testified he believed he had been targeted because of his wealth. The tribunal held the acts of violence he suffered were "random criminal acts faced generally by civilians." 31 In Vickram, my colleague Justice de Montigny pointed to Mr. Vickram's testimony he was a well-established business man with a big home and was making lots of money. Justice de Montigny held the tribunal correctly instructed itself on the law "which says the risk faced must not be indis-criminate or random and one faced generally by the entire population. The panel concluded the risk Mr. Vickam faced was of criminal activity, and that the risk was no greater than that faced by the population at large." [Emphasis mine.] 32 I agree with counsel for the applicants, the extortion and threats which Mr. Munoz alleges were not random. Mr. Munoz was specifically and personally targeted by Mr. Garcia because of his unique position - the head of sales at a car dealership which is why Garcia and his friends came there. If returned, Mr. Munoz does not fear being subject to random acts of violence by unknown criminal gangs. He fears Mr. Garcia. 33 The tribunal's reliance on Prophete is also misplaced. There is no evidence on the record Mr. Garcia extorted Mr. Munoz because he was wealthy. In fact, the last demand he made was for a free new car. I could find no evidence in which Mr. Munoz testified he was a wealthy man. Being successful does not mean that person is wealthy. 34 Prophete is of no assistance to the respondent. At the Federal Court of Appeal, cited Prophete v. Canada (Minister of Citizenship and Immigration), 2009 FCA 31, [2009] F.C.J. No. 143, that Court held a section 97(1) claim requires an individualized inquiry to be conducted on the basis of the evidence by a claimant "in the context of a present or prospective risk for him" which sup-ports the applicants' submission of specificity and uniqueness. The applicants' objections are sustained on this point.

The court upheld a finding of generalized risk.

The Court set aside a claim based on generalized risk noting: 35 In the cases cited by the Board in support of its determination regarding the Applicant's s.97 claim, there does not appear to have been similar evidence of personalized targeting. (See Cius, above, and ProphËte v. Canada (Minister of Citizenship and Immigration), 2008 FC 331, [2008] F.C.J. No. 415, aff'd, 2009 FCA 31.) 36 The Board's failure to give reasons that addressed the most important evidence adduced in support the Applicants' claims under ss. 96 and 97 of the IRPA, and that failed to address a critical legal argument made in support of Mme. Jean Gilles Michel's claim that she has a well founded fear of persecution based on her gender, renders the Board's Decision unreasonable (Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817 at para. 73; and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 at paras. 37 to 39). 37 With respect to the above-mentioned legal argument, the Board should have specifically ad-dressed whether there was documentary or other evidence before it as to the generalized persecution of women in Haiti. In addition, the Board ought to have considered whether the evidence supported Mme. Jean Gilles Michel's claim that women in Haiti, as well as those returning to Haiti from aboard, constituted particular social groups (Bastien v. Canada (Minister of Citizenship and Immi-gration), 2008 FC 982, [2008] F.C.J. No. 1218 at para. 12).

The Court set aside a finding of generalized risk noting: In short, the risk faced by an applicant ought not to be a random and generalized risk indis-criminately faced by all persons living in the country to which the applicant risks to be removed. In this case, the applicant submitted in his Personal Information Form (PIF) that he had been person-ally subjected to danger; yet the RPD did not take this into account and rather put the accent on the fact that Mr. Pineda had stated in his testimony that the Maras Salvatruchas recruited across the country and targeted all levels of society, regardless of the age of the persons contemplated. 14 On reviewing the reasons accompanying the RPD's decision, it appears that the member did not make any unfavourable findings regarding the applicant's credibility. It is true that on reading the hearing transcript, the member sometimes gives the impression that he doubts the truthfulness of certain explanations given by Mr. Pineda. However, he did not make the applicant's credibility an explicit reason for his decision and therefore we cannot speculate on his findings in this regard. 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 ter-rorizing 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 re-mains 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.

The Court set aside a finding based on generalized risk noting that the tribunal failed to understand the basis for the claim: 54 In my view, the Board has misconstrued the fundamental basis of the Applicants' claim and the risks they face. 55 The Applicants fear civilian militants. Jean Abraham and Antoine David fear persecution from the Lavalas movement and not from the government of Haiti. It was this fear that led them to flee Haiti. The Board appears to have concluded that the brothers fear Aristide, who is no longer ; lead-ing the country, so that there has been a change of circumstances in Haiti and Jean Abraham and Antoine David need no longer fear political persecution and personal risk. 56 The evidence before the Board shows that Lavalas militants are able to carry out violence with impunity and that the police cannot provide protection. The situation which the Applicants face to-day is the same one they faced when they fled: violence at the hands of civilians who belong to gangs loyal to the Lavalas party which is directed at political opponents such as Jean Abraham and Antoine David.

The Court found the claimants victims of generalized risk noting: 24 It seems to me that common sense must determine the meaning of s. 97(1)(b)(ii). To put the matter simply: if the Applicants are correct that parents in Colombia are a group facing a risk not faced generally by other individuals in Colombia, then it follows that every Colombian national who is a parent and who comes to Canada is automatically a person in need or protection. This can-not be so. 25 The risk described by the Applicants and the Board in this case is a risk faced by millions of Colombians; indeed, all Colombians who have or will have children are members of this popula-tion. It is difficult to define a broader or more general group within a nation than the group consist-ing of "parents". 26 Further, 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 "wide-spread". 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.

The court dismissed a judicial review holding that the applicant: 25 The applicants are members of a large group of people who may be targeted for economic crimes in Honduras on the basis of their perceived wealth. The applicants submitted that the Board erred in imposing too high a standard upon them in requiring that they prove that they would be personally at risk. Given the wording of subparagraph 97(1)(b)(ii) of IRPA, the applicants had to satisfy the Board that they would be personally subjected to a risk that was not generally faced by others in Honduras. The application for judicial review is therefore dismissed.

The court dismissed a judicial review holding that the applicant was merely a victim of generalized violence even if the evidence showed that he was known to the gang members by name.