Wednesday, July 11, 2012

Vaquerano Lovato—personalized risk where everyone in the country faces some risk

Vaquerano Lovato v. Canada (Citizenship and Immigration), 2012 FC 143 (CanLII)

Judge: Justice Rennie; Date heard: January 26, 2012; Date decided: February 3, 2012; Counsel for Vaquerano Lovato: Alla Kikinova; Counsel for Minister: Nina Chandy; Place of Hearing: Toronto, Ontario.

The applicant couple were citizens of El Salvador whose refugee claim was refused. The principal (male) applicant claimed that his family (starting with his father and uncles) was targeted by the Mara Salvatrucha (MS) gang. An uncle was murdered. The applicant fulfilled the gang’s demands, but then filed a denunciation, after which he was beaten. He continued to receive threats until leaving El Salvador in April 2010.

The Refugee Protection Division (RPD) found the applicant credible. However, the s. 96 claim was denied for lack of nexus, and the s. 97 claim was denied on the basis that risk from the MS gang was a risk faced generally by people in El Salvador.

Justice Rennie found that the RPD’s s. 97/generalized risk analysis was faulty. He noted that the RPD explicitly stated that the applicant faced a particularized risk. He cited Vivero for the following:

…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. (Vivero v Canada (Minister of Citizenship and Immigration), 2012 FC 138)

Justice Rennie also cited Justice de Montigny’s decision in Pineda v Canada (Minister of Citizenship and Immigration), 2007 FC 365, para. 15, which had similar facts:

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.

Justice Rennie concluded:

[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.

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