Correa et al. v. Canada (Minister of Citizenship and Immigration), (2014) 450 F.T.R. 175 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: September 25, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 450 F.T.R. 175 (FC);2014 FC 252

Correa v. Can. (M.C.I.) (2014), 450 F.T.R. 175 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. MR.031

Octavio Enrique Jimenez Correa, Yesenia Elinese Caballero Machacon, Michelle Carolina Jimenez Caballero and Danna Sophia Jimenez Caballero (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8793-12; 2014 FC 252; 2014 CF 252)

Indexed As: Correa et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

March 14, 2014.

Summary:

The applicant family claimed refugee protection. They were Colombian citizens, with the exception of the youngest child. The main applicant (Correa) was a businessman in Cartagena who was allegedly forced to flee with his family after becoming the victim of attempted extortion and threats from an armed gang. Based on concerns relating to subjective fear, nexus and personalized risk, the Refugee and Protection Division (RPD) did not find that Correa was a Convention refugee or person in need of protection under s. 96 or s. 97 of the Immigration and Refugee Protection Act. The applicants applied for judicial review on the ground that the RPD erred in law in determining that the applicants faced a "generalized risk" in Colombia.

The Federal Court allowed the application.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The main applicant, a Colombian citizen, was a businessman in Cartagena who was allegedly forced to flee with his family after becoming the victim of attempted extortion and threats from an armed gang - The Refugee Protection Division (RPD) found that he was not a person in need of protection because the risk he faced was a generalized risk rather than a personalized risk - The Federal Court stated that "[w]hile 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' ... . 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." - See paragraph 46.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The Federal Court considered the "profusion of jurisprudence" interpreting and applying s. 97(1)(b)(ii) - In addition to the principles already established in the jurisprudence, the Court set out the following principles emerging from the case law - "[1]. It is an error to dismiss reprisals or the carrying out of threats as merely 'consequential harm' or 'resulting risk' stemming from the initial risk of extortion or forced recruitment. The question is not whether others could eventually find themselves in the Applicant's position; it is whether others 'generally' are in that position now. This error usually stems from conflating the reason for the risk with the risk itself. [2]. It is an error to treat the s. 97(1)(b) analysis as a 'sub-group' analysis rather than an individualized assessment. The point is not to identify what 'sub-group' the applicant belongs to and then assess the risk faced by that subgroup, but to assess the risk faced by the applicant and then determine whether it is one 'faced generally by individuals in and from' the country in question. [3]. The determination of whether a risk is one 'faced generally by individuals in and from' a country is a contextual and common sense assessment rather than a rigid or quantitative exercise." - See paragraphs to 82 to 84.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The main applicant (Correa) was a citizen of Colombia and a businessman who was allegedly forced to flee with his family after becoming the victim of attempted extortion and threats from an armed gang - The Refugee Protection Division (RPD) found that Correa was a victim of attempted extortion and that the resulting threat of harm or risk to life was a generalized risk faced by others who were perceived to be successful business people in Colombia - The Federal Court allowed the judicial review application - The risk of extortion "may have been the risk he initially faced, but ... the nature of the risk he faced had fundamentally changed. He faced a risk that he and his family would be killed or severely harmed because he had refused the gang's demands and reported them to police. Thus, ... the Board failed to properly characterize the risk faced by the Applicant. As a result, it could not properly consider whether that risk was of the same nature and degree as a risk faced 'generally' by individuals in and from Colombia ... It cited no evidence that could support a conclusion that such a targeted risk was one that could be considered 'prevalent' or 'widespread', and, in my view, it is doubtful that such a conclusion could be sustained." - See paragraphs 89 and 90.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 2008 SCC 9, refd to. [para. 18].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 18].

Navarro et al. v. Canada (Minister of Citizenship and Immigration) (2011), 392 F.T.R. 239; 2011 FC 768, refd to. [para. 19].

Lozano v. Canada (Minister of Citizenship and Immigration) - see Navarro et al. v. Canada (Minister of Citizenship and Immigration).

Vasquez v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 274; 2011 FC 477, refd to. [para. 19].

Innocent v. Canada (Minister of Citizenship and Immigration) (2009), 364 F.T.R. 17; 2009 FC 1019, refd to. [para. 19].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 20].

Vaquerano Lovato et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 69; 2012 FC 143, refd to. [para. 23].

Osorio et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 882; 2005 FC 1459, refd to. [para. 27].

Rodriguez v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 1; 2012 FC 11, refd to. [para. 27].

Guifarro v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 104; 2011 FC 182, refd to. [para. 27].

Asencio Ventura v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 672; 2011 FC 1107, refd to. [para. 29].

De Munguia et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 510; 2012 FC 912, refd to. [para. 29].

Vivero et al. v. Canada (Minister of Citizenship and Immigration) (2012), 404 F.T.R. 294; 2012 FC 138, refd to. [para. 29].

Gonzalez et al. v. Canada (Minister of Citizenship and Immigration) (2013), 431 F.T.R. 268; 2013 FC 426, refd to. [para. 29].

Portillo v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 290; 2012 FC 678, refd to. [para. 29].

Baires Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 666; 2011 FC 993, refd to. [para. 30].

Aguilar v. Canada (Minister of Citizenship and Immigration) (2013), 437 F.T.R. 168; 2013 FC 809, refd to. [para. 41].

Kaaker v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 708; 2012 FC 1401, refd to. [para. 41].

Alvarez Castaneda v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 439; 2011 FC 724, refd to. [para. 43].

Castaneda Malvaez et al. v. Canada (Minister of Citizenship and Immigration) (2012), 423 F.T.R. 210; 2012 FC 1476, refd to. [para. 43].

Olvera et al. v. Canada (Minister of Citizenship and Immigration) (2012), 417 F.T.R. 255; 2012 FC 1048, refd to. [para.43].

Tomlinson v. Canada (Minister of Citizenship and Immigration) (2012), 414 F.T.R. 285; 2012 FC 822, refd to. [para. 43].

Marroquin et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 544; 2012 FC 1114, refd to. [para. 43].

Roberts v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 128; 2013 FC 298, refd to. [para. 43].

Hernandez Lopez et al. v. Canada (Minister of Citizenship and Immigration) (2013), 433 F.T.R. 257; 2013 FC 592, refd to. [para. 43].

De La Cruz et al. v. Canada (Minister of Citizenship and Immigration) (2013), 441 F.T.R. 135; 2013 FC 1068, refd to. [para. 43].

Vickram v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 312; 2007 FC 457, refd to. [para. 44].

Prophète v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 230; 2008 FC 331, refd to. [para. 44].

Cius v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 8; 2008 FC 1, refd to. [para. 44].

Rodriguez Perez v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 632; 2009 FC 1029, refd to. [para. 44].

Acosta v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 113; 2009 FC 213, refd to. [para. 44].

De Parada v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned.515; 2009 FC 845, refd to. [para. 44].

Perez v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 328; 2010 FC 345, refd to. [para. 44].

Palomo v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 714; 2011 FC 1163, refd to. [para. 44].

Ramirez et al. v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 154; 2012 FC 69, refd to. [para. 44].

Trigueros Ayala et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 52; 2012 FC 183, refd to. [para. 44].

Wilson v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 35; 2013 FC 103, refd to. [para. 44].

Neri et al. v. Canada (Minister of Citizenship and Immigration) (2013), 441 F.T.R. 206; 2013 FC 1087, refd to. [para. 44].

Pineda v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 756; 2012 FC 1543, refd to. [para. 46].

Prophète v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 149; 2009 FCA 31, refd to. [para. 47].

Guerrero v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 736; 2011 FC 1210, refd to. [para. 51].

Romero v. Canada (Minister of Citizenship and Immigration) (2011), 392 F.T.R. 248; 2011 FC 772, refd to. [para. 54].

Marcelin Gabriel v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 755; 2009 FC 1170, refd to. [para. 64].

Carias et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 409; 2007 FC 602, refd to. [para. 66].

Sanchez et al. v. Canada (Minister of Citizenship and Immigration) (2007), 360 N.R. 344; 2007 FCA 99, refd to. [para. 69].

Pineda v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 234; 2007 FC 365, refd to. [para. 70].

Pineda v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 949; 2011 FC 403, refd to. [para. 89].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 97(1)(b)(ii) [para. 21].

Counsel:

Clifford Luyt, for the applicants;

Evan Duffy, for the respondent.

Solicitors of Record:

D. Clifford Luyt, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on September 25, 2013, before Russell, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated March 14, 2014, at Ottawa, Ontario.