Portillo v. Canada (Minister of Citizenship and Immigration), (2012) 409 F.T.R. 290 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: March 21, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 409 F.T.R. 290 (FC);2012 FC 678

Portillo v. Can. (M.C.I.) (2012), 409 F.T.R. 290 (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: [2012] F.T.R. TBEd. JN.022

Jonatan Guzman Portillo (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5429-11; 2012 FC 678; 2012 CF 678)

Indexed As: Portillo v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gleason, J.

June 4, 2012.

Summary:

Portillo alleged that he was persecuted by police due to his perceived gang affiliation in El Salvador. The refugee board rejected his Convention refugee/protection claim (Immigration and Refugee Protection Act, ss. 96 and 97). Portillo applied for judicial review.

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) - Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act defined a person in need of protection as one whose removal to their country of nationality would subject them personally to a risk to their life or to cruel and unusual treatment or punishment if the risk would be faced by the person throughout that country and was not faced generally by other individuals in that country - The Federal Court interpreted s. 97, setting out the appropriate analysis - Step one was to appropriately determine the nature of the risk faced by the claimant - Step two, after the risk was appropriately characterized, was the comparison of the correctly-described risk faced by the claimant to that faced by a significant group in the country to determine whether the risks were of the same nature and degree - If the risk was not the same, then the claimant would be entitled to s. 97 protection - See paragraphs 34 to 47.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Portillo claimed Convention refugee protection (Immigration and Refugee Protection Act, s. 96), alleging persecution by police in El Salvador - The refugee board rejected the claim, holding that the police did not act inappropriately and Portillo's fear was unreasonable - Portillo applied for judicial review - The Federal Court held that the board's findings were unreasonable in light of Portillo's evidence to the effect that the Salvadoran police assaulted him and his father - There was no reason for the board to believe large parts of Portillo's evidence, but reject his allegations about the police - The board's fact findings were contrary to the evidence and the matter, therefore, had to be remitted for determination - See paragraphs 30 to 33.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The refugee board rejected Portillo's Convention refugee/protection claim (Immigration and Refugee Protection Act, ss. 96 and 97) - Portillo applied for judicial review, arguing that the board erred in finding that he lacked credibility - The Federal Court rejected this argument - The court held that the credibility findings here were largely obiter dicta and inconsequential - Such findings could not provide the basis for intervention on judicial review - See paragraphs 18 and 29.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The refugee board rejected Portillo's claim for protection, holding that s. 97 of the Immigration and Refugee Protection Act was inapplicable because, although Portillo had been identified personally as a gang target, the risk he faced was a generalized one within the meaning of s. 97(1)(b)(ii) since gang-related crime was rampant in El Salvador - Portillo applied for judicial review - The Federal Court allowed the application, holding that the board's interpretation of s. 97 was both incorrect and unreasonable - The board's statements could not co-exist - If an individual was subject to a personal risk to his life, then the risk was no longer general - If the board's reasoning was correct it was unlikely there would ever be a situation where this section would provide protection for crime-related risks - Such an interpretation would largely strip s. 97 of any content or meaning - The board did not conduct the analysis required by s. 97 in reaching its conclusion - See paragraphs 34 to 52.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - [See Aliens - Topic 1314 ].

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Credible basis for claim - [See second Aliens - Topic 1322 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See first Aliens - Topic 1322 ].

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The refugee board rejected Portillo's Convention refugee/protection claim (Immigration and Refugee Protection Act, ss. 96 and 97) - Portillo applied for judicial review, arguing that the board erred in its credibility findings, in rejecting his claim under s. 96 because he was a victim of persecution by the Salvadoran police, and in rejecting his claim under s. 97 because he faced a generalized risk, even though  the board found he also faced a personalized risk - The Federal Court held that the standard of reasonableness applied to the first and second of the alleged errors, being factual determinations - As to the third error respecting s. 97, the court stated that it was arguable that the correctness standard was applicable; however, this case did not turn on what standard of review was applicable because, in addition to being incorrect, the board's interpretation of s. 97 was also unreasonable - See paragraphs 17 to 27.

Cases Noticed:

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 17].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Rahal v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 163; 2012 FC 319, refd to. [para. 17].

Acosta v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 113; 2009 FC 213, refd to. [para. 18].

Pineda et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 224; 2012 FC 493, refd to. [para. 18].

Chalita Gonzalez v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 630; 2011 FC 1059, 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].

Begum v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 11; 2011 FC 10, refd to. [para. 19].

Guifarro v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 104; 2011 FC 182, refd to. [para. 19].

Salvagno et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 373; 2011 FC 595, refd to. [para. 19].

Chekhovskiy et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 592; 2009 FC 970, refd to. [para. 19].

Li v. Canada (Minister of Citizenship and Immigration) (2010), 401 N.R. 18; 2010 FCA 75, refd to. [para. 20].

Idahosa v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 4 F.C.R. 293; 385 N.R. 134; 2008 FCA 418, refd to. [para. 20].

Nazifpour v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 515; 360 N.R. 199; 2007 FCA 35, refd to. [para. 20].

Singh (Sukhdev) v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 70; 344 N.R. 244; 2005 FCA 417, refd to. [para. 20].

Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 487; 331 N.R. 129; 2005 FCA 85, refd to. [para. 20].

Manzi v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 429; 334 N.R. 297; 2005 FCA 126, refd to. [para. 20].

Williams v. Canada (Minister of Citizenship and Immigration) - see Manzi v. Canada (Minister of Citizenship and Immigration).

Prophète v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 149; 78 Imm. L.R.(3d) 163; 2009 FCA 31, refd to. [para. 20].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 24].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 24].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 24].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 24].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 24].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 343 D.L.R.(4th) 193; 2012 SCC 12, refd to. [para. 24].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 26].

Rohm & Hass Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (F.C.A.), refd to. [para. 29].

Buttar v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 729; 2006 FC 1281, refd to. [para. 29].

Vaquerano Lovato et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 69; 2012 FC 143, refd to. [para. 38].

Guerrero v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 736; 2011 FC 1210, refd to. [para. 38].

Diaz v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 430; 2011 FC 705, refd to. [para. 38].

Gomez et al. v. Canada (Minister of Citizenship and Immigration) (2011), 397 F.T.R. 170; 2011 FC 1093, refd to. [para. 38].

Uribe et al. v. Canada (Minister of Citizenship and Immigration) (2011), 398 F.T.R. 165; 2011 FC 1164, refd to. [para. 38].

Vasquez v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 274; 2011 FC 477, refd to. [para. 38].

Pineda v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 949; 2011 FC 403, refd to. [para. 38].

Zacarias v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 60; 2011 FC 62, refd to. [para. 38].

Munoz v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 161; 2010 FC 238, refd to. [para. 38].

Pineda v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 234; 2007 FC 365, refd to. [para. 38].

Rodriguez v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 1; 2012 FC 11, refd to. [para. 39].

Olmedo Rajo v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 629; 2011 FC 1058, refd to. [para. 39].

Chavez Fraire v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 458; 2011 FC 763, refd to. [para. 39].

Baires Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 666; 2011 FC 993, refd to. [para. 39].

Carias et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 409; 2007 FC 602, refd to. [para. 39].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 97(1)(b)(ii) [para. 35].

Counsel:

Jeffrey Goldman, for the applicant;

Charles Jubenville, for the respondent.

Solicitors of Record:

Jeffrey L. Goldman, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on March 21, 2012, before Gleason, J., of the Federal Court, who delivered the following decision on June 4, 2012.