Servellon Melendez v. Canada (Minister of Citizenship and Immigration), (2014) 459 F.T.R. 168 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: February 20, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 459 F.T.R. 168 (FC);2014 FC 700

Servellon Melendez v. Can. (M.C.I.) (2014), 459 F.T.R. 168 (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. JL.034

Rosa Virginia Servellon Melendez (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-12490-12; 2014 FC 700; 2014 CF 700)

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

Federal Court

Russell, J.

July 15, 2014.

Summary:

The claimant, a citizen of El Salvador, claimed that she was Convention refugee and person in need of protection. The Refugee Protection Division (RPD) of the Immigration and Refugee Board denied the claim. The claimant applied for judicial review.

The Federal Court allowed the application, quashed the RPD's decision and referred the matter back for reconsideration by a different member of the RPD.

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 claimant, a citizen of El Salvador, claimed that she was personally targeted by criminals for extortion and was a person in need of protection (Immigration and Refugee Protection Act, s. 97) - The Refugee Protection Division (RPD) of the Immigration and Refugee Board denied the claim, holding that the risk that the claimant faced in El Salvador was a generalized one - The Federal Court allowed the claimant's judicial review application - The RPD's reasons revealed that it was not cognizant of the need to consider both the nature and the degree of risk faced by the claimant if she were to return to El Salvador, in light of the pattern of attacks and targeting experienced by her and her family - The RPD never engaged with the question of whether the pattern of attacks and targeting experienced by the claimant and her family meant that she faced a risk different from the general risk of extortion - While acknowledging the general credibility of her allegation and accepting that she was personally targeted or at least believed that she had been personally targeted, the only risk that the RFD considered was the general risk of extortion faced by those who were perceived to have money - See paragraphs 50 to 65.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - A Convention refugee claimant was a citizen of El Salvador - She claimed that she was personally targeted by gang members in El Salvador for extortion - The Refugee Protection Division (RPD) of the Immigration and Refugee Board denied the claim, holding that the claimant had no nexus to a Convention refugee ground - The claimant applied for judicial review, asserting that the RPD erred in not finding that her membership in a family that had rejected orders from gang members constituted membership in a social group for the purposes of refugee protection or, alternatively, by not providing reasons why she had not established a nexus as a young female without the protection of a father - The Federal Court rejected the claimant's assertions - The risks that she faced were not linked to her identity as an unprotected woman - She raised sexual violence in her narrative, but it was clear from the record and the RPD's reasons that there was no convincing basis for saying that she was targeted by the gang because she was an unprotected female - The evidence did suggest that the claimant's family had been consistently targeted and that was why the RPD concluded that what the family faced did not have the required nexus such that the claimant could not be a member of a particular social group, namely that of a family - The evidence suggested that the family members had been targeted because they were perceived to have wealth - It could not be said that the RPD's findings on the issue were unreasonable or that the RPD failed to consider the claimant's nexus claims - See paragraphs 46 to 49.

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection - "Particular social group" defined - [See Aliens - Topic 1322 ].

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship - The claimant, a citizen of El Salvador, sought protection as a Convention refugee and a person in need of protection on the basis that she had been personally targeted by gang members in El Salvador for extortion - The Refugee Protection Division (RPD) of the Immigration and Refugee Board, in denying the claim, held that the claimant had failed to rebut the presumption of state protection - It was unreasonable that she did not go to the police station to file a report (as requested when she called the police to report the threats) because she was afraid - The Federal Court allowed the claimant's judicial review application - The failure to approach the state for protection only mattered if adequate protection would have been reasonably forthcoming - The evidence supported the RPD's observation that the state was taking serious efforts to combat gang violence and criminality, but that was not the test - Nor was the issue whether those efforts were producing results in terms of arrests and prosecutions - The question was whether they had translated into adequate protection on the ground for persons in the claimant's circumstances who were being specifically targeted by a gang - The only evidence directly on that point cited by the RPD indicated that the national police force still needed to improve to function as an effective organization that could protect the public and that a witness protection program had insufficient resources to adequately protect victims and only provided protection to extortion victims during trials - The RPD's conclusion contradicted the evidence and was unreasonable - See paragraphs 66 to 77.

Aliens - Topic 1334

Admission - Refugee Protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The Refugee Protection Division (RPD) of the Immigration and Refugee Board refused a claimant's application to be deemed a Convention refugee or a person in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act - The claimant applied for judicial review - At issue was whether the RPD erred in finding that (1) the risk faced by the claimant had no nexus to a Convention refugee claim; (2) the risk faced by the claimant was a generalized risk excluded from protection by s. 97(1)(b)(ii) of the Immigration and Refugee Protection Act; and (3) the claimant had failed to rebut the presumption that state protection was available to her in El Salvador - The respondent asserted that the reasonableness review standard applied to the issues - The claimant asserted that the correctness standard of review applied to the generalized risk issue - The Federal Court stated that "While I recognize there is mixed jurisprudence on this point, I think the preponderance of authority is that the RPD's interpretation and application of s. 97(1)(b) of the Act regarding whether a risk is a generalized risk is subject to review on a standard of reasonableness .... More importantly, it is clear from a long and growing line of Supreme Court of Canada cases that there is a presumption that an administrative decision-maker's interpretation of its home statute or a closely-connected statute is a question of statutory interpretation that is entitled to deference on judicial review ... This presumption is not 'set in stone' ... but the Court must have a principled reason for departing from it, and none has been identified here. As such, in my view, each of the issues that arise here is reviewable on a standard of reasonableness." - See paragraphs 19 to 23.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court - Standard of review - [See Aliens - Topic 1334 ].

Cases Noticed:

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. 19].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 19].

Guifarro v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 104; 2011 FC 182, refd to. [para. 20].

Mendoza et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 271; 2008 FC 387, refd to. [para. 20].

Lozandier v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 478; 2009 FC 770, refd to. [para. 20].

Portillo v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 290; 2012 FC 678, refd to. [para. 20].

Navarro et al. v. Canada (Minister of Citizenship and Immigration) (2011), 392 F.T.R. 239; 2011 FC 768, refd to. [para. 21].

Vasquez v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 274; 2011 FC 477, refd to. [para. 21].

Correa et al. v. Canada (Minister of Citizenship and Immigration) (2014), 450 F.T.R. 175; 2014 FC 252, refd to. [para. 21].

Chalita Gonzalez v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 630; 2011 FC 1059, refd to. [para. 21].

Innocent v. Canada (Minister of Citizenship and Immigration) (2009), 364 F.T.R. 17; 2009 FC 1019, refd to. [para. 21].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, 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. 22].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Celgene Corp. v. Canada (Attorney General) (2011), 410 N.R. 127; 2011 SCC 1, refd to. [para. 22].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 22].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 22].

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

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 343 D.L.R.(4th) 193; 2012 SCC 12, refd to. [para. 22].

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. 22].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 22].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 22].

Ndegwa v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 501; 2006 FC 847, refd to. [para. 25].

Al-Busaidy v. Minister of Employment and Immigration (1992), 139 N.R. 208 (F.C.A.), refd to. [para. 25].

Tomlinson v. Canada (Minister of Citizenship and Immigration) (2012), 414 F.T.R. 285; 2012 FC 822, refd to. [para. 26].

Kaaker v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 708; 2012 FC 1401, refd to. [para. 26].

Hernandez Lopez et al. v. Canada (Minister of Citizenship and Immigration) (2013), 433 F.T.R. 257; 2013 FC 592, refd to. [para. 27].

Olvera et al. v. Canada (Minister of Citizenship and Immigration) (2012), 417 F.T.R. 255; 2012 FC 1048, refd to. [para. 27].

Vaquerano Lovato et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 69; 2012 FC 143, refd to. [para. 28].

Prophète v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 149; 2009 FCA 31, refd to. [para. 30].

Pineda v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 234; 2007 FC 365, refd to. [para. 30].

Surajnarain v. Canada (Minister of Citizenship and Immigration) (2008), 336 F.T.R. 161; 2008 FC 1165, refd to. [para. 30].

Zacarias v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 60; 2011 FC 62, refd to. [para. 31].

Guerrero v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 736; 2011 FC 1210, refd to. [para. 31].

Uribe et al. v. Canada (Minister of Citizenship and Immigration) (2011), 398 F.T.R. 165; 2011 FC 1164, refd to. [para. 31].

Pineda et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 224; 2012 FC 493, refd to. [para. 32].

De La Cruz et al. v. Canada (Minister of Citizenship and Immigration) (2013), 441 F.T.R. 135; 2013 FC 1068, refd to. [para. 32].

Gonsalves v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 610; 2008 FC 844, refd to. [para. 34].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 34].

Rubiano v. Canada (Minister of Citizenship and Immigration) et al., [2011] F.T.R. Uned. 62; 2011 FC 106, refd to. [para. 34].

Katwaru v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 412; 2007 FC 612, refd to. [para. 34].

Kraitman et al. v. Canada (Secretary of State) (1994), 81 F.T.R. 64; 27 Imm. L.R.(2d) 283 (T.D.), refd to. [para. 34].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 35].

Gomez v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 712; 2010 FC 1041, refd to. [para. 35].

Lopez v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 862; 2010 FC 1176, refd to. [para. 35].

Spacil et al. v. Canada (Minister of Citizenship and Immigration) (2011), 390 F.T.R. 248; 2011 FC 634, refd to. [para. 35].

Jaroslav v. Canada (Minister of Citizenship and Immigration) - see Spacil et al. v. Canada (Minister of Citizenship and Immigration).

Toriz Gilvaja v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 391; 2009 FC 598, refd to. [para. 35].

Dominguez Hernandez et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 939; 2007 FC 1211, refd to. [para. 35].

Avila v. Canada (Minister of Citizenship and Immigration) (2006), 295 F.T.R. 35; 2006 FC 359, refd to. [para. 35].

Rodriguez et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 646; 2012 FC 1291, refd to. [para. 36].

Martinez Gonzalez et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 528; 2013 FC 898, refd to. [para. 36].

Varela v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 843; 2011 FC 1364, refd to. [para. 36].

Kang v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 702; 2005 FC 1128, refd to. [para. 39].

Desir v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 131; 2011 FC 225, 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. 40].

Ramirez et al. v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 154; 2012 FC 69, refd to. [para. 41].

Rodriguez v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 1; 2012 FC 11, refd to. [para. 41].

Wilson v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 35; 2013 FC 103, refd to. [para. 41].

Chavez Fraire v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 458; 2011 FC 763, refd to. [para. 42].

Kim et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 673; 2005 FC 1126, refd to. [para. 44].

Camacho et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 560; 2007 FC 830, refd to. [para. 45].

Marcelin Gabriel v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 755; 2009 FC 1170, refd to. [para. 51].

Vivero et al. v. Canada (Minister of Citizenship and Immigration) (2012), 404 F.T.R. 294; 2012 FC 138, refd to. [para. 53].

Marroquin et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 544; 2012 FC 1114, refd to. [para. 54].

Rodriguez Perez v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 632; 2009 FC 1029, refd to. [para. 59].

Counsel:

Alla Kikinova, for the applicant;

Rachel Hepburn Craig, for the respondent.

Solicitors of Record:

Michael Loebach, London, Ontario, for the applicant;

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

This application was heard at Toronto, Ontario, on February 20, 2014, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on July 15, 2014.