TB3-07050

RAD File No. / N° de dossier de la SAR : TB3-07050 TB3-07051 TB3-07052 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 5, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Max Chaudhary Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre [1] XXXX XXXX XXXX XXXX, his wife, XXXX XXXX XXXX XXXX, and their daughter, XXXX XXXX XXXX XXXX, citizens of El Salvador, have appealed a negative determination of the Refugee Protection Division (RPD) dated September 12, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellants are not Convention refugees nor are they persons in need of protection. BACKGROUND [3] Mr. XXXX XXXX (the Appellant) is an employee of XXXX XXXX (XXXX). He alleges that he was approached with an extortion demand by members of the Mara Salvatrucha (MS) gang for the first time in XXXX XXXX of 2012. The Appellant believes that he was targeted by the gang members because of his and his wife's employment, the fact that they own a house and car, and their history of foreign travel. [4] After the first contact, the Appellant attempted to avoid the areas where the gang members met. He changed his parking spot and alternated his schedule. The Appellant alleged that, on XXXX XXXX, 2012, at XXXX XXXX XXXX a.m., he found a paper on the windshield of his car, which he threw away. On XXXX XXXX XXXX 2012, he found another paper on the windshield, which indicated that he was a marked man and that his life would be respected for a weekly payment of $100USD. The Appellant alleges that, on XXXX XXXX XXXX 2013, a member of the Maras approached and threatened him at his parking spot. The threats made reference to the MS knowing who he was and that he worked at XXXX and has a daughter. The Appellant indicated that the most he could afford to pay was $35USD each week. The Appellant went to the National Police in Santa Tecla to complain about threats to his life. The next day, the Appellant went to another national police station where investigators were assigned to his case. The Appellant indicated that not much was done to help him other than a few follow-up calls. He alleged that the police told him to negotiate with the gang members. [5] The Appellant fears for the life and safety of his wife and daughter. He paid $35 per week for the month of XXXX. On XXXX XXXX XXXX 2013, the Appellant was approached by a member of the gang who told him that the extortion amount would double. The Appellant paid the $70 for two weeks. [6] The Appellants left El Salvador on XXXX XXXX, 2013 and made their request for protection upon arrival in Canada. [7] After the Appellants arrived in Canada, the Appellant was told that his mother-in-law was questioned by two gang members whom she met at the Appellants' home on XXXX XXXX, 2013. The gang members indicated that the Appellants had made a mockery of the gang, and the gang was going to kill the Appellant and his family upon their return. [8] The Minister submitted a Notice of Intent to Participate1 on April 8, 2013, which addressed issues of credibility, nexus to a Convention ground, state protection, and generalized risk. This Notice was accompanied by supporting documentation,2 which included FOSS notes and the Minister's Delegate Notes, and other documentary evidence. The Minister attended the hearings. [9] The Appellants had a refugee determination hearing, which spanned two sittings (April 23, 2013 and May 10, 2013). Both the Minister and the representative of the Appellants provided written submissions which were reviewed and considered in the RPD's decision. The RPD provided written reasons dismissing the claim on September 12, 2013. [10] In its decision, the RPD panel found the following: 1. The RPD found that the Appellants were not Convention refugees, as there was no nexus between their fear and one of the five Convention grounds. Victims of crime or personal vendettas generally cannot establish a link to a Convention ground. 2. The Appellants were found not to be persons in need of protection, as they faced a personal risk of harm that is faced generally by all people in El Salvador. The Appellant believes that he was targeted because of his perceived wealth; the risk of extortion and threats by Maras, which the Appellants faced, is a risk faced generally by thousands of others in El Salvador. The fact that the Appellants face retaliation for non-compliance with the demands of criminals does not remove the risk from the generalized exception, as the Appellants face a risk that is generally faced by others. 3. The RPD found the Appellants' reavailment to El Salvador after having come to Canada in XXXX of 2012 and their failure to seek protection while in Canada undermined the well-foundedness of their fear as their reavailment did not appear consistent with someone who fears for their life. The RPD placed little weight on the Appellant's explanation for the failure to claim. 4. The RPD found the delay in departure (waiting for annual vacation to be approved and for his annual free travel passes) was not consistent with someone who fears for their lives, which undermined their subjective fear. [11] The Appellants' counsel submitted pleadings on October 30, 2013. In the pleadings, the Appellants' counsel argued that the RPD made several errors including: 1. The RPD erred in law by failing to consider and make reference on the record to the totality of the evidence filed in support of the Appellants' claim and ignored submissions from the Appellants' representative which contradicted the RPD, especially those that dealt with the personal risk the Appellants faced. 2. The RPD erred in its finding of fact by making negative credibility findings that were vague and based on conjecture, and it did not take into account the chronology of the claim and the explanations provided by the Appellant. 3. The RPD erred in its finding of mixed fact and law that the Appellants faced a generalized risk, and it ignored case law which contradicted the RPD's position. [12] The Appellants did not provide new evidence. The Appellants did not request a hearing. The Appellants requests that the determination be set aside. STANDARD OF REVIEW [13] The RAD focused on three issues in assessing this appeal: a) Did the RPD err by failing to clearly identify the nature of the risk faced by the Appellants? b) Did the RPD err in law in failing to make specific reference to the jurisprudence and arguments included in the Appellant's submissions and response to the Minister's submissions? c) Did the RPD err in law and fact in its application of s. 97 to the Appellants' particular situation? [14] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,3 which take into account the list of factors in Dunsmuir.4 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [15] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [16] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,5 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [17] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." With respect to the respective roles of the RPD and the RAD in the context of IRPA, the powers of each Division are the same, although their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [18] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;6 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [19] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.7 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing8 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [20] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.9 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.10 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.11 [21] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".12 [22] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".13 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.14 [23] In the case at hand, the Appellant alleges that the RPD made errors of fact in its treatment of the evidence regarding the Appellant's credibility. The RAD finds that the appeal turns on the issue of the application of s. 97. The RAD finds that, even assuming the Appellants are entirely credible, they will fall within the subparagraph 97(1)(b)(ii). Therefore, the RAD did not address the alleged errors in the RPD's assessment of the Appellant's credibility. The Appellant also argues that the RPD erred in law by failing to make reference to the submissions from the Appellant's representative in the reasons. The RAD adopts a correctness standard in regard to the alleged error of law. Finally, counsel argues that the RPD erred in its application of s. 97, which is a question of mixed fact and law. The RAD noted that the application of s. 97 has recently been found to be an issue of mixed fact and law.15 The RAD affords the RPD with deference and considered the reasonableness of the determination for errors of fact and mixed fact and law. ANALYSIS OF THE MERITS OF THE APPEAL [24] As identified above, based on a review of all of the evidence and pleadings in the appeal, the RAD focused on three issues in assessing this appeal: a) Did the RPD err by failing to clearly identify the nature of the risk faced by the Appellants? b) Did the RPD err in law in failing to make specific reference to the jurisprudence and arguments included in the Appellant's submissions and response to the Minister's submissions? c) Did the RPD err in law and fact in its application of s. 97 to the Appellants' particular situation? Nature and Degree of Risk [25] The Appellant argued that he and his family were specifically targeted because of his unique position at XXXX and because of his reputation in his neighbourhood. The RPD found that the Appellants face a personal risk based on extortion by the MS; however, the personal risk is no different than the risk faced by all individuals in El Salvador. [26] The RAD noted that the RPD's reason did not directly comment on the Appellant's submissions and assertion that the Appellant was targeted because of his employment with XXXX. The RAD finds that the RPD erred in not making a specific finding related to the alleged targeting. Nevertheless, the RAD noted that there was sufficient evidence on the record which supported the RPD's finding that the Appellant was not targeted because of his employment with XXXX; rather, he was targeted because of his perceived wealth, which was obtained through his employment with XXXX. The Appellant's own evidence supports that he was targeted because of his wealth, as his BoC states that the Appellants were perceived as wealthy in the community because of the high salaries and benefits paid by XXXX. In addition, the Appellants were known in the neighbourhood, as they owned a home and car, and they had extensive foreign travel. The Appellant in his BoC states: The reason I would be harmed, mistreated or threatened is because Mara Salvatrucha knows well that XXXX employees has good salaries (by El Salvadorian Standards) and the gangs have a perception that XXXX employees have the capacity to give into their demands and pay them. As XXXX employee I am an easy target and source of funding for Mara Salvatrucha.16 [27] The Appellant did not provide evidence that other employees in XXXX were targeted because of their employment. There was no evidence before the RPD that the MS wanted to take advantage of the Appellant's position with the airline. Based on the facts before it, the RAD finds that the Appellant was originally targeted because of his wealth and not specifically because of his position with XXXX. The Appellant's employment was the source of his wealth and not the particular reason why he was targeted. The RAD considered the current risk the Appellants face as directed in Ramos Aguilar.17 The RAD finds that the risk that the Appellants face at present (physical harm and death) had not changed from the original risk, and it remains a risk that is generally faced by others in El Salvador. For further analysis of this finding, please refer to paragraphs 51 and 52 below. [28] Given that the Appellant was targeted because of his wealth and not because of his employment at XXXX, the RAD finds that the RPD did not err in failing to consider the Appellant's post-hearing submissions that the Appellant was a similarly situated person to the claimant in Munoz.18 In this particular case, the Federal Court found that the claimant was specifically targeted because of his unique position at the car dealership. This is different than the case before the RPD where the RPD found that the Appellant was personally targeted because of his perceived wealth, which is a risk faced by thousands of other individuals in El Salvador. For the reasons highlighted above, the RAD finds that the RPD erred in failing to make a specific finding regarding the Appellant's employment with XXXX; however, it had enough evidence before it to reasonably find that the Appellant was targeted because of his wealth. Reference to the Appellants' Submissions [29] The Appellants' counsel argued that the RPD erred in law by failing to consider the Appellants' post-hearing submissions and evidence and the Appellants' response to the Minister's submissions. Paragraph five of the reasons19 clearly indicates that the RPD reviewed and considered all of the submissions in arriving at a determination of the claims. The RPD's determination turned on whether or not the Appellants' fell within the generalized risk exception of s. 97. As such, only the submissions that dealt with the interpretation and application of s. 97 were germane to the determination. [30] The RPD did not address a Response to Information Request20 (RIR) cited in the submissions made after the RPD hearing. The RAD noted that the RIR was included in a section of the submissions which dealt with the issue of state protection. The RPD did not make findings regarding state protection in its reasons, and, therefore, the RAD finds that the RPD did not err in failing to make reference to a piece of evidence which did not address the determinative issues highlighted in the reasons. The RAD also noted that the RPD did address the contents of this RIR in its analysis of country conditions in El Salvador in paragraphs 31 - 33 of its reasons. [31] In the appeal pleadings, counsel also argued that the RPD erred by failing to make reference to the considerable discord on the Federal Court as to the distinction between general and personalized risk. The Appellants' submissions after the RPD hearing made reference to several Federal Court decisions regarding the issue of general vs. specific risk in Pineda,21 Portillo,22 Arenas,23 Corado Guerrero,24 and Tomlinson.25 The Appellant's pleadings argue that the RPD had a duty to consider on the record those pieces of evidence which directly contradict its ultimate findings, as per Zheng.26 The RAD considered this argument. The RAD finds that the Zheng decision deals with the requirement to deal with material evidence before it. In the case at hand, counsel made reference to the RPD's failure to address jurisprudence which the RAD finds is not evidence that must be referred to in order to make findings. Counsel did not differentiate facts presented in a particular claim from jurisprudence or legal precedence. The RAD finds that jurisprudence is the basis for a legal argument and does not constitute material evidence on facts which would contradict the Board's finding. The RAD finds that it was not the responsibility of the RPD to support the Appellant's argument with jurisprudence. It was open to the RPD to make reference to and ground its findings on the line of jurisprudence that supported the findings to ensure that its decision was reasonable and within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [32] The RAD considered counsel's argument that the RPD failed to consider the discord concerning personal vs. generalized risk at the Federal Court. The RAD noted that this position has been dealt with in two recent Federal Court decisions. In the Camargo Vivero27 decision, Justice Rennie finds that: "There is no divergence in the jurisprudence; rather differences in the outcomes of section 97 cases stem from the need for an individualized inquiry into each case." He then goes on to identify the requirements of a section 97 analysis which must be met which includes a determination of whether the claimant would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, and whether that risk is one not faced generally by other individuals in or from that country. The decision also indicates that it is an error to fail to consider whether the claimant faces a personalized risk, or to conflate that question with whether the risk is a general risk. The decision finds that an individualized inquiry is required. [33] In the recent Coreas Contreras28decision, Justice Mosely also states that the division within the Court is more apparent than real. The decisions (Portillo,29 Roberts,30 Olvera,31 and Castaneda Malvaez32) turn on their facts where the evidence falls short of establishing that the applicant would face a risk in the future with any greater likelihood than any other member of their comparator group in their country of origin.33 The RAD finds that. even if there is a divide in the case law, the RPD is not required to justify its reliance on one line over the other, as per Garcia Kanga, where Justice Barnes found that: Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.34 [34] Given this recent jurisprudence related to the Court's positions on the issue of personal vs. generalized risk, given that jurisprudence is not considered evidence, and given that the RPD is open to support its approach to the case with case law which it finds is most appropriate, the RAD finds that the RPD did not err in not addressing the totality of the evidence before it. Application of s. 97 [35] The RPD found that the Appellants were subject to the exception in s. 97 as, although they feared a risk upon their return, the risk was shared generally by all individuals in El Salvador. Counsel argued in the pleadings that the RPD did not address case law which contradicts its finding that a person can be found to be personally at risk but also face a risk that is generally faced by others. Counsel argues that failing to acknowledge the discord at the Federal Court could lead an impartial observer to conclude that the RPD was biased in its interpretation of the law. The issue of the RPD's failure to address the discord at the Federal Court has been disposed of above. [36] The RAD considered whether or not the RPD erred in its application of s. 97 to the particular facts before it. As highlighted in the Vivero decision cited above, it identifies the requirements that a s. 97 analysis must meet. This includes: a determination of whether the claimant would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, and whether that risk is one not faced generally by other individuals in or from that country. A sound s. 97 analysis does not conflate the current risk with the original reason for the risk. It must address whether the risk has mutated.35 [37] The Appellant's BoC indicated that the Appellant and his family faced a personal risk of harm (physical harm by criminal gangs, extortion demands, physical assaults and death) because of their failure to pay the extortion demands. The Appellant submitted further evidence before the hearing (affidavit from his mother-in-law)36 which indicated that two gang members identified the Appellant by name, identified the Appellant's employer and asked his whereabouts. The gang members asked why the Appellant went into hiding and indicated that: "They are for the lack of extortion payments and to tell that f***er XXXX XXXX that they no longer want the money, and that they are now looking for him to kill him for not complying with the payment of extortion, because nobody mocks them." These threats pose a risk to the lives or a risk of cruel and unusual treatment or punishment of the Appellants. The Appellant argued that he was personally profiled and targeted because he was an employee of XXXX. As highlighted above, the RPD was not provided with sufficient evidence to establish that the Appellant's employment was the reason for his being targeted. The RAD noted that Justice Gleason found that: "there is a fundamental difference between being targeted for death and the risk of perhaps being potentially so targeted at some point in the future".37 [38] In its reasons, the RPD explored the nature of the risk of harm. The RPD explored the evidence in a general way and found that the nature of the crimes that the Appellant may be exposed to is widespread in El Salvador and is not specific to him, as there are many victims of criminal organizations who engage in activities such as extortion, murder, and illegal recruitment and retaliate against non-cooperative victims. The risks that the Appellants allege (extortion and death) are part of the modus operandi of the MS throughout El Salvador. [39] The RPD briefly reviewed the documentary evidence regarding the activities and modus operandi of the MS in El Salvador. The RPD concluded that the MS is involved in organized criminal activities, including robbery and extortion. The RPD concluded that the MS choose their victims randomly to assist financing of their criminal organizations. The RPD's characterization of the MS and the findings related to its modus operandi were not challenged in the appeal and are supported in the documentary evidence on the MS and its activities highlighted in the paragraphs above. The RPD found that the Appellant's allegations of extortion and threats because of their perceived wealth is a risk that is faced by thousands of individuals in El Salvador, and, therefore, the risk is one faced generally by all individuals in El Salvador. [40] The RAD review of the documentary evidence on the record reveals the pervasive presence of the MS in El Salvador and the nature of their crimes. A Response to Information Request (RIR)38 reveals that El Salvador is one of the most violent countries in the world. There are approximately 25,000 people who belong to street gangs and the MS's are the largest gangs in the country with between 10,000 and 13,500 members. The MS have forged ties with organized crime and commit crimes in order to finance their activities. Some MS are hired by mafias to kill, extort, deal drugs and rob people. The MS has infiltrated schools in San Salvador to recruit students and turn them into delinquents charged with extortion, rape and killing. A more recent RIR39 indicates that El Salvador faces a genuine threat to citizen security from both gangs and international organized crime. Violence is increasing, and the MS are responsible for half of the homicides committed in El Salvador. El Salvador has one of the highest homicide rates in the world with 66 per 100,000 people, although the rate has decreased in 2012. The membership of the MS in 2012 was estimated to be 32,000, with 10,000 members in prison. Gangs in El Salvador are actively involved in extortion. [41] Evidence presented by the Appellant40 indicates that gangs and other criminal elements roam freely day and night targeting affluent areas for burglaries, and gang members are quick to engage in violence if rested. Extortion is a particularly serious and common crime in El Salvador and many extortion attempts are no more than random cold calls that originate from imprisoned gang members using cellular telephone, and the subsequent threats against the victim are made through social engineering and/or through information obtained about the victims' family. [42] Given the pervasive influence that the MS have on crime in El Salvador outlined above and given that the MS are involved in extortion, the RAD finds that the RPD did not err in its finding that the Appellants face a generalized risk given that the risk that the Appellants face as a result of non-payment is a risk that many others face in El Salvador and is therefore is generalized. The RAD also notes that the Federal Court has found that individuals from El Salvador who are threatened for extortion have been found to be subject to a generalized risk in the Ventura de Parada41 and Cano Ponce42 decisions. [43] The RPD found that the risk the Appellants face as a result of non-payment is a risk that many others, including those perceived as having some wealth, also face in El Salvador, and it supported this finding based on the findings in Acosta.43 Counsel argued that the RPD erred when it did not consider that the threats moved beyond extortion to personal and specified threats, as per Tobias Gomez,44 in which Justice O'Reilly states that the threats of kidnapping went beyond general threats and assaults and that the gang had targeted the claimants personally. The RAD considered this argument and finds that the Appellants are not similarly situated persons as the family in Tobias Gomez. The Tobias Gomez family faced a specific threat of kidnapping if the extortion demand was not met. In addition, one of the children in the family refused the recruitment efforts of the MS. Justice O'Reilly stated that the family was unique in that it took a "firm stance" against the MS. [44] Justice O'Reilly's position that a risk is no longer generalized if a person is individually targeted is supported in Pineda45 as well as in Munoz.46 Justice O'Reilly states that Justice Crampton has found in Guifarro47 that: The Board does not err when it rejects an application for protection under s 97 after finding that the alleged risk is shared by a sub-group of the population that is sufficiently large that the risk can reasonably be characterized as being widespread or prevalent in that country. This result is valid even where that sub-group of persons may be specifically targeted, such as persons perceived to be wealthy.48 [45] This logic has been supported in Rodriguez Perez,49 which concluded that, when a claimant is initially harassed by a criminal gang because he or she owns a business and then receives a threat for failing to pay money to the gang, this is simply a continuation of the extortion, not a personalized risk. [46] The RAD noted that, in a recent decision,50 Justice O'Reilly found that the RPD's finding was not unreasonable when it concluded that a person who resisted extortion and who had a gun pointed at him by a gang member and had his life threatened faced a generalized risk. [47] In the case at hand, the Appellants have continued to be subjected to threats, as they have refused to pay the extortion demand. The Appellant's BoC indicates that his life was threatened in the note on his windshield on XXXX XXXX XXXX 2013-"will respect your life in exchange for collaboration of $100.00 USD weekly, you have been a marked man".51 The Appellant indicated that it became clear that his life and the lives of his wife and child were at risk after the XXXX XXXX XXXX 2013 incident. The Appellant continued to feel that his life would be in danger after an interchange with the Maras on XXXX XXXX XXXX 2013. The Appellant experienced a pattern of death threats since XXXX XXXX XXXX 2012. The Appellant submitted an affidavit52 that confirms that the Appellant continues to be subject to a death threat. The risk of death is the same as the risks previous to the receipt of the death threat by the Appellant's mother-in-law on March 13, 2013. The affidavit provides two motivations for the threats. It indicates that the MS are furious at the Appellant for not paying the extortion payments, as well as for mocking them for not paying. The reason for the threats remains the same-the Appellant has been threatened with death for not meeting the demand to pay money. [48] The RPD found that the risk that the Appellant faces is generalized. The RPD cited Acosta53 in support of this finding. Acosta was sought by a criminal gang who wanted to kill him for not having paid money they extorted. In the Acosta decision, the RPD found that gang-related violence was prevalent in a variety of sectors in Honduras, and bus fare collectors were frequently subject to extortion by violent gangs. Therefore, the prospective risk the claimant faced was not different than the generalized risk of violence faced by all citizens. [49] The RAD refers to Chavez Fraire,54 which deals with the issue of reprisals. This decision finds that: "The risk does not become personalized simply because the claimant falls into the group of those considered to be enemies of the criminals. The Board did consider the heightened risk the application would have as an enemy of Los Zetas, but found this risk was a generalized one. That risk did not become personalized simply because the applicant fell into the group of those who were enemies of Los Zetas." The RAD noted that in Wilson,55 Justice Simpson concludes that: "in my view, those who refuse to meet criminal extortion demands face the risk of harm because gangs seek to make examples of them in order to dissuade others from refusing to pay." This decision referred to a Jamaican businessman who had been shot after he refused to meet the demands of a gang. [50] The RPD issued its decision on September 12, 2013, the same day which Justice Snider rendered a decision,56 which indicates that an individualized analysis needs to be performed to determine whether or not a claimant can demonstrate any risk other than one faced by the significant group. The RPD was not provided with evidence to attest to the fact that the death threat that the Appellant allegedly received via his mother-in-law was different than the treatment that other people who refuse to pay the MS face. The RPD was not provided with evidence to support the fact that the threat of reprisals for the alleged "mocking" of the MS was a fact particular to the Appellant, or any of his actions. The RAD finds that it was incumbent on the Appellant to provide evidence that would satisfy the Board that he and his family would be personally subjected to a risk that was not generally faced by others in El Salvador, as per Carias.57 The RAD finds that the Appellant has not done so, and therefore the RPD finding was reasonable. [51] The RAD considered whether or not the RPD conflated the current risk with the original risk, as per Coreas Contreras.58 The RPD's reasons indicate that the risks that the Appellants may be subject to upon return are death threats and physical harm. The risk had not mutated after the Appellants left El Salvador. The RAD noted that the Appellant argued that the reason for his risk had changed, as the MS were now concerned with killing him as a result of his mocking them by failing to pay the extortion. The RAD noted that the affidavit from the Appellant's mother-in-law indicates that the MS continued to be furious for not paying the extortion. In addition, they were looking to kill because they viewed the failure to pay the extortion as mocking behaviour. The RAD finds that the threats in the affidavit were still based on the original reason that the Appellant faced, that being, his refusal to pay the extortion. The RPD found that extortion and its risks were generalized in El Salvador. The Appellant did not provide evidence that the nature of the risk had changed based on his reporting the extortion to the police. The motivation for the risk remained the fact that he did not pay the extortion demand, and the risk that the Appellant faced remained the same as the original risk. [52] The RPD cited that individuals that failed to comply with demands of gangs and who were threatened with violence and reprisals were found to be victims of generalized violence and criminality, and it cited Acosta,59 Ventura de Parada,60 and Perez61 in support of this finding. Based on a review of the documentary evidence regarding the MS in the documentary package, the RPD found that the MS were engaged in numerous criminal activities, including robbery and extortion, and they choose their victims randomly to assist financing their criminal organizations. [53] Given the jurisprudence highlighted above, and given the country conditions cited in the reasons which confirm that threats and murder are the modus operandi of the MS, the RAD finds that it was reasonably open to the RPD to conclude that the Appellants continue to face a risk that is faced generally in El Salvador. As such, the RAD finds that the RPD's determination that the Appellants fell under the exception in s. 97 of IRPA was reasonable, as it was transparent and justified and fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law SUMMARY AND DETERMINATION [54] Based on the totality of the evidence before it and the decision of the RPD, the RAD finds that the RPD's finding that the Appellants would face a risk that was generally faced by others in El Salvador was reasonable. As such, the RAD confirms the RPD's determination that the Appellants are not Convention refugees, nor are they persons in need of protection as per Section 111(1)(a) of IRPA. [55] The RAD dismisses the appeal. (signed) "Daniel McSweeney" Daniel McSweeney January 5, 2014 Date 1 RPD's Record, Notice of Intent to Participate, April 8, 2013, pp. 342 - 355. 2 RPD's Record, Minister's Supporting Documents, pp. 356 - 428. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 4 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 5 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 6 IRPA, s. 110 (1). 7 IRPA, s. 107. 8 IRPA, s. 170. 9 IRPA, s. 110(3). 10 IRPA, s. 110(4). 11 RAD Rule 57. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 13 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 14 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 15 De La Cruz, Jesus Martinez v. M.C.I. (F.C., no. IMM-7898-12), de Montigny, October 23, 2013; 2013 FC 1068. at para. 29. 16 Appellant's Pleadings, BoC, Question 2(b), p. 26. 17 Ramos Aguilar, Luis Fernando v. M.C.I. (F.C., no. IMM-9778-12), Zinn, June 26, 2013; 2013 FC 708, at para 9. 18 Munoz, Eusebio Frias v. M.C.I. (F.C., no. IMM-2158-09), Lemieux, March 1, 2010; 2010 FC 238. 19 Appellant's Pleadings, RPD's Reasons, paragraph 5, p. 4. 20 RPD's Record, Exhibit 13, Claimant's Submissions, p. 427. 21 Pineda, Jose Mauricio Martinez v. M.C.I. (F.C., No. IMM-4845-06), de Montigny, April 4, 2007; 2007 FC 365. 22 Portillo, Jonatan Guzman v. M.C.I. (F.C., no. IMM-5429-11), Gleason, June 4, 2012; 2012 FC 678. 23 Arenas, Giovanni Ortega v. M.C.I. (F.C., no. IMM-2806-12), Gleason, April 8, 2013; 2013 FC 344. 24 Corado Guerrero, Benancio v. M.C.I., (F.C., no. IMM-2002-11), Zinn, October 21, 2011; 2011 FC 1210, at para 34. 25 Tomlinson, Sandy Tee v. M.C.I. (F.C., no. IMM-8742-11), Mactavish, June 28, 2012; 2012 FC 822. 26 Zheng v. Canada (Minister of Citizenship and Immigration), [1995] FCJ No. 140. 27 Camargo Vivero, Javier v. M.C.I. (F.C., no. IMM-3018-11), Rennie, February 2, 2012; 2012 FC 138, at para 11. 28 Coreas Contreras, Ricardo Antonio v. M.C.I. (F.C., no. IMM-5611-12), Mosley, May 15, 2013; 2013 FC 510, at para 16. 29 Portillo, Jonatan Guzman v. M.C.I. (F.C., no. IMM-5429-11), Gleason, June 4, 2012; 2012 FC 678. 30 Roberts, Canville. M.C.I. (F.C., no. IMM-3671-12), Gagné, March 25, 2013; 2013 FC 298. 31 Olvera, David Daniel Balcorta v. M.C.I. (F.C., no. IMM-1364-11), Shore, August 31, 2012; 2012 FC 1048. 32 Castaneda Malvaez, Angel v. M.C.I. (F.C., no. IMM-2803-12), Martineau, December 14, 2012; 2012 FC 1476. 33 Coreas Contreras, Ricardo Antonio v. M.C.I. (F.C., no. IMM-5166-12), Mosley, May 15, 2013; 2013 FC 510, at para 16. 34 Garcia Kanga, Juan Carlos v. M.C.I. (F.C., no. IMM-5441-11), Barnes, April 25, 2012; 2012 FC 482. 35 Coreas Contreras, 2013 FC 510, at paras 19 -20. 36 Appellant's Pleadings, Affidavit of XXXX XXXX XXXX XXXX XXXX, April 10, 2013. 37 Arenas, Giovanni Ortega v. M.C.I. (F.C., no. IMM-2806-12), Gleason, April 8, 2013; 2013 FC 344, at para 14. 38 RPD's Package, RIR SLV103445.FE, 3 June 2010, pp. 201-206, 39 RPD's Package, RIR SLV104089.E, 25 June 2012. 40 RPD's Record, US DOS Travel Warning for El Salvador, January 23, 2013, pp. 235 - 237. 41 Ventura De Parada, Ana Margarita v. M.C.I. (F.C., no. IMM-1021-09), Zinn, August 27, 2009; 2009 FC 845. 42 Cano Ponce, Joaquina Elizabeth v. M.C.I. (F.C., no. IMM-1982-12), Zinn, February 21, 2013; 2013 FC 181. 43 Acosta, Dunis Joel Acosta v. M.C.I. (F.C., no. IMM-3731-08), Gauthier, March 2, 2009; 2009 FC 213. 44 Tobias Gomez, Melvin Alberto v. M.C.I. (F.C., no. IMM-6423-10), O'Reilly, September 23, 2011; 2011 FC 1093. 45 Pineda, Jose Mauricio Martinez v. M.C.I. (F.C., No. IMM-4845-06), de Montigny, April 4, 2007; 2007 FC 365. 46 Munoz, Jorge Alberto v. M.C.I. (F.C., no. IMM-7468-11), Campbell, June 7, 2012; 2012 FC 716. 47 Paz Guifarro, Osman Jose v. M.C.I. (F.C., IMM-3097-10), Crampton, February 15, 2011; 2011 FC 182. 48 Tobias Gomez, Melvin Alberto v. M.C.I. (F.C., no. IMM-6423-10), O'Reilly, September 23, 2011; 2011 FC 1093. 49 Rodriguez Perez, Henry Sotero v. M.C.I. (F.C., no. IMM-646-09), Kelen, October 14, 2009; 2009 FC 1029, at para 34. 50 Argueta Calderon, Juan Roman v. M.C.I. (F.C., no. IMM-5798-12), O'Reilly, March 12, 2013; 2013 FC 229. 51 Appellant's Pleadings, BoC Narrative, p. 29. 52 Appellant's Pleadings, Affidavit of XXXX XXXX XXXX XXXX XXXX, pp. 43 - 45. 53 Acosta, Dunis Joel Acosta v. M.C.I. (F.C., no. IMM-3731-08), Gauthier, March 2, 2009; 2009 FC 213. 54 Chavez Fraire, Cesar Alejandro v. M.C.I. (F.C., no. IMM-7277-10), Zinn, June 24, 2011; 2011 FC 763. 55 Wilson, Richardo v. M.C.I. (F.C., no. IMM-3251-12), Simpson, January 30, 2013; 2013 FC 103, at para 7. 56 Escobar Minas, Wilson Rodolfo v. M.C.I. (F.C., no. IMM-10679-12), Snider, September 12, 2013. 57 Carias, Jose Roberto v. M.C.I. (F.C., no. IMM-1704-06), O'Keefe, June 7, 2007; 2007 FC 602, at para 25. 58 Coreas Contreras, Ricardo Antonio v. M.C.I. (F.C., no. IMM-5166-12), Mosley, May 15, 2013; 2013 FC 510. 59 Acosta, Dunis Joel Acosta v. M.C.I. (F.C., no. IMM-3731-08), Gauthier, March 2, 2009; 2009 FC 213. 60 Ventura de Parada, Ana Margarita v. M.C.I. (F.C., no. IMM-1021-09), Zinn, August 27, 2009; 2009 FC 845. 61 Rodriguez Perez, Henry Sotero v. M.C.I. (F.C., no. IMM-646-09), Kelen, October 14, 2009; 2009 FC 1029. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07050 TB3-07051 TB3-07052