This is an application for judicial review of the decision by the Refugee Protection Division
The applicant, Portillo, is a young man from El Salvador, who was threatened and assaulted by the criminal gang Mara Salvatrucha [MS]. The applicant reported the attack to the police, but the police did not pursue the issue and intimated that the applicant was himself an MS member. The applicant was subsequently attacked by the gang and assaulted by the police, who sought information from the applicant about a gang member and former friend, Carlos, who was implicated in the murder of a police officer. After giving some information on the possible whereabouts of the gang member, the applicant was threatened by Carlos. The applicant fled to another location in El Salvador, then to the United States and Canada, where he made a refugee claim. The police and the MS continue to threaten the applicant’s family.
The Board identified credibility concerns with the applicant’s claim, noting the discrepancies between what Portillo said in his Personal Information Form and to the official at the port of entry. However, the Board did not base its decision on the applicant’s alleged lack of credibility. The RPD rejected the claim, holding that neither s 96 nor s 97 of the Immigration and Refugee Protection Act was applicable. With respect to s 96, the Board held that the applicant was not persecuted in connection with one of the Convention grounds listed in s 96. With respect to s 97, the Board found that it was not applicable because the applicant faced a generalized risk that would be “faced generally by other individuals in or from that country” (97(1)(b)(ii)). Therefore, he cannot be a person in need of protection under s 97.
The applicant claims that the decision should be set aside for three reasons: 1) the Board’s findings regarding the applicant’s lack of credibility was contradicted by the Board’s reasons in the decision, 2) s 96 applies because the applicant was targeted by the Salvadoran police, 3) s 97 applies because the applicant faced personalized risk. The Court addresses each of the reasons as a separate issue in this decision.
Standard of Review
The Court first discusses the standard of review. Although both parties argue that the standard should be that of reasonableness, the Court notes that correctness is arguably applicable for the review of s 97. However, the Court does not make a decision in regards to the standard, noting that in addition to being incorrect the interpretation of s 97 by the RPD was unreasonable.
The Court asserts that the determinations regarding s 97, whether the risk is personalized or general, is a matter of a legal interpretation and thus the standard is likely to be that of correctness. To support the correctness standard, the Court refers to the decision in Dunsmuir v New Brunswick. Based on Dunsmuir, the Court notes that the correctness standard is applicable where the questions of law 1) are of central importance and 2) they fall outside the specialized area of the tribunal’s expertise. Because arguably both sections 96 and 97 raise questions of central importance and involve interpretations of Canada’s obligations under the international treaties, which could be considered to be beyond the expertise of the RPD, the standard is correctness. However, the Court finds that in this case the determination of the correctness standard is not important since the Board’s interpretation of s 97 was unreasonable.
The Court does not make determinations on the Board’s credibility findings because, as mentioned above, the Board’s decision did not take into account its findings of credibility. Therefore, any errors by the Board on the assessment of credibility did not affect the decision and do not call for a judicial intervention.
s 96 Analysis
Attacks of the applicant by the police might trigger s 96 protection. The Board concluded that the applicant did not establish credible evidence to indicate that the police wanted anything more than to interrogate him about any involvement in the murder. The Board decided that s 96 does not apply. The applicant claims that the Board’s determination is based on factually unreasonable findings.
Based on the facts that the police assaulted the applicant and his family, the Court, agreeing with the applicant, finds that the Board’s conclusion was unreasonable. The Court dismisses the Board’s reliance on the credibility reasoning for its determination. The Board did not provide sufficient distinction between the claim regarding the attacks by the gang, which the Board accepted, and the claim regarding the police attacks to dismiss it on credibility grounds. In other words, there is no reason why the Board would have believed a large part of the applicant’s story but did not find the police attacks to have been credible. The matter is to be remitted back to the RDP for the requisite analysis of the facts to take place.
S 97 Analysis
The IRPA s 97 precludes protection from the risks that are faced “generally by other individuals in or from that country”. The Board noted that although the applicant faced a unique personalized risk of death, this risk was faced by all men of the applicant’s age in El Salvador. Therefore, s 97 was not applicable. The Court finds that the Board’s analysis of s 97 in this case is both incorrect and unreasonable.
The Court asserts that a personalized risk of cruel treatment and punishment cannot be general and therefore s 97 should apply. If the Board was correct then s 97 would be largely stripped of all meaning and content and s 97 would not provide protection in crime-related risks. Based on several recent decisions, the Court proceeds to outline the two steps necessary to analyze the risk under s 97. First, the nature of the risk has to be determined. This determination takes into account whether there is an ongoing or future risk, what the risk is, whether it is of cruel and unusual treatment or punishment, and the basis for the risk. Second, a risk faced by the claimant has to be compared with the risk faced by a significant group to determine whether the risks are of the same nature and degree. If the risk is not the same then the claimant is entitled to protection under s 97. The Court concludes that the Board failed to carry out the first step in the analysis by stating that the applicant risked death but did not elaborate that this was due to his having been a suspected police informant. The risk faced by the applicant was more significant and more direct than the one faced generally by other individuals. The Board’s decision was therefore both unreasonable and incorrect. The RDP’s decision is set aside and the applicant’s claim is remitted to the RDP for re-determination by a different constituted panel.
Relevant Statutes and Caselaw
Immigration Protection Act, ss 96, 97
Dunsmuir v New Brunswick, 2008 SCC 9,  1 SCR 190