Date: 20000407
Docket: IMM-304-99
Between:
EDGAR JACOB MANRIQUE GALVAN
SANDRA LUZ RAMIREZ DE MANRIQUE
SOREN MANRIQUE RAMIREZ
Applicants
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
[1] The basic issue raised by the applicants, who are Mexican citizens, is whether the Convention Refugee Determination Division (the panel) correctly interpreted the ground "persecution for reasons of membership in a particularsocial group", found in the definition of "Convention refugee" in subsection 2(1) of the Immigration Act (the Act):
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or [emphasis added]
|
|
« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, [je souligne] |
The panel refused this recognition on the grounds that the organization of taxi drivers to which Mr. Galvan belongs does not constitute a particular social group.
PERSONAL INFORMATION FORM OF MR. GALVAN (PIF)
[2] Edgar Galvan indicates in his Personal Information Form (PIF) that he belongs to an organization of 130 taxi drivers in Mexico City, known as Emiliano Zapata, whose goal is to protect its members against criminals, given the inability of Mexican authorities to do so.
[3] The organization protects its members by maintaining continuous radio communication: if a member is in danger, he sends a signal that alerts other members who immediately go to his aid.
[4] The applicant, Edgar Galvan, states that the members of Emiliano Zapata have participated in numerous protest marches to highlight the serious level of corruption and the general lack of respect for the law. They have also attended meetings of other organizations such as "Plaza Tepeyac" to find out about new security measures that become available.
[5] According to Edgar Galvan, the creation of Emiliano Zapata as well as its ongoing activities generated a hostile reaction among the gangs of criminals, as some of them were captured by members of the organization during attempted robberies and handed over to the authorities. These gangs sent threatening letters to the organization in an attempt to destroy it.
[6] In his PIF, Edgar Galvan describes the incident which forced him to leave Mexico:
[TRANSLATION]
But, during the time that I was a member of the organization (from May 15 to July 12, 1998), nothing unusual had happened.
I fear for my life and that of my family because on July 4, 1998, there was another robbery attempt against a fellow taxi driver. He sent out the warning signal. As soon as we received it, around 9:30 p.m., we rushed to the scene of the incident, at the corner of Mosqueta and Reforma streets. There were about 15 of us, and when we arrived, three men got out of a car and came at us with knives. We had surrounded the area, so they couldn't get away. But, as we were disarming them, they said we would "regret this", that they knew where to find us. They threatened us, swore that they would kill us and told us to keep a close eye on our families. When we handed them over to the police, we laid a complaint against them anonymously.
[7] A week later, on July 12, 1998, taxi driver Marco Flores and his family were attacked in their home, according to Edgar Galvan. At the hospital, Marco Flores told Edgar Galvan that during the beating his assailants shouted at him, "We are fed up with you [taxi drivers] acting like cops," and "We are going to catch and kill all of you [who participated in the July 4th, 1998 incident]."
[8] After this conversation with Marco Flores, Edgar Galvan decided to leave the organization immediately, fearing for his life, since the authorities were unable to protect him from the gangs that operate throughout Mexico and are in contact with one another to exchange services. Edgar Galvan contends that his only option was to leave the country, which he did with his family: his wife, Sandra, and his son, Soren.
[9] Edgar Galvan testified at the hearing before the panel. He also filed documentary evidence in the form of newspaper articles, which indicate the following: (1) the federal district of Mexico City is one of the most dangerous areas in the world and the crime rate continues to rise; (2) there are 750 gangs in the capital totalling approximately 20,000 criminals; (3) the head of a dangerous gang that attacks taxi drivers is being held in custody by the judicial police after attempting to steal a taxi driver's vehicle. On October 30, 1998, the newspaper Oppression reported:
[TRANSLATION]
Sonia Rosario Sanchez Toy is one of the most wanted members of "the TOY gang", which specializes in stealing taxi drivers' cars. The assailants take the drivers' earnings for the day, strip the vehicles and abandon them in some isolated area.
THE PANEL'S DECISION
[10] Applying the principles laid down by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, per La Forest J., the panel stated its grounds for dismissing the claim:
[TRANSLATION]
Mr. Galvan testified simply and responded clearly to the questions put to him. However, the panel has concluded that the particular social group to which the applicant belongs-an organization of taxi drivers whose goal is to provide its members with security measures-does not meet any of the tests set out in the caselaw dealing with this Convention ground. The tests identify three possible categories:
1. groups defined by an innate or unchangeable characteristic;
2. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
3. groups associated by a former voluntary status, unalterable due to its historical permanence.
The Supreme Court also stated:
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.
Before leaving Mexico, the applicant says he had never thought of working anywhere other than Mexico City nor of changing jobs, because he earned a good income. Finally, in response to counsel's argument that Mr. Galvan's right to work is a fundamental right, the panel agrees that the right to work is fundamental, but not necessarily the right to work as a taxi driver in Mexico City.
[emphasis added]
ANALYSIS
(a) The leading cases
i) Ward and Matter of Acosta
[11] In Ward, supra, La Forest J. examined in detail the scope of "particular social group" in subsection 2(1) of the Act, noting that this subsection "limits the grounds for a Convention refugee's well-founded fear of persecution to five possibilities..." (p. 726).
[12] As the panel clearly explained in its reasons, La Forest J. established three categories of groups under the head of "particular social group" within the meaning of the Act and the Convention:
1. groups defined by an innate or unchangeable characteristic;
2. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
3. groups associated by a former voluntary status, unalterable due to its historical permanence.
[emphasis added]
[13] After reviewing the judgment, I believe the basic principles identified by La Forest J. can be summarized as follows:
1) A particular social group is not simply "any alliance of individuals with a common objective" (p. 728) or "an association of people...merely by virtue of their common victimization as the objects of persecution" (p.729). This "very wide definition,...serves as a safety net to prevent any possible gap in the other four categories" (p. 728).
2) This broad definition (of particular social group) must be rejected for several reasons: (1) it exaggerates "the implications of the intention of the framers" [of the Convention] (p. 730); (2) it derogates from the principle that "international refugee law was meant to serve as a 'substitute' for national protection where the latter was not provided. For this reason, the international role was qualified by built-in limitations. These restricting mechanisms reflect the fact that the international community did not intend to offer a haven for all suffering individuals" (pp. 731-732).
3) The themes of basic human rights and the fundamental principle of non-discrimination provide an inherent limit to the cases embraced by the Convention (p. 733).
4) Matter of Acosta (1985), 19 I. & N. 211, a decision of the United States Board of Immigration Appeals (the Board), is cited in Ward as an "approach to delineating the scope of 'particular social group'". Matter of Acosta dealt with a taxi driver co-operative; the claimant based his fear of persecution on his affiliation with the co-operative, whose members had been targeted by anti-government guerrillas for having refused to comply with their requests to engage in work stoppages. The Board found that the taxi driver co-operative did not constitute a "particular social group" (p. 736).
5) Matter of Acosta stands for the proposition that whatever the common characteristic that defines the group, "it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences" (p. 737).
6) The principle set out at page 737 of Matter of Acosta is also to be noted:
By construing 'persecution on account of membership in a particular social group' in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.
7) Ward expressed this principle as follows (pp. 737-38):
What is excluded by this definition are 'groups defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights'.
[emphasis added]
[14] In the end, La Forest J. drew two significant conclusions. The first can be found at pages 738-39:
These types of tests appear to be appropriate to us. Canada's obligation to offer a haven to those fleeing their homelands is not unlimited. Foreign governments should be accorded leeway in their definition of what constitutes anti-social behaviour of their nationals. Canada should not overstep its role in the international sphere by having its responsibility engaged whenever any group is targeted. Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him- or herself from it before Canada's responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing what one is against what one does, at a particular time. For example, one could consider the facts in Matter of Acosta in which the claimant was targeted because he was a member of a taxi driver cooperative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in an immutable or fundamental way.
[emphasis added]
[15] The second is at page 739:
The meaning assigned to 'particular social group' in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve this result. [emphasis added]
[16] In light of the facts of this case, it is helpful to review Matter of Acosta in some detail, as the Board had to determine whether a taxi driver co-operative in El Salvador constituted a "particular social group". At page 22 [electronic version] of the decision, the Board, following its already-established principles, set out its reasons for refusing to recognize a taxi co-operative as a particular social group within the meaning of the American legislation:
In the respondent's case, the facts demonstrate that the guerillas sought to harm the members of COTAXI, along with members of other taxi cooperatives in the city of San Salvador, because they refused to participate in work stoppages in that city. The characteristics defining the group of which the respondent was a member and subjecting that group to punishment were being a taxi driver in San Salvador and refusing to participate in guerilla-sponsored work stoppages. Neither of these characteristics is immutable because the members of the group could avoid the threats of the guerrillas either by changing jobs or by cooperating in work stoppages. It may be unfortunate that the respondent either would have had to change his means of earning a living or cooperate with the guerrillas in order to avoid their threats. However, the internationally accepted concept of a refugee simply does not guarantee an individual a right to work in the job of his choice. See 1 A. Grahl-Madsen, supra, at 214. Therefore, because the respondent's membership in the group of taxi drivers was something he had the power to change, so that he was able by his own actions to avoid the persecution of the guerrillas, he has not shown that the conduct he feared was "persecution on account of membership in a particular social group" within our construction of the Act.
[emphasis added]
[17] At page 23 [electronic version], the Board emphasized that it is incumbent upon the refugee claimant to establish that his or her fear of persecution exists on a "country-wide" basis:
In the respondent's case, the facts show that taxi drivers in the city of San Salvador were threatened with persecution by the leftist guerrillas. However, the facts do not show that this threat existed in other cities in El Salvador. It may be the respondent could haveavoided persecution by moving to another city in that country.n14 In any event, the respondent's facts did not demonstrate that the guerrillas' persecution of taxi drivers occurred throughout the country of El Salvador. Accordingly, the respondent did not meet this element of the standard for asylum. [ n14 It is unfortunate when persons may be obliged to give up their jobs and leave their homes as a result of fear. But that is not the issue here. The issue is, once that decision is made, does an individual have the right to come to the United States rather than to move elsewhere in his home country.]
[emphasis added]
ii) Chan
[18] The Supreme Court of Canada revisited "persecution for reason of membership in a particular social group" in Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593. In that case, the Court had to determine, inter alia, whether those faced with forced sterilization constitute a particular social group.
[19] Writing for the minority, La Forest J. (concurring with the majority, however, on this issue) considered again what is meant by membership in a particular social group and clarified what he had stated in Ward, supra:
(1) "[O]nly a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group."(p. 642);
(2) "The 'general underlying themes of the defence of human rights and anti-discrimination'... were to remain the paramount consideration in determining a claimant's membership in any particular social group." (p. 642);
[20] In Chan, La Forest J. concluded that the claimant met the requirements of the second category set out in Ward on the grounds that the right asserted, that of all couples and individuals to decide freely the number and timing of their children, is a fundamental right.
[21] He noted that the association or group exists because its members have tried together to exercise a basic right. At page 644, La Forest J. emphasized it is necessary to consider whether an association exists that is so fundamental to members' human dignity that they should not be required to forsake it. Moreover, he stated clearly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself.
iii) Islam
[22] In a decision dated March 25, 1999, the British House of Lords considered the issue of a particular social group: Islam (A.P.) v. Secretary of State for the Home Department and Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.), House of Lords - (Conjoined Appeal:http://www. publications.parliament.uk/pa/ld199899/ldjudgmt/jd990325/islam01.htm).
[23] The appeal involved claims by two married Pakistani women who feared repercussions from false allegations of adultery that might be made by their husbands, and the inability of Pakistan to protect them if this should happen. Under those circumstances, the House of Lords held that "Pakistani women" constituted a particular social group.
[24] This decision is very relevant because it adopted most of the aforementioned principles as well as the reasoning of La Forest J. in Ward and Chan, supra:
(1) It confirmed the dominant and essential characteristic of "a particular social group" established in Matter of Acosta, supra, based on the doctrine of ejusdem generis:
Each of these grounds describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed. . .
. . .The shared characteristic might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. . . . By construing "persecution on account of membership in a particular social group" in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.
Lord Steyn concurred with this passage from Matter of Acosta, supra.
(2) According to Lord Hoffman, "the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention". He considered this to be an essential factor in the definition of a particular social group:
The notion that the Convention is concerned with discrimination on grounds inconsistent with principles of human rights is reflected in the influential decision of the U.S. Board of Immigration Appeals in In Re Acosta . . . where it was said that a social group for purposes of the Convention was one distinguished by:
an immutable characteristic. . . [a characteristic] that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed.
This was true of the other four grounds enumerated in the Convention. It is because they are either immutable or part of an individual's fundamental right to choose for himself that discrimination on such grounds is contrary to the principles of human rights.
(4) Last, the Law Lords identified the existence of another general principle underlying the concept of a particular social group:
. . .that there can only be a "particular social group" if the group exists independently of the persecution. . .
. . . The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution....
[25] Madam Justice Sharlow, as she then was, also relied on this principle when considering the expression "a particular social group" in Serrano v. Canada (M.C.I.), [1999] F.C.J. No. 570 (F.C.T.D.).
(b) Applying the principles to the case at bar
[26] The applicants submit that the panel made an unreasonable error in determining that they were not persecuted based on one of the five Convention grounds, specifically, by reason of their membership in a particular social group- "Mexico City taxi drivers, victims of extortion and violence". Counsel for the applicants argues that Mexico City taxi drivers are self-employed workers in danger; they are afforded no protection by the Mexican authorities who have to cope with more than 20,000 gang members in the capital city.
[27] The applicants rely on the second category of particular social group that was identified in Ward, which includes human rights activists. They submit that the purpose of the organization in question is to defend the rights of a group of people who are not protected by the State and who must earn their living working at this particular job.
[28] In addition to Ward, the applicants rely on paragraph 77 of the Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, reprinted, Geneva, January 1992, which reads:
77. A "particular social group" normally comprises persons of similar background, habits or social status.
[29] Certain texts were also brought to the attention of the Court, including The Refugee in International Law by Goodwin-Gill, 2nd ed. (1996), which outlines some characteristics of particular social groups. The author notes that a group pursuing common economic activities or a common occupation can constitute a particular social group. Professor Hathaway is cited in that text as is the American case Sanchez-Trugillo v. Immigration and Naturalization Service (1986), 801 F.2d 1571.
[30] Accordingly, it is submitted that Edgar Galvan has proven by filing his licence that he is self-employed, that the State does not adequately protect self-employed workers and that they are targeted by criminals. He has also testified that he is a member of a group that defends taxi drivers' rights and as a result, some members of the group, including himself, have received death threats.
[31] With respect, it is my view that the principles expressed by the Supreme Court of Canada in Ward and Chan, supra, do not support the applicants' position. La Forest J. in Ward did not accept a broad interpretation of the concept "particular social group" and rejected the authorities relied on by the applicants. Furthermore, after reviewing the panel's decision, I am satisfied that it carefully considered the caselaw in concluding that the particular social group to which Edgar Galvan belongs does not fall within any of the established categories-in particular, the second category (the only one relied on by counsel for the applicants)-on the grounds that "[TRANSLATION] the right to work is fundamental, but not necessarily the right to work as a taxi driver in Mexico City."
[32] Bearing in mind La Forest J.'s premise that it is necessary to consider whether there is an association so fundamental to members' human dignity that they should not be forced to forsake it, it is nonetheless true that there are groups in which the affiliation is not so important to the individual that Canada's international responsibility should be engaged.
[33] The Board's conclusions in Matter of Acosta, supra, are relevant here:
Neither of these characteristics is immutable because the members of the group could avoid the threats of the guerrillas either by changing jobs or by cooperating in work stoppages. . . . Therefore, because the respondent's membership in the group of taxi drivers was something he had the power to change, so that he was able by his own actions to avoid the persecution of the guerillas, he has not shown that the conduct he feared was "persecution on account of membership in a particular social group" within our construction of the Act.
[34] As La Forest J. said, Canada's obligation to offer a haven to those fleeing their homelands is not unlimited. The definition of "persecution for reasons of membership in a particular social group" excludes groups defined by a characteristic which can be changed or even modified, or from which disassociation is possible, so long as neither option requires forsaking basic human rights.
[35] I agree with the panel and am unable to conclude for the following four reasons that Edgar Galvan's disassociation with the group Emiliano Zapata would cause him to forsake a basic human right: first, the conclusions in Matter of Acosta, supra, were approved by the Supreme Court of Canada in Ward, supra; second, this right is not guaranteed to Canadian citizens and permanent residents by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted by the Canada Act, 1982 (U.K.) c. 11, Schedule B; third, La Forest J. clarifies in Ward that the concept of a particular social group requires more than a simple alliance of individuals by reason of their victimization or persecution; and last, related to my third reason, this Court has clearly held in previous cases that victims of criminal acts do not fall within the definition of Convention refugee.
[36] In light of my findings, I do not need to address the second ground relied on by the applicants, that the panel made an unreasonable error in determining that they had not established a well-founded fear of persecution, because the panel failed to consider the lack of protection afforded by the State.
CONCLUSION
[37] For all these reasons, this application for judicial review is dismissed.
[38] After the application for judicial review was heard, counsel for the applicants proposed the following question for certification:
[TRANSLATION] Does an association whose aim is to protect its members against attacks by certain individuals and whose members are persecuted precisely because they are compelled to withdraw from the association, constitute a particular social group, in the sense that this aim is essential to human dignity, within the meaning of Ward?
[39] Applying the test laid down by the Federal Court of Appeal in Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4 (F.C.A.), I see no reason to certify such a question in this case. I note the abundance of decisions by this Court concerning victims of criminal acts claiming refugee status; accordingly, I have concluded that the proposed question does not in any way transcend the interests of the immediate parties to the litigation nor raise a serious question of general importance, as the Court has already addressed this issue on many occasions.
François Lemieux
JUDGE
Ottawa, Ontario
April 7, 2000
Certified true translation
Mary Jo Egan, LLB
Date: 20000407
Docket: IMM-304-99
OTTAWA, ONTARIO, FRIDAY, APRIL 7, 2000
PRESENT: THE HONOURABLE MR. JUSTICE FRANÇOIS LEMIEUX
BETWEEN:
EDGAR JACOB MANRIQUE GALVAN
SANDRA LUZ RAMIREZ DE MANRIQUE
SOREN MANRIQUE RAMIREZ
Applicants
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons stated, the application for judicial review is dismissed. No question is certified.
François Lemieux
Certified true translation J U D G E
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-304-99
STYLE OF CAUSE: EDGAR JACOB MANRIQUE GALVAN ET AL.
v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: October 27, 1999
REASONS FOR ORDER OF LEMIEUX J.
DATED: April 7, 2000
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada