NEKISHA KATDIJAH SAMUEL (A.K.A. NEKISHA KATDIJA SAMUEL) Applicant v. THE MINISTER OF CITIZENSHIP, 2012 FC 973

Federal Court Cour fédérale Date: 20120807 Docket: IMM-8293-11 Citation: 2012 FC 973 Ottawa , Ontario , August 7, 2012 PRESENT: The Honourable Mr. Justice Scott BETWEEN: NEKISHA KATDIJAH SAMUEL (A.K.A. NEKISHA KATDIJA SAMUEL) Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT I. Introduction [ 1 ] This is an application by Ms. Nekisha Katdijah Samuel (Ms.

Samuel), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], for judicial review of a decision of the Immigration and refugee Board (the Board), rendered on October 26, 2011, wherein the Board concluded that Ms. Samuel is neither a Convention refugee nor a person in need of protection as contemplated by

section 96 and subsection 97(1) of the IRPA . [ 2 ] For the following reasons, this application for judicial review is dismissed. II. Facts [ 3 ] Ms. Samuel is a citizen of St. Vincent and the Grenadines.

[ 4 ] On January 27, 2007, Ms. Samuel witnessed the murder of her brother, Kenford Samuel, at the hands of members of the Cuban Family Gang because of his long standing feud with that criminal organization. [ 5 ] In June of 2007, a trial was held. Ian Blackett, a member of the Cuban Family Gang, was accused of murdering Kenford Samuel. Ms. Samuel testified at Ian Blackett’s trial. Blackett was acquitted and subsequently deported to Grenada. [ 6 ] After the trial, two of Kenford Samuel’s friends were shot by an unidentified gunman. [ 7 ] Ms. Samuel was provided with police protection during the trial.

However, she was left unprotected after the trial. She subsequently experienced multiple incidents of harassment, verbal abuse and death threats from members of the Cuban Family Gang. [ 8 ] She sought police protection on several occasions and informed the authorities of the threats. Notwithstanding her attempts to seek assistance from the authorities, Ms. Samuel allegedly continued to face incidents of harassment and death threats in St. Vincent until she fled to Canada. [ 9 ] She arrived in Canada in December 2010 and filed a refugee claim in February 2011. [ 10 ] In its decision, the Board found that Ms.

Samuel’s fear was not based on her gender. It also found that even though she was personally targeted by the Cuban Family Gang, on a number of occasions, the basis of the alleged risk is one that is generalized throughout St. Vincent. It further determined that Ms. Samuel had not rebutted the presumption of state protection with clear and convincing evidence. Consequently, the Board concluded that Ms. Samuel was not a Convention refugee or a person in need of protection. III. Legislation [ 11 ] Sections 96 and 97 of the IRPA provide as follows: Convention refugee Définition de « réfugié » 96.

A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne 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 : (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.

Person in need of protection Personne à protéger 97.

(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally 97.

(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or

a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (

i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.

Person in need of protection Personne à protéger

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait

partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. IV. Issues and standard of review A. Issues

1. Did the Board err in determining that Ms. Samuel’s fear of the Cuban Family Gang had no nexus to

section 96 of theIRPA? 2. Did the Board err in finding that the risk faced by Ms. Samuel at the hand of the Cuban Family Gang is one that isgeneralized in St. Vincent? 3. Did the Board err in determining that Ms. Samuel had not rebutted the presumption of the availability of adequate stateprotection in St. Vincent? B.

Standard of review [12] In Soimin v Canada (Minister of Citizenship and Immigration), 2009 FC 218 at para 8, the Court held that the issue ofdetermining whether an Applicant is part of a particular social group, based on gender allegations, is a question of mixed fact and lawthat is reviewable on the standard of reasonableness. [13] The issue of assessing whether a person faces a generalized risk or not is also reviewable on a standard of reasonableness (seeProphète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, [2008] FCJ No 415 [Prophète I]). [14] Questions regarding the adequacy of state protection ought to be reviewed equally under a standard of reasonableness (seeHinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 157 ACWS (3d) 153 at para 38).

V. Parties’ submissions A. Ms. Samuel’s submissions [15] Ms. Samuel alleged belonging to the social group of “women in St-Vincent and the Grenadines who are subjected to deaththreats, reprisals, and violence as a result of witnessing a crime by members of a criminal organization” (see page 62 of the CertifiedTribunal Record). In assessing whether Ms. Samuel belongs to a particular social group in St. Vincent, the Board had to consider thethree prongs of the test set out in Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689 [Ward].

However, Ms.Samuel claims the Board failed to apply the third part of the test. In finding that there was no nexus to a Convention ground, the Boardmisapplied the law, according to Ms. Samuel. [16] Ms. Samuel also claims being personally targeted by members of the Cuban Family Gang, as evidenced by the threats andharassment she endured on numerous occasions in St Vincent. In its decision, the Board, according to her, wrongfully determined thatsince criminal gang violence is a risk generally faced by the population in St. Vincent, the risk she faced was a generalized one.

Ageneralized risk does not automatically mean that the particular risk faced by a refugee claimant is one that is generally faced by thecitizens of a country. The case at hand, according to Ms Samuel’s counsel, contains similarities with the decision of this Court in Pinedav Canada (Minister of Citizenship and Immigration), 2007 FC 365 [Pineda]. In Pineda, the Court concluded that, since the Applicantwas subjected to repeated threats and attacks, he was subjected to a greater risk than the risk faced by the population at large. Ms. Samuelaffirms that her particularized risk in St.

Vincent amounts to a greater risk. Consequently, the Board erred in concluding that she faced ageneralized risk, in her country of origin, one that is shared by the population at large. [17] As to the presumption of the availability of adequate state protection, Ms. Samuel argues that the Board ignored relevant andcontradictory evidence, which, renders its conclusion unreasonable (see Cepeda-Gutierrez v Canada (Minister of Citizenship andImmigration), (FC), [1998] FCJ No 1425 at para 17). Documentary evidence was adduced before the Board tocorroborate Ms.

Samuel’s position on her inability to obtain adequate protection from the authorities in St. Vincent, since she continuedto be targeted by members of the Cuban Family Gang.

[18] For all these reasons, Ms. Samuel submits that the Board’s decision warrants the Court’s intervention. B. The Respondent’s submissions [19] The Respondent argues that it is well established principle that being a victim of a crime does not, in itself, establish a linkbetween a fear of persecution and a Convention ground (see Asghar v Canada (Minister of Citizenship and Immigration), 2005 FC 768at para 24 [Asghar]). He refers to Asghar, where the Court wrote : “…this evidence specifically indicates that these individuals are targeted by criminals who try to eliminate or silence them.

As the Boardconcluded, and as the respondent submits, these are acts of vengeance, not persecution within the meaning of

section 96 of the Act. Themotives of these persecutors are criminal and are not covered by the Convention.” [20] Therefore, according to the Respondent, the Board’s finding is reasonable as the evidence adduced by Ms. Samuel clearlydemonstrates that her fear related the Cuban Family Gang does not constitute persecution under

section 96 of the IRPA. [21] As for Ms. Samuel’s membership in a particular social group, the Respondent contends that her definition of the particularsocial group proposed in this current application differs from the definition that was before the Board. The Board’s decision must bereviewed by the Court using the social group as initially defined by Ms. Samuel, who referred to women in St Vincent. [22] According to the Respondent, the Board’s conclusion is reasonable.

In applying Ward cited above, this Court has concludedin numerous decisions that “persons informing on criminal activity do not form a particular social group within the meaning of theConvention” (see the Respondent’s memorandum at page 6). The Respondent also argues that the present case fails to meet therequirements of any of the three categories outlined in Ward, particularly the third category. [23] Contrary to Ms.

Samuel’s assertion, Respondent alleges that the mere fact that an individual is specifically and personallytargeted does not mean their risk is personalized (see Guifarro v Canada (Minister of Citizenship and Immigration), 2011 FC 182 at para32; and Rajo v Canada (Minister of Citizenship and Immigration), 2011 FC 1058 at paras 20 and 36; and Flores Romero v Canada(Minister of Citizenship and Immigration), 2011 FC 772 at paras 10-20). According to the Respondent,

section 97 of the IRPA requiresmore than demonstrating that a refugee claimant was individually targeted. [24] The Respondent underlines that the nature of the risk faced by Ms. Samuel is one that is generalized and is faced by others inSt. Vincent. The Board’s finding, in this regard, is reasonable. [25] As to the issue of state protection, the Respondent submits that the documentary evidence adduced by Ms. Samuel is notsufficiently probative to overturn the Board’s decision. VI. Analysis 1. Did the Board err in determining that Ms. Samuel’s fear of the Cuban Family Gang had no grounds under

section 96 of theIRPA? [26] In Asghar, cited above, at paras 14, 25 and 26, the Court mentioned the following: [14] The notion of particular social group must be assessed while keeping in mind that it is part of the "general underlying themes of thedefence of human rights and anti-discrimination that form the basis for the international refugee protection initiative": Ward v Canada(Attorney General), (SCC), [1993] 2 SCR 689. The Supreme Court of Canada identified three potential categories ofsocial groups in Ward, supra:

(1) Groups defined by an innate, unchangeable characteristic;

(2) Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced toforsake the association;

(3) Groups associated by a former voluntary status, unalterable due to its historical permanence. … [25] Case law from this Court has consistently established that the fear of reprisals motivated by vengeance and being a victim of acriminal act are not equivalent to a persecution ground under

section 96: Rawji v Canada (Minister of Employment and Immigration),[1994] FCJ No 1773, online: QL; Mason v Canada (Secretary of State), [1995] FCJ No 815, online : QL; Mousavi-Samani v Canada(Minister of Citizenship and Immigration), [1997] FCJ No 1267, online: QL; Montchak v Canada (Minister of Citizenship andImmigration), [1999] FCJ No 111, online: QL; Klinko v Canada (Minister of Citizenship and Immigration), (FCA),[2000] 3 FC 327.

Victims of criminal acts therefore do not belong to a particular social group. [26] In light of the categories identifying social groups in Ward, supra, I disagree with the applicant and do not find that the Board erredin deciding that his father, a Pakistani police officer who was called to testify as a prosecution witness, was not persecuted within themeaning of

section 96 of the Act, since he was not a member of an identifiable social group. [27] The Board wrote the following in paragraph 9 of its decision: “In his written submissions, counsel proposed a putative social group for the claimant with a number of word additions which narrow itfrom ‘women in St. Vincent and the Grenadines’ that he suggests might still allow the claimant to fall within the particular social groupground of the Convention refugee definition. Unfortunately for the claimant, however, all of counsel’s word additions beyond ‘women inSt.

Vincent and the Grenadines’ refer to patently non-innate and changeable characteristics. His proposed particular group therefore runsafoul of the innate and unchangeable characteristic rule regarding particular social groups set out in Ward and therefore cannot be legallyentertained.” [28] The Respondent argues that the Board adequately considered the three categories in Ward. He underlines that Ms. Samuelproposed a different definition in her record from what she suggested before the Board. She wrote, in her record, that she belonged in theparticular social group of “individuals in St.

Vincent who are subjected to death threats, reprisals, and violence as a result of witnessing acrime by members of a criminal organization” (see page 5 of the Applicant further memorandum of argument). However, Ms. Samuelproposed the following definition before the Board: “women in St. Vincent and the Grenadines who are subjected to death threats,reprisals, and violence as a result of witnessing a crime by members of a criminal organization” (see page 62 of the Certified TribunalRecord).

In Bekker v Canada, 2004 FCA 186 at para 11, the Court of Appeal wrote the following: “Judicial review proceedings are limited in scope. They are not trial de novo proceedings whereby determination of new issues can bemade on the basis of freshly adduced evidence. As Rothstein J.A. said in Gitxsan Treaty Society v. Hospital Employees' Union, (FCA), [2000] 1 FC 135, at paragraph 15, "the essential purpose of judicial review is the review of decisions" and, I wouldadd, to merely ascertain their legality: see also Offshore Logistics Inc. v. Intl.

Longshoremen's Assoc. 269 (2000), 257 NR 338 (FCA).This is the reason why, barring exceptional circumstances such as bias or jurisdictional questions, which may not appear on the record,the reviewing Court is bound by and limited to the record that was before the judge or the Board. Fairness to the parties and the court ortribunal under review dictates such a limitation. Thus, the very nature of the judicial review proceeding, in itself, precludes a granting ofthe applicant's request.

In addition, there are other reasons, just as compelling, to refuse the applicant's request.” [29] In the present case, the Court is bound by the record that was before the Board and cannot review the decision using Ms.Samuel’s amended proposition. [30] In addition, Ms. Samuel contends that the Board failed to apply the third part of the test in Ward, that is, “former voluntarystatus, unalterable due to its historic permanence”.

In Ward cited above, at para 70, the Supreme Court stated the following: “The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence ofhuman rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers,supra, Cheung, supra, and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possiblecategories: (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 toforsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. 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 historicalintentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.” [31] Ms.

Samuel argues that, since she testified against members of the Cuban Family Gang and could possibly testify againstother members in the future, the very nature of her duty, as a witness, is unalterable due to its historical permanence. [32] In Zhu v Canada (Minister of Citizenship and Immigration), 2001 FCT 1026 at para 8, the Court held that in “Applying Ward,this Court has concluded in the past that persons informing on criminal activity do not form a particular social group within the meaningof the Convention.

See, for example: Serrano v Canada (Minister of Citizenship and Immigration), (FC), [1999] FCJNo 570 (TD) [Serrano]; Suarez v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1036 (TD); Mason v Canada(Secretary of State), [1995] FCJ 815 (TD)”. Citizens who have witnessed a crime must testify. This does not qualify them as members ofa particular social group (see Serrano mentioned above). For this reason, the Court concludes that the Board’s finding, with respect to thefirst issue, is reasonable. 2. Did the Board err in finding that the risk faced by Ms.

Samuel at the hands of the Cuban Family Gang is one that isgeneralized in St.

Vincent? [33] In Prophète v Canada (Minister of Citizenship and Immigration), 2009 FCA 31 at para 7 [Prophète II], the Court of appealstated that “the examination of a claim under subsection 97(1) of the [IRPA] necessitates an individualized inquiry, which is to beconducted on the basis of the evidence adduced by a claimant ‘in the context of a present or prospective risk’ for him (Sanchez v Canada(Minister of Citizenship and Immigration), 2007 FCA 99 , 2007 FCA 99 at paragraph 15)”. [34] In its decision, the Board noted that “while I acknowledge the fact that the Cuban Family Gang has specifically andpersonally targeted the claimant on a number of occasions, I still find, considering this matter within the entire context of the testimonyand the country documents, that the basic genesis and nature of the risk to the claimant is one that nevertheless arose out of, andtherefore is, a type of generalized risk: generalized gang violence in Saint Vincent” (see paragraph 10 of the Board’s decision).

Contraryto what the Board states in its decision, the fact that Ms. Samuel was specifically targeted by members of the Cuban Family Gang isrelevant. The criterion for the assessment of a generalized risk is an individualized inquiry based on the evidence adduced by theclaimant. [35] It was recognized that Ms. Samuel was targeted, on several occasions, in relation with her brother’s long-standing feud withmembers of the Cuban Family Gang. She was targeted once more because she witnessed her brother’s murder.

Further to her testimonyin the criminal trial involving a member of the Cuban Family Gang, she was threatened again on several occasions after she receivedpolice protection. [36] The Board made no credibility findings and appeared to have accepted Ms. Samuel’s testimony as being truthful. Theevidence adduced before the Board shows that Ms. Samuel was targeted, on several occasions and over a lengthy period of time. In theparticular circumstances of this case, the Board’s conclusion in regards of Ms. Samuel’s particularized risk is unreasonable. 3. Did the Board err in determining that Ms.

Samuel had not rebutted the presumption of the availability of adequate stateprotection in St. Vincent? [37] The Board did not err in determining that Ms. Samuel had not rebutted the presumption of the availability of adequate stateprotection in St. Vincent.

[ 38 ] In Carillo v Canada (Minister of Citizenship and Immigration) , 2008 FCA 94 at para 38 , the Federal Court of Appeal answered the certified question as follows: “A refugee who claims that the state protection is inadequate or non-existent bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. The standard of proof applicable is the balance of probabilities and there is no requirement of a higher degree of probability than what that standard usually requires.

As for the quality of the evidence required to rebut the presumption of state protection, the presumption is rebutted by clear and convincing evidence that the state protection is inadequate or non-existent.” [ 39 ] The evidence adduced must not only be clear and convincing but it must also support the basis of the refugee claim. Most of the documentary evidence adduced by Ms. Samuel concerns gender-based persecution, which is not applicable in the present case. As for the alleged police inaction, the facts of the case demonstrate that Ms.

Samuel received police protection while she testified in the criminal prosecution. On several instances, after her testimony, the police responded to her complaints. Ms. Samuel failed to rebut the presumption of the availability of adequate state protection in St. Vincent. [ 40 ] The Court underlines that it is well established that a finding of adequate state protection is fatal to claims under both sections 96 and 97 of the Act. Consequently, the Board’s decision must stand (see Macias v Canada (Minister of Citizenship and Immigration) 2010 FC 598 at para 14 ). VII. Conclusion [ 41 ] Ms.

Samuel failed to rebut the presumption of the availability of adequate state protection in St. Vincent. For this reason alone, this application for judicial review is dismissed. JUDGMENT THIS COURT’S JUDGMENT is that 1. This application for judicial review is dismissed; and 2. There is no question of general importance to certify. "André F.J. Scott" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8293-11 STYLE OF CAUSE: NEKISHA KATDIJAH SAMUEL (A.K.A. NEKISHA KATDIJA SAMUEL) and THE MINISTER OF CITIZENSHIP

AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: June 25, 2012 REASONS FOR JUDGMENT AND JUDGMENT: SCOTT J. DATED: August 7, 2012 APPEARANCES : Pablo Irribarra FOR THE APPLICANT Veronica Cham FOR THE RESPONDENT SOLICITORS OF RECORD : Jordan Battista LLP Toronto , Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT