Monday, August 01, 2011

Aguilar Zacarias—gang targeting as particularized risk

Aguilar Zacarias v. Canada (Citizenship and Immigration), 2011 FC 62 (CanLII)

Judge: Justice Noël

Date heard: January 17, 2011

Date decided: January 19, 2011

Counsel for Aguilar Zacarias: Laïla Demirdache

Counsel for Minister: Korinda McLaine

Place of Hearing: Ottawa, Ontario

The applicant was a Guatemalan national who claimed persecution at the hands of the Maras Salvatruchas (MS) gang, and one member of that gang in particular (para. 3). The applicant was a vendor in a market where he and other vendors were being extorted; he and another vendor informed on the gang, leading to one member being arrested but later released (para. 5). Eventually, the other informer was shot in an incident where the applicant was present (para. 6).

The Refugee Protection Division (RPD) found the applicant’s story credible (para. 8) and further found that the applicant’s delay in making a claim while he had a valid temporary workers permit was reasonable on the precedent of Gyawali v Minister of Citizenship and Immigration, 2003 FC 1099 (para. 9). However, the RPD found that the applicant did not have a nexus to a Convention ground (para. 10).

At the Federal Court, the Minister submitted that the risk faced by the applicant was generalized, as criminal and the MS are particularly rampant in Guatemala (para. 12). The applicant argued that he was specifically targeted because of his actions against the gang and his knowledge of the murder his co-informant (para. 13).

Justice Noël relied upon the case of Martinez Pineda v. Canada (Citizenship and Immigration), 2007 FC 365, wherein the applicant was targeted by the same gang in El Salvador (paras. 16-17). He noted that:

As was the case in Martinez Pineda, the Board erred in its decision: it focused on the generalized threat suffered by the population of Guatemala while failing to consider the Applicant’s particular situation. Because the Applicant’s credibility was not in question, the Board had the duty to fully analyse and appreciate the personalized risk faced by the Applicant in order to render a complete analysis of the Applicant’s claim for asylum under section 97 of the IRPA. It appears that the Applicant was not targeted in the same manner as any other vendor in the market: reprisal was sought because he had collaborated with authorities, refused to comply with the gang’s requests and knew of the circumstance of Mr. Vicente’s death. (para. 17)

JUDICIAL REVIEW ALLOWED

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