Tuesday, August 02, 2011

Cruz Pineda—gang violence as particularized risk

Cruz Pineda v. Canada (Citizenship and Immigration), 2011 FC 81 (CanLII)

Judge: Justice Kelen

Date heard: January 12, 2010

Date decided: January 24, 2011

Counsel for Cruz Pineda: Patrick J. Roche

Counsel for Minister: Jane Stewart

Place of Hearing: Toronto, Ontario

The Applicant requested judicial review of the decision of the Refugee Protection Division (RPD) denying the Applicant’s claim for refugee status on the basis of his fear of a gang in his native Honduras (para. 2).

The Applicant worked as a delivery and cash pick-up person for a large grocery chain in Tula, Honduras (para. 3). In January 2006, he and his assistant were attacked by proclaimed members of the Mara Salvatrucha (“MS-13”) gang; the Applicant was beaten and warned off from telling the police, although he did tell his employers (para. 5).

The Applicant quit his job and began working for another company. In June 2007, the Applicant was again attacked on the road by the same men from MS-13; after injuring the Applicant they told him they would spare his life only if he told them about the best trucks to rob (paras. 5-6). The Applicant agreed but instead quit his job and moved, eventually fleeing to Canada (paras. 7-9).

The RPD found that what the applicant feared had no nexus to the Convention as he was a victim of crime (paras. 12-16).

The RPD made comments that the Applicant had been targeted, namely “‘the claimant became personally subjected to the risk of the MS’” (para. 17). However, the RPD then found that the applicant faced generalized, as opposed to personalized risk (para. 19). The RPD also found that the Applicant had an Internal Flight alternative (IFA) (paras. 21-23).

The Court found that the RPD had erred in finding that the Applicant was subject to only a generalized risk, in part because of an expert opinion letter noting that people who are perceived as having crossed or slighted MS-13 were at particular risk (paras. 37-39).

In the same vein, the RPD’s finding of an IFA was unreasonable since the RPD itself recognized that MS-13 operated throughout Honduras, and the same expert evidence was clear that the Applicant would be especially targeted (paras. 40-44).


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