Saturday, September 22, 2012

Olvera-Personal risk

Olvera v. Canada (Citizenship and Immigration), 2012 FC 1048 (CanLII)

Judge: Justice Shore; Date heard: August 29, 2012; Date decided: August 31, 2012; Counsel for Olvera: Nico G.J. Breed; Counsel for Minister: Rick Garvin; Place of Hearing: Calgary, Alberta.

The Applicants were citizens of Mexico who were menaced by the Los Zetas gang for extortion. He could not receive help from the police or the PGR. The state human rights commission agreed that the state had to protect him, but that they lacked the resources to do so. The Applicants therefore fled.

The RPD found that there was no nexus to the Convention because the fact that the principal Applicant owned a business did not put him in a particular social group, and that his complaints to the police and human rights commission did not mean that he was targeted for expressing a “political opinions”. Justice Shore upheld these findings.

However, Justice Shore overturned the decision on the basis of generalized risk. He noted that “The jurisprudence is less settled, however, on whether persons personally targeted by criminal gangs face a generalized risk” (para. 37).

Justice Shore relied on the decision of Justice Gleason in Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678:

[38] In the Portillo decision, above, Justice Gleason held that it was unreasonable to find that an applicant, who had been personally threatened by a criminal gang, faced a risk of general criminality simply because criminal gang violence was rampant in the applicant’s country of origin. “It is simply untenable,” she wrote, “for the two statements of the Board to coexist: if an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.” Such an approach, Justice Gleason held would strain section 97 of the IRPA to the point of irrelevance: “If the Board’s reasoning is correct, it is unlikely that there would ever be a situation in which this section would provide for crime-related risks” (at para 36).

[39] Justice Gleason proposed the following test for determining the nature of the risk faced by an applicant. Firstly, one must assess whether the claimant “faces an ongoing or future risk ... what the risk is, whether such risk is one of cruel and unusual treatment or punishment and the basis for the risk” (at para 40). Secondly, the risk faced by the claimant must be compared to “that faced by a significant group in the country to determine whether the risks are of the same nature and degree” (at para 41).

On the case before him, Justice Shore noted in particular: “It is irrational for the Board to accept the principal Applicant’s allegations that he was specifically targeted by the Los Zetas and, yet, conclude that his particular risk was faced generally by other Mexicans” (para. 41).

1 comment:

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