Monday, November 19, 2012

Portillo—generalized risk and heightened personal risk

Portillo v. Canada (Citizenship and Immigration), 2012 FC 678 (CanLII)

Judge: Justice Gleason; Date heard: March 21 2012; Date decided: June 4, 2012; Counsel for Portillo: Jeffrey Goldman; Counsel for Minister: Charles Jubenville; Place of Hearing: Toronto, Ontario.

The Applicant was a citizen of El Salvador who had been targeted by the Mara Salvatrucha (the MS). The Refugee Protection Division (RPD) found that the Applicant was not being persecuted for a Convention ground, and furthermore:

…With respect to section 97, the Board determined that the applicant “had been identified personally as a target” by the MS (decision at para 34) [emphasis added]; however, despite this finding, the RPD concluded that the risk the applicant faced was a generalized one since gang-related crime is rampant in El Salvador. Because the risk was generalized, the RPD concluded that section 97 of IRPA was inapplicable as paragraph 97(1)(b)(ii) of IRPA provides that those who face risks that would be “faced generally by other individuals in or from that country” cannot be persons in need of protection. (para. 2)

Justice Gleason set out a two-step test for making an analysis under s. 97: first, the RPD must “appropriately determine the nature of the risk faced by the claimant”. She went on to say:

…Many of the cases where the Board’s decisions have been overturned involve determinations by this Court that the Board’s characterization of the nature of the risk faced by the claimant was unreasonable and that the Board erred in conflating a highly individual reason for heightened risk faced by a claimant with a general risk of criminality faced by all or many others in the country. (para. 40)

The second step is to compare “the correctly-described risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree.  If the risk is not the same, then the claimant will be entitled to protection under section 97 of IRPA.” (para. 41).

Justice Gleason found that in this case, the ROD had failed to consider whether the Applicant, who had been identified as a police informant, was at more risk from the MS than the general population (paras. 48-50).

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