Docket: IMM-8496-14
Citation:
2016 FC 402
Ottawa, Ontario, April 11, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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LUIS CARLOS
GALVIN ALVAREZ
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada, rejecting the applicant’s claim
after finding the applicant was neither a Convention refugee nor a person in
need of protection pursuant to sections 96 and 97 of the IRPA respectively.
[2]
For the reasons that follow the application is
dismissed.
I.
Background
[3]
The applicant, Luis Carlos Galvan Alvarez, is a
citizen of Columbia, who fled that country for the United States in February,
2014. He did not seek protection in the United States, his intention being to
come to Canada where his sister resides. He travelled to this country in
August, 2014, claiming refugee protection at the Port of Entry.
[4]
The applicant fled Columbia because of a fear of
violence due to the lack of security perpetuated by the illegal criminal and
paramilitary groups including the Revolutionary Armed Forces of Columbia [FARC]
and the National Liberation Army [ELN]. At the RPD he stated that he fears
future persecution as a result of his profession as a mechanical engineer. He
fears that if returned to Columbia he would be exposed to a real danger of
robbery, extortion and abduction as an engineer.
[5]
The applicant has returned to Colombia, a stay
pending determination of this judicial review application having been denied.
II.
Decision under Review
[6]
The RPD dismissed the applicant’s application,
concluding (1) that he failed to establish a nexus to any of the five
enumerated grounds under section 96, as his fear relating to his status as an
engineer stems from criminal activity in Columbia, not persecution and (2) the
risks identified are generalized in nature rather than personalized risk
pursuant to sub-paragraph 97(1)(b)(ii) of the IRPA.
[7]
In finding no nexus to a Convention ground, the
RPD held that the applicant’s status as an engineer did not place him in a
particular social group based on a former voluntary status, unalterable due to
its historical permanence as interpreted in Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 at para 70 [Ward]. The RPD further concluded the risk
of harm the applicant faced under section 96 is speculative and he did not
establish, on a balance of probabilities, a risk of persecution as an engineer.
[8]
The RPD further held that the applicant’s fear arising out of being an engineer was generalized and he
therefore failed to establish his claim under section 97 of the IRPA. The RPD
found evidence of widespread incidents of extortion, kidnapping and threats in
Columbia reflecting a risk which others generally face in Colombia. Relying on
Justice Danièle Tremblay-Lamer’s decision in Prophète v Canada
(Minister of Citizenship and Immigration), 2008 FC 331 at para 23, 70 Imm
LR (3d) 128, the RPD concluded at paragraph 17 of its decision that: “While some engineers have been targeted by various criminal
organizations in Columbia, all Columbians are at risk of becoming victims of
violence and this does not remove the claimant from the category of generalized
risk.” The RPD further notes that the reasons the applicant might be
targeted are unclear, that crime is pervasive and is a condition faced by all
citizens.
III.
Analysis
[9]
Relying on Ward at paragraph 70, the
applicant argues that in rejecting his claim based on a failure to establish a
nexus to one of the five grounds under section 96 of the IRPA, specifically
membership in a particular social group, associated by a former voluntary
status, unalterable by its historical permanence, the RPD merely articulated a
bald conclusion without supporting reasons. I respectfully disagree. The RPD
decision in this case is, in my opinion rationally rooted in both the facts and
the law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[10]
In seeking protection, the applicant bears the
burden of establishing both subjective and objective fear on a balance of
probabilities (Chan v Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R. 593 at para 120; Ye v Canada (Minister of
Citizenship and Immigration), 2014 FC 1221 at para 15). At the hearing the
RPD and the applicant’s counsel both asked the applicant what he fears and why,
and the applicant responded that he fears extortion and robbery were he to
start a business (Certified Tribunal Record, Volume 2 at pages 484 and 487). In
response to why engineers, as a group, are subject to persecution in Colombia,
the applicant admitted he could only provide an opinion and believes that this
might be related to an engineer’s technical work in specialized areas (Certified
Tribunal Record, Volume 2 at page 487). Further, while the documentary evidence
relied on by the applicant demonstrates that engineers have experienced
criminality in Colombia, that evidence does not demonstrate that these
individuals were persecuted or targeted because they were engineers.
[11]
While I am not prepared to conclude that a
claimant’s status as an engineer could never meet the requirements of
membership in a particular social group for the purposes of section 96 of the
IRPA, the RPD’s finding in this case was not unreasonable. Employment and
occupation has been identified as not ordinarily raising an issue relating to
the themes of human rights and anti-discrimination underpinning international
refugee protection, (Galvan v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 442 at paras 16, 34-35, 193 FTR 161 (TD); Olvera
v Canada (Minister of Citizenship and Immigration), 2012 FC 1048 at para 31,
417 FTR 255; Rios v Canada (Minister of Citizenship and Immigration),
2012 FC 276 at paras 62-67, 9 Imm LR (4th) 88). The applicant failed to
distinguish his situation from these cases.
[12]
In concluding that the applicant had failed to
establish a nexus, the RPD’s reasons are brief. However, the reasons when read
as whole in the context of the record allow the Court to understand why the
decision was made and to determine if the decision falls within the range of
acceptable outcomes (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), [2011] 3 S.C.R. 708 at paras 14-16).
[13]
The applicant’s evidence relating to engineers
demonstrates a fear that engineers, including him, intending to start a
business would be perceived as wealthy and thus targeted for robbery,
kidnapping and extortion. Relying on this evidence, there was a rational basis to
characterize the applicant’s fear as stemming from criminality and not
persecution and to then conclude that the risk he alleged was generalized in
nature for the purposes of sub-paragraph 97(1)(b)(ii) of the IRPA (Saint-Hilaire
v Canada (Minister of Citizenship and Immigration), 2010 FC 178 at paras
17, 20, 185 ACWS (3d) 734).
IV.
Conclusion
[14]
It was reasonable for the RPD to find that the
applicant’s evidence relating to the risk to engineers failed to (1) discharge
the burden of establishing a nexus for the purpose of section 96 and (2) demonstrate
that the groups the applicant fears would target him personally for the purpose
of sub-paragraph 97(1)(b)(ii) of the IRPA.
[15]
In concluding that the RPD’s findings in respect
of nexus and generalized risk are reasonable, I need not address the issues
relating to standard of proof and appreciation of the evidence raised by the
applicant. Mootness was also originally identified as an issue by the
respondent as a result of the applicant’s removal to Colombia. The respondent
subsequently abandoned this issue and in light of my finding on the merits
there is no need to address the question of mootness.
[16]
The parties have not identified a question for
certification.
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