LUIS CARLOS GALVIN ALVAREZ Applicant v. THE MINISTER OF, 2016 FC 402

Date: 20160411 Docket: IMM-8496-14 Citation: 2016 FC 402 Ottawa, Ontario, April 11, 2016 PRESENT: The Honourable Mr.

Justice Gleeson BETWEEN:LUIS CARLOS GALVIN ALVAREZApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC2001, c 27 [IRPA] of a decision of the Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada, rejectingthe applicant’s claim after finding the applicant was neither a Convention refugee nor a person in need of protection pursuant to sections96 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 thiscountry 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 andparamilitary groups including the Revolutionary Armed Forces of Columbia [FARC] and the National Liberation Army [ELN].

At theRPD he stated that he fears future persecution as a result of his profession as a mechanical engineer. He fears that if returned to Columbiahe 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 fiveenumerated grounds under

section 96, as his fear relating to his status as an engineer stems from criminal activity in Columbia, notpersecution and (2) the risks identified are generalized in nature rather than personalized risk pursuant to sub-paragraph 97(1)(b)(ii) ofthe 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 aparticular social group based on a former voluntary status, unalterable due to its historical permanence as interpreted in Canada (AttorneyGeneral) v Ward, (SCC), [1993] 2 SCR 689 at para 70 [Ward]. The RPD further concluded the risk of harm theapplicant 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 toestablish his claim under

section 97 of the IRPA. The RPD found evidence of widespread incidents of extortion, kidnapping and threatsin Columbia reflecting a risk which others generally face in Colombia.

Relying on Justice Danièle Tremblay-Lamer’s decision inProphète v Canada (Minister of Citizenship and Immigration), 2008 FC 331 at para 23, 70 Imm LR (3d) 128, the RPD concluded atparagraph 17 of its decision that: “While some engineers have been targeted by various criminal organizations in Columbia, allColumbians 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 allcitizens. 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 toone of the five grounds under

section 96 of the IRPA, specifically membership in a particular social group, associated by a formervoluntary status, unalterable by its historical permanence, the RPD merely articulated a bald conclusion without supporting reasons. Irespectfully disagree. The RPD decision in this case is, in my opinion rationally rooted in both the facts and the law (Dunsmuir v NewBrunswick, 2008 SCC 9 , [2008] 1 SCR 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), (SCC), [1995] 3 SCR 593 at para 120; Ye vCanada (Minister of Citizenship and Immigration), 2014 FC 1221 at para 15). At the hearing the RPD and the applicant’s counsel bothasked 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 inColombia, the applicant admitted he could only provide an opinion and believes that this might be related to an engineer’s technical workin specialized areas (Certified Tribunal Record, Volume 2 at page 487).

Further, while the documentary evidence relied on by theapplicant demonstrates that engineers have experienced criminality in Colombia, that evidence does not demonstrate that theseindividuals 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 membershipin a particular social group for the purposes of

section 96 of the IRPA, the RPD’s finding in this case was not unreasonable. Employmentand occupation has been identified as not ordinarily raising an issue relating to the themes of human rights and anti-discriminationunderpinning international refugee protection, (Galvan v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 442 at paras16, 34-35, (FC), 193 FTR 161 (TD); Olvera v Canada (Minister of Citizenship and Immigration), 2012 FC 1048 atpara 31, 417 FTR 255; Rios v Canada (Minister of Citizenship and Immigration), 2012 FC 276 at paras 62-67, 9 Imm LR (4th) 88).

Theapplicant 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 readas whole in the context of the record allow the Court to understand why the decision was made and to determine if the decision fallswithin the range of acceptable outcomes (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),2011 SCC 62 , [2011] 3 SCR 708 at paras 14-16). [13] The applicant’s evidence relating to engineers demonstrates a fear that engineers, including him, intending to start a businesswould be perceived as wealthy and thus targeted for robbery, kidnapping and extortion.

Relying on this evidence, there was a rationalbasis to characterize the applicant’s fear as stemming from criminality and not persecution and to then conclude that the risk he allegedwas generalized in nature for the purposes of sub-paragraph 97(1)(b)(ii) of the IRPA (Saint-Hilaire v Canada (Minister of Citizenshipand 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 theburden of establishing a nexus for the purpose of

section 96 and (2) demonstrate that the groups the applicant fears would target himpersonally 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 issuesrelating to standard of proof and appreciation of the evidence raised by the applicant. Mootness was also originally identified as an issueby the respondent as a result of the applicant’s removal to Colombia.

The respondent subsequently abandoned this issue and in light ofmy finding on the merits there is no need to address the question of mootness. [16] The parties have not identified a question for certification. JUDGMENT THIS COURT’S JUDGMENT is that the application is dismissed. No question is certified. "Patrick Gleeson" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-8496-14 STYLE OF CAUSE: LUIS CARLOS GALVAN ALVAREZ v THE MINISTER OF CITIZENSHIP ANDIMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: march 30, 2016

JUDGMENT AND REASONS: GLEESON J. DATED: APRIL 11, 2016 APPEARANCES : Jack Davis For The Applicant Negar Hashemi For The Respondent SOLICITORS OF RECORD : Jack Davis Davis and Grice Barristers and Solicitors Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent