Personalized vs. Generalized Risk

From the Big Picture

As the political situations in several Latin American countries worsens, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk.

Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country.

The Federal Court has grappled with how to distinguish between personalized and generalized risk.

Proophete

As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”.  What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population?  In Prophète, for example, Madam Justice Tremblay-Lamer, after much deliberation, determined that s. 97 can be interpreted to include a sub-group within the larger one that faces an even more acute risk.

Definition of Generliazed

Further complicating the issue is that there are varying definitions of what the word “generalized” means.  In Osorio v Canada (Minister of Citizenship and Immigration), 2005 FC 1459, Justice Snider reiterated that there is nothing which requires the Immigration and Refugee Board to interpret the word “generally” as applying to all citizens.  She added: “The word ‘generally’ is commonly used to mean ‘prevalent’ or ‘widespread’. Parliament deliberately chose to include the word ‘generally’ in subsection 97(1)(b)(ii), thereby leaving to the Board the issue of deciding whether a particular group meets the definition. Provided that its conclusion is reasonable, as it is here, I see no need to intervene.

In Baires Sanchez v. Canada (Citizenship and Immigration), Justice Crampton further tightened the screws when he stated that in order to show that a risk is not generalized applicants must establish that the risk of actual or threatened similar violence is not faced generally by other individuals in or from that country, and that applicants must demonstrate that the respective risks that they face are not prevalent or widespread in their respective countries of origin, in the sense of being a risk faced by a significant subset of the population.

A good example of this principle can be found in Duarte v. Canada (Citizenship and Immigration), 2017 FC 500.  There, the Federal Court found that unique ineptitude can constitute a form of personalized risk.

Currently, one of the leading case on the matter is Portillo v Canada (Citizenship and Immigration), 2012 FC 678. There, the Federal Court articulated a two-step test for determining generalized vs. personalized test. The Refugee Protection Division (the “RPD“) must first appropriately determine the nature of the risk faced by the claimant which requires an assessment of whether the claimant faces an ongoing or future risk, what that risk is, whether it is one of cruel and unusual treatment or punishment and the basis for the risk. Second, the correctly described risk faced by the claimant must then be compared to that faced by a significant group in the country at issue to determine whether the risks are of the same nature and degree.  As well, it will typically be the case that where 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.

 

 


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