Date: 20030415
Docket: IMM-4514-02
Neutral citation: 2003 FCT 437
Toronto, Ontario, Tuesday, the 15th day of April, 2003
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ANTHONY ALBERT REMEDIOS
SHEEBA ARTHUR REMEDIOS
SHERYL PERPETUAL REMEDIOS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Anthony Albert Remedios, Mrs. Sheeba Arthur Remedios and their daughter, Sheryl Perpeptual Remedios (the "Applicants") came to Canada in July 2000 and claimed Convention refugee status. In a decision dated July 31, 2002, after a hearing before the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), they were found not to be Convention refugees. This is an application for judicial review of that decision.
Background
[2] Mr. Remedios (the "principal Applicant") is a citizen of India. Mrs. Remedios (the "female Applicant"), who has been married to the principal Applicant since 1995, is a citizen of Pakistan. They both worked in the United Arab Emirates ("UAE") as temporary foreign workers. Their daughter Sheryl was born in November 1995 and carries Indian citizenship. The Applicants are Christians.
[3] The principal Applicant claimed a well-founded fear of persecution in India on the grounds that he will be denied the fundamental right to live with his wife. The female Applicant claimed a well-founded fear of persecution on the grounds she will be denied the fundamental right to live with her husband. Their daughter based her claim on that of the principal Applicant and her membership in a particular social group, namely the family.
[4] The Applicants left the UAE for Denver, Colorado in April 2000 for a three month visit with the female Applicant's uncle. It was their intention to seek asylum in the United States. However, they were advised by lawyers that they did not have a good chance of success in the United States and that they had a better chance to succeed with a refugee claim in Canada.
[5] The Applicants' Personal Information Forms ("PIFs") were signed on November 8, 2000 and were prepared with the assistance of their first counsel. In 2002, the Applicants changed counsel and submitted amended PIF narratives in April 2002.
Issues
[6] The Applicants raise the following issue:
1. Did the Board err in law by ignoring the basis of the Applicants' claims that were raised in the evidence and the submissions before it and by basing its decision on irrelevant considerations?
Analysis
[7] For the reasons that follow, I am of the view that this application should be dismissed.
Applicant's Submissions
[8] The Applicants' main submission is that the Board erred in law by not addressing the fundamental issue that was put forward as the basis of the refugee claims (Keerthaponrajah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 627 (T.D.) (QL); Makhlin v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 491 (T.D.) (QL); Singh v. Canada (Secretary of State), [1994] F.C.J. No. 931 (T.D.) (QL)). According to the Applicants, the basis of their claim was that the denial of the right to live with one's spouse and child amounts to persecution within the meaning of the definition of Convention refugee. In the Applicants' submission, the denial of a fundamental human right can be considered to be persecution (Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689), and the denial of one's immediately family by reason of nationality amounts to persecution for a Convention ground.
[9] The remainder of the Applicants' submissions relate to the credibility and factual findings of the Board. While acknowledging that a number of the inferences drawn by the Board were reasonably open to it, the Applicants took specific issue with the inferences drawn due to the differences in the two PIF narratives of the principal Applicant and the finding of the Board that the Applicants were "country shopping".
Failure of the Board to Address the Basis of the Applicants' Claim
[10] The Applicants drew my attention to the description of their claim, set out on the first page of the decision where the Board failed to mention the Applicants' fear of persecution based on the denial of their right to live together as a family. The Board described the claims as follows:
The principal claimant ... bases his claim to a well-founded fear of persecution on the grounds of religion, namely Christianity and membership in a particular social group, namely Indian citizens married to Pakistani nationals. The claimant's spouse ... bases her claim on religion, namely Christianity and membership in a particular social group, namely Pakistani citizens married to Indian nationals. The minor claimant bases her claim on that of the principal claimant and membership in a particular social group, namely, the family.
[11] I do not view this omission as an error in and of itself. The important question is whether the analysis by the Board was sound and its conclusions with respect to its findings and weighing of the evidence were not patently unreasonable.
[12] In order for the Applicants to establish that their right to live together as a family has been violated, they must establish, on a balance of probabilities, that they cannot live together in either India or Pakistan. Only then can the Applicants attempt to establish that this violation constitutes persecution within the definition of Convention refugee.
[13] The Board found no credible evidence to support the Applicants' claims of a well-founded fear of persecution in either India or Pakistan. As a result, the Applicants failed to establish, on a balance of probabilities, that they were unable to live together as a family in either country.
[14] In support of this conclusion, the Board relied on the fact that the female Applicant never attempted to apply for an Indian temporary residence permit, the fact that the documentary evidence did not support the Applicants' claims, the fact that the Applicants left their daughter, an Indian citizen, with her maternal grandmother in Pakistan and the fact that the Applicants' families did not experience any problems in either country because of their religion.
[15] In addition, the Board explicitly addressed the issue of family unification. The Board pointed to the failure of the Applicants to take any serious efforts to regularize their status and noted that the family unification of citizens of different countries and reviews based on humanitarian and compassionate grounds are not part of Canadian refugee law.
[16] Since the Board found no evidence to support the Applicants' claim that their right to live together as a family had been violated, the issue of whether the denial of the right to live with one's spouse and child amounts to persecution within the Convention refugee definition did not arise on the facts of this case. Therefore, it was not necessary for the Board to address this issue and the Board did not err by failing to do so.
The Impossibility for the Female Applicant to Obtain Indian Citizenship
[17] In its decision, the Board found that "it is incumbent upon the individual to apply to the government of the country where they choose to reside. It is not sufficient to come to Canada and say that because I do not have a residence permit for India I am therefore a Convention refugee." The Board also found that the principal Applicant failed to provide a reasonable explanation for his failure to apply for residency for his wife in India.
[18] In the Applicants' submission, the Board misconstrued the evidence related to the possibility for the female Applicant to obtain Indian nationality or citizenship. The only reasonable inference to be drawn from the evidence before the Board was that the female Applicant would not be able to obtain and renew residency permits in order to acquire the requisite five years of residency for Indian citizenship. In addition, the Applicants submit that it was perverse for the Board to conclude they showed a lack of diligence in attempting to obtain Indian residency status given their testimony regarding the problems the female Applicant faced in India due to her Pakistani nationality and Christian faith.
[19] In my view, it was open to the Board to reach the conclusion that it did on this issue. There was documentary evidence before the Board to show that, although foreign nationals do not have the constitutional right to reside and settle in India, there are procedures that are regularly employed whereby a foreign national can apply for a permit to reside in India and, ultimately, Indian citizenship. Applications for residence permits are dealt with on an individual basis and the requirements and procedures for foreign nationals married to Indian nationals are no different from the requirements and procedures for other foreign nationals. Although it was not practical or necessary to apply for a resident permit while the family lived in the UAE, there was no evidence to show that a permit could not be obtained and maintained for the female Applicant if the family returned to India. Submissions by the Applicants on the potential difficulties in this regard were mere speculation, not supported by the documentary evidence.
[20] In addition, the documentary evidence did not support the claim that the government of India persecutes the Pakistani spouses of Indian nationals. As a result, the Applicants' claims that the female Applicant would not be able to obtain or renew temporary residence permits because of her Pakistani nationality was not supported by the evidence before the Board. Moreover, the documentary evidence did not support the Applicants' claim that the female Applicant would have difficulty obtaining and renewing temporary resident permits because of her Christian faith.
Country Shopping
[21] The Board found, on a balance of probabilities, that the Applicants were "country shopping" based on their failure to seek asylum during their three month stay in the United States.
[22] The Applicants submit that the Board erred in law by drawing a negative inference from the fact that the Applicants preferred to claim refugee protection in Canada rather than the United States, without concluding that this indicates a lack of subjective fear.
[23] In my view, the Board did not err by concluding that the Applicants were country shopping. The principal Applicant clearly testified that they had the option of seeking asylum in the United States, but chose not to do so because their chances of success were much greater in Canada. This testimony supports the finding that the Applicants' refugee claims are based on a desire to immigrate to Canada and not on a well-founded fear of persecution.
[24] In any case, even if the Board did err by finding that the Applicants were country shopping, this finding was not a central part of their decision and would not be sufficient to allow this application for judicial review.
Possibility of Persecution in Pakistan
[25] I am of the view that the findings of the Board with respect to the possibility of persecution in Pakistan were based on the evidence before it and were reasonably open to it. These findings were as follows:
· Based on the omission of this story from her original PIF narrative and the discrepancy between her second PIF narrative and her oral testimony, the Board found that the female Applicant fabricated the story of the college students shouting "Christians are spies" and "kill the spies" outside her mother's home in Pakistan. Even if the Board had believed that this incident actually took place, the female Applicant gave evidence of police protection.
· While the treatment of the principal Applicant in Pakistan may have been unpleasant and irritating, it did not amount to persecution.
· The documentary evidence makes no mention of restrictions placed on Indian nationals or on Christians.
· The area where the female Applicant resided, and where her family presently resides, in Pakistan is relatively safe.
· There was no evidence of any persecution of the female Applicant's family in Pakistan.
Possibility of persecution in India
[31] The Board found that the principal Applicant's omission from his PIF narrative of the incident in 1999, when young boys allegedly threw stones at him in India, impugned his credibility.
[32] The Applicant submits that the Applicants offered a reasonable explanation for this omission and that the Board failed to explain why this explanation was rejected.
[33] Even if the Board's reasons for rejecting this explanation were not as clear as they should have been, I do not believe that the single incident of stone throwing would have amounted to persecution. In light of the documentary evidence showing a lack of persecution generally and the balance of the principal Applicant's evidence, this error, if there was one, was not determinative of the claim.
[34] In addition, the Board's conclusion that the Applicants would not face more than a mere possibility of persecution in India was reasonable, based on the following findings:
· Being asked by the police why he did not marry an Indian girl did not amount to persecution.
· The documentary evidence did not reveal that the government of India persecutes the spouses of Indians who hold Pakistani nationality
· The documentary evidence does not support the contention that there is widespread persecution of Christians in India.
[38] Since the Board's factual and credibility findings were open to it based on the record, the issue of whether the denial of the right to live with your spouse and child amounts to persecution within the meaning of the definition of Convention refugee does not arise on the facts of this case. As a result, I need not to address this issue.
Certified Question
[39] The Respondent suggested that the following question be certified in the event that I accepted that the denial of the right to reside together as a family was ground for finding that the Applicants were Convention refugees:
Does the denial of the right to live with your spouse and child amount to persecution within the definition of Convention refugee?
Since this issue does not arise on the facts of this case, there is no need to certify the question.
ORDER
This Court orders that this application for judicial review is dismissed. There is no question for certification.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-4514-02
STYLE OF CAUSE: ANTHONY ALBERT REMEDIOS
SHEEBA ARTHUR REMEDIOS
SHERYL PERPETUAL REMEDIOS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, APRIL 14, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: TUESDAY, APRIL 15, 2003
APPEARANCES BY: Mr. Paul VanderVennen
For the Applicants
Mr. Bradly Gotkin
For the Respondent
SOLICITORS OF RECORD: Paul VanderVennen
Barristers & Solicitors
45 St. Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030415
Docket: IMM-4514-02
BETWEEN:
ANTHONY ALBERT REMEDIOS
SHEEBA ARTHUR REMEDIOS
SHERYL PERPETUAL REMEDIOS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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