Date: 20100826
Docket:
IMM-6351-09
Citation:
2010 FC 847
Montréal,
Quebec, August 26, 2010
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
ROSA INES GARCIA GARCIA
LISETH DAYANA
PELAEZ GARCIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision dated November 20, 2009, by the Refugee Protection Division of
the Immigration and Refugee Board that the applicants are neither Convention
refugees nor persons in need of protection pursuant to sections 96 and 97
of the Act.
Factual background
[2]
The
applicant, Rosa Ines Garcia Garcia, and her daughter, Liseth Dayana Pelaez
Garcia, are Colombian citizens. They submit that they left Colombia because
they were being persecuted. They arrived in Canada on October 9, 2007, and
made their refugee claims the day after they arrived.
[3]
The
principal applicant alleges that she left Colombia in August 2000, and her
daughter left in 2001, to live in the United States illegally in order to flee
the civil war in their country.
[4]
The
applicants allege that they lived in the United States until September 2007.
They decided to enter Canada since they were unable to obtain legal status in
the United States and feared returning to Colombia because a number of the
principal applicant’s nephews, who were members of the Revolutionary Armed
Forces of Colombia (FARC), had allegedly been killed.
[5]
The
applicants allege that they cannot return to Colombia as a result of
persecution because of their perceived political opinion and their membership
in a particular social group (family). The principal applicant says that she
fears the FARC, the paramilitaries and the Colombian army because she had
advised her nephews not to join the guerillas. She also fears for her daughter’s
safety because she alleges that Colombia is a country where violence and
organized crime are rampant.
Impugned decision
[6]
The Board
rendered a negative decision because it found that the applicants’ lives were
not at risk and that they did not have a fear of persecution, since the
applicants did not establish that they would be subjected to a risk that would
not be encountered by the people living in Colombia. Furthermore, the Board
noted that the principal applicant did not relate any events that happened to
her personally.
[7]
The Board
also pointed out that the principal applicant is not able to identify her
potential aggressors specifically and that, by default, she is naming all
possible groups. Therefore, because the applicants have not been able to show
that they were personally the targets of persecution and that a refugee claim
cannot be recognized only by family relationship with a persecuted individual,
the Board found that there was no serious possibility that they would be
persecuted or subjected to a risk to their lives should they return to
Colombia.
Relevant statutory provisions
[8]
The
following provisions of the Act are relevant to these proceedings:
|
Convention
refugee
96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
Définition
de « réfugié »
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
|
Person
in need of protection
97.
(1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) 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,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Personne
à protéger
97.
(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
Issue
[9]
In
this application for judicial review, the issue is whether the Board rendered a
decision based on erroneous findings of fact or findings of fact made in a
perverse or capricious manner or without regard for the material before it.
Standard of review
[10]
Since
this is a question of mixed fact and law, this Court stated in Acosta v.
Canada (Minister of
Citizenship and Immigration), 2009 FC 213, [2009] F.C.J. No.
270 (QL), that deference was owed to the decisions of the courts when they are
based on sections 96 and 97 of the Act.
[11]
Furthermore,
in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 53,
the Supreme Court of Canada established that when the court undertakes a review
of questions where legal and factual issues cannot be readily separated, the
reviewing court will be deferential to the decision-maker. Therefore, the applicable standard in this case is “reasonableness”.
Analysis
[12]
To
determine whether a claimant is a refugee, the subjective fear of persecution
in the mind of the claimant and the fact that this fear is well-founded in an
objective sense must be assessed, as decided by the Supreme Court of Canada in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993]
S.C.J. No. 74, at paragraph 47:
[47] More
generally, what exactly must a claimant do to establish fear of
persecution? As has been alluded to above, the test is bipartite: (1)
the claimant must subjectively fear persecution; and (2) this fear must be
well-founded in an objective sense. This test was articulated and applied
by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective
component relates to the existence of the fear of persecution in the mind of
the refugee. The objective component requires that the refugee’s fear be
evaluated objectively to determine if there is a valid basis for that fear.
[13]
The Court also notes that while she was in
the United States from 2000 to 2007, Rosa Ines Garcia Garcia did not claim
refugee status in the United States when she was there, which, in itself,
demonstrates a lack of subjective fear.
[14]
In this case, the facts lead us to believe
that, although the applicant has a subjective fear of persecution given that
eight of her nephews were murdered, this fear is not well-founded in an
objective sense. In fact, the applicant is not a member of any political party
or organization and, as the Board pointed out, she has never been personally
threatened. For this reason, the Court could infer that just the family
relationship of the applicant as the aunt of her nephews was not enough to show
a well‑founded fear of persecution.
[15]
As the respondent justly notes, in this case, the concept of
family unity is not a valid argument because it “does not relieve a claimant of
the onus of demonstrating that he falls within the definition of ‘Convention
refugee’ set out in subsection 2(1) of the Act” (Bromberg v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 939, [2002] F.C.J. No. 1217).
[16]
Furthermore,
out of five of the applicant’s immediate family members, one sister and two
brothers, one of whom is the father of five nephews who were killed, still live
in Colombia. The evidence in the record also demonstrates that the applicant
and her daughter do not match the profile of paramilitary targets (Human Rights
Watch – Country summary – January 2009 – Respondent’s Supplementary
Memorandum – not paginated and Tribunal Record at page 202).
[17]
For
the reasons given above, the Court finds that the applicant and her daughter
did not demonstrate that there was a serious and objective possibility that
they would be persecuted and personally subjected to a risk of cruel and
unusual treatment should they return to Colombia. Under the circumstances, the panel’s
decision is a possible and acceptable outcome (Dunsmuir). Consequently,
there is no reason for this Court to intervene.
[18]
Since
the parties did not submit a question for certification, none will be
certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the
application for judicial review is dismissed. No question is
certified.
“Richard
Boivin”
Certified true
translation
Catherine Jones, Translator
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