Date:
20120829
Docket:
IMM-817-12
Citation:
2012 FC 1035
Vancouver, British Columbia,
August 29, 2012
PRESENT: THE
CHIEF JUSTICE
BETWEEN:
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ABDUL JAWAD
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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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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
Applicant, Abdul Jawad, and his wife Tabasum Jawad, are citizens of Afghanistan. They claimed refugee protection upon their arrival in Canada in June 2009.
[2]
In
December 2011, the Refugee Protection Division of the Immigration and Refugee
Board of Canada accepted Ms. Jawad’s claim on the basis of her fear of
persecution at the hands of a distant relative (“Usman”). Usman is a former
Taliban commander and currently works in the Afghan government’s intelligence
operations. After Ms. Jawad rejected Usman’s marriage proposal, Usman
threatened to kill her if she ever thought of marrying anyone else and to kill
any prospective suitor. Shortly afterwards, the Jawads secretly got married in
Pakistan and then fled to the United States, where they stayed for a few weeks
before travelling to Canada. Prior to their marriage, the Jawads had been
maintaining a secret relationship over the Internet since they first met in a
restaurant in 2007.
[3]
After
accepting Ms. Jawad’s claim, the Board proceeded to reject Mr. Jawad’s claim,
on the basis that he had not established that he would face a serious
possibility of being persecuted if he were to return to Afghanistan, as
contemplated by section 96 of the Immigration and Refugee Protection Act, SC
2001, c 27 (“IRPA”), or that he would face a risk described
in section 97.
[4]
In
the course of reaching that conclusion, the Board accepted that Mr. Jawad is a
member of the social group consisting of the “family” of him and Ms. Jawad.
However, in the absence of any evidence to the contrary, it appeared to assume
that if he were required to return to Afghanistan, Ms. Jawad would stay in
Canada. It then assessed his claimed risks at the hands of Usman from the
perspective of him returning to Afghanistan without Ms. Jawad.
[5]
Mr.
Jawad submits that the Board erred by assessing his claims on the basis of what
would happen to him if he returned to Afghanistan without his wife, rather than
on the basis of what would happen to him if he and his wife returned to
Afghanistan together.
[6]
I
disagree. For the reasons that follow, this application is dismissed.
The Standard
of Review
[7]
The
parties are not in agreement as to the applicable standard of review. That is
because of the different ways in which they have framed the issue. For Mr.
Jawad, the issue is whether the Board may determine the claims of each member
of a nuclear family on the basis of what would happen to them if they returned
to their home country alone, rather than together. He characterizes this as
being a question of jurisdiction or law that is reviewable on a standard of
correctness.
[8]
For
the Respondent, the issue is whether the Board erred by finding that Mr. Jawad
had failed to establish that he would face more than a mere possibility of a
risk of persecution, as contemplated by section 96 of the IRPA, or that he
would be subjected to a risk described in section 97. The Respondent
characterized this as being a question of fact that is reviewable on a standard
of reasonableness. The Respondent also recognized that the issue could be
stated in terms of whether the Board properly approached its review of joint
claims made by family members. This was also characterized as a question of
mixed fact and law.
[9]
In
my view, the appropriate way in which to characterize the issue in this case is
whether the Board erred in assessing Mr. Jawad’s claim for protection from
the perspective that, if his claim were unsuccessful, he would return home to
Afghanistan without his wife. This is a question of mixed fact and law that is
reviewable on a standard of reasonableness. (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras 51-55 [Dunsmuir]; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339, at paras 46-47; Tomov
v Canada (Minister of Citizenship and Immigration), 2005 FC 1527, at para 4 [Tomov];
Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 181,
at para 16 [Zheng]).
[10]
Contrary
to Mr. Jawad’s assertions, the law’s recognition of the family as a “social
group” that may be entitled to protection under section 96 does not logically
imply that “members of a nuclear family comprised of spouses and minor children
are entitled to have their refugee claims determined on the basis of their fundamental
right to live together.” The law may strive to facilitate family unity in
certain circumstances, such as those contemplated by section 25 of the IRPA and
section 176(1) of the Immigration and Refugee Protection Regulations,
SOR/ 2002-227. However, it does not recognize any such fundamental right for
refugee claimants to live together or require the Board to assess the claims of
family members from the perspective that they will invariably remain together.
[11]
This
is entirely consistent with the absence of the concept of family unity in
section 96 of the IRPA (Castellanos
v Canada (Solicitor General)
(1994), [1995] 2 FC 190 at paras 21-24 [Castellanos]; Addullahi v
Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1433 at paras
14-15; Rafizade v Canada (Minister of Citizenship and Immigration)
(1995), 92 FTR 55 at paras 10-13 [Rafizade]; Musakanda v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1300, at para 24; Cortes
Silva v Canada (Minister of Citizenship and Immigration), 2005 FC 738, at
para 5.)
[12]
I
recognize that spousal members of a family may have a nexus to the grounds of
protection contemplated by section 96 of the IRPA by virtue of the fact that
they have “voluntarily associate[d] for reasons so fundamental to their human
dignity that they should not be forced to forsake the association” (Ward v Canada
(Attorney General),
[1993] 2 S.C.R. 689 at 739). However, it does not follow from that principle that
spouses are entitled to have their refugee claims assessed on the basis of a
hypothetical scenario that may not be supported by the factual matrix
established by the evidence before the Board in a particular case.
[13]
If
that factual matrix establishes that, in the event that a claimant’s
application for protection is accepted and the application of the claimant’s
spouse is rejected, the successful claimant is unlikely to return to his or her
country with the unsuccessful spouse, their separation typically will not be
“forced” upon them by the law. The same is true if that factual matrix is
uncertain, and does not reasonably establish that the successful claimant would
likely return to his or her country of origin in the event that the
spouse’s application is not accepted. In both scenarios, the spouse who was
granted protection will remain free to join the returning spouse.
[14]
As
counsel to Mr. Jawad observed in oral argument, people frequently put
themselves at risk in order to be with other members of a recognized social
group. They may also do so to practice their religion openly or to express
their political opinions. That is their choice, and they are entirely at
liberty in proceedings before the Board to adduce evidence to establish what is
likely to transpire in the event of a negative decision by the Board with
respect to claim made by them or by another member of their family. The Board
will then be obliged to render a decision that is reasonable, having regard to
that evidence and to the other reasonably available options open to them. In
the case of spouses, those options may include temporarily separating while
they pursue avenues for reunification that may be available under the law.
[15]
I
do not accept Mr. Jawad’s assertion that the Board's decision is inconsistent
with past rulings of this Court, which stand for the proposition that persons
who have established a nexus to a ground of protection specified in section 96
of the IRPA and who have established a serious possibility of persecution,
cannot be denied protection on the basis that they could hide, for example, the
fact of their membership in a social group, their religious views or their
political opinions.
[16]
The
Board is not required to assume that the claimant will be at risk simply
because of, for example, his or her religious views, political opinions or
membership in a social group. In each case, the claimant will bear the burden
of establishing a serious possibility being persecuted based on the particular
facts of his or her case. If the evidence before the Board allows the Board to
reasonably conclude that the claimant would not face such a risk of
persecution, for example, because of the manner in which the claimant has
consistently behaved, or chosen to express himself or herself, its decision
will withstand review by this Court.
[17]
That
is precisely what happened in this case. There was no evidence whatsoever
before the Board to suggest that there was a serious possibility that: (i) Mr.
Jawad would behave or express himself in a way that would give rise to a
serious possibility that he would be persecuted, or (ii) others would conduct
themselves in a way that would give rise to such a risk, for example, by
disclosing the fact of his marriage to persons who are unlikely to maintain the
confidentiality of that information. It was therefore reasonably open to the
Board to assume that if Mr. Jawad were to return to Afghanistan alone, he and
the members of his family would continue to maintain the confidentiality of his
marriage, and that therefore he would not face a serious risk of persecution
at the hands of Mr. Usman.
[18]
The
Applicant was not able to identify any authority to support his assertions that
the Board must invariably assume that spouses will remain together and that it
is an error of law if it fails to do so.
[19]
Zheng,
above, does not stand for the proposition that it is invariably a reviewable
error for the Board to conduct its analysis from the perspective that a family
member will return to his or her home country without the other members of
his or her immediate family, in the event of an unsuccessful application for
refugee protection. The Court simply concluded, on the facts of that case, that
it was unreasonable for the Board to have assumed that the applicant would
return to China without her infant child, particularly given that there were no
other family members in Canada who could care for that child in her absence (Zeng,
above, at para 32).
[20]
Tomov,
above, is also distinguishable. There, the Court only concluded that the Board
had erred by failing to consider whether the applicant had a well founded fear of
persecution by reason of his membership in the family of his wife, who was of
Roma ethnicity. That conclusion was reached after the Court observed that the
applicant, who had experienced assaults in Bulgaria because of his relationship
to his wife, was at risk so long as he was in a marital relationship with his
wife. By contrast, in the case at bar, the Board did assess Mr. Jawad’s
claims on the basis that he had established a nexus to a ground of persecution
recognized by section 96 of the IRPA, by virtue of his membership in the social
group that consisted of his immediate family, including his wife.
Analysis
Did the Board err in assessing
Mr. Jawad’s claim for protection from the perspective that, if his claim
were unsuccessful, he would return home to Afghanistan without his wife?
[21]
Before
assessing Mr. Jawad’s claim, the Board assessed his wife's claim. It accepted
her claim, after concluding that Usman would likely search for her and seek
revenge on her for having rejected him. Among other things, it also concluded
that, in her particular set of circumstances: (i) state protection would
not be reasonably forthcoming for her should she require such protection, (ii)
she would not likely be able to live safely in another part of Afghanistan, and
(iii) it would not be reasonable to expect her to relocate in another part of
Afghanistan.
[22]
Turning
to Mr. Jawad’s claim, the Board began by noting that he was not present in Afghanistan when the problems with Usman occurred. The Board then observed that he testified
that he and Usman had never seen each other. It also noted that he and his wife
had testified that, to the best of their knowledge, Usman does not know
that Mr. Jawad is even associated with his wife, let alone married to her. It
later noted that there was no evidence that Usman even suspected that Ms. Jawad
had married Mr. Jawad.
[23]
In
the absence of any evidence to the contrary, the Board found that Mr. Jawad’s
fear that Usman would find out about him and his marriage through relatives who
might reveal the existence of the marriage, was “purely speculative.” In this
regard, the Board noted that the couple and their families had gone to great
lengths to keep their marriage a secret. The Board inferred from this that
family members would know the importance of keeping this information secret and
would not indiscriminately disclose the existence of the marriage to anyone.
[24]
Based
on the foregoing, the Board concluded that there was less than a reasonable
chance that Usman would come into possession of information regarding the
marriage, and that therefore there was less than a reasonable chance that Mr.
Jawad would be persecuted at the hands of Usman, should he return to Afghanistan. It also concluded, on a balance of probabilities, that he would not likely face
a risk described in section 97 of the IRPA.
[25]
After
having reached the foregoing conclusions, the Board stated that it did not
agree with the submission that it would be unreasonable for it to assess Mr.
Jawad’s claim on the basis of an assumption that he would return to Afghanistan
without his wife.
[26]
Based
on the evidence that was before the Board in this case, I am satisfied that the
conclusions reached with respect to Mr. Jawad’s claim were well within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at para
47). In the absence of any evidence to the contrary, it was not unreasonable
for the Board to assume that Ms. Jawad would avail herself of the refugee
protection that she had received and that Mr. Jawad would return to Afghanistan without her if his application for protection was unsuccessful. The Board’s
decision was appropriately justified, intelligible and transparent.
Conclusion
[27]
The
burden was on Mr. Jawad to satisfy the Board that he would face a
serious possibility of being persecuted if he were to return to Afghanistan, or that he would likely face a risk described in section 97 of the IRPA. After
reviewing the relevant evidence, the Board reasonably found that he had failed
to discharge that burden.
[28]
In
meeting his burden, Mr. Jawad was not entitled to expect that the Board would
assess his claims based on the assumption that his wife would return to
Afghanistan with him if his claims were rejected but hers were accepted. On the
contrary, given the evidentiary record, it was reasonably open to the Board to
assume that the couple would not return to Afghanistan together.
[29]
This
application is dismissed.
No question for Certification
[30]
Counsel
to Mr. Jawad proposed a question for certification along the following lines:
For claimants who are spouses and have a nexus to
section 96 of the IRPA through their membership in a particular social
group consisting of their immediate family, can the Board assess their
respective applications on the assumption that the spouses will separate if
only one of them is granted protection?
[31]
In
my view, this is not a serious question of general importance, as contemplated
by paragraph 74(a) of the IRPA and the jurisprudence. This question is premised
upon a scenario in which one spouse is granted refugee protection based on his
or her demonstrated risk and the other spouse will only face risk if he or she
returns with the spouse who was granted protection.
[32]
During
the hearing in this matter, counsel to Mr. Jawad acknowledged that this type of
situation is rare. Moreover, in contrast to certain other types of questions
that have been certified in relation to seldomly encountered situations,
for example in the national security area, the significance of this question
cannot be said to rise to the level of being of general importance.
[33]
In
addition, this has not been a question that has given rise to divergent
approaches in this Court which requires the intervention of the Federal Court
of Appeal.
[34]
Finally,
the Board’s ability to make assumptions that can withstand review will be a
function of the factual matrix in each case. In some cases, it may be
reasonably open to the Board to assume that spouses will separate. In other
cases, it may be unreasonable for the Board to make such an assumption. It will
always depend on the facts of the particular case.
[35]
Accordingly,
I am not prepared to certify the question set forth above. There will be no
question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES THAT this application is dismissed. There
is no question for certification.
“Paul S. Crampton”
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