Date: 20121022
Docket:
IMM-3170-12
Citation: 2012 FC 1228
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, October 22, 2012
PRESENT: The Honourable Mr. Justice
Simon Noël
BETWEEN:
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DIEGO ANTONIO CHAVEZ CARRILLO
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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]
This is an application for judicial review of a
decision by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board, dated March 12, 2012, in which it was determined that Diego
Antonio Chavez Carrillo [the applicant] is neither a Convention refugee as
defined by section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], nor a person in need of protection under
section 97 of the IRPA.
I. The facts
[2]
The applicant is the
son of Olga Lidia Chavez Carrillo [Ms. Chavez Carrillo], who was granted
refugee status in the decision under review.
[3]
Ms. Chavez
Carrillo is a citizen of Guatemala. She joined the Guatemalan army as a
secretary and entered into a relationship with Jorge Vasquez, a senior army
officer, who began to struggle with alcoholism and treat her violently.
Ms. Chavez Carrillo told Jorge Vasquez that she was pregnant in November
2004, and he beat her. She required medical treatment and then deserted the
army and attempted to report Mr. Vasquez. Her attempts were futile, as the
senior army officers told her that it was a domestic affair and that they would
therefore not intervene. The police told her that her problem was within the
military’s purview and that they would therefore not intervene.
[4]
Ms. Chavez
Carrillo arrived in the United States illegally from Guatemala in December 2004
in the early stages of her pregnancy. She gave birth to her child, the
applicant, in July 2005. She arrived with her son in Canada on July 27,
2009, and they applied for refugee protection, as she feared violence at the
hands of her ex-spouse in the event of her return to Guatemala.
II. The decision under review
[5]
The decision maker concluded
that Ms. Chavez Carrillo was a refugee because if she were to return to
Guatemala, she would run the risk of being subjected to further violence at the
hands of Mr. Vasquez. Her ex-spouse is in fact still trying to find her,
especially since Ms. Chavez Carrillo’s attempt to avail herself of state
protection failed. She is therefore subject to persecution in Guatemala as a
member of a social group, that of women.
[6]
The decision maker also
determined that because the applicant has American citizenship, having been
born in the United States, he cannot seek refugee protection in Canada. The decision
maker also noted that no evidence was filed to rebut the presumption of state
protection with respect to the United States. Furthermore, Ms. Chavez
Carrillo did not challenge her child’s American citizenship. The applicant did
not establish that he would be at risk of torture or cruel and unusual
treatment or punishment if he were to return to the United States. The decision
maker therefore concluded that the applicant’s application for refugee
protection must be denied.
III. The applicant’s submissions
[7]
The applicant
acknowledges that he is an American citizen. He submits, however, that if his
mother were to return to the United States with him, she would be deported to
Guatemala, as she has no status there. The result of this will be that the
applicant will be separated from his mother. Moreover, the applicant would find
himself alone in the United States and would therefore become the
responsibility of the American social services system.
[8]
He argues that he is
being asked to make a morally unacceptable choice and that the decision maker
did not take this into account in making his decision. The applicant is being
treated unfairly. The RPD’s decision therefore cannot be upheld because it is
unreasonable.
IV. The respondent’s submissions
[9]
The respondent submits
that the RPD’s decision is reasonable. Because the applicant is an American
citizen, the onus was on him to file valid and credible evidence that the United
States cannot provide him with the protection sought, given the presumption
that a state is able to provide adequate protection to its citizens. The
applicant has the burden of establishing that the United States cannot protect
him. The absence of such proof is fatal to his application for refugee
protection, regardless of the fact that the applicant is a minor.
[10]
The respondent adds
that it is open to Ms. Chavez Carrillo to apply to sponsor the applicant.
V. The issue
[11]
Did the RPD render an
unreasonable decision in granting refugee status to the applicant’s mother
while at the same time denying it to him?
VI. The standard of review
[12]
The applicable standard
of review is reasonableness, as this is a question of mixed fact and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraphs 164–66, [2008] 1 S.C.R. 190).
VII. Analysis
[13]
The applicant is a
minor and is therefore represented by his mother, Ms. Chavez Carrillo, pursuant
to a Federal Court order dated August 17, 2012.
[14]
The applicant’s memorandum
contains succinct arguments and does not provide a detailed explanation as to
why the RPD’s decision is unreasonable. It is therefore not possible for the
Court to make such a finding.
[15]
It is established that
if an applicant has the citizenship or nationality of a country where he or she
has no well-founded fear of persecution, protected person status will be
denied. In this case, the applicant is an American citizen, and no evidence of possible
persecution was filed with respect to the United States. This Court has held on
several occasions that there is no concept of family unity incorporated into
the definition of Convention refugee (see Dawlatly v
Canada (Minister of Citizenship and Immigration),
(1998) 149 FTR 310 at paragraphs 13–15, 1998 CarswellNat 1102 (FC Trial Division); and Williams v
Canada (Minister of Citizenship and Immigration), 2005 FCA 126 at paragraphs 19–20, 253 DLR
(4th) 449 (FCA)).
[16]
The RPD’s decision is
consistent with the case law in such a situation. It can therefore not be
considered unreasonable.
[17]
However, the human
aspect of this case is clear, and it cannot be ignored. At first glance, the
RPD’s decision seems to have as a direct consequence the separation of the
applicant from his mother. In the event of a departure, the mother will have to
choose between allowing her son to leave by himself for the United States and
accompanying him to a country where she does not benefit from any legal status.
[18]
Fortunately, the
solution to this problem can be found in subsection 176(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations]. It provides that “[a]n applicant may include in
their application to remain in Canada as a permanent resident any of their
family members.�? Therefore, when the applicant’s mother
files an application for permanent residence (if she has not already done so),
she will certainly include the applicant as a family member. The mother and her
minor son will surely not be separated merely because he was not granted
refugee status and she was. In the event of such a forced separation, the
mother would have recourse to the appropriate proceedings.
[19]
The parties were
invited to submit a question for certification, but none was submitted.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial
review is dismissed and no question will be certified.
“Simon Noël�?
Certified true
translation
Francie Gow, BCL,
LLB
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