Docket: IMM-5035-11
Citation: 2012 FC 270
Toronto, Ontario, February 27,
2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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OSSEL O'BRIAN FORBES
ERICA MICHELLE FORBES NEE
APPLETON
(A.K.A. ERICA MICHELLE
FORBES)
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Applicants
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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
Applicants are husband and wife, both citizens of Jamaica. The husband
came to Canada in 2006, the
wife in 2008; both claimed for refugee protection. That claim was rejected by a
decision of a Member of the Refugee Protection Division, Immigration and
Refugee Board of Canada dated July 5, 2011. The Applicants seek judicial review
of that decision and to set it aside. I am dismissing this application.
[2]
The
Applicants’ claim for refugee protection is based essentially on allegations
that a relative known as Desmond living nearby in Jamaica has made
several threats of harm against them arising out of a dispute as to ownership
of some land. The Applicants characterized it as a family feud in their
evidence before the Board. The Board considered their claim under both sections
96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27
(IRPA) and rejected their claim under both sections. Counsel are agreed that
the standard of review is reasonableness.
[3]
In
respect of section 96, the Board found that the Applicants had failed to
establish a link between their fear and one of the Convention grounds. In
respect of the section 97 issue the Board found that, on a balance of
probabilities, neither of the claimants would be subject to a risk of life, or
a risk of cruel and unusual treatment or punishment, or a danger of torture
having regard to Desmond. While the Board’s reasons are brief, I am satisfied
that the reasons are adequate having regard to the criteria set out by the
Supreme Court of Canada in Newfoundland and Labrador Nurses Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
[4]
As
to section 96, Applicants’ Counsel argued that the Applicants were members of a
particular social group; namely, a “family”. Simply because the Applicants
comprise a family does not, as such, mean that they are members of a particular
social group as defined by section 96 of IRPA. This was addressed by Justice
Sharlow (as she then was) in Serrano v Canada (Minister of
Citizenship and Immigration), 166 FTR 227, 1999 Can LII 7997 (FC) at
paragraphs 40 to 42:
40 In the absence of binding
authority on this point, it is necessary to return to the principles in Ward to
determine whether "family" is a stand-alone category of
"particular social group" as counsel for the applicants argues, or
merely a derivative of some other recognized category as the respondent argues.
41 Ward says that "particular
social group" is a generic category that can be expanded to include groups
that are not expressly mentioned in the Convention, but cannot be expanded
beyond what is needed to reflect "the underlying themes of the defence of
human rights and anti-discrimination that form the basis for the international
refugee protection initiative" (Ward, per La Forest J. at page 739).
42 The applicant is asking me to hold
that everyone who fears persecution solely because of a family connection may
be entitled to the protection of the Convention. I think that would stretch the
category of "particular social group" far beyond its proper limits. I
do not accept that family connection is an attribute requiring Convention
protection, in the absence of an underlying Convention ground for the claimed
persecution. I conclude that in the context of the facts of this case, the
respondent's position is a better reflection of the objectives of the
Convention than the applicants' position.
[5]
Justice
Snider addressed the same issue in S.M. v Canada (Minister of
Citizenship and Immigration), 2011 FC 949 at paragraph 11:
11 Merely being a family member of
someone who has been the victim of crime does not mean that there is a nexus to
a Convention ground. As explained in Rivaldo Escorcia v Canada (Citizenship and
Immigration), 2007 FC 644, at paragraph 39,
Saying, however, that a claim is not
extinguished does not relieve non-excluded family members from putting forward
evidence that supports their claim. The jurisprudence of this Court has found
that persecution against one family member does not automatically entitle all
other family members to be considered refugees (see Pour-Shariati v. Canada (The Minister of Employment
and Immigration) (1997), 215 N.R. 174 (F.C.A.), 39 Imm. L.R. (2d) 103; Marinova
v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 178, 103 A.C.W.S. (3d) 1198). In Granada v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1766, 136 A.C.W.S. (3d) 123,
[2004] F.C.J. No. 2164 (F.C.) (QL), a similar case of a family claiming their
refugee status dependent upon a family member's fear of persecution against the
FARC, the Court stated at para. 16:
The family can only be considered to be a
social group in cases where there is evidence that the persecution is taking
place against the family members as a social group: Al-Busaidy v. Canada
(Minister of Employment and Immigration) (1992), 139 N.R. 208 (F.C.A.);
Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (F.C.T.D.); Addullahi
v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 150;
Lakatos v. Canada (Minister of Citizenship and Immigration), 2001 FCT 408,
[2001] F.C.J. No. 657 (F.C.T.D.) (QL). However, membership in the social group
formed by the family is not without limits, it requires some proof that the
family in question is itself, as a group, the subject of reprisals and
vengeance or, in other words, that the applicants are targeted and marked
simply because they are members of the family even though they themselves have
never been involved in politics and never will be so involved. (Canada
(Minister of Citizenship and Immigration) v. Bakhshi, [1994] F.C.J. No. 977
(FCA) (QL)).
[Emphasis in original]
[6]
The
Board Member in the present case committed no error in respect of his section
96 analysis. With respect to his section 97 analysis, the decision of the
Member is reasonable and falls within the boundaries of reasonableness as
established by the Supreme Court in Dunsmuir v New Brunswick, [2008] 1
SCR 190 and reiterated in Newfoundland and Labrador Nurses, supra.
[7]
The
application is dismissed. Neither Counsel requested a certified question. There
is no basis for ordering costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is dismissed;
2.
No
question is certified; and
3.
No
Order as to costs.
“Roger
T. Hughes”
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