Date: 20110615
Docket: IMM-6954-10
Citation: 2011 FC 702
Toronto, Ontario, June 15,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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JOSE MARIA SERRANO LEMUS
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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 of the Refugee Protection
Board dated October 26, 2010 in which it was determined that the Applicant’s
claim for refugee protection was rejected. I am dismissing this application.
[2]
The
Applicant is an adult male citizen of El Salvador. He, together with his
wife and children sought refugee protection in Canada. His wife
was the principal Applicant, he and the children made claims under his wife’s
principal application.
[3]
The
Applicant’s claim was dismissed on two grounds. The first ground was that of
exclusion under Article 1F of the 1951 Refugee Convention. In this respect the
Refugee Protection Board made a finding that the Applicant was subject to
exclusion. Nonetheless the Board went on to consider whether the Applicant
would be subject to risk under section 97 of the Immigration and Refugee
Protection Act, SC 2000, c.27 as amended (IRPA). In considering the section
97 matter the Board considered not only the Applicant’s claim but also that of
his wife who was the principal Applicant, and the children. The Board concluded
that the risk alleged was generalized and therefore exempted under section
97(1)(b)(ii) of IRPA.
[4]
The
Applicant raises, with respect to the Board’s decision as to exclusion, that
the reasons given by the Board were inadequate. The Applicant argues that this
is a matter of procedural fairness and not a matter of reasonableness. On this
ground, even on a standard of procedural fairness, I find that the reasons
provided are adequate. The Board fairly sets out the relevant facts, it discusses
the relevant law including cases relied upon by Applicant’s Counsel, it fairly
sets out the Applicant’s argument, and clearly states its conclusion. As
directed by the Supreme Court of Canada in Ryan v. Law Society (New Brunswick) [2003] 1
S.C.R. 247 the reasons do withstand “a somewhat probing examination.” I dismiss
the application on this ground.
[5]
The
Applicant raised the issue of section 97 of IRPA which was considered and
determined by the Board against the Applicant as well as against the principal
Applicant, his wife, and his children.
[6]
There
is some jurisprudence to the effect that a Court will consider this issue since
a favourable determination may result in the permanent stay of an Applicant’s
exclusion. However the Federal Court of Appeal in Sing v. Canada (Minister
of Citizenship and Immigration), 2005 FCA 125 held that such consideration
should only be given where an Applicant is a principal Applicant and others claiming
under that application, such as children, might be affected. This is not the
case here. In Sing Malone J.A. for the Court wrote at paragraph 70:
Having determined that the Applications
Judge did not err in finding that the Board's conclusions on the exclusionary
question were reasonable, the adult appellants are excluded from the definition
of Convention refugee. The recent decision of this Court in Xie has determined
that once excluded under Article 1F(b), claimants are not entitled to have
their inclusionary claims determined. However, the present facts are
distinguishable from those in Xie because in this appeal the children's actions
were not subject to Article 1F(b) and their derivative claims must be
determined. Accordingly, it was proper for the Board to proceed to conduct an
inclusionary analysis with respect to all five of the appellants in order to
determine if the children's derivative claims could be successful.
Therefore I will not consider the section
97 issue.
[7]
The
application will be dismissed. Respondent’s Counsel did not request a certified
question. Applicant’s Counsel requested certification directed to consideration
of mitigation in dealing with crimes committed long ago. The facts of this case
do not provide an adequate basis for such certification. The application is
dismissed without certification.
JUDGMENT
FOR THE REASONS provided;
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is dismissed;
2.
No
question is certified;
3.
No
Order as to costs.
"Roger T. Hughes"
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