Date: 20110131
Docket: IMM-3072-10
Citation: 2011 FC 98
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, January 31, 2011
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
|
|
DORA AGUDIN SOTO
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Immigration and
Refugee Board (IRB), dated May 10, 2010, that the applicant is not a
Convention refugee or a person in need of protection.
[2]
The
application for judicial review will be dismissed for the following reasons.
Facts
[3]
The
applicant is a citizen of Cuba and Spain. She is 79 years
old and suffers from an advanced stage of Alzheimer’s disease. During her
hearing before the IRB, she testified only briefly and a designated
representative ensured her interests. Her son-in-law also testified.
[4]
The
applicant was persecuted in Cuba because of her membership in the family
social group. Her son-in-law is a political activist opposed to the Castro
regime. He left Cuba and was found to be a refugee in Canada in 2002. Since
then, the applicant, who stayed in Cuba, continued to be
harassed, discriminated against, threatened and assaulted; she and her daughter
were publicly identified as traitors to the nation.
[5]
The
applicant left Cuba in February 2007 to claim refugee protection in
Canada.
[6]
The
IRB accepted the evidence on her fear of persecution in Cuba.
[7]
The
determinative issue was therefore whether the applicant had established a
well-founded fear of persecution or a fear under section 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) in Spain.
[8]
The
Board member replied no to this question. The Board member primarily emphasized
that the applicant had not indicated any fear of persecution or danger
mentioned in section 97 in relation to this country. Her son-in-law had testified
that the applicant had no fear in Spain that would be related to her fear in Cuba. Instead, her
fear is the possibility of experiencing psychological and physical
deterioration upon returning to this country that she does not know and in
which she has no family.
[9]
According
to the decision-maker, the fact that the applicant could not receive social
benefits because she has never lived in Spain does not
constitute persecution but the application of a general law.
[10]
The
Board member did not accept the claimant’s counsel’s argument that sections 98 and
99 of the Handbook on Procedures and Criteria for Determining Refugee Status
could apply to her because she could not avail herself of protection in Spain because of
her condition. Instead, the IRB believed that even though her illness is a
circumstance beyond her will, the applicant could be represented, likening her
situation to that of minor children for whom we expect their parents to ask for
protection in their name.
[11]
In
stating that the protection sought must be in connection with a fear
mentioned in sections 96 and 97 of the IRPA, the Board member considered that
she did not have the power to take humanitarian and compassionate
considerations into account in this file.
[12]
Finally,
the IRB stated that people who are citizens of several countries must
demonstrate a well-founded fear of persecution or a risk under section 97.
[13]
The
applicant is of the opinion that questions of law are being raised here and
consequently the standard of review should be that of correctness. However, the
respondent believes that these are questions of mixed fact and law and that the
standard should be that of reasonableness. In any case, whether the Court chooses
the correctness or the reasonableness standard, the reasons at the basis of the
IRB’s decision meet the two standards in question.
[14]
The
relevant provisions can be found in the annex.
[15]
The
applicant emphasizes that she met her burden of proof concerning her fear of
persecution in Cuba and the IRB recognized this at paragraph five
of its decision (Tribunal Record, page 2).
[16]
Therefore,
the issue that remains to be determined is whether she met the provisions of
sections 96 and 97 of the IRPA concerning Spain.
[17]
Firstly, she
submits that she met her burden of proof concerning paragraph 96(a) as
she “is unable” to claim protection from Spain due to her
health condition. The fact that the Board member, at paragraph 11 of her
decision, likened the applicant’s situation to that of minor children is an
error of law. In fact, according to the applicant, anticipating that a legal
representative would claim protection for her is an addition to the text of
paragraph 96(a) of the IRPA.
[18]
Secondly,
based on Canada (Attorney General)
v Ward, [1993]
2 SCR 689, she considers that requiring her to prove a fear of persecution with
respect to Spain is the
second error of law. According to her, in Ward, Justice La Forest decided the
following at page 751:
In
considering the claim of a refugee who enjoys nationality in more than one
country, the Board must investigate whether the claimant is unable or unwilling
to avail him- or herself of the protection of each and every country of
nationality. (Emphasis
added.)
[19]
Justice
La Forest therefore emphasized the word “protection” and
also specified that certain Convention provisions were not repeated in the
legislation at that time, namely with respect to dual nationality: paragraph 2 of
Article 1(A)(2) of the 1951 Convention was never incorporated into the Immigration
Act and is thus not strictly binding; however, it infuses suitable content into
the meaning of “Convention
Refugee” on the
point (Ward, page 751).
[20]
Paragraph
2 of Article 1(A)(2) of the Convention reads as follows:
In the case of a person who has more than one
nationality, the term “the country of his nationality” shall mean each of the
countries of which he is a national, and a person shall not be deemed to be
lacking the protection of the country of his nationality if, without any valid
reason based on a well-founded fear, he has not availed himself of the protection
of one of the countries of which he is a national. (Emphasis added.)
[21]
The
applicant also refers to section 98 of the Handbook on Procedures and
Criteria for Determining Refugee Status, which stipulates the following,
among other things, “Being
unable to avail himself of such protection implies circumstances that are beyond
the will of the person concerned . . .” to
indicate that she cannot receive protection from Spain as this country does not
offer effective protection because of its law on social benefits for people who
have not resided on its soil for a minimum period of five years.
[22]
The
applicant also argues that Schedule I of the Convention recommends that
governments take the necessary measures for the protection of the family of
refugees and in particular for “ensuring that the unity of the refugee’s family
is maintained particularly in cases where the head of the family has fulfilled
the necessary conditions for admission to a particular country”.
[23]
Finally,
the applicant submits that the IRB’s restrictive interpretation of section 97
does not take into account “all the circumstances, including the particular
circumstances of the claimant” as is done for assessing an internal flight
alternative.
[24]
The
respondent argues that the applicant had to demonstrate, under section 96 of
the IRPA, a well-founded fear of persecution in all of her countries of
citizenship before claiming international protection.
[25]
He
cites Williams v Canada (Minister of
Citizenship and Immigration), 2005 FCA 126, [2005] 3 FCR 429, in which
the Court stated the following:
[19] It is common ground between counsel that
refugee protection will be denied where it is shown that an applicant, at the
time of the hearing, is entitled to acquire by mere formalities the citizenship
(or nationality, both words being used interchangeably in this context) of a
particular country with respect to which he has no well-founded fear of
persecution.
[20] This principle flows from a long line of
jurisprudence starting with the decisions of our Court in Canada (Attorney General) v. Ward, [1990] 2 F.C. 667
(C.A.), and in
Canada (Minister of Employment and Immigration) v. Akl (1990), 140 N.R. 323 (F.C.A.), where it was
held that, if an applicant has citizenship in more than one country, he must
demonstrate a well-founded fear of persecution in relation to each country of
citizenship before he can seek asylum in a country of which he is not a
national. Our ruling in Ward was confirmed
by the Supreme Court of Canada (at paragraph 12 of these reasons) and the
principle eventually made its way into the IRPA, section 96 referring to “each
of their countries of nationality”.
[26]
The
same can be said for section 97 of the IRPA; the applicant had to demonstrate a
personalized risk with respect to Spain, which was not done
here as she never alleged a fear of persecution or a risk according to the two
sections, that is, 96 or 97.
[27]
The
respondent also refers to Covarrubias v Canada (Minister of
Citizenship and Immigration), 2006 FCA 365, [2007] 3 FCR 169, at para
41, in which the Court ruled on the following exception set out in subparagraph
97(1)(b)(iv): “not caused by the inability of that country to provide adequate
health or medical care”. The applicant cannot claim protection in Canada because of
her concerns about the lack of social benefits for her in Spain. This does
not constitute persecution under section 96 or 97 of the IRPA.
[28]
The
applicant’s arguments are very clever but unfortunately neither the provisions nor
the case law support them.
[29]
When
the IRB used the analogy of children who can be represented by a legal
representative to claim refugee protection when referring to a legal
representative to represent the applicant, I am not of the opinion that the
Board member supplemented the text in section 96 of the IRPA. In fact, when a
person is unable or considered unable, a legal representative must be appointed.
[30]
With
respect to the argument put forward by the applicant concerning the distinction
between the words “protection” and “persecution”, I believe
that Williams of the Federal Court of Appeal must be followed. The
applicant is suggesting that I not consider this case and instead retain Ward.
[31]
Williams was rendered
after the IRPA came into force. Justice Décary was very clear about applicants
with several nationalities: “A well-founded fear of persecution must
be established in relation to each country of citizenship before asylum can be
sought in another country.” (Emphasis added.)
[32]
That
case is the state of the law today and I do not see how I can depart from this obiter.
Furthermore, I must say that this judicial interpretation is consistent with
the scheme and the object of the IRPA in all respects.
[33]
This
is why it is impossible to find the IRB’s decision incorrect or unreasonable.
There is no reviewable error in the Board member’s interpretation of the
relevant sections of the IRPA and the Handbook.
[34]
The
findings and reasons used to reach it are supported by the evidence.
Intervention by the Court is therefore not appropriate.
[35]
However, I
believe that this file should be treated from the perspective of humanitarian and
compassionate considerations. I am persuaded and even convinced that if an
application like this had been made to the competent authorities, there would have
been no hesitation in accepting it because of the particular circumstances
presented here.
[36]
The
applicant proposes the following questions for certification:
[TRANSLATION]
a.
When a person has dual nationality and it is accepted that this person has a
fear of persecution in one of their countries:
i) Must
this person demonstrate a fear of persecution in their other country of
nationality?
ii) When
it is accepted that the person cannot claim protection in their other country
and that a return to their country could sentence them to begging or a
fast and marked deterioration of health or a premature death, must this
person nevertheless claim protection in their other country of nationality on
their own, or, if unable to, with a representative?
[37]
The
respondent rightly objects to these two questions. Firstly, the case law (Williams)
answered the first question. As for the second question, he notes that nothing
as such has been admitted. I share these observations.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review be
dismissed. No question is certified.
“Michel Beaudry”
Certified
true translation
Janine
Anderson, Translator
ANNEX
Immigration
and Refugee Protection Act (2001,
c. 27)
|
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.
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.
|
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.
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.
|
|
Email this Content