Docket: IMM-8048-13
Citation:
2014 FC 895
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 18, 2014
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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JEAN PIERRE KENGURUKA
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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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JUDGMENT AND REASONS
[1]
Mr. Kenguruka is a citizen of Burundi of Tutsi ethnicity.
His sworn enemy in Burundi, Senator Pétronie Bagwire, is Hutu. He alleges that
she and her associates resorted to violence to prevent him from possessing and enjoying
the use of a piece of land inherited from his parents. His refugee claim in
Canada was rejected because the property rights claim, although well founded,
does not constitute a basis for a refugee protection claim according to the United
Nations Convention relating to the Status of Refugees and section 96 of the
Immigration and Refugee Protection Act. The panel acknowledged that
there is still ethnic tension in Burundi, but determined that the risk to the applicant
stems from his own efforts with respect to the land that he and his brothers
and sisters inherited. Indeed, his brothers and sisters abandoned their claim
of the said property. Mr. Kenguruka’s two brothers, who are still in Burundi, have not been the subject of any persecution.
[2]
The member of the Refugee Protection Division made
the following finding in paragraph 15 of her reasons:
. . . the panel points out that the right to
private property is not a fundamental right under Canadian law and is of the
opinion that it is not unreasonable to expect the claimant to give up such a
right in order to protect himself.
[3]
It was only after his actions regarding the land
inherited from his parents that he was attacked.
I.
Issues
[4]
Counsel for Mr. Kenguruka argues the following:
a.
The decision under section 96 was simplistic. It
was unreasonable for the panel to find that he was not persecuted by reason of
his race, which, on its own, provides a ground for a refugee protection claim under
section 96 of the IRPA; and
b.
There was no analysis on section 97 of the
IRPA according to which Canada offers protection to people who, on a balance of
evidence, would be personally subject to a danger of torture or a risk to life
or a risk of cruel and unusual treatment or punishment, if they should return
to their country.
[5]
However, counsel for the Minister argues the
following:
a.
the standard of review is reasonableness;
b.
the decision was reasonable; and
c.
the section 97 analysis was implicit in the
panel’s reasons.
II.
Analysis
[6]
It is clear that a property rights claim is not
a basis for a refugee claim under the United Nations Convention relating to
the Status of Refugees and section 96 of the IRPA (Ramirez v Canada
(Solicitor General), 88 FTR 208 at paragraph 12, [1994] FCJ No 1888 (QL); Chen
v Canada (Minister of Citizenship & Immigration), [1995] FCJ No 189
(QL)).
[7]
In light of the record, the panel did not act in
an unreasonable manner when it decided that Mr. Kenguruka would not face persecution
in Burundi if he abandoned his claim to the property that he inherited from his
parents. That finding suggests that if Mr. Kenguruka was not the subject
of persecution, he would also not be personally subject to a danger of torture or
a risk to life or a risk of cruel and unusual treatment or punishment. However,
the panel did not consider whether Mr. Kenguruka would be at risk, within
the meaning of section 97 of the IRPA, if he did not abandon his claim for the
property in question. If Mr. Kenguruka were arguing a right set out in the
Convention and section 96, such as his right to freely practice his
religion, he could not be forced to renounce his religion in order to avoid
persecution.
[8]
As a result, the issue is whether it was
reasonable to conclude that he should give up the legal rights that he claims
to have. Essentially, this is a question of law. Nevertheless, the Supreme
Court has repeatedly stated that the standard of review for decisions of a tribunal
on a question of law relating to its home or a related statute is
reasonableness (Alberta (Information and Privacy Commissioner) v Alberta
Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Smith v Alliance
Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; McLean v British Columbia
(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895).
[9]
However, the presumption that the standard of
review is reasonableness may be rebutted. In Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, the Supreme Court held that the Court on
judicial review must verify whether the jurisprudence satisfactorily establishes
the standard of review. If applicable, has that standard stood the test of time?
[10]
Certain sections of the IRPA have been assessed on
the standard of correctness and others on the standard of reasonableness. See Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR
559; the decision by Chief Justice Crampton in Iao v Canada (Citizenship and Immigration), 2013 FC 1253, 240 ACWS (3d) 710; and Canada (Citizenship and Immigration) v A011, 2013 FC 580. In fact, given that
decisions of this Court cannot be appealed to the Federal Court of Appeal unless
a serious question of general importance is certified, Justice Stratas questioned
the correctness of Agraira in Kanthasamy v Canada (MCI), 2014 FCA
113, 372 DLR (4th) 539.
[11]
Regardless, I conclude that the decision is both
reasonable and correct, and that it is therefore unnecessary for me to rule on
the applicable standard of review. As a result, I will dismiss the application
for judicial review.
III.
Certified question
[12]
Because I was ambivalent before making that
finding, I fully understand that there may be another point of view on this
matter. Even though neither party proposed a question for certification, I
certify the following serious question of general importance to make it
possible for Mr. Kenguruka to seek an appeal:
In
order for a claim under section 97 of the Immigration and Refugee Protection
Act to be allowed, must a claimant first give up a private right to avoid
the risk of torture or death?
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