Date: 20010316
Docket: IMM-1692-00
Ottawa, Ontario, March 16, 2001
Before: Pinard J.
Between:
Odilia Elvira MOALI DE SANCHEZ
Eduviges HEIDINGER KRAUSNAIDE
Jose Raul MOALI HEIDINGER
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on March 9, 2000 that the plaintiffs are not Convention refugees is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010316
Docket: IMM-1692-00
Neutral reference: 2001 FCT 183
Between:
Odilia Elvira MOALI DE SANCHEZ
Eduviges HEIDINGER KRAUSNAIDE
Jose Raul MOALI HEIDINGER
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division ("the RD") on March 9, 2000 that the plaintiffs are not Convention refugees as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The plaintiffs are nationals of Peru. They alleged that they had a well-founded fear of persecution for their supposed political opinions and membership in a particular social group, namely landed proprietors who were victims of extortion in Peru.
[3] The RD did not in any way question the plaintiffs' credibility. It based its rejection on two conclusions. First, it found that the family had not suffered extortion because of its political opinions but rather because of its financial success. It based this conclusion on the following factors:
- the family had never engaged in politics;
- the fact they were subjected to indoctrination speeches did not mean that political opinions should be attributed to them;
- no one in the governmental structure was aware that the Shining Path had tried to dragoon the plaintiffs into supporting their cause;
- the plaintiff Odilia Elvira Moali De Sanchez did not inform the police that she had given anything to the Shining Path; and
- there was never any question that the Government of Peru was the persecuting agent.
[4] Secondly, the RD found that the family had not suffered extortion because of its membership in a particular social group, since landed proprietors (and I assume well-off persons) are not part of a particular social group within the meaning of the Convention.
[5] On the first conclusion, although the tribunal wrongly appeared to require participation by the Peruvian government as a persecuting agent, its other reasons were relevant and sufficient for it reasonably to conclude that the plaintiffs' fear of being persecuted for supposed political opinions was not well-founded. In this particular factual situation, the plaintiffs clearly did not show that they could not get protection from the government.
[6] I also find that the RD's second conclusion is free of error. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada rejected the extended interpretation of the concept of a social group. The status of a landed proprietor does not in any way fall within the "general underlying themes of the defence of human rights and anti-discrimination" (Ward, supra, at 739) and is not a "characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs" (Ward, supra, at 738). The tribunal also referred to Wilcox v. Canada (Minister of Employment and Immigration), November 2, 1993, A-1282-92, in which Reed J. found as follows at para. [3]:
I interpret the Tribunal's decision as finding that there was no evidence that the Peruvian upper middle class is subject to any greater level of (what the Tribunal referred to as) depredation than others in Peruvian society generally. I interpret the Tribunal's decision as finding that the Sendero Luminosa are raining terror on everyone in Peru. While the type of danger which the applicants fear (extortion) may only be operative against the rich, this does not mean that the applicants have been or will be subject to persecution in the convention refugee sense.
[7] For all these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 16, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-1692-00
STYLE OF CAUSE: Odilia Elvira Moali de Sanchez et al.
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 6, 2001
REASONS FOR ORDER BY: Pinard J.
DATED: March 16, 2001
APPEARANCES:
Luciano Mascaro FOR THE PLAINTIFF
Guy Lamb FOR THE DEFENDANT
SOLICITORS OF RECORD:
Arpin, Mascaro et Associés FOR THE PLAINTIFF
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada