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Federal Court |
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Cour fédérale |
Docket: IMM-6351-09
Citation: 2010 FC 847
Montréal, Quebec, August 26, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
LISETH DAYANA PELAEZ GARCIA
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a decision dated November 20, 2009, by the Refugee Protection Division of the Immigration and Refugee Board that the applicants are neither Convention refugees nor persons in need of protection pursuant to sections 96 and 97 of the Act.
Factual background
[2] The applicant, Rosa Ines Garcia Garcia, and her daughter, Liseth Dayana Pelaez Garcia, are Colombian citizens. They submit that they left Colombia because they were being persecuted. They arrived in Canada on October 9, 2007, and made their refugee claims the day after they arrived.
[3] The principal applicant alleges that she left Colombia in August 2000, and her daughter left in 2001, to live in the United States illegally in order to flee the civil war in their country.
[4] The applicants allege that they lived in the United States until September 2007. They decided to enter Canada since they were unable to obtain legal status in the United States and feared returning to Colombia because a number of the principal applicant’s nephews, who were members of the Revolutionary Armed Forces of Colombia (FARC), had allegedly been killed.
[5] The applicants allege that they cannot return to Colombia as a result of persecution because of their perceived political opinion and their membership in a particular social group (family). The principal applicant says that she fears the FARC, the paramilitaries and the Colombian army because she had advised her nephews not to join the guerillas. She also fears for her daughter’s safety because she alleges that Colombia is a country where violence and organized crime are rampant.
Impugned decision
[6] The Board rendered a negative decision because it found that the applicants’ lives were not at risk and that they did not have a fear of persecution, since the applicants did not establish that they would be subjected to a risk that would not be encountered by the people living in Colombia. Furthermore, the Board noted that the principal applicant did not relate any events that happened to her personally.
[7] The Board also pointed out that the principal applicant is not able to identify her potential aggressors specifically and that, by default, she is naming all possible groups. Therefore, because the applicants have not been able to show that they were personally the targets of persecution and that a refugee claim cannot be recognized only by family relationship with a persecuted individual, the Board found that there was no serious possibility that they would be persecuted or subjected to a risk to their lives should they return to Colombia.
Relevant statutory provisions
[8] The following provisions of the Act are relevant to these proceedings:
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Convention refugee
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. |
Définition de « réfugié »
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. |
Issue
[9] In this application for judicial review, the issue is whether the Board rendered a decision based on erroneous findings of fact or findings of fact made in a perverse or capricious manner or without regard for the material before it.
Standard of review
[10] Since this is a question of mixed fact and law, this Court stated in Acosta v. Canada (Minister of Citizenship and Immigration), 2009 FC 213, [2009] F.C.J. No. 270 (QL), that deference was owed to the decisions of the courts when they are based on sections 96 and 97 of the Act.
[11] Furthermore, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 53, the Supreme Court of Canada established that when the court undertakes a review of questions where legal and factual issues cannot be readily separated, the reviewing court will be deferential to the decision-maker. Therefore, the applicable standard in this case is “reasonableness”.
Analysis
[12] To determine whether a claimant is a refugee, the subjective fear of persecution in the mind of the claimant and the fact that this fear is well-founded in an objective sense must be assessed, as decided by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, at paragraph 47:
[47] More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.
[13] The Court also notes that while she was in the United States from 2000 to 2007, Rosa Ines Garcia Garcia did not claim refugee status in the United States when she was there, which, in itself, demonstrates a lack of subjective fear.
[14] In this case, the facts lead us to believe that, although the applicant has a subjective fear of persecution given that eight of her nephews were murdered, this fear is not well-founded in an objective sense. In fact, the applicant is not a member of any political party or organization and, as the Board pointed out, she has never been personally threatened. For this reason, the Court could infer that just the family relationship of the applicant as the aunt of her nephews was not enough to show a well‑founded fear of persecution.
[15] As the respondent justly notes, in this case, the concept of family unity is not a valid argument because it “does not relieve a claimant of the onus of demonstrating that he falls within the definition of ‘Convention refugee’ set out in subsection 2(1) of the Act” (Bromberg v. Canada (Minister of Citizenship and Immigration), 2002 FCT 939, [2002] F.C.J. No. 1217).
[16] Furthermore, out of five of the applicant’s immediate family members, one sister and two brothers, one of whom is the father of five nephews who were killed, still live in Colombia. The evidence in the record also demonstrates that the applicant and her daughter do not match the profile of paramilitary targets (Human Rights Watch – Country summary – January 2009 – Respondent’s Supplementary Memorandum – not paginated and Tribunal Record at page 202).
[17] For the reasons given above, the Court finds that the applicant and her daughter did not demonstrate that there was a serious and objective possibility that they would be persecuted and personally subjected to a risk of cruel and unusual treatment should they return to Colombia. Under the circumstances, the panel’s decision is a possible and acceptable outcome (Dunsmuir). Consequently, there is no reason for this Court to intervene.
[18] Since the parties did not submit a question for certification, none will be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed. No question is certified.
Certified true translation
Catherine Jones, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6351-09
STYLE OF CAUSE: ROSA INES GARCIA GARCIA ET AL.
v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 25, 2010
REASONS FOR JUDGMENT: BOIVIN J.
DATED: August 26, 2010
APPEARANCES:
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Stéphane Hébert
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FOR THE APPLICANTS |
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Sylviane Roy
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Stéphane Hébert Montréal, Quebec
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FOR THE APPLICANTS |
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Myles J. Kirvan Deputy Attorney General of Canada Montréal, Quebec
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FOR THE RESPONDENT |