Gonzalez v. Canada (Minister of Citizenship and Immigration)

Between
Brenda Yojana Gonzalez and Andrea De Los Angeles
Morales, applicants, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 456
2002 FCT 345
Court File No. IMM-1092-01

Federal Court of Canada - Trial Division
Toronto, Ontario
Dawson J.

Heard: March 5, 2002.
Judgment: March 27, 2002.
(26 paras.)

       Aliens and immigration — Admission, refugees — Particular social group defined.

       This was an application by Gonzalez for judicial review of the decision of the Immigration and Refugee Board that she was not a Convention refugee.  Gonzalez, a citizen of Guatemala, claimed that she had a well-founded fear of persecution by reason of her membership in a particular social group, her family.  Her parents were reasonably well-off by Guatemalan standards and she was kidnapped and held for ransom.  She escaped but the kidnappers threatened revenge and harm to her. The Board found that Gonzalez was threatened for a criminal reason and not for one of the grounds set out in the definition of Convention refugee. The Board concluded that Gonzalez, as a member of a family or particular social group, could not be found to be a Convention refugee if the family or the primary target in the family was not targeted for a Convention reason. Gonzalez argued that particular social group was a ground of persecution which stood on its own and did not need to be related to another of the recognized grounds.

       HELD:  Application dismissed.  Family connection by itself did not come within the anti-discrimination objectives of the Convention.  The Board was correct in concluding that Gonzalez, as a member of a family group, could not be found to be a Convention refugee if the family was not targeted for a Convention reason.  The court certified a question.

Statutes, Regulations and Rules Cited:

Immigration Act, R.S.C. 1985, c. I-2, s. 2(1).

Counsel:

Ronald Shacter, for the applicants.
Mary Matthews, for the respondent.                                                                          

REASONS FOR ORDER AND ORDER

1      DAWSON J.:—  Can a refugee claim succeed on the basis of a well-founded fear of persecution for reason of membership in a particular social group that is a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason?  This is the question raised in this application for judicial review of the February 5, 2001 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which found the applicants not to be Convention refugees.

THE FACTS

2      Brenda Yojana Gonzalez is a 24-year-old citizen of Guatemala.  Andrea de los Angeles Morales is her daughter who bases her claim to status as a Convention refugee on her mother's claim.

3      The CRDD found Ms. Gonzalez to be a credible and trustworthy witness.  It accepted her testimony that she lived with her daughter and parents in Escuintla, Guatemala.  Ms. Gonzalez's parents were successful restaurant owners, who were perceived to be reasonably well off by Guatemalan standards. On October 20, 1999, Ms. Gonzalez was kidnapped and held for ransom in an abandoned house in the country, where she was subjected to physical and psychological abuse.  After five days she escaped, and made her way to her parents' home. After her escape, her kidnappers contacted her father, who had not paid the ransom, threatening revenge and harm to Ms. Gonzalez. Fearing for their daughter's safety, Ms. Gonzalez's parents took her to a relative's house in another city, where she remained for a few weeks, and then sent Ms. Gonzalez and her daughter to live with another relative in the United States. After failing to acquire refugee protection in the United States, and fearing deportation back to Guatemala, Ms. Gonzalez and her daughter came to Canada in February, 2000 and claimed status as Convention refugees.

THE CRDD'S DECISION

4      The CRDD found the central issue in the case to be that of nexus, and wrote as follows:

                The determinative issue in this case is that of nexus. Victims of crime, corruption, misuse of official position or personal vendettas, generally cannot establish a link between their fear of persecution and one of the five grounds in the definition.                                                                                                                  

         The agents of persecution are the kidnappers. Their motivation was criminal, to kidnap the claimant and extort a ransom from her parents. The claimant was threatened with harm for a criminal reason and not for reason of one of the grounds of the Convention refugee definition; political opinion, race, religion, nationality, or membership in a particular social group.                                                                                                                       

         Counsel argued that the ground for her kidnapping was her membership in a particular social group, her family. However, the family was not chosen by the criminals for kidnapping and extortion by reason of a Convention ground but because they were perceived as having the means to pay a ransom. The motivation of the persecutors is criminal which is not a Convention ground. The panel finds that the claimant, as a member of a family or particular social group, can not be found to be a Convention refugee if the family or the primary target in the family was not targeted for a Convention reason.      

         The panel finds that there is not a nexus between the harm feared and a Convention ground.         

ANALYSIS

5      The applicants assert that Ms. Gonzalez's nexus to a Convention ground is her membership in a particular social group, namely her immediate family.  It is said that it is her relationship with her parents, with whom she lived and worked, which puts her at risk.  This is said to be an unchangeable characteristic and an appropriate social group within the test articulated by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.

6      The applicants particularly rely upon:  Al-Busaidy v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 26 (F.C.A.) where it is said the applicants' immediate family was considered a social group within the definition contained in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"); Velasquez v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1982 (F.C.T.D.) where it is said the Court found a family to be a "particular social group"; and Rojas v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 296 (F.C.A.) where it is said that the Court found that particular social group was a ground of persecution which stands on its own and need not be related to another of the grounds recognized by the Convention.

7      I begin my analysis by noting that this Court has consistently held that the victims of crime are not by virtue of that fact members of a particular social group.  See, for example:  Rawji v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1773 per Gibson J.; Mason v. Canada (Secretary of State), [1995] F.C.J. No. 815 per Simpson J.; Mousavi-Samani v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1267 per Heald D.J.; Rangel Becerra v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1201 per Pinard J.; and Valderrama v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1125 per Reed J.

8      It is to avoid the application of this case law that the applicants rely on their membership in a particular social group of Ms. Gonzalez's family.  They argue that a well-founded fear of persecution resulting from membership in a family is by itself a valid basis for a claim to status as a Convention refugee.  The reason for the persecution of the other family members is irrelevant.

9      Any consideration of the scope of the term "particular social group" as found in the definition of Convention refugee must begin with the decision of the Supreme Court of Canada in Ward, supra.  There Justice La Forest, writing for the Court, identified a number of basic principles:

i)          International refugee law was meant to serve as a substitute for national protection where that protection was not provided.  Therefore, the definition of Convention refugee contained a number of limitations to reflect that the international community did not intend to offer a haven for all suffering individuals.  Examples of the limitations were the requirement of persecution, and the requirement that the basis of the well-founded fear of persecution be limited to one of the five enumerated grounds.                                                           

ii)         The boundaries of many of the elements of the definition of Convention refugee are set by the preamble to the United Nations Convention Relating to the Status of Refugees which shows that a premise of the Convention was that all human beings should enjoy fundamental rights and freedoms and that counteracting discrimination was a fundamental purpose of the Convention.                                                         

10      Thus, the Court concluded in Ward, at paragraph 70, that:

                The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, supra, Cheung, supra, and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:                                          

(1)               groups defined by an innate or unchangeable characteristic;                     

(2)               groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and                                           

(3)               groups associated by a former voluntary status, unalterable due to its historical permanence.           

         The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.                                                                                     

11      In Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at paragraph 83 Justice La Forest, then writing for the minority, confirmed that the general underlying themes of the defence of human rights and anti-discrimination were to remain the paramount considerations in determining a claimant's membership in a particular social group.

12      Applying those principles, in Klinko v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 561 (F.C.T.D.) Rothstein J., as he then was, concluded that when the primary victim of persecution does not come within the Convention refugee definition, any derivative Convention refugee claim based on family group cannot be sustained.  The opposite conclusion was noted to result in the anomalous situation where derivative claims could be allowed, but the primary claims denied.

13      On appeal, the Court of Appeal declined to address this issue, deciding the case on other grounds, [2000] 3 F.C. 327 at paragraph 38.

14      Subsequently, in Serrano v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 570 (F.C.T.D.) Sharlow J., as she then was, found that family connection is not an attribute requiring Convention protection, in the absence of an underlying Convention ground for the claimed persecution.  Justice Sharlow reached this conclusion on the basis that this result better reflected the objectives of the Convention.

15      I respectfully agree with and adopt the reasoning and the conclusions reached by Justices Rothstein and Sharlow in Klinko and Serrano, supra.  Specifically, I cannot find in the circumstances now before the Court that family connection, by itself, comes within the anti-discrimination objectives of the Convention.

16      To find otherwise would be to conclude that persecutory treatment directed to family members in no way related to discrimination or fundamental human rights would attract the protection of the Convention.  For example, if children were the victims of persecutory conduct as a result of a parent's failure to forego a commercial opportunity or to cheat in a sporting event, I do not believe that it is intended that the Convention should be engaged to protect the children.  That does not mean that protection ought not to be afforded, or that it would not be afforded, but simply that the source of the protection ought not to be the Convention.

17      This interpretation of "particular social group" also avoids the anomaly that Ms. Gonzalez's parents, as the victims of crime, can not claim the protection of the Convention, but Ms. Gonzalez could, solely because of the relationship with her parents.  It avoids the further anomaly that Ms. Gonzalez can not claim status as a Convention refugee on the basis of her ordeal as a kidnap victim, but could do so as the daughter of the recipient of the ransom demand.

18      To the extent that the applicants rely upon cases such as Al-Busaidy, supra, I note that in that case counsel for the Minister had conceded that the applicant's immediate family was a social group within the definition of Convention refugee.  Therefore, the issue was not considered by the Court. As well, as noted by Justice Sharlow in Serrano, supra, the facts were capable of supporting an inference that the principal family member, Mr. Al-Busaidy's father, might have had a refugee claim that could have supported a derivative claim by the son.

19      In Velasquez, the ratio of the case was that the CRDD failed to address the issue as to whether the actions against the applicant were linked to a Convention ground; the issue now before the Court was not squarely addressed by the Court.

20      In Rojas, supra, the comment relied upon by the applicants in the present case that particular social group is a ground of persecution which stands on its own, was obiter. The Court's decision was based on its conclusions as to political opinion and state protection.

21      It follows from these reasons that the CRDD was correct, in my view, in concluding that Ms. Gonzalez, as a member of a family group, cannot be found to be a Convention refugee if the family was not targeted for a Convention reason.  The application for judicial review will therefore be dismissed.

22      Counsel for the applicants requested certification of the following question which was certified in Serrano:

23      No appeal was taken in Serrano, notwithstanding certification of the question.

24      The respondent took no position with respect to certification.

25      In view of the jurisprudence relied upon by the applicants, the certification of the question in Serrano, the comments of the Court of Appeal in Klinko, supra, with respect to derivative claims, and what I view to be the importance of the issue, the question will be certified.

ORDER

 26      IT IS HEREBY ORDERED THAT:

1.                The application for judicial review is dismissed.                                       

2.                The following question is certified:                                                           

                   Can a refugee claim succeed on the basis of a well founded fear of persecution for reason of membership in a particular social group that is a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason?                                                                        

DAWSON J.