Espinoza v. Canada (Minister of Citizenship and Immigration) (T.D.) [1999] 3 F.C. 73
Date: 19990322
Docket: IMM-4185-98
BETWEEN:
OSCAR FRANCISCO ANAYA ESPINOZA
MARYEL ANAYA SERRANO
OSCAR SALVADOR ANAYA SERRANO
LUIS FRANCISCO ANAYA SERRANO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
INTRODUCTION
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division, dated July 4, 1998 whereby the applicants were found not to be Convention refugees. The applicants seek an order of certiorari quashing the decision of the Commission and an order remitting the matter back for reconsideration.
FACTS
[2] The applicant (hereinafter the applicant) Oscar Francisco Anaya Espinoza, is a citizen of El Salvador who married a citizen of Mexico in Mexico in 1981. They have three children referred to hereafter as the "minor applicants". The applicant arrived in Canada on March 12, 1997, his wife and children arrived on April 5, 1997. After their arrival, they all claimed refugee status.
[3] The applicant deposed by way of affidavit at the commencement of the refugee hearing that he claimed a fear of persecution in El Salvador and Mexico and that his wife and children feared persecution in Mexico only. The Board"s decision, however, states that the minor applicants alleged a fear of persecution in both El Salvador and Mexico.
[4] The applicant was married and resided in Mexico since 1981. They all claimed a fear of persecution in Mexico on the basis of perceived political opinions. The applicant who is originally from El Salvador also claimed a fear of persecution in El Salvador on the basis of membership in a particular social group, Salvadorians returning home from another country.
Refugee Division"s decision
[5] The hearing was held by a single member panel with the consent of the applicants. The Board found that the applicant and his children did not have a well-founded fear of persecution in El Salvador and held that they were not Convention refugees. The Board found that the applicant"s wife had a well-founded fear in Mexico and was determined to be a Convention refugee.
[6] The Board found that the children were born in Mexico and held Mexican passports, but also found that the children were eligible for citizenship in El Salvador. Consequently, it was held that they had more than one country of nationality: Mexico and El Salvador.
[7] On the basis that the children were nationals of El Salvador, the Board found that there was no evidence adduced by the applicant to support his claim that he and the children had a well-founded fear of persecution in El Salvador. The applicant"s allegations that Salvadorians who return home from a foreign country suffered consequences were unsubstantiated. The Board noted that the applicant was unable to state who would harm him or his family if they returned home. Their claims were consequently rejected.
[8] Counsel for the applicant, in his oral submission, made little or no mention that the Board erred in finding that the applicant and his children would not be subject to persecution in El Salvador.
SUBMISSIONS
Applicants"submissions
[9] The applicant submits three arguments. Firstly, it is argued that the Board breached principles of natural justice by failing to advise and to ensure that the applicant and his wife understood that they could chose between themselves who would be the designated representative for the minor applicants, and what were the legal ramifications from such a designation. Without such knowledge, the applicant agreed to act as the children"s designated representative with the consequence that the children, who only claimed a fear of persecution in Mexico as with their mother whose claim was granted, were found not to be Convention refugees because they did not have a well-founded fear of persecution in El Salvador.
[10] Secondly, counsel for the applicant argues that the Board erred in finding that the minor applicants were nationals of El Savador. The panel based its finding on excerpts from the Salvadorian Constitution which indicates that the children had the right to Salvadorian citizenship. The Board did not inquire or have any evidence before it indicating that the children could in fact obtain Salvadorian citizenship. It is submitted that the Board erred in failing to consider whether there were obstacles or steps which could prevent the children from obtaining citizenship. The Board drew an unreasonable inference unsupported by the evidence that the children"s country of nationality was El Salvador.
[11] Thirdly, the applicant argues that the Board failed to undertake an analysis of whether the applicant and his children had a well-founded fear of persecution in Mexico, one of their countries of nationality. In light of the applicant"s fear in more than one country of nationality, the Board had a duty to consider their claim with respect to each country.
Respondent"s submissions
[12] The Respondent Minister submits that the Board did not breach a principle of natural justice. Firstly, the applicant had already signed the children"s personal information forms and undertook to act as their representative prior to the commencement of the hearing. Secondly, when the Board asked the applicant whether he wished to be the designated representative for his children, he could have easily inquired about what was meant by "designated representative". Thirdly, given the applicant"s acceptance to act as designated representative and the fact that he did not indicate any lack of understanding, the Board did not commit a reviewable error in allowing the applicant to assume this role, particularly in light of the fact that the applicant was represented by counsel at the hearing.
[13] The Minister argues that the Board has jurisdiction to make findings of fact, weigh the evidence and draw reasonable inferences and conclusions based upon documentary evidence. In the present case, it was open and reasonable for the Board to conclude that the minor applicants are nationals of El Salvador in light of the fact that the Political Constitution of the Republic of El Salvador stipulates that children are Salvadorian by birth.
[14] Also, it is argued that the Board did not err in disregarding whether the applicants had a well-founded fear of persecution in Mexico. The Board considered the subjective fear in El Salvador and considered whether the subjective fear was objectively linked to the definition. Because the subjective fear was not grounded in the definition of Convention refugee, there was no reasonable chance that the applicants would be persecuted if returned to El Salvador. As there was no well-founded fear of persecution in El Salvador, there was no need to assess the applicant"s fear in Mexico.
ISSUES
[15] The applicants raise the following issues:
| a) Whether the Immigration and Refugee Board erred in law by failing to advise the principal applicant of the meaning and purpose of being named the designated representative of the minor applicants for their refugee hearing; |
| b) Whether the Board erred in law in determining that the minor applicant were citizens of El Salvador and could return to that Country, without considering whether they had a process to obtain citizenship that they were to follow and whether such citizenship would, in fact, be forthcoming; and |
| c) Whether the Board erred in law in failing to make a determination whether the principal applicant and the minor applicants had a well founded fear of persecution in Mexico. |
ANALYSIS
Designated representative for the minor Applicants
[16] The designation of representatives for minor children at CRDD hearings is made pursuant to subsection 69(4) of the Immigration Act which reads as follows:
| (4) Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings. (emphasis added) |
(4) La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause. (C"est moi qui souligne) |
[17] Further, the Convention Refugee Determination Division Rules stipulate the following with respect to designated representatives:
| 11. Where counsel of the person concerned believes that the person concerned is under 18 years of age or is unable to appreciate the nature of the proceeding, counsel shall so advise the refugee Division forthwith in writing so that the Refugee Division may decide whether to designate a representative pursuant to subsection 69(4). |
11. Dans le cas où le conseil de l'intéressé croit que ce dernier est âgé de moins de dix-huit ans ou n'est pas en mesure de comprendre la nature de la procédure en cause, il en avise par écrit sans délai la section du statut afin qu'elle décide si elle doit commettre d'office un représentant conformément au paragraphe 69(4) de la Loi. |
[18] The applicant argues that he did not understand the meaning and the legal consequences from being the children"s designated representative and that the Board should have ensured that he did before designating him. Thus, breaching the principles of natural justice.
[19] It is not contested that the applicant was not explained, by either the Board or, I believe, his then counsel as to the meaning and possible consequences of being designated representative to his three minor children.
[20] It is well established that the scope and extent of natural justice and fairness will vary according to the circumstances of each case: Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735. One element of natural justice requires that persons whose rights may be affected be heard before being adversely affected by some action or decision.
[21] Two cases in which the issue of "designated representative" is discussed are: Quinteros v. Canada (Minister of Citizenship and Immigration) (1995) (IMM-3519-93, October 12, 1995) and Ganji v. Canada (Minister of Citizenship and Immigration) (1997) (IMM-3632-96, August 29, 1997).
[22] In Quinteros, supra, the Federal Court considered whether the adjudicator erred by failing to assess whether the minor applicant was able to appreciate the nature of the proceedings before appointing her mother to be her representative. Justice McGillis stated:
| In the decision Kamtapersaud v. M.E.I. (1993), 70 F.T.R. 61 (F.C.T.D.), Rouleau, J. considered subsections 29(4), 30(1) and 33(2) [See Note 2: 33(2) No person may be included in an order under subsection (1) unless the person has been given an opportunity to be heard at an inquiry.] of the Act and concluded as follows: |
| In my view, the combined effect of these provisions imposes a particular duty on an adjudicator with respect to minors under the age of eighteen, who are either the subject of an inquiry or who will be affected by itsoutcome insofar as they may be included in the resulting order. |
| To begin with, the legislation does not permit an adjudicator to merely assume all minors are unable to appreciate the nature of the proceedings. On the contrary, the language used in s. 29(4) requires the adjudicator to enter into an enquiry on that very question in order to make a determination and form an opinion. Clearly the age of the minor in question will play a significant role. Where infants of tender years are involved there may be little doubt with respect to their inability to understand the nature of the proceedings. |
| However, if the minor is of an age which enables her to understand the nature of the proceedings and would permit her to make constructive representations concerning her own interests, her guarantee to representation by counsel as provided for in s. 30(1), and her right to make submissions at the inquiry pursuant to s. 33(2) of the Act is not, in my opinion, satisfied merely by the appointment of a parent or guardian. Although such an appointment may, in some cases, satisfy those statutory requirements, the duty of fairness which rests on an adjudicator in administering the relevant provisions of the Act, requires him or her to make such enquiries as are necessary in order to ensure that this is so. |
| With the greatest of respect, I have reached a different conclusion concerning the interpretation to be accorded to subsection 29(4) of the Act. In my opinion, subsection 29(4) of the Act creates two separate and distinct categories of persons who may be represented by a parent or guardian at an inquiry: any person under the age of eighteen years or any person who, in the opinion of the adjudicator presiding at the inquiry, is unable to appreciate the nature of the proceedings. Nothing in the wording of subsection 29(4) of the Act requires the adjudicator to determine whether a person under the age of eighteen years is unable to appreciate the nature of the proceedings. I am therefore satisfied that the adjudicator did not err in law by failing to determine whether the applicant was unable to appreciate the nature of the proceedings before he appointed her mother to be her representative at the credible basis inquiry. |
[23] In Ganji, supra, Justice Gibson considered, inter alia, whether the CRDD breached the principles of natural justice by failing to consult with the applicant"s designated representative before ordering that she, a 15 year old, testify. Justice Gibson cited Kamtapersaud , supra, with approval and stated:
| In Kamtapersaud v. The Minister of Employment and Immigration [See Note 2 below], Mr. Justice Rouleau appears to have identified the role of a designated representative as the safeguarding of the best interest of, in this case, Sara and Sohel. Guidelines on child refugee claimants issued by the chairperson of the Immigration and Refugee Board after the hearing in this matter but before the date of the decision, go further in a manner that appears to me to make a good deal of common sense. The principal claimant endeavoured to assume her responsibilities. Counsel gave her no support. |
| In Sivaguru v. Canada (Minister of Employment and Immigration), Mr. Justice Stone wrote: |
| With respect, I do not read the Act as permitting a member of the board to embark upon a quest for evidence in the manner which was adopted in this case. Surely, that method of proceeding could only subvert the board's function as an impartial tribunal, regardless of the legitimate concern which appears to have motivated [the CRDD member in question] |
| In Kante v. Canada (Minister of Employment and Immigration) [See Note 4 below], Mr. Justice Nadon wrote: |
| The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution. Consequently an Applicant must come to a hearing with all of the evidence that he is able to offer and that he believes necessary to prove his claim. |
| As a result the Refugee Division should not meddle in the Applicant's attempt to prove his case except where it is necessary to clarify certain facts essential to its understanding. |
| I am satisfied that the CRDD, in this matter, offended against the principles reflected in both of the foregoing quotations. Here, the CRDD seized control of the applicants' case, ordered that Sara, who was unprepared, testify, and itself conducted her examination. And all of the foregoing was done to the clear distress of the principal applicant and without providing her an opportunity to first testify. |
| The principal applicant, as the newly identified designated representative of her children, had a duty to act in the best interest of her children. She was entitled to the support of her counsel but, in the absence of that support, she sought to act directly. She was rebuffed in her efforts. It must have been apparent to members of the CRDD that the course of proceeding that they adopted took the applicants' case completely out of their hands, without any notice and without any support to them from their counsel. I conclude that the CRDD had an obligation in the circumstances, in accordance with its responsibility to act fairly, to ensure that the applicants had an opportunity to meet with their counsel and to reassume control of their case. In the absence of any evidence that the CRDD endeavoured to provide such an opportunity, I conclude that the CRDD breached its duty to the applicants to provide them with a fair hearing and in so doing committed a reviewable error. |
[24] In the case at bar, the circumstances are obviously very different. The applicant merely alleges that he should have been informed of the meaning of being designated as designated representative for the children. However, I find that the Board erred in directing a question which had serious legal ramifications for the applicant who had no knowledge of the procedural aspects of representing his children in a refugee claim.
[25] In my view, subsection 69(4), which require that the Refugee Division designate a representative where a person, whether under eighteen or not, is unable to appreciate the nature of the proceedings, imposes a duty upon the Board to assess whether the person to be designated appreciates the nature of the proceedings. In my view, this is particularly so in the case of designated representative for children given that the outcome of their claim may be contingent upon such designation. Similarly, Justice Rouleau stated in Kamtapersaud, supra, although with respect to a different provision, that an adjudicator has a duty with respect to minors who are either the subject of an inquiry or affected by its outcome insofar as they may be included in the resulting order.
[26] The role of a parent acting as a designated representative for his children is not that of a legal representative. The Board was or should have been aware that the particular facts of this case could have given rise to the possibility that one of the parent"s claim could be rejected, which would affect the outcome of the children"s claim. The children, by virtue of their designated representative, should have been informed that their claim could be affected by the outcome of their designated representative"s claim.
[27] In my view, the lack of knowledge as to what was meant by "designated representative" precluded the children, by virtue of their designated representative, to fully present their claim as best they could. Thus, I am satisfied, the three children, not the applicant, Oscar Francisco Anaya Espinoza, was denied a fair hearing.
[28] Counsel for the Minister submits that the applicant had, prior to the hearing accepted to act for the children by signing their PIF, and that the applicant was represented by legal counsel at the hearing.
[29] It is not enough that persons may be represented by counsel. Section 69.4 clearly states that it is the Board who shall designate a representative for the children and the Board should have addressed the issue to the applicant"s counsel who could have been expected to have knowledge of the legal issues that could flow from such a designation, and in turn inform his clients so they would have the benefit of a fair hearing. What I mean by the above is that it is the responsibility of the Board, before designating a representative to ensure that the representative understands what it is to be a representative and the consequences of being named a representative by the Board.
Minor Applicants"nationality
[30] The Board held that El Salvador and Mexico both were the applicant and the minor applicants"s countries of nationality. In support of its finding the Board considered the documentary evidence which indicates that those born in Mexico, regardless of their parents" nationality are of Mexican nationality. The children were all born in Mexico and the Board accepted Mexico as one of their nationalities. The Board went on to consider that the documentary evidence also indicated that the minor claimants were also eligible to be citizens of El Salvador as their father was a national of El Salvador, and that Salvadorians have the right to enjoy double or multiple nationalities. The Board relied on The Political Constitution of the republic of El Salvador which states that "The following are Salvadorians by birth... (2) Children born of a Salvadorians father or mother, but born in a foreign country."
[31] The applicant submits that the Board erred in failing to inquire and assess whether there were any obstacles or steps which could preclude the children from obtaining Salvadorian citizenship.
[32] Similar issues were discussed in Zdanov v. Canada (Minister of Employment and Immigration) (1994) (IMM-643-93, July 18, 1993) and De Rojas v. Canada (Minister of Citizenship and Immigration) (1997) (IMM-1460-96, January 31, 1997).
[33] In Zdanov, supra, the Federal Court upheld the decision of the Board that the applicant had a right of birth in Russia and that Russia was his country of nationality despite the fact that he had lived in Estonia his entire life. Justice Rouleau stated:
| The Board's decision was based on the fact that they were not satisfied that the applicant had good grounds for fearing persecution in Russia, his country of nationality. Counsel, on behalf of the applicant does not dispute the fact that in order to qualify as a Convention refugee, the applicant must establish his claim with respect to all his countries of nationality, however it was suggested that the Board erred in concluding that he has Russian nationality. It was pointed out that apart from the fact that he was born in Russia, the applicant lived his entire life in Estonia and that he has no family, friends or other ties in Russia. It was submitted that the Law on Citizenship of the R.S.F.S.R. is a confusing and ambiguous statute that was only recently enacted and there is uncertainty as to how it will be applied; that the right to claim a second nationality should not be equated with dual nationality. The applicant himself gave sworn testimony that he was convinced that he could not obtain Russian citizenship and his counsel attempted to explain the difficulties in deciphering the Russian law with respect to citizenship. I was referred to paragraph 89 of the UNHCR Handbook which provides: |
| 89. Where, therefore, an applicant alleges fear of persecution in relation to the country of his nationality, it should be established that he does in fact possess the nationality of that country. There may, however, be uncertainty as to whether a person has a nationality. He may not know himself, or he may wrongly claim to have a particular nationality or to be stateless. Where his nationality cannot be clearly established, his refugee status should be determined in a similar manner to that of a stateless person, i.e. instead of the country of his nationality, the country of his former habitual residence will have to be taken into account. |
| In summary, it was submitted that the applicant's Russian nationality was not "clearly established" and therefore the Board should have assessed his claim with regard only to Estonia, the country of his former habitual residence. |
| At the outset, I am not satisfied that the Russian citizenship act is a confusing and ambiguous statute. Article 12(1)(b) reads: |
| Article 21. Grounds and procedure of acquiring citizenship |
| of the RSFSR |
| 1. Citizenship of the RSFSR is acquired |
| (b) by right of birth; |
| Article 13 provides: |
| Article 13. Acceptance of the citizenship of the RSFSR 1. All citizens of the former USSR who were domiciled in the RSFSR on the day this Act came into force are considered to be citizens of the RSFSR if they do not submit an application to renounce their RSFSR citizenship within the year following this day. |
| I am satisfied that the Board properly interpreted these provisions and came to the proper conclusion; namely that he was a Russian national. |
[34] Similarly, in De Rojas, supra, Justice Gibson considered whether the Board erred in holding that the applicant who was born in Columbia, but lived most of her life in Venezuela, remained a citizen of Columbia and did not have a well-founded fear of persecution in Columbia. Justice Gibson cited Zdanov, supra, with approval and stated:
| The applicant is a citizen of Venezuela. She and her mother were both born in Colombia. The applicant moved to Venezuela at an early age and, following that move and until the events giving rise to her refugee claim, remained a resident of that country. |
| The Tribunal determined the applicant to have a well-founded fear of persecution if she were required to return to Venezuela. The Tribunal went on to determine that the applicant lost her Colombian citizenship when she acquired Venezuelan citizenship but that she had the right to reacquire Colombian citizenship "... upon compliance with requirements that are mere formalities." On the evidence that was before the Tribunal, I am satisfied that this conclusion was reasonably open to it. The Tribunal determined that the applicant faced no serious possibility of persecution should she be required to go to Colombia. |
[35] In light of the similarity between the cases discussed above and the present case, I am unable to find that the Board erred in finding that the applicant and the children were nationals of El Salvador. Given the documentary evidence relied upon by the Board it was open to the Board to conclude as it did.
Fear of persecution in Mexico
[36] The applicant submits that the Board erred in failing to consider his claim and the children"s claim with respect to Mexico. The applicant relies on Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 for the proposition that where a person makes a refugee claim with respect to more than one country, the Board has an obligation to consider it with respect to each country.
[37] This statement must be qualified. In Ward, supra, the Supreme Court found that the Board erred in failing to address the real issue. Having determined that Ward"s life would be in danger should he return to Ireland or to Great Britain, which was not disputed, the Board should have considered Ireland"s and Great Britain"s ability to protect Ward from the danger.
[38] In my view, counsel for the applicant misapprehends the significance of the Supreme Court"s comment in Ward , supra. The relevant excerpt follows:
| The right to apply for the status of permanent resident is but one of several consequences flowing from the characterization of a claimant as a Convention refugee. The Convention refugee also benefits from the right to remain in Canada (s. 4(2.1)), the right not to be deported to the country where the refugee has a well-founded fear of persecution (s. 53(1)) and the right to work while in Canada (s. 19(4)(j) of the Immigration Regulations, 1978, SOR/78-172). None of these provisions requires assurance that the claimant has exhausted his or her search for protection in every country of nationality. The exercise of assessing the claimant's fear in each country of citizenship at the stage of determination of "Convention refugee" status, before conferring these rights on the claimant, accords with the principles underlying international refugee protection. Otherwise, the claimant would benefit from rights granted by a foreign state while home state protection had still been available. The reference to other countries of nationality in s. 46.04 (1)(c) is probably intended as a doublecheck on the refugee's lack of access to national protection, in case of changed circumstances or new revelations, before the significant status of permanent resident is bestowed. As alluded to previously, and as conceded by appellant's counsel to be in error, the Board concluded that it could not make a finding of dual citizenship because there was insufficient evidence to do so. The Board commented, at p. 55, however, that had it . . . concluded that the claimant was also a national of the United Kingdom, the Board would have made a finding that the claimant's life would be in danger from the INLA if he was returned to the United Kingdom. |
| This finding, however, is insufficient for the purposes of the determination that must be made by the Board. It does not address the real issue. The fact that Ward's life will be in danger should he be returned either to Ireland or to Great Britain is not disputed by anyone; the question, rather, is whether Ward can be protected from that danger. The Board never made a finding of fact on the real issue -- the ability of the British to protect Ward. |
[39] The rationale for imposing a duty upon the Board to consider all the countries from which the applicant claims a fear of persecution is to ensure that the claimants do not benefit from rights granted by a foreign state while home state protection is still available, not to bestow additional benefits.
[40] In the present case, the Board found that the applicant and the children did not have a well-founded fear of persecution in El Salvador. Thus, there was no need for the Board to assess whether the Salvadorian State could protect them or whether there existed a well-founded fear of persecution in Mexico or whether the Mexican state could protect them.
[41] The Respondent Minister relies on Dawlatly v. Canada (M.C.I.) (1998), 149 F.T.R. 310, for the proposition that the Board has no obligation to engage in unnecessary analysis. The Minister further submits that as there was no well-founded fear of persecution in El Salvador, there was no need to evaluate the situation in Mexico. Only a well-founded fear of persecution in El Salvador would require the Board to assess claims with respect to Mexico.
[42] In Dawlatly, supra, Madame Justice Tremblay-Lamer states:
| As for their claim against Greece, counsel for the Applicants submitted that the Board had erred in failing to assess the claim per se. Counsel relied on Canada (Attorney General) v. Ward for the proposition that the Board has a duty to hear and assess all claims advanced by a claimant. Therefore, in the case at bar, it was incumbent on the Board to consider the family's claim against Sudan, especially considering that the principal Applicant was himself found to have a well-founded fear of persecution in that country. |
| At the hearing, I expressed a similar concern, thinking that the consequences of the Board's decision were harsh. It could lead to the separation of the family: the female Applicant and her children would be required to return to Greece while her husband remained in Canada. |
| Counsel for the Respondent maintained that no error was made and that the Board was not obligated to assess the family's claim against Sudan since it had already concluded that the wife and children had no fear of persecution in their country of citizenship. Upon reflexion, I have come to agree with the Respondent. |
| The principle established in Ward is that an asylum-seeker must prove that he has a well-founded fear of persecution in all countries of which he is a national before he can be conferred refugee status in Canada. The underlying rational is that if the asylum-seeker can avail himself of the protection of his country of nationality, he is not entitled to the protection of a third state. As stated by La Forest J. in Ward: |
| 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. ... [T]he rationale underlying international refugee protection is to serve as "surrogate" shelter coming into play only upon failure of national support. When available, home state protection is a claimant's sole option. |
| It follows that once the Board determines that a claimant would not be the object of persecution in one of his countries of nationality, it has no obligation to examine his other claims. Thus, given the Ward decision, I conclude that the Board did not err in the case at bar. |
| However, I would like to point out that the decision in Ward does not envisage the awkward situation where the claimant is also a member of the family class. As I previously indicated, the consequences of denying refugee status to the principal Applicant's dependants seems harsh at first glance. But according to the case law, there is no concept of family unity incorporated into the definition of Convention refugee, [See Note 1 below]1 this Court having chosen to adopt a very narrow view of the definition. |
(Emphasis added)
[43] I find, as did Madame Justice Tremblay-Lamer, that there is no need for the Board to consider a person"s claim of persecution with respect to another country where the Board has already found, based on the evidence before it, that the applicant does not have a well-founded claim in a country where returning the applicant does not pose a reasonable possibility of persecution. Such an assessment would be futile. Thus, the Board did not err in not considering the applicant"s and the children"s claim with respect to Mexico.
CONCLUSION
[44] I allow the application for judicial review for the applicants Maryel Anaya Serrano, Oscar Salvador Anaya Serrano and Luis Francisco Anaya Serrano on the basis that the Board erred in proceeding to designate the applicant as the children"s representative without regard to whether the applicant or the children understood the legal meaning of such a designation with respect to the outcome of the children"s refugee claim.
[45] The lack of knowledge as to what was meant by "designated representative" precluded the children, by virtue of their designated representative, to fully answer the case against them and to present their claim as best they could. Thus depriving them of a fair hearing.
[46] I dismiss the judicial review application insofar as it relates to the applicant, Oscar Francisco Anaya Espinoza.
[47] The matter for the children is returned for a new hearing before a differently constituted Board which Board shall, pursuant to subsection 69(4) of the Immigration Act, designate a representative, if still required, to all or some of the children and to ensure the designated representative, as well as the children, if possible, understand the meaning of the process.
QUESTION TO BE CERTIFIED
[48] Pursuant to subsection 83(1), a judgment of the Federal Court, Trial Division, on an application for judicial review may be appealed to the Federal Court of Appeal if the Trial Division judge certified that a serious question of general importance is involved and has stated that question.
[49] Counsel for the applicants asks that the following question be certified:
| Whether the Refugee Determination Division of the Immigration and Refugee Board, before proceeding with a refugee claim, has a duty to ensure that, in compliance with Section 69(4) of The Immigration Act, the designated representative and, any minor claimants concerned therein, or a person who in the opinion of the Division is unable to appreciate the nature of the proceedings, fully understand the meaning of being or having a designated representative, and the consequences that could follow therefrom. |
[50] Counsel for the respondent opposes certification on the ground the question raises no question of general importance.
[51] The respondent has not filed a question for certification.
[52] In that I have found that the Board does have an obligation to explain to the designated representative the meaning and legal consequences of being a designated representative, I see no need to certify the above question.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
March 22, 1999
__________________1 Nadon J. in Casetellanos v. Canada (Solicitor General) (T.D.), [1995] 2 F.C. 190 (T.D.) stated at 199-201: "The principle of family unity requires that persons granted refugee status should not be separated from their closest family members, particularly when a situation of dependency exists; it is a principle of togetherness. ... The definition of Convention refugee to which Canada subscribes by virtue of its being a signatory to the United Nations Convention Relating to the Status of Refugees (Geneva, July 28, 1951), [1969] Can T.S. No. 6, does not incorporate the concept of family unity. ... It is quite plain that there is no mention of family unity in the current definition. Therefore, in order to apply the principle of family unity in the case at bar, I would have to extend the definition of Convention refugee. There is no justification for doing so".