Date: 20000512
Docket: IMM-6517-98
BETWEEN:
VINCENTE CARHUAPOMA HARTLEY
| Applicant |
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant in this case is seeking judicial review under section 82.1 of the Immigration Act of a determination by the Immigration and Refugee Board (the "panel") that the applicant is not a Convention Refugee. The decision of the panel was communicated to the applicant on November 23, 1998.
[2] The applicant submits that the panel made a number of reviewable errors, the most significant and specific of which is that it:
| Erred in law by failing to deal with in their decision important legal issues raised by the Applicant's counsel during the hearing of the Applicant's Refugee Claim. In particular, the members of the Immigration and Refugee Board erred in failing to find that the Applicant was a member of a particular social group as defined by the Immigration Act based on the fact that the Applicant was imputed by agents of persecution to be a member of a labour union. |
[3] The facts of the applicant's situation are that he is a citizen of Peru who came to Canada to work on a ship owned by a Peruvian company. He and seven other crew members were then involved in a pay dispute with the owners of the vessel and the applicant claims he assumed a leadership role in the dispute, mainly by contacting the International Transportation Federation, an organization that intervened in the dispute and took over negotiations with the vessel owners, and acting as the spokesperson for the crew members. In the course of the dispute, the vessel was arrested. The applicant contended, before the panel, that he was unable to return to Peru because he has a well founded fear of persecution there. He argued that Peru is a country with strong anti-union sentiments and his leadership in the pay dispute would lead to his persecution. The vessel owners are said by the applicant to be very powerful Peruvian business people. It was urged that he had a well founded fear of persecution based on membership in a particular social group because he would be perceived to be associated with a labour union. In its decision, the panel concluded that
| The panel find there is no nexus in this claim. There is no evidence that the claimant was a member of a trade or labour union or any other group other than a ship's company that had not been paid and in which he had assumed a minor advocacy role over unpaid wages. The negotiations with the company were conducted by the I.T.F. Moreover, the panel finds there is no evidence submitted, other than the claimant's testimony, that the ship's owners are in fact rich, powerful and influential persons, who would persecute, or have persecuted, workers' advocates in Peru. Finally, there is no evidence that any of the other returning seamen from the ship in St. John's were persecuted on their return to Peru. |
[4] The applicant submits that he feared persecution because of the perception, right or wrong, that he was a trade unionist or a similar labour activist, and that this argument was advanced before the panel. This issue was not dealt with, that is, whether one can claim refugee status based on a fear of persecution because of the perception on the part of the alleged persecutors of the claimant's membership in a "particular social group", where membership in the group is not established. In my opinion, this was one of the critical issues put before the panel by the applicant, and it was not addressed.
[5] Both the panel, in its reasons, and the applicant, refer to Ward v. Canada (Attorney General)1 where "particular social group" is discussed. There, Mr. Justice La Forest, writing for the Supreme Court of Canada, wrote:
| The meaning assigned of "particular social group" in the [Immigration] 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,2 supra, Cheung,3 supra and Matter of Acosta,4 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 relevant to the anti-discrimination influences, in that one's past is an immutable part of that person. |
[6] In Ward, La Forest J. also refers to political opinion as a basis for persecution. As is being argued by the applicant in this case in relation to "particular social group", La Forest J. found that persecution based on political belief does not necessarily have to reflect the true belief of the claimant, nor does a belief of the claimant have to be expressed overtly:
| While political opinion was raised at a very late stage of the proceedings, the Court has decided to deal with it because this case is one involving human rights and the issue is critical to the case. |
| Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground "that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party"; see Grahl-Madsen,5 supra, at p. 220. The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen's definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real. The more general interpretation of political opinion suggested by Goodwin-Gill,6 supra, at p. 31, i.e., "any opinion on any matter in which the machinery of state, government, and policy may be engaged", reflects more care in embracing situations of this kind. |
| Two refinements must be added to the definition of this category. First, the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant. |
| Second, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution.7 [Emphasis added] |
[7] Particularly relevant for this application for judicial review is that Ward does not require that a person's political beliefs conform to the beliefs ascribed to him or her by the persecutor. Additionally, they do not have to be explicitly stated, but the perception may be based upon the actions of the claimant. Notably, La Forest J. also remarked that it is not incumbent upon the claimant to identify the precise reasons for the persecution, "it is for the examiner to decide whether the Convention definition is met."
[8] When this application for judicial review was heard, it was urged for the respondent that, while persecution based on actual membership in a trade union may provide a basis for finding refugee status in relation to a particular social group,8 perceived membership in a social group has not been found to provide such a basis. Lack of a precedent is no reason to decline to consider whether the claim by an applicant for refugee status falls within the definition of Convention refugee under the Immigration Act.
[9] Natural justice and procedural fairness require the panel to consider the arguments put forward by the claimant. The claimant argued that he was the subject of persecution because of a perception that he was a member of a particular social group. The record indicates that the panel did not address whether perceived membership could give rise to Convention protection, an issue critical to the applicant's claim. Moreover, without making any express finding of lack of credibility in the claimant's evidence, this panel refused to consider its weight in the absence of corroborating evidence. It cannot, without reasons, fail to consider the applicant's testimony.
[10] For the above reasons, the application for judicial review is allowed and the applicant's claim to Convention refugee status is referred back to the I.R.B. for reconsideration by a differently constituted panel. An Order, so providing, is now filed.
[11] The applicant has requested that I certify a question pursuant to subsection 83(1) of the Immigration Act. The question proposed at the hearing was, in essence:
| Whether a refugee claim based on an alleged persecutor's perception of the applicant's membership in a particular social group is included within the definition of "refugee" under the Immigration Act and the Convention. |
[12] I am of the opinion that it is not appropriate, in this case, for the suggested question to be certified. The issue before the Court was not whether perceived social group membership may be a ground for a refugee claim. Rather, the Court had to determine whether the failure of the panel to consider that question warranted an order sending the applicant's claim back for reconsideration. Since the panel did not consider whether the definition included a fear of persecution on the basis of the alleged persecutor's perception of the applicant's membership in a particular social group, that issue was not decided and was not before me on judicial review. Consideration by the Court of Appeal under s-s. 83(1) of the Act is to dispose of an appeal, not to deal with issues not dealt with by the panel or the motions judge considering an application for judicial review. In the circumstances of this case it would not be appropriate at this stage to certify the question proposed.
(signed) W. Andrew MacKay
_________________________________
JUDGE
OTTAWA, Ontario
May 12, 2000
__________________1 [1993] 2 S.C.R. 689 at page 739.
2 Referring to Mayers v. Canada (Minister of Employment and Immigration) (1992), 97 D.L.R. (4th) 729 (F.C.A.).
3 Referring to Cheung v. Canada (Minister of Citizenship and Immigration ), [1993] 2 F.C. 314, [1993] F.C.J. No. 309 (F.C.A.)
4 Referring to Matter of Acosta , Interim Decision 2986, 1985 WL 56042 (B.I.A.).
5 Referring to A. Grahl-Madsen, The Status of Refugees in International Law (Netherlands: A.W. Sijthoff-Leyden, 1966).
6 Referring to G.S. Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 1983).
8 Zubita v. Canada (Minister of Employment and Immigration) (31 October 1979) Action No. 79-1034 (Immigration Appeal Board); Barraza v. Canada (Minister of Employment and Immigration) (23 March 1979) Action No. 77-9449 (Immigration Appeal board).