Sanchez et al. v. Canada (Minister of Citizenship and Immigration), (2007) 360 N.R. 344 (FCA)

• Judge: Richard, C.J., Sharlow and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 27, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 360 N.R. 344 (FCA);2007 FCA 99

Sanchez v. Can. (M.C.I.) (2007), 360 N.R. 344 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. MR.054

Luis Miguel Trujillo Sanchez and Deysse Jhanet Velandia Baron (applicants) v. The Minister of Citizenship and Immigration (respondent)

(A-310-06; 2007 FCA 99)

Indexed As: Sanchez et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Richard, C.J., Sharlow and Malone, JJ.A.

March 8, 2007.

Summary:

The Immigration and Refugee Board, Refugee Protection Division, found that the appellants were neither Convention refugees nor persons in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act. The appellants applied for judicial review.

The Federal Court, in a decision reported at [2006] F.T.R. Uned. 385, dismissed the application. The appellants appealed.

The Federal Court of Appeal dismissed the appeal.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - Sanchez, a Colombian national, was employed full-time as an engineer - He also ran a side business that reported violations of signage by-laws to the Bogotá city authorities - Sanchez was abducted and threatened by the Fuerzas Armadas Revolucionarias de Colombia, which demanded that he cease his part-time business - The Immigration and Refugee Board, Refugee Protection Division, found that Sanchez and his wife (the appellants) were neither Convention refugees nor persons in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act - The appellants applied for judicial review - The application was dismissed - The appellants appealed - The Federal Court of Appeal dismissed the appeal - Both the Board and the applications judge found that Sanchez had an alternative that would eliminate future risk of harm to the appellants, i.e., he could choose to cease operating his side business - That alternative was objectively reasonable because Sanchez had the ability to earn a living as an engineer - In these circumstances, Sanchez had to be expected to abandon his side business in order to eliminate the risks he faced - Denial of his side business interest would not affect a fundamental principle of human rights.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The Immigration and Refugee Board, Refugee Protection Division, found that the appellants were neither Convention refugees nor persons in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act - The appellants unsuccessfully applied for judicial review - The application judge certified the following question "Before seeking protection from another state, is a person obliged to make lifestyle or other employment changes which would offer protection from persecution or which could protect the life and safety of a claimant and, if so, what is the test for making such a determination?" - The Federal Court of Appeal dismissed an appeal - The court answered the certified question as follows: "It is not possible in the context of this case to attempt to develop an exhaustive list of the factors that should be taken into account in assessing whether a person is in need of protection. However, persons claiming to be in need of protection solely because of the nature of the occupation or business in which they are engaged in their own country generally will not be found to be in need of protection unless they can establish that there is no alternative occupation or business reasonably open to them in their own country that would eliminate the risk of harm" - See paragraph 20.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - [See both Aliens - Topic 1314 ].

Cases Noticed:

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al. (2006), 345 N.R. 374; 2006 FCA 31, refd to. [para. 8].

Zenner v. College of Optometrists (P.E.I.) (2005), 342 N.R. 176; 254 Nfld. & P.E.I.R. 1; 764 A.P.R. 1; 2005 SCC 77, refd to. [para. 8].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 218 D.L.R.(4th) 61; 2002 ABCA 199, refd to. [para. 8].

Jayesekara v. Canada (Minister of Citizenship and Immigration) (2001), 211 F.T.R. 100; 2001 FCT 1014, refd to. [para. 10].

Li (Y.) v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239; 329 N.R. 346; 2005 FCA 1, refd to. [para. 14].

Thirunavukkarasu v. Minister of Employment and Immigration, [1994] 1 F.C. 589; 163 N.R. 232 (F.C.A.), refd to. [para. 16].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 19].

Counsel:

Timothy Wichert, for the appellants;

Lisa Hutt and Bernard Assan, for the respondent.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the appellants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on February 27, 2007, at Toronto, Ontario, before Richard, C.J., Sharlow and Malone, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Richard, C.J., on March 8, 2007.