JOSE MARIA SERRANO LEMUS Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 702

Federal Court Cour fédérale Date: 20110615 Docket: IMM-6954-10 Citation: 2011 FC 702 Toronto, Ontario, June 15, 2011 PRESENT: The Honourable Mr. Justice Hughes BETWEEN: JOSE MARIA SERRANO LEMUS Applicant and THE MINISTER OF CITIZENSHIP ANDIMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [1] This is an application for judicial review of a decision of the Refugee Protection Board dated October 26, 2010 in which itwas determined that the Applicant’s claim for refugee protection was rejected. I am dismissing this application. [2] The Applicant is an adult male citizen of El Salvador.

He, together with his wife and children sought refugee protection inCanada. His wife was the principal Applicant, he and the children made claims under his wife’s principal application. [3] The Applicant’s claim was dismissed on two grounds. The first ground was that of exclusion under

Article 1F of the 1951Refugee Convention. In this respect the Refugee Protection Board made a finding that the Applicant was subject to exclusion.Nonetheless the Board went on to consider whether the Applicant would be subject to risk under

section 97 of the Immigration andRefugee Protection Act, SC 2000, c.27 as amended (IRPA). In considering the

section 97 matter the Board considered not only theApplicant’s claim but also that of his wife who was the principal Applicant, and the children. The Board concluded that the risk allegedwas generalized and therefore exempted under section 97(1)(b)(ii) of IRPA. [4] The Applicant raises, with respect to the Board’s decision as to exclusion, that the reasons given by the Board wereinadequate. The Applicant argues that this is a matter of procedural fairness and not a matter of reasonableness. On this ground, even ona standard of procedural fairness, I find that the reasons provided are adequate.

The Board fairly sets out the relevant facts, it discussesthe relevant law including cases relied upon by Applicant’s Counsel, it fairly sets out the Applicant’s argument, and clearly states itsconclusion. As directed by the Supreme Court of Canada in Ryan v. Law Society (New Brunswick) 2003 SCC 20 , [2003] 1S.C.R. 247 the reasons do withstand “a somewhat probing examination.” I dismiss the application on this ground. [5] The Applicant raised the issue of

section 97 of IRPA which was considered and determined by the Board against theApplicant as well as against the principal Applicant, his wife, and his children.

[ 6 ] There is some jurisprudence to the effect that a Court will consider this issue since a favourable determination may result in the permanent stay of an Applicant’s exclusion. However the Federal Court of Appeal in Sing v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 125 held that such consideration should only be given where an Applicant is a principal Applicant and others claiming under that application, such as children, might be affected. This is not the case here.

In Sing Malone J.A. for the Court wrote at paragraph 70: Having determined that the Applications Judge did not err in finding that the Board's conclusions on the exclusionary question were reasonable, the adult appellants are excluded from the definition of Convention refugee. The recent decision of this Court in Xie has determined that once excluded under

Article 1F(b), claimants are not entitled to have their inclusionary claims determined. However, the present facts are distinguishable from those in Xie because in this appeal the children's actions were not subject to

Article 1F(

b) and their derivative claims must be determined. Accordingly, it was proper for the Board to proceed to conduct an inclusionary analysis with respect to all five of the appellants in order to determine if the children's derivative claims could be successful. Therefore I will not consider the

section 97 issue. [ 7 ] The application will be dismissed. Respondent’s Counsel did not request a certified question. Applicant’s Counsel requested certification directed to consideration of mitigation in dealing with crimes committed long ago. The facts of this case do not provide an adequate basis for such certification. The application is dismissed without certification. JUDGMENT FOR THE REASONS provided; THIS COURT ORDERS AND ADJUDGES that: 1. The application is dismissed; 2. No question is certified; 3. No Order as to costs. "Roger T.

Hughes" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6954-10 STYLE OF CAUSE: JOSE MARIA SERRANO LEMUS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: JUNE 13, 2011 REASONS FOR JUDGMENT AND JUDGMENT BY: HUGHES J. DATED: JUNE 15, 2011 APPEARANCES : JACK MARTIN FOR THE APPLICANT KAREENA WILDING FOR THE RESPONDENT SOLICITORS OF RECORD : JACK C. MARTIN BARRISTER AND SOLICITOR TORONTO , ONTARIO FOR THE APPLICANT MYLES J. KIRVAN DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO FOR THE RESPONDENT