Immigration appeals - the unfairness and injustice of the decision of Sanchez v Canada (MCI), 2007 FCA 99 (“Sanchez”).

The decision of Sanchez was an appeal from the decision of the Federal Court dismissing the Appellant’s application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, where the Appellant’s claims for refugee protection under Sections 96 and 97(1) of the Immigration and Protection Act were denied.

Briefly, the facts were that Mr. Sanchez was threatened by the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) because of his part-time business in Columbia, where Mr. Sanchez and his brother reported violations of signage by-laws to the Bogot city authorities. FARC demanded that he and his brother stop from reporting violations, but Mr. Sanchez failed to comply with FARC’s repeated demands. In order to stop Mr. Sanchez from continuing such a business, FARC abducted Mr. Sanchez on two separate occasions and threatened him at gun point. As a consequence of this, Mr. Sanchez came to Canada and sought refugee protection.

The Federal Court of Appeal in Sanchez upheld the decision of the Board and the application’s judge by finding that Mr. Sanchez had an alternative that would eliminate any future risk of harm, which was that he could choose to stop operating his side-line business with his brother. The Court said that this alternative was objectively reasonable, since Mr. Sanchez has the ability to earn a living as an engineer in Columbia. As far as the Court was concerned, Mr. Sanchez was expected to abandon his business as commanded by FARC so that he can eliminate the risk of harm that he faces.

The decision of the Federal Court of Appeal in Sanchez is authority for the proposition that…“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.”

The Injustice and Unfairness of Sanchez

It is this writer’s view that strict application of the above principle laid down in Sanchez can lead to unjust and unfair results to Claimants. Let’s say that (A) owned a large number of businesses in a partnership with (B) in a foreign country that is collectively worth twenty (20) million dollars. (A’s) share of the businesses is ten (10) million dollars. (B) is a powerful business man with many ties to corrupt people in authority within the foreign country. (B) demanded that (A) sell his/her share of the businesses over to (B) for a low price of $500,000.00. (A) refuses to sell to (B), because the offer is exceptionally lower than what his/her share is actually worth. In response to this, (B) commences his/her campaign of threats of bodily harm and death against (A) and his/her family due to (A’s) refusal to sell his/her share to (B) for the price offered by (B). In fear for his/her safety, (A) flees his/her home land with his family to Canada and, whilst there, (A) claims refugee protection.

In this case scenario, does (A) need to sell his/her share to (B) for the price offered by (B) if the decision of Sanchez is applied?

It is this writer’s submission that based on a strict application of Sanchez, (A) would have to sell his/her share over to (B) for the price offered, because under Sanchez “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…”

It is this writer’s submission that unless (A) can establish that there is no alternative occupation or business reasonably open to him/her in his/her own country that would eliminate the risk of harm, (A’s) claim for refugee protection will fail.

As long as the Claimant has some employment skills, it not difficult to establish that the Claimant has an alternative occupation or business reasonably open to him/her in his/her own country. For example, in rejecting the claim for refugee protection in Sanchez, the Court found that Mr. Sanchez can make a living as an engineer in Columbia.

Likewise, in the decision of Manchame v. Canada (Citizenship and Immigration), 2008 FC 1156 (CanLII), the Federal Court held that Mr. Manchame could avoid threats of harm as a bus driver by simply changing jobs. In relying on the decision of Sanchez, the Court found that where persons are at risk because of their occupation, they are not entitled to refugee protection unless they can show that there was no reasonably available line of work.

In Idony v. Canada (Citizenship and Immigration), 2010 FC 970 (CanLII), the Federal Court held that the applicant’s work as a truck driver would put him more at risk than other Haitians. In applying the decision of Sanchez and finding the decision of the Refugee Protection Division not unreasonable, the Court found, on the evidence, that the applicant worked in a restaurant in the United States and as a day labourer in Canada as alternate occupations.

Further, in the decision of X (Re), 2017 CanLII 144393 (CA IRB), the Refugee Appeal Division held that “the RPD also considered that the appellant, an educated woman, held jobs in different fields and that it would not be unreasonable to require her to have a job other than that of a school principal. I agree with the RPD.”

It is this writer’s submission that the decision of Sanchez is the current state of our law, but is the decision of Sanchez a logical and reasonable one in light of a Claimant’s economical circumstances?

In the scenario above involving (A) and (B), if the decision of Sanchez is applied to the facts and there is a viable internal flight alternative found (let’s say a small city in the outskirts of the foreign country), then (A) would have to (i). give up $9,500,000.00 to (B) in order for him/her to be safe with his/her family and (ii). travel back to the foreign country with his/her family, where (A) fled with his/her family in the first place due to fear of bodily harm and death at the hands of (B) to the small city in the outskirts of the foreign country, with potentially no employment or home.

It is the writer’s submission that giving up a business or a profession/career can have severe lifetime emotional and economical consequences. If the decision of Sanchez is applied by the Courts too restrictively, it can lead to injustice and unfairness as in the case of (A) above.

It is this writer’s position, however, that it could be argued/shown that it would be objectively unreasonable for (A) to give up $9,500,000.00 to (B) for his/her share in the businesses. This approach lends support based on the principle enunciated in the decision of Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 F.C. 589 (C.A.), where the Federal Court Appeal said that “if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.”

It is this writer’s view that the decision of Sanchez has created too narrow and restrictive of an approach in deciding whether or not persons are in need of protection. The decision of Sanchez fails to strike an equal and fair balance between an individual’s economical circumstances and personal safety concerns. The decision has resulted in persons having to give up their successful businesses and careers in which they have sacrificed years of their lives of hard work to achieve. In one case, for example, the Claimant had to renounce his profession as a lawyer (X (Re), 2015 CanLII 98818 (CA IRB)). It is this writer’s position that the case of Sanchez needs to be revisited by the appeal Court or amended through legislation by Parliament to reflect and adopt the economical realities of a Claimant’s personal circumstances.