Toronto, Ontario, July 17, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
LOUIS FERNANDO RODRIGUEZ ZAMBRANO
CAROLINA GOMEZ
KATHERINE ABIGAIL RODRIGUEZ
JOSHUA ALEXANDER RODRIGUEZ
CAROLINAGOMEZ
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for a stay of removal in respect of the applicants described below.
[2] The principal applicant is a citizen of Ecuadorand states to be at risk based on his political opinion, namely, his involvement in the party Social Cristiano. The applicant's spouse is a citizen of Venezuela and states to be at risk on the basis of her membership in a particular social group, namely, victims of kidnappings and extortion by guerrillas with a political cause. After alleged ill-treatment, she was released and continued to be threatened by guerrillas.
[3] The principal claimant left Ecuador for the United States in July 1995 and his spouse left Venezuela for the United States in 1992. A letter provided by counsel states that the applicants met and married in the US (17 February 2006). Counsel submits that the applicants "did not make asylum claims in the USA because at first they did not know they could, and by the time they learned it was possible, it was too late (in this regard, US law requires refugee claimants to claim within one year of arrival in the USA)".
[4] The applicants came to Canada on November 26, 2002 and made a claim for refugee protection at the Fort Erie Port of Entry. On November 2, 2004, the Refugee Protection Division (RPD) determined that the applicants are not Convention refugees or persons in need of protection due to a lack of credibility. Leave to Appeal the RPD decision to the Federal Court was dismissed on July 20, 2005.
[5] The applicants did not provide clear and convincing proof of the state's inability to protect (Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689). Ecuador and Venezuela are democratic countries and have a number of state agencies to provide protection to the applicants. It is expected of the applicants to make reasonable efforts to access assistance from the state authorities in Ecuador and Venezuela. While not perfect, the Court finds that adequate state protection is available to the applicants. Further, country conditions have not deteriorated since the applicants were before the RPD. The changes in the applicants' circumstances arising since the RPD decision are not sufficient to bring them within the meaning of either Convention refugees or persons in need of protection.
[6] The Court notes that the applicants entered Canadafrom the US and therefore, pursuant to the US/Canada Reciprocal Arrangement, would be potentially removed to that country (Immigration Information: The Reciprocal Arrangement between the United States and Canada: : Online). Further, evidence indicates the children are eligible for both Ecuadorian and Venezuelan citizenship and therefore could accompany their parents to one of those countries, should the parents so choose. Submissions indicate the children in the US "...do not face a risk of return to their home country. However, the minor applicants are not able to return to the USA because they are too young to go there themselves, and their parents do not have status in the USA so they cannot accompany them... It is therefore submitted that the minor applicants also face a risk if removed from Canada. (17 February 2006). Further, the RPD concluded, "No claim was advanced against the US for the US born children, although counsel mentioned the psychological effect on the children if the adult claimants were to return to their counties. However, humanitarian and compassionate grounds are not a part of the refugee determination process" (02 November 2004). The evidence before the Court does not indicate the children would be at risk in Ecuador and/or Venezuela. Regardless, documentary evidence reports that the children have the right to citizenship through their parents in both Ecuador and Venezuela (Citizenship Laws of the World. Investigations Service. IS-1 March 2001).
[7] Based on the totality of evidence, the Court finds that there is less than a serious possibility that the applicants would be subjected to persecution as described in Section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA). Similarly, there are no substantial grounds to believe that the applicants would face a risk of torture; nor are there reasonable grounds to believe they would face a risk to life, or risk of cruel and unusual treatment or punishment as described in paragraphs 97(1)(a) and (b) of IRPA' if returned to Ecuador and/or Venezuela.
[8] The Pre-Removal Risk Assessment (PRRA) was denied as no new evidence of significance was brought forward that was not available for presentation to the RPD.
[9] The applicants previously brought an application for leave and judicial review in which they challenged the validity of the RPD. That application was dismissed by the Court. Even if the Court was to assume the application raises a serious issue to be tried, the applicants have failed to adduce sufficient evidence that they would suffer irreparable harm by reason of deportation. Therefore, the requested stay for removal is denied.
ORDER
THIS COURT ORDERS that the requested stay for removal is denied.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3722-06
STYLE OF CAUSE: LUIS FERNANDO RODRIGUEZ ZAMBRANO
CAROLINA GOMEZ
KATHERINE ABIGAIL RODRIGUEZ
JOSHUA ALEXANDER RODRIGUEZ
CAROLINA GOMEZ
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATON
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 17, 2006
APPEARANCES:
| Mr. Matthew J. Jeffery
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| Ms. Janet Chisholm
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SOLICITORS OF RECORD:
| MATTHEW J. JEFFERY Barrister & Solicitor Toronto, Ontario
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| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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