Ottawa, Ontario, March 20, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JUAN JOSE JIMENEZ ROJAS
JUAN JOSE JIMENEZ ALVAREZ
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Immigration and Refugee Board (Board) rejected the principal Applicant’s (Applicant) claim, along with that of her husband’s and son’s, because she could become a citizen of Venezuela and avoid the feared persecution and risk in Columbia, her country of citizenship. The Applicant raises the issue of the obligation to and circumstances under which the availability of citizenship in a country of which there is no fear is a bar to a refugee claim.
II. BACKGROUND
[2] Ms. Alvarez is a lawyer and a citizen of Columbia, her spouse is a citizen of Columbia and of Venezuela and their son is a citizen of Columbia. The Applicant’s daughter by a previous marriage is a citizen of Columbia as well. However, her refugee claim was accepted because she was a citizen of Columbia only. The claims of the Applicant, spouse and son were not accepted because they could obtain or already had Venezuelan citizenship.
[3] The Board accepted that the Applicant and her family made a credible claim about threats from FARC (the Columbian rebel group) because of her political activities. She was a lawyer, her husband a doctor and they would not have come to Canada for economic reasons because neither could easily pursue their respective professions.
[4] The Board also concluded that while FARC and other rebel groups were in Venezuela, they operated only along the jungle border and did not operate throughout Venezuela as they did in Columbia. Since the conditions in Venezuela were so different, the Applicant and her family were not at risk in Venezuela.
[5] The critical difference between the Applicants and their daughter is the availability of Venezuelan citizenship. The daughter’s claim was accepted because she had no right of citizenship in either Venezuela or the U.S.
[6] On the issue of Venezuelan citizenship, the Applicant had submitted evidence from a Venezuelan government organization, Onidex, stating that even though the Applicant was married to a Venezuelan citizen, she would be required to reside in Venezuela for five years before acquiring citizenship. This evidence was confirmed by a lawyer’s opinion.
[7] The Board also had before it the Applicant’s PIF, the Venezuelan Constitution and formal advice from the Venezuelan Embassy in Canada that residency was not required because she could acquire citizenship as long as she was married to a Venezuelan citizen for five years. She had been married 10 years. Her son would be a Venezuelan citizen because his father is Venezuelan.
III. ANALYSIS
[8] The Applicant had raised the issue of reverse order questioning but this issue was not pressed – nor should it have been.
[9] On the issue of acquiring citizenship in another country, the Court of Appeal has held in Williams v. Canada (Citizenship and Immigration), 2005 FCA 126 at para. 17 that the standard of review is patent unreasonableness because proof of foreign law is a question of fact.
The finding by the Board that the respondent could obtain Ugandan citizenship as a matter of course upon renouncing his Rwandan citizenship is a finding of fact which cannot be interfered with by the applications judge unless it amounts to a palpable and overriding error. The finding is not challenged by the respondent and, in any event, Pinard J. did not disturb it.
[10] The test of citizenship as a barrier to a refugee claim has been refined both in Williams, supra, and in Bouianova v. Canada (Minister of Employment and Immigration) (1993), 67 F.T.R. 74, to be that citizenship must be a mere formality, or as otherwise described, obtaining citizenship must be a matter within the claimant’s control and not subject to administrative discretion. I need not decide if five years of matrimony (if that is the applicable criteria) is a barrier to citizenship since the Applicant has met that criteria.
[11] The Board gave greater weight to the advice of the Venezuelan Embassy than to the evidence from Onidex because Onidex was not the relevant department of the Venezuelan government. It obviously gave less weight to the lawyer’s opinion in the face of the Embassy’s advice and s. 33 of the Venezuelan Constitution which confirms that citizenship is available to those married for five years and to others who have five years’ residence. The weighing of such evidence is within the Board’s responsibility and should only be interfered with in the clearest circumstances.
[12] The Applicant had taken no steps toward citizenship. While this is consistent with a belief that she could not obtain citizenship, there is no evidence of rejection of her citizenship application.
[13] Therefore, the Board’s conclusion that the evidence supports the Applicant’s right to Venezuelan citizenship is more than reasonable.
[14] While the Applicant also challenges the Board’s finding that state protection is available to Venezuelans in the country except for the border areas, the documentary evidence supports that conclusion.
[15] The Applicant’s brother, a Columbian citizen, was accepted by the Board as a refugee. His situation was different from his sister although the timeframe of analysis is almost the same. He had no right to Venezuelan citizenship and had evidence that FARC was looking for him.
[16] While the Applicant and her family might well be desirable immigrants, the law on refugee claim does not permit them the benefit of ss. 96 and 97 of the Immigration and Refugee Protection Act.
[17] This application for judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2388-06
STYLE OF CAUSE: XIOMARA ALVAREZ
JUAN JOSE JIMENEZ ROJAS
JUAN JOSE JIMENEZ ALVAREZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 7, 2007
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
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Mr. Joel Etienne
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Ms. Catherine Vasilaros
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SOLICITORS OF RECORD:
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MR. JOEL ETIENNE Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |