Date: 20050425
Docket: IMM-4917-04
Citation: 2005 FC 558
Ottawa, Ontario, this 25th day of April, 2005
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MARIA PEREZ DE GOMEZ
JULIO CESAR GOMEZ PEREZ
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Perez de Gomez and her son Julio are citizens of Venezuela. Their application for Convention refugee status in Canada as originally framed was limited to reasons of political opinion. They claimed to have a well-founded fear of persecution by the Bolivarian Circle, supporters of President Chavez, a group allegedly funded and armed by the State. However, by the time the matter was heard before the Immigration and Refugee Board, it must have been fairly obvious to them that their claim for asylum on that ground was very tenuous. Some eight months after filing their Personal Information Forms, Mrs. Chavez added domestic abuse from her ex-husband as a reason why she needed to stay in Canada because Venezuela would be unable to protect her from him. Julio also claimed that he could not be given protection from his violent father and added that he was subject to military conscription in Venezuela, which he opposed.
THE BOARD'S DECISION
[2] The member of the Refugee Protection Division of the Immigration and Refugee Board charged with responsibility of deciding this matter was satisfied that Mrs. Perez de Gomez' claim was linked to two of the five grounds enumerated in the United Nations Convention, namely political opinion and membership in a particular social group, defined as her gender as woman. Julio's fear of persecution was linked to the Convention by way of his political opinion and membership in a particular social group: the family.
POLITICAL OPINION
[3] The basis of political persecution was that she had attended a Bolivarian Circle meeting and there met with a representative of the legislative assembly and her husband. Her purpose was to request financial assistance to establish an opera company. The couple discovered that Mrs. Perez de Gomez was not a supporter of the Chavez government. Later, she and her family began receiving anonymous death threats by telephone and in writing, allegedly from members of the Bolivarian Circle who also vandalized the family's car. However, when she was first interviewed at the border, she said she had not been personally persecuted in Venezuela. All and all, the member decided that she and her son did not have a well-founded fear of persecution for reasons of political opinion. There was nothing unreasonable about that finding.
SPOUSAL ABUSE
[4] Mrs. Perez de Gomez, her son and her husband had all left Venezuela together for the United States. While there, she and her husband separated and he said he was going to obtain a divorce. As far as is known, he is still in the United States, but has not instituted divorce proceedings in Venezuela, or anywhere else. She did not think of mentioning spousal abuse when she came to Canada, after a sojourn of more than two-and-a-half years in the United States, because she was not running away from her husband at that point. It was only months afterwards, when he said he wanted to come visit her in an effort to reconcile, that she became frightened and went to the police in St. Catharines who directed her to a women's shelter. The husband never did come to Canada and there was no threat of violence during his reconciliation efforts. She certainly convinced the shelter that she had been a victim of abuse. The story she tells is consistent with gender discrimination in the form of male-dominated violence. The member considered these allegations very serious, but did not specifically refer to the Immigration and Refugee Board Chair's gender guidelines. Mrs. Perez de Gomez says there was a failure to properly assess her claim. It was wrong for the Board member, as an ordinary reasonable man, to disbelieve her because she kept silent for over 15 years in Venezuela, the United States, and Italy where the couple had also lived. Rather, the Board was of the view that she had concocted a story to strengthen her refugee claim.
[5] Failure to cite the gender guidelines is not fatal. Reasons for decisions should not be mechanical. There is no checklist which must be mentioned in order to give assurance that every relevant point was considered. We could then end up with orders perfect in form, but without substance, as noted by the Supreme Court in R. v. Sheppard, [2002] 1 S.C.R. 869.
[6] It was reasonably open for the Board member to infer from the testimony, documentation and timing that Mrs. Perez de Gomez had no fear of violence and abuse at the hands of her husband.
[7] Another ground for rejecting Mrs. Perez de Gomez' claim is that she spent over two-and-a-half years in the United States without seeking asylum. It is easy to say, as she has, that she was advised by a U.S. lawyer that she would not be successful. That advice, which apparently was limited to political persecution, was undoubtedly sound as the Immigration and Refugee Board came to that very conclusion here. There was some discussion as to whether protection would have been available to her in the United States based on domestic violence. It is not necessary to delve into that issue as the Board member was not satisfied that she was the victim of domestic violence in the first place.
[8] Julio came to Canada as an adult. There certainly have been no independent grounds advanced to support the proposition that he is entitled to protection on the grounds of membership in a family prone to domestic violence.
[9] As to Julio's separate claim based on military conscription which he opposes, it is clear that what he opposes is the Chavez regime. He is not a pacifist opposed to bearing arms no matter the situation. His suggestion that there is a civil war going on is over-reaching.
[10] The record indicates that military service is compulsory for men in Venezuela. The consequences of evading service may be a recall, a fine, or perhaps imprisonment. The leading case in this area is the decision of the Federal Court of Appeal in Zolfagharkhani v. Minister of Employment and Immigration (1993), 20 Imm. L.R. (2d) 1. MacGuigan J.A., speaking for the Court, had this to say:
18. After this review of the law, I now venture to set forth some general propositions relating to the status of an ordinary law of general application in determining the question of persecution:
19.(1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.
20. (2) But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.
21. (3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.
22. (4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.
[11] Venezuelan law is neither inherently, or for any other reason, persecutory as regards Julio, or others in his position. This case is nothing like Ciric v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65. In that case, the Cirics were opposed to military service which involved ethnic cleansing in what Cullen J. viewed as the most vicious of civil wars in Yugoslavia. See also Ates v. Canada (Minister of Citizenship and Immigration), 2004 FC 1316, [2004] F.C.J. No. 1599 (QL), a case in which I applied Zolfagharkhani, supra.
ORDER
For these reasons, the application for judicial review is dismissed. There is no question of general importance to certify.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4917-04
STYLE OF CAUSE: MARIA PEREZ DE GOMEZ
JULIO CESAR GOMEZ PEREZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 14, 2005
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATED: APRIL 25, 2005
APPEARANCES:
John Grice FOR APPLICANTS
Allison Phillips FOR RESPONDENT
SOLICITORS OF RECORD:
Davis & Grice FOR APPLICANTS
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Email this Content