Date:
20050725
Docket:
IMM-8667-04
Citation:
2005 FC 1024
Ottawa, Ontario, July 25, 2005
Present: The Honourable Mr.
Justice Blanchard
BETWEEN:
CARLOS
GONZALO GIL RONCAGLIOLO
CLAUDIA
CASTAGNOLA MONTOYA
GONZALO
DANIEL GIL CASTAGNOLA
CARLOS
MANUEL GIL CASTAGNOLA
Applicants
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for
judicial review, filed pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated September 21, 2004, rendered by Board member Bana Bazari and ruling that
the applicants were neither “Convention refugees” nor “persons in need of
protection”.
[2] In this proceeding, the
applicants are asking that the Court set aside the impugned decision, order
that a new hearing be held before a differently constituted panel and stay any
removal measure in the interim.
FACTUAL CONTEXT
[3] The applicants make up a family
composed of the principal applicant (the applicant), Carlos Gonzalo Gil
Concagliolo, his wife, Claudia Castagnola Montoya, and their children of minor
age, Gonzalo Daniel Gil Castagnola and Carlos Manuel Gil Castagnola, whose
mother is the designated representative. The applicant has Peruvian
citizenship; his wife and the children have dual Peruvian and French
citizenship.
[4] From 1993 to 2003, the
applicant held an officer’s position in the Peruvian navy. In February 2003, he
witnessed corruption in the ranks. He so notified his superiors. He was
subsequently threatened with death and subjected to wrongful imprisonment. In
July 2003, some individuals attempted to intercept the family while it was
travelling by automobile. On September 15, 2003, the applicants left Peru for
Florida and went on to Canada by bus. On September 18, 2003, they arrived at
the Lacolle border crossing, where they filed a refugee claim.
[5] The refugee claim was heard on
July 13, 2004 by the Board and a negative decision was issued on September 21,
2004.
[6] Leave to file this application
for judicial review was granted on January 31, 2005.
IMPUGNED DECISION
[7] The fear of persecution alleged
by the applicants is based on the political opinions attributed to them and on
their membership in a social group, the family. They also allege that they are
in danger of being tortured or exposed to a risk of cruel and unusual treatment
or punishment.
[8] The evidence offered to the
Board is composed primarily of the applicants’ testimony, their Personal
Information Forms (PIF), personal documentation and documents on the social and
political situation in Peru and France.
[9] Although the refugee claim is
based on a fear of persecution in Peru, the Board first reviewed the
applicants’ fear of persecution in France, since the female applicant and the
children are French citizens. The male applicant acknowledged that he could
readily obtain French citizenship, and this is confirmed by the documentary
evidence.
[10] The applicant confirmed that he
had told the Canadian authorities that he did not want to claim in France
because it cost less to go to Canada and that he was uneasy with the situation
in France. The Board gave no weight to the applicant’s contention that he fears
the radical ideology of some French extremists and that he fears his children
would be mistreated at school. The Board noted that the applicants’ children
are French citizens and that France is [translation]
“a free country, with well established democratic institutions, that is capable
of protecting its citizens”.
[11] The female applicant argued that
her fear of persecution in France derives from the fact that during some
educational internships in 1987 and 1996 she had been excluded by some French
persons who had scornfully referred to her as an immigrant. The Board repeated
that France is a free, democratic country capable of granting protection to its
citizens.
[12] The Board considered the
documentary evidence adduced by the applicants: an extract from the communist
newspaper “Libération” reporting racist incidents against Muslim and Arab
immigrants and Jewish citizens in France. The Board did not accept the
applicant’s allegation that because of his Latin-American physique he could be
mistaken for an Arab. It noted that the French authorities do not persecute
their citizens, residents or immigrants and that they are able to protect them
if they are persecuted by extremists.
[13] The presumption that a State is
capable of protecting its citizens, laid down in Ward v. Attorney General of
Canada, [1993] 2 S.C.R. 689, was not refuted in this case by the
applicants. The Board relied on the Court’s decision in Sahal v. Canada
(Minister of Citizenship and Immigration), IMM-2722-98, April 21, 1999,
[1999] F.C.J. No. 554 (QL), in deciding that nationality is not left to the
applicant’s option and that in cases involving dual citizenship the applicant
must claim protection from the country where citizenship can be obtained
through a mere formality. International protection is only a surrogate.
ISSUE
[14] In my opinion, the issue raised
in this case is whether the Board erred in declining to assess the applicants’
fear of persecution in Peru given its conclusion that they could claim
protection in France, a country where no fear of persecution had been
established.
ANALYSIS
[15] In refugee law, the basic
principle is that international protection is a surrogate: Ward, supra.
As Mr. Justice Hugessen noted in Urbanek v. Canada (Minister of Employment
and Immigration), A-222-90, June 19, 1992, [1992] F.C.J. No. 556 (QL), the
primary purpose of Canada’s adhesion to the United Nations Convention
relating to the Status of Refugees is to help persons who have a genuine
need of protection.
. . . the purpose of that system is to
provide safe haven to those who genuinely need it, not to give a quick and
convenient route to landed status for immigrants who cannot or will not obtain
it in the usual way.
[16] The
case law pertaining to situations similar to the one in this case appear to
stand for a principle as to the factors that ought to be examined: Grygorian
v. Canada (Minister of Citizenship and Immigration), IMM-5158-94, November
23, 1995, 33 Imm.L.R. (2d) 52, [1995] F.C.J. No. 1608 (QL); Bouianova v.
Canada (Minister of Employment and Immigration), No. 92‑7-1437,
June 11, 1993, [1993] F.C.J. No. 576 (QL); De Barros v. Canada (Minister of
Citizenship and Immigration), 2005 FC 283. First, the Board must determine
whether the refugee claimant can obtain citizenship from another country and,
if so, whether there is a fear of persecution in that country. Should the
evidence fail to establish a fear of persecution, the principle of surrogate
international protection comes into play, which means that the claimant is
precluded from seeking refugee status.
[17] In
the case at bar, the Board first considered whether the applicant, a Peruvian
citizen, could claim French citizenship in view of the dual Peruvian and French
citizenship of his wife and children. It found that the applicant could obtain
it without undue difficulty.
[18] The applicant argues that the
Board erred in some factual determinations. He submits that, contrary to what
the Board states, he did not say that he had never attempted to obtain French
citizenship. According to him, he told the immigration officer he could not
obtain a French visa quickly enough to leave Peru since he did not speak French
at that time. The applicant also claims that he never said it was more
expensive to go to France than to Canada.
[19] I accept the respondent’s
argument that the Board could find that a refugee claimant is a national of a
certain country for the purposes of its analysis if the evidence shows that the
claimant could readily acquire the nationality of that country by virtue of his
descendance or his marriage to a citizen of that country: Canales v. Canada
(Minister of Citizenship and Immigration), IMM-1520-98, June 11, 1999,
[1999] F.C.J. No. 949 (QL); Sahal, supra; Espinoza v. Canada
(Minister of Citizenship and Immigration), [1999] 3 F.C. 73; Engoian v.
Canada (Minister of Citizenship and Immigration), IMM-1260-97, February 5,
1998, [1998] F.C.J. No. 168 (QL).
[20] In the case at bar, the Board
did not err in concluding that the applicant could readily obtain French
citizenship. In fact, article 21-2 of the French Civil Code provides:
[translation]
An alien or
stateless person who marries and whose spouse is of French nationality may,
after a period of two years from the marriage, acquire French nationality by
way of declaration provided that, at the time of the declaration, the community
of living has not come to an end and the French spouse has kept his or her
nationality.
The two year period
is eliminated where, before or after the marriage, a child is born whose
relationship in regard to both spouses is established, provided the conditions
pertaining to the community of living and nationality of the French spouse are
satisfied.
[21] The respondent argues that
notwithstanding the fact that the applicant must go through some administrative
proceedings to obtain French citizenship, this is, however, a simple and speedy
process. As to the applicant’s claim that he will have to undergo a French
examination, the respondent acknowledges that the granting of citizenship is
subject to some conditions. However, the respondent notes, we do not know to
what degree the applicant has mastered French, and he notes that the
applicant’s wife holds French citizenship and teaches French.
[22] In this case the applicant, by
virtue of his marriage to a woman holding French citizenship, has the right to
be a citizen of France. The fact that he needs to make an application which in
the circumstances requires a few administrative formalities, does not open the
door to the applicant’s argument that the Board mistakenly assessed his refugee
claim on the assumption that he had French citizenship.
[23] As to the applicant’s
submissions on the factual determinations, it is clear to me from the record
that the Court has no latitude to intervene in this case. In my opinion, the
Board did not commit any error warranting the Court’s intervention in its
assessment of the facts. The applicant’s allegation that he did not say it was
more expensive to go to France than to Canada, but that he instead stated that
he lacked the resources to go to France is, in my opinion, a distinction
without a difference.
[24] The Board then proceeded to the
examination of the claimed fear of persecution in France, and found that the
evidence did not support the applicants’ allegations to that effect.
[25] On this point, I share the
respondent’s view that the Board correctly rejected the applicants’ submission
that they fear persecution in France. The Board also correctly found that the
French authorities are able to protect their citizens. The applicants have not
managed to rebut the presumption that a State is capable of providing
protection to its citizens: Ward, supra.
[26] When all is said and done,
contrary to what the applicant argues, the Board did not err in failing to rule
on the substance of his claim, the fear of persecution in Peru.
CONCLUSION
[27] In light of my examination of
the case, and for the reasons set out above, I find that there is no need for
the Court’s intervention. The application for judicial review is dismissed.
[28] The parties have not suggested
that the Court certify that the case raises a serious question of general
importance, as contemplated by paragraph 74(d) of the IRPA. No serious
question of general importance shall be certified.
ORDER
THE COURT
ORDERS:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
“Edmond
P. Blanchard”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8667-04
STYLE: CARLOS GONZALO GIL
RONCAGLIOLO ET AL. v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Montréal, Quebec
DATE OF
HEARING: April 28, 2005
REASONS FOR
ORDER: The Honourable Mr. Justice
Edmond P. Blanchard
DATE OF REASONS: July 25, 2005
APPEARANCES:
Jacques Tamrazo FOR
THE APPLICANTS
François Joyal FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Jacques Tamrazo FOR
THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney General
of Canada
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