Date: 20060216
Docket: IMM-928-05
Citation: 2006
FC 207
Ottawa, Ontario, February 16, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
MERCIBETH
ROJAS ALARCON
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant is a citizen of Venezuela. She was an employee of the
Venezuelan Petroleum Company (“PDVSA”) and she participated in the December
2002 national strike in Venezuela. She was detained between
December 24 and December 28, 2002 by two members of the Venezuelan National
Guard and a representative of PDVSA. They wanted her to provide her access
code to the company’s computer network; she refused. Two days after being
released, she was threatened over the phone to keep quiet.
[2]
On January
31, 2003, her name was included in the newspaper as being one of many PDVSA
employees fired because of her involvement in the strike. She was told by
other employers that they could not employ fired PDVSA employees and so she was
unable to find further employment in Venezuela.
[3]
On
November 2, 2003, she was pulled over by members of the Venezuelan National
Guard. They took her to a camp of the Armed Revolutionary Forces of Colombia
(FARC) because she was opposed the revolution of President Chavez’s
government. She was sexually abused by two FARC members. Once she was
released, she decided to flee Venezuela. She entered Canada on December 19, 2003 via the United States.
[4]
The Immigration
and Refugee Board (the “Board”) stated the determinative issue to be the
claimant’s dual citizenship. The Board referred to the documentary evidence
stating that children with at least one Colombian parent have an inherent right
to Colombian nationality. Therefore, the Board found the Applicant is a national
of Colombia and Venezuela. As a Colombian, the Board
found that she had nothing to fear from the FARC, even though the FARC had
murdered the Applicant’s uncle and cousin in Colombia in 2002, because the documentary
evidence indicated that she did not fit the profile of persons targeted by the
FARC, ELN or other guerrilla groups in Colombia.
ISSUES
[5]
The
Applicant essentially argued three points before me, namely:
1. Did the Board err in deciding that Colombia was a country of reference?
2. Did the Board err in its failure to address whether Colombia could provide adequate state
protection?
3. Was there a breach of natural justice due to the former
Counsel’s material omissions or conduct? And if so, should the new evidence
found in the Applicant’s affidavit be admitted?
STANDARD OF REVIEW
[6]
The
Federal Court of Appeal set out the standard of review in Williams v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 126 at paragraphs 17 and 18:
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.
Whether the
existence of an option to seek protection in Uganda is a valid
cause for the denial of the refugee status is a question which requires the
interpretation of section 96 of the IRPA. This is a question of law. It is well
settled that on questions of law of such nature, the standard of review is
correctness.
[7]
It follows
from the above quote that the standard of review regarding whether or not Colombia was a country of reference is
patent unreasonableness.
ANALYSIS
Issue 1:
[8]
The
Federal Court of Appeal in Williams, supra made the following
pronouncement at paragraph 22:
I fully
endorse the reasons for judgment of Rothstein J., and in particular the
following passage at page 77:
The condition
of not having a country of nationality must be one that is beyond the power of
the applicant to control.
The true
test, in my view, is the following: if it is within the control of the
applicant to acquire the citizenship of a country with respect to which he has
no well-founded fear of persecution, the claim for refugee status will be
denied. While words such as "acquisition of citizenship in a
non-discretionary manner" or "by mere formalities" have been
used, the test is better phrased in terms of "power within the control of
the applicant" for it encompasses all sorts of situations, it prevents the
introduction of a practice of "country shopping" which is
incompatible with the "surrogate" dimension of international refugee
protection recognized in Ward and it is not restricted, contrary to what
counsel for the respondent has suggested, to mere technicalities such as filing
appropriate documents. This "control" test also reflects the notion
which is transparent in the definition of a refugee that the
"unwillingness" of an applicant to take steps required from him to
gain state protection is fatal to his refugee claim unless that unwillingness
results from the very fear of persecution itself. Paragraph 106 of the Handbook
on Procedures and Criteria for Determining Refugee Status emphasizes the point
that whenever "available, national protection takes precedence over
international protection," and the Supreme Court of Canada, in Ward,
observed, at p. 752, that "[w]hen available, home state protection is a
claimant's sole option."
[9]
Here the
documentary evidence stated:
Children with
at least one Columbian parent have an inherent right to Columbian nationality.
(T.R.
page 624)
[10]
The
Applicant produced no evidence as to why this was untrue, or why it was not in
her control to acquire Colombian nationality. In her testimony before the Board,
she advised that her parents had dual citizenship. (see T.R. page 671).
Accordingly, there was nothing unreasonable in the Board’s finding that Colombia was a country of reference.
Where an applicant claims refugee status and is a national of two countries, he
must make out his claim for refugee status against both countries (see Tit
v. Canada (Minister of Employment and
Immigration),
[1993] F.C.J. No. 556).
[10]
Issue 2:
[11]
The
Applicant alleges that the Board failed to make a finding of state protection.
The Board here made a finding that she has no justified fear of prosecution in Colombia, as the Applicant does not
have the profile of the type of people persecuted by FARC. Given that finding,
there was no need to address state protection. The observations of Justice Blais
in Muotoh v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1599 at paragraph 13 can be equally applied here:
In its finding that the
applicant is not a refugee, nor a person in need of protection, the Board
determined that the applicant is not at risk Further, as previously mentioned,
the applicant did not bring new evidence to prove that he would be at risk.
Without this new evidence it is unnecessary to determine if state protection
would be available. The applicant does not need state protection if he is not
at risk. As such, the failure of the officer to evaluate the possibility of
state protection does not breach the principles of natural justice.
Issue 3:
[12]
The
Applicant argues as follows: her former counsel mishandled the issue of country
of reference. She is seeking to introduce her affidavit which reflects a
conversation she had with the Colombian consul in Toronto. The said consul informed the Applicant
that her parents (born in Colombia) must have had to renounce
their Colombian citizenship to acquire Venezuelan citizenship. For the
applicant to regain her Colombian citizenship, her parents would first have to
apply to the local Colombian consul to regain their Colombian citizenship. Once
they have regained it, the Applicant could then apply for Colombian citizenship.
[13]
The
jurisprudence of this court is quite clear that new evidence will not be allowed
in judicial review hearings (see Charlery (Designated Representative) v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 993 at para 16; Dokmajian
v. Canada (Minister of Citizenship and Immigration) (2003),
25 Imm. L.R. (3d) 48, 2003 FCT 85; Lemiecha (Litigation guardian of) v. Canada (Minister of Employment and
Immigration) (1993),
72 F.T.R. 49, [1993] F.C.J. No 1333).
[14]
An
exception exists in cases where procedural fairness is alleged. In McFadyen
v. Canada (Attorney General), [2005] F.C.J. No. 1817, 2005
FCA 360 Justice Desjardins stated at paragraph 15:
The principle
that evidence outside the administrative record, that is outside the record
before the tribunal, can be considered where the grounds for review are any of
the various forms of jurisdictional error is well-established: as Denning L.J.
noted in an early English leading case, “[w]hen certiorari is granted on the
ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not
only admissible, but it is, as a rule, necessary” (R. v. Northumberland
Compensation Appeal Tribunal, Ex parte Shaw, [1952] All E.R. 122 at 133
(C.A.)). This principle has been approved by the Supreme Court of Canada on
numerous occasions: see, for example, Canadian Union of Public Employees, Local
301 v. Montreal (City), [1997] 1 S.C.R. 793 at para. 86; R. v. Miller, [1985] 2
S.C.R. 613 at paras. 15 and 23-26; Cardinal v. Kent Institution, [1985] 2
S.C.R. 643 at para. 13. A breach of procedural fairness is also one of the
forms of jurisdictional error to which this principle applies: see Chen v. Canada (Minister of
Citizenship and Immigration) (1999), 240 N.R. 376, (1999) 174 D.L.R. (4th)
165 at para. 10 (F.C.A.); Robert W. Macaulay & James L.H. Sprague, Practice
and Procedure Before Administrative Tribunals, looseleaf, vol. 3 (Toronto:
Thomson Carswell, 1988) at 28-56.2ff; Donald J.M. Brown & The Hon. John M.
Evans, Judicial Review of Administrative Action, looseleaf, vol. 2 (Toronto: Canvasback
Publishing, 2004) at 6-62ff.
[15]
This of
course raises the question: Was there a breach of natural justice due to the
former Counsel’s material omissions or conduct?
[16]
An
examination of the record reveals that the issue of the Applicant’s possible Colombian
nationality was raised by the Applicant herself as she introduced a document
attesting to her mother acquiring Venezuelan citizenship. (see T.R. page 76
which is a page from the Official Gazette of the Republic of Venezuela).
[17]
The issue
of Colombian citizenship and the inherent right of children was discussed at
the first hearing before the Board on October 26, 2004. The following exchange
took place:
A. Thank you.
Madam, in evidence before me are documents relating to your interview with an
Immigration officer concerning your refugee protection claim on December 19th,
2003.
PRESIDING
MEMBER:
Now, Mr. Lesarge, I’m referring to Exhibit R-1, page 13.
BY THE BOARD
(PRESIDING MEMBER):
Q. This
document indicates that both your mother and your deceased father were born in Columbia, is that
correct?
A. Yes,
that’s correct.
Q. Having
been born in Columbia, were your parents also citizens of Columbia?
A. My mother
became naturalized and my father obtained his nationality after he died.
Q. And what nationality
is that?
A.
Venezuelan.
Q. Because
your parents were born in Columbia, would they also not be
citizens of Columbia?
A. Yes,
that’s correct. They have duel nationality, duel citizenship.
Q. Madam, the
documentary evidence before me indicates, as you stated, Venezuela and Columbia permit duel
citizenship.
PRESIDING MEMBER: Mr.
Lesarge, I’m referring to Exhibit R-2, Columbia Items G-1 and G-2.
BY THE BOARD (PRESIDING
MEMBER):
Q. This
documentary evidence also indicates that children with at least one Columbian
parent have an inherent right to Columbian citizenship or nationality. Given
this documentary evidence, would it be possible for you to live in Columbia without
serious harm?
A. It would not
be possible for me to live in Columbia because the reason why
I’m fleeing is partly because of the FARC and I fear that they would find me
more easily in Columbia. Furthermore, I would further endanger my
family such as my uncles and my cousins.
(T.R.
page 671)
[18]
As is
evident from this exchange, the whole issue of the inherent right of children
of Colombian parents to acquire Colombian citizenship was raised in October
2004. When the hearing resumed in November, no evidence was produced to
repudiate the documentary evidence cited by the Board. The only references to Colombia as a place of asylum were the
following question and answer:
- Madam, the first
day of the hearing I had asked you some questions about Columbia. Would
it be possible for you to relocate to Columbia and live in the capital
city of Bogotá and
live there without fear of serious harm at the hands of the FARC?
- That would be
impossible. If they can locate me in Venezuela, it
will be easier in Columbia. As soon as I
arrive at the Bogotá airport or any other Port of Entry, they will locate
me.
(T.R. page
688)
and the final submission by counsel
We already
know that the FARC have caused incredible havoc in Columbia. Her family
personally had a taste of that with the death of her uncle and cousin. I
submit to the Member that if one has been targeted by FARC, clearly Columbia would be
about the last place in the world that one would pick as a safe country
alternative.
(T.R. page
694)
[19]
For the Applicant
to succeed in establishing that her counsel was incompetent, the Applicant has
to establish a precise factual foundation for her contention. Justice Denault
provided a good summary of the law regarding the incompetence of counsel in Shirwa
v. Canada (Minister of Employment and
Immigration),
[1994] 2 F.C. 51 at paragraphs 11 and 12:
While each of
the foregoing cases involve a different type of misconduct on the part of
counsel, it seems clear that the incompetence of counsel in the context of a
refugee hearing provides grounds for review of the tribunal's decision on the
basis of a breach of natural justice. The criteria for reviewing such a
decision are not as clear, but it is possible to derive a number of principles
from these cases. In a situation where through no fault of the applicant the
effect of counsel's misconduct is to completely deny the applicant the
opportunity of a hearing, a reviewable breach of fundamental justice has
occurred (Mathon).
In other
circumstances where a hearing does occur, the decision can only be reviewed in
"extraordinary circumstances", where there is sufficient evidence to
establish the "exact dimensions of the problem" and where the review
is based on a "precise factual foundation." These latter limitations
are necessary, in my opinion, to heed the concerns expressed by Justices
MacGuigan and Rothstein that general dissatisfaction with the quality of
representation freely chosen by the applicant should not provide grounds for
judicial review of a negative decision. However, where the incompetence or
negligence of the applicant's representative is sufficiently specific and
clearly supported by the evidence such negligence or incompetence is inherently
prejudicial to the applicant and will warrant overturning the decision,
notwithstanding the lack of bad faith or absence of a failure to do anything on
the part of the tribunal.
[20]
I fail to
see how given the circumstances of this case, it can be said the Applicant’s former
counsel was incompetent. First of all, there is no evidence that the Board’s
finding was wrong regarding the inherent rights of children of Colombian
parents. This evidence regarding the inherent rights of children came from a
Research Report of the Immigration and Refugee Board based on advice from the
Legal Office of the Ministry of Foreign Affairs in Colombia (the “Research
Report”) (see T.R. page 624).
[21]
The Applicant
now seeks to admit an affidavit reciting a telephone conversation (backed by an
e-mail message) with a Colombian consul in Toronto speculating on Venezuelan law and the
steps her parents went through to acquire Venezuelan citizenship. Even if one
would ignore the obvious issue of hearsay, the evidence regarding Venezuelan
law is built on slender foundations. No evidence is provided as to the
qualification of the Colombian consul regarding Venezuelan law. Secondly, the e-mail
itself speaks about her parents and not the Applicant. It reads:
In
Marcibeth’s case, her parents were forced to renounce to their Colombian
nationality to be able to obtain their Venezuelan Citizenship. This means that
in order to apply to get back their nationality they first have to get back
their nationality and then they [sic] can register her at the civil registry.
Her mother can do it in a Colombian Consulate in Venezuela and once she gets
form for her ID Card, she can be either registered in Venezuela or Bogotá.
Sincerely
yours,
Catalina
Chaux
Consul
General
(A.R. page 35)
The e-mail is silent on either the inherent rights of children of Colombian
parents, or about the process the Applicant has to go through to acquire Colombian
citizenship.
[22]
Given that
the former Counsel’s client had admitted that her parents had dual citizenship,
and faced with the evidence of the Research Report, it can hardly be said that
Applicant’s former counsel was incompetent for not verifying that information with
the Colombian consul. Apart from that, it is far from evident that the e-mail
of the Colombian consul properly reflects Venezuelan law.
[23]
I thus see
no reason to admit the new affidavit evidence of the applicant. Given that the
Applicant failed on all three points put forward, this application cannot
succeed.
ORDER
THIS COURT ORDERS that this application is
dismissed.
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