Date: 20070320
Docket: IMM-2388-06
Citation: 2007 FC 296
Ottawa, Ontario, March 20,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
XIOMARA ALVAREZ
JUAN JOSE JIMENEZ ROJAS
JUAN JOSE
JIMENEZ ALVAREZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[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.
“Michael
L. Phelan”
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