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