Date: 20040406
Docket: IMM-4606-03
Citation: 2004 FC 509
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
Jorge CALDERON BUENO
Maria Alejandra SEMIGLIA MUNAGORRI
Valentina CALDERON SEMIGLIA
Francesca CALDERON SEMIGLIA
Respondents
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated May 20, 2003, that the respondents are "Convention refugees" within the meaning of section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Jorge Calderon Bueno (the male respondent) is a citizen of Colombia and his common law partner, Maria Alejandra Semiglia Munagorri (the female respondent), is a citizen of Uruguay. The couple has two minor daughters who are citizens of the United States.
[3] The applicant presents many arguments against the IRB's decision. He submits, for instance, that this panel did not consider the conduct of the respondents, behaviour characterized as being incompatible with their alleged fear of persecution. The applicant points out that the male respondent, in particular, took too long to leave Colombia, that he stayed in Panama for more than two years and, finally, that he lived in the United States for four years without ever claiming refugee status there. With respect to the female respondent, she failed to claim refugee status in the United States even though she had lived there for four years. On the subject of similar conduct, my colleague Dubé J. expressed the following in Skretyuk v. Canada (M.C.I.), [1998] F.C.J. No. 783 (F.C.T.D.) (QL):
[3] . . . the panel was required to take into consideration the claimants' conduct when they failed to claim refugee status in two countries before arriving in Canada. A claimant travelling through a country that is a signatory to the Convention must claim refugee status as soon as possible, or the claim may not be considered serious.
[4] In fact, the failure to claim refugee status when the claimant is in a countryof protection, is an element which goes to the root of the claim and which should be considered in the assessment of the credibility of the claimant's subjective fear (Ilie v. Canada (M.C.I.), [1994] F.C.J. No. 1758 (F.C.T.D.) (QL)). The facts on which the applicant's argument is based are well supported by the evidence. A review of the transcript and of the IRB's very brief decision indicates that this panel did not require serious explanations of the respondents about their failure to claim refugee status as quickly as possible before coming to Canada. Accordingly, I am of the opinion that the IRB erred by not considering a fundamental aspect of the claim.
[5] The applicant further submits that the male respondent and the female respondent did not show that the protection of Colombia or Uruguay, respectively, was not available to them. As a general rule, it is presumed that the State is able to protect its citizens, unless evidence to the contrary is presented by the claimant. It is the claimant's responsibility to demonstrate, by clear and convincing evidence, that the State's protection was sought and that it was not obtained (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). In this case, the respondents did not offer any evidence in order to show that they could not obtain the State's protection. In fact, the IRB did not ask the respondents any question on this point, at the hearing, before expressly finding that the State was unable to protect them. It completely disregarded, moreover, the question of protection by the United States with regard to the respondents' daughters, who are citizens of that country. Consequently, I am of the opinion that the IRB again erred in failing to analyse and support this fundamental element of the claims.
[6] From my point of view, these errors are sufficient to warrant the intervention of this Court and to set aside the decision of the IRB. Accordingly, the application for judicial review is allowed, the decision by the IRB is set aside, and the matter is referred to a differently constituted panel for rehearing.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
April 6, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET IMM-4606-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. Jorge CALDERON BUENO, Maria Alejandra SEMIGLIA MUNAGORRI, Valentina CALDERON SEMIGLIA, Francesca CALDERON SEMIGLIA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 19, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: April 6, 2004
APPEARANCES:
Thi My Dung Tran FOR THE APPLICANT
Michelle Langelier FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
Michelle Langelier FOR THE RESPONDENTS
Montréal, Quebec