Date: 20001221
Docket: IMM-514-00
BETWEEN:
BETTY RUTH FIGUEROA DE CABEZA
ERICK BRIAN CABEZA FIGUEROA
JESSICA CABEZA
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
NADON J. :
[1] Despite the reservations I expressed about the Refugee Division's decision during the hearing, I have come to the conclusion that the application for judicial review should be dismissed.
[2] I have re-read the decision and the oral evidence and I cannot find that the disputed decision contains any error justifying intervention by the Court.
[3] At pp. 2 and 3 of its decision the Refugee Division said the following:
[TRANSLATION]
This is a claim based on marital violence. The tribunal could see how united this family is and that the son Brian, who testified, and is now of legal age, is a protector for his mother and young sister. Their credibility was not questioned.
They fear returning to Venezuela because they are afraid the same situation will begin all over again. Their subjective fear appears to be quite real but the tribunal has to try and determine whether this fear has any objective basis. The tribunal has a difficult task to perform when it has to look into the future and see what might happen to a family. In this case, the husband and wife have been separated for three years. There has been no further news of Mr. Cabeza Espinel since his departure and he has taken no interest in her and her children. He could have chosen to remain in Canada and proceed with his claim, while maintaining contact with his family. This is very different from cases of marital violence in which the wife leaves her country of origin alone. He chose to leave, to return to his country, to cohabit with another woman and to bring up her children with her. The fear of a possible legal dispute about property is not sufficient in the circumstances as a basis for a valid fear of persecution. The wife did not testify that she had taken any action to this end and it is impossible to know what her ex-husband would do in such circumstances. She has all her family in Venezuela and even a brother-in-law who is an attorney and could surely give her advice.
The tribunal feels it is reasonable in this type of situation to take into account the fact that time has an influence and that the three-year separation may have an effect on the parties. It is up to the claimant to show that there is a reasonable chance that the situation will be the same again, that her ex-husband has not changed and that he is waiting for her. On the facts of the instant case, the tribunal is not in a position to draw that conclusion.
[4] The Refugee Division considered that the plaintiffs had not discharged their burden of proof. In my opinion, on the evidence there is nothing unreasonable in this conclusion. The application for judicial review is therefore dismissed.
|
Marc Nadon Judge |
Montréal, Quebec
December 21, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
|
Federal Court of Canada Trial Division Date: 20001221 Docket: IMM-514-00 Between: BETTY RUTH FIGUEROA DE CABEZA ERICK BRIAN CABEZA FIGUEROA JESSICA CABEZA Plaintiff AND: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Defendant REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-514-00
STYLE OF CAUSE:
BETTY RUTH FIGUEROA DE CABEZA
ERICK BRIAN CABEZA FIGUEROA
JESSICA CABEZA
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 20, 2000
REASONS FOR ORDER AND ORDER BY: NADON J.
DATED: December 21, 2000
APPEARANCES:
Odette Desjardins for the plaintiff
Sherry Rafai Far for the defendant
SOLICITORS OF RECORD:
Arpin, Mascaro et associés for the plaintiff
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada