Date: 19980514
Docket: IMM-2769-97
BETWEEN:
GENET YOUSEF ZAYATTE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McGILLIS, J.
[1] The applicant has challenged by way of judicial review a decision of the Immigration and Refugee Board ("Board") that she was not a Convention refugee. The applicant had claimed to be a Convention refugee on the basis of a well-founded fear of persecution by reason of her perceived political opinion, and her membership in a particular social group, namely as an Amhara from Ethiopia.
[2] In 1984, the applicant moved to Saudi Arabia, and never returned to Ethiopia. In 1985, she married a Guinean diplomat who resided in Saudi Arabia, and obtained a Guinean diplomatic passport through her husband. In 1994, she separated from her husband while on a trip to Canada. The applicant visited Guinea on only two occasions. She has no property or family in Guinea.
[3] The hearing before the Board was held in September 1996. Following the conclusion of the hearing, the Board received letters dated November 7 and 15, 1996, from the Embassy of Guinea in Canada. The letter dated November 7, 1996 from the Embassy outlined certain general legal principles under Guinean law relating to mixed marriages and nationality, and stated as follows:
| In reply to your letter of October 9, 1996, we have referred to the legal provisions for interpreting our country's law respecting mixed marriages and our code of nationality |
| 1- In Guinean law, marriage may confer Guinean nationality upon the alien spouse if he or she so desires. |
| 2- Guinean law protects the two spouses equally, even in the event of divorce, and the alien spouse may retain Guinean nationality if desired. |
| 3- The alien spouse's nationality is revocable only in very specific conditions, excluding divorce. |
[4] The letter dated November 15, 1996 from the Embassy related specifically to the applicant, and stated as follows:
| With reference to your letter of November 05, 1996 concerning information on Ms. Zayatte Youssef [sic] GENET, it is my duty to advise you that by reason of her marriage to a Guinean who was a senior diplomat for our country, Ms. Zayette [sic] Youssef [sic] Genet, born on March 26, 1964 at Addis Ababa, obtained diplomatic passport #009611/94. Since she is no longer married to the above, Ms. Zayette [sic] has lost her entitlements as the spouse of a diplomat, including possession of the diplomatic passport, while retaining Guinean nationality if she so desires. |
[5] The Board received written submissions from the applicant's counsel concerning the letter from the Embassy. In his written submissions, counsel for the applicant submitted, among other things, that section 73 of the Civil Code, Title II of Nationality, concerning Guinean nationality, required a person to have a two year period of residency in order to be naturalized as a Guinean. Since the applicant did not meet the statutory requirement for naturalization, he submitted that the applicant had "at best potential citizenship". He further submitted that the response from the Embassy was unclear, in light of its failure to refer to the residency requirement in section 73.
[6] In its decision, the Board referred to the two letters received from the Embassy, and determined that the letter dated November 15, 1996 established unequivocally that the applicant has Guinean citizenship. The Board therefore concluded that the applicant has the protection of the Guinean government by virtue of her citizenship, and that she was obliged to avail herself of that protection before seeking international refuge.
[7] During the course of his submissions, counsel for the applicant argued, among other things, that the Board erred in law by failing to consider in its analysis the specific legislative provision in section 73 of the Civil Code, which imposes a two year residency requirement for naturalization.
[8] The letter dated November 7, 1996 from the Embassy to the Board indicates that, in summarizing the applicable law, the Consul had reviewed "...the legal provisions for interpreting our country's law respecting mixed marriages and our code of nationality." However, in summarizing the applicable general provisions, he made no reference to the two year residency requirement applicable to a person who marries a Guinean citizen. Similarly, the letter dated November 15, 1996, which relates specifically to the applicant, makes no reference to that provision. Furthermore, nothing in either letter, or in any other evidence in the record, indicates that the Consul was aware that the applicant had never physically resided in Guinea.
[9] Given the absence in the letters from the Embassy of any reference to the applicability of the residency requirement in section 73 of the Civil Code to the particular circumstances of the applicant, the Board was obliged to consider that section in analysing whether the applicant had Guinean citizenship. Its failure to consider an express legislative provision, which appears to apply to the circumstances of the applicant, constitutes an error of law.
[10] The application for judicial review is allowed. The decision of the Board is quashed and the matter is remitted to a differently constituted Board for rehearing and redetermination. The case raises no serious question of general importance.
"D. McGillis"
Judge
Toronto, Ontario
May 14, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2769-97
| STYLE OF CAUSE: GENET YOUSEF ZAYATTE |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MAY 14, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCGILLIS, J.
DATED: MAY 14, 1998
APPEARANCES: Mr. Michael F. Loebach
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD: Loebach, Corrigna
Barristers & Solicitors
506-171 Queens Avenue
London, Ontario
N6A 5J7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980514
Docket: IMM-2769-97
Between:
| GENET YOUSEF ZAYATTE |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER