Fabiano v. Canada (Minister of Citizenship and Immigration), 2005 FC 1260

Date: 20050914

Docket: IMM-7659-04

Citation: 2005 FC 1260

Ottawa, Ontario, this 14^th day of September, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE RUSSELL

BETWEEN:

MIGUEL FABIANO

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

REASONS FOR ORDER

THE APPLICATION

[1]    This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated August 12, 2004 ("Decision"), that the Applicant, Mr. Miguel Fabiano, is not a Convention refugee or a person in need of protection.

BACKGROUND

[2]    Mr. Fabiano is an Argentinean national whose parents emigrated from Italy to Argentina. He and his wife have three grown sons.

[3]    Mr. Fabiano is a practising Jehovah's Witness and thus a member of a religious minority in predominantly Catholic Argentina. In 2000, Mr. Fabiano, a graphic artist and writer by profession, wrote a history book on Argentina entitled Monte Cuna De Roses, 220 Anos Con Historia. It was printed on or about May 1, 2000. The Applicant tried to shop his book around to schools in the Greater Buenos Aires area to be used as a textbook, but he was turned down because the book contained some criticisms of the state's political regime and economic policies.

[4]    Mr. Fabiano alleges that, in the middle of February, 2003, police officers came to his house and took him to the police station, where he says he was detained for two nights and interrogated about his book. Afterwards, he was returned home with a warning that he would be closely watched and that there might be charges pending against him. The Applicant says that he stayed at a friend's house, feared going back to his store, and that, on May 19, 2003 he used a friend with police contacts to flee Argentina. A cousin from Canada provided him with the necessary funds. The Applicant arrived in Canada on May 20, 2003.

[5]    Mr. Fabiano's wife and children remain in Argentina to this day.

[6]    A claim was made by the Applicant for refugee protection on the basis of his religion and perceived political opinion. The hearing of his claim took place on June 22, 2004.

[7]    A Refugee Protection Officer ("RPO") was not in attendance at the hearing. Thus, invoking Guideline 7 of the Chairperson's Guidelines, the Board proceeded to question the Applicant after noting and dismissing an objection by the Applicant's counsel regarding the fairness of the order of questioning. During questioning by the panel member, the following exchange took place:

PRESIDING MEMBER:         Sir, I noted in your, at your interview with Citizenship                                        and Immigration that you asked for an Italian                                                        interpreter. Do you speak Italian?

CLAIMANT: [in English]        Yes.

PRESIDING MEMBER:         Why would you ask for an Italian interpreter over a                                           Spanish interpreter?

CLAIMANT:              The person who accompanied me to the interview is                                              my, was my cousin, and she speaks Italian, she doesn't                                      speak Spanish.

PRESIDING MEMBER:         Where did you learn to speak Italian?

CLAIMANT:              My father and my mother are Italian, my                                                  entire family are Italian descent.

PRESIDING MEMBER:         Was your father born in Italy?

CLAIMANT:                    Yes.

PRESIDING MEMBER: You have Italian citizenship, or the right to Italian                                      citizenship through your father?

CLAIMANT:                    I could have had it, but I don't have it, because when                                 I wanted to, to get it, the entire process required                                       several years. I started it but I never completed it,                                                because I left Argentina.

PRESIDING MEMBER: What is the process then? You just simply apply to                                        Italy for citizenship? Or for a passport? Or what is                                               the process?

CLAIMANT:                    It's very complicated. One has to inspect all the                                      documentation attesting to the, the parents to return.                                           Those documents have to be requested from very                                   small towns throughout Italy, where the parents and                                        the grandparents were born. And it takes a long time.

PRESIDING MEMBER: Did your parents not have copious [sic] of their birth                                         certificates or their Italian passports with them?

CLAIMANT:                    Not in my father's case, because when, when he                                      arrived to Argentina, during his arrival he was                                            registered with not his proper name. At any rate, the                                          documents were requested, but they never arrived.

PRESIDING MEMBER: Did you go to the Italian embassy in Buenos Aires to                                       ask for help?

CLAIMANT:                    No.

PRESIDING MEMBER: Counsel, I think we need to establish this country of,                                       or of reference, and I'm particularly bringing that up,                                  because there's some documentary evidence here that                             would indicate that there is a right to Italian citizenship                                   as far back as either a grandparent or a great                                                  grandparent.

And I'm referring, if you have the Index before you,                                           Section 7 in the Index. There are a number of, of                                      Response to Information Requests, seven of them                                            altogether.

Have you ever been to Italy, sir?

CLAIMANT:                    Yes, just for a visit.

PRESIDING MEMBER: This has nothing to do with your claim, but if you                                      have, I'm envious.

CLAIMANT:                    It's very beautiful.

PRESIDING MEMBER: So I hear, and so is the language.

CLAIMANT:                    You are very correct, you are very right.

PRESIDING MEMBER: So you're aware of the possibility of, of citizenship                                           through your parents? Or at least the right to go to                                               Italy?

CLAIMANT:                    Yes, I am aware of that, only that I am, I required                                      Italian citizenship before, and they are taking five                                      years.

PRESIDING MEMBER: Did you think to, to go to Italy and make a refugee                                           claim on site, since you have some, apparently some                                           rights as an Italian?

CLAIMANT:                    When I called my cousin here in Canada, I was, it was                              because I was very aware that she would be quite                                                 willing to assist me. That's why I came over here. I                                   am not aware if Italy has a refugee assistance over                                      there, I know I wouldn't be able to stay.

PRESIDING MEMBER: I'm sorry, I know -

INTERPRETER:              I wouldn't be able to stay.

PRESIDING MEMBER: You wouldn't be able to stay, or you would?

CLAIMANT:                    I'm not aware if I would be able to remain without                                      the documentation that accredits me as an Italian                                                 citizen.

THE DECISION

[8]     The Decision of the Board was rendered on August 12, 2004.

[9]     In her reasons, the panel member addressed, first, the issue of the order of questioning. The Board held that the order of proceeding set out in Guideline 7 provided the Applicant with a meaningful opportunity to be heard, and thus was consistent with the principles of natural justice and the duty of fairness.

[10]                        The Board further found that the issue of the Applicant's country of reference, namely, Italy, was determinative of his claim. The Board disagreed with counsel's submission that, in order to pursue his Italian citizenship, the Applicant would have to return to Argentina - i.e. that it could not be done in Canada - and that by the time Mr. Fabiano obtained the necessary documents in Argentina, he would be "dead in a ditch." The panel member based her conclusion on several Response to Information Requests (from the Italian Embassy in Ottawa and from the Consulate General of Italy in Argentina) regarding the process for Argentinean nationals to gain citizenship in Italy based on their Italian ancestry.

[11]                        Based on this documentary evidence, the Board found that Mr. Fabiano had a right to citizenship in Italy, and that, as a result, Italy is the appropriate country of reference. Because Mr. Fabiano did not argue that he would face persecution in Italy, the Board dismissed his refugee claim.

ARGUMENTS

Applicant

[12]                        Mr. Fabiano argues, first, that the order of questioning allowed under Guideline 7 of the Chairperson's Guidelines - wherein the Board, or a panel member in the absence of the RPO, can question the claimant first - breaches the principles of natural justice and the duty of fairness owed to him. He claims that, as a quasi-judicial proceeding, the consequences of which are of the utmost importance to him as an individual, the duty of fairness demands that his counsel be given an opportunity to conduct an examination-in-chief, and a reasonable opportunity to present evidence and make representations. Mr. Fabiano further cites the following cases in which this Court has found that by systematically preventing counsel from leading the case, the Board has breached its duty of fairness to claimants: Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.); Ganji v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1120 (T.D.) (Q.L.); Atwal v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1693 (T.D.) (Q.L.).

[13]                        Second, Mr. Fabiano contends that the Board made a serious error of fact in finding that the appropriate country of reference is Italy rather than Argentina. This finding of fact, says Mr. Fabiano, ignores the following: that he testified under oath that there were problems with his Italian citizenship application due to the fact that his father's name was not properly registered; that the Italian Consulate General in Toronto and the Vice Consular in Brantford have said that an applicant must personally attend at the Italian consular offices in Italy; that the citizenship process is lengthy and he cannot wait in Argentina for that long with the danger he faces there; and that, at present, he is not an Italian citizen and does not have the right to remain in Italy if he goes there without citizenship.

[14]                        Mr. Fabiano also argues that the Board failed to confront him with the Response to Information Requests or any other documentary evidence that contradicted his testimony that he had to apply for Italian citizenship from within Argentina. When the Board conducted its own investigation and failed to grant him an opportunity to respond, says Mr. Fabiano, the Board committed a reviewable error. He cites the decision of Mr. Justice Cullen in Muthusamy v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1333 (T.D.) (Q.L.) in support of this argument.

[15]                        For these reasons, Mr. Fabiano asks that the Decision be set aside and the matter be referred back to a differently constituted Board for a new hearing.

Respondent

[16]                        As a preliminary matter, the Respondent takes issue with the documents found on pages 139 and 140 of the Applicant's Record. The Respondent points out that this evidence was not before the Board when it made its Decision. Thus, the Respondent asks that this Court disregard those documents and the references to those documents in Mr. Fabiano's affidavit.

[17]                        The Respondent argues that there was no breach of natural justice with regard to the order of questioning at the hearing. Mr. Fabiano's attack on the order of questioning is a theoretical one, as he has not identified anything in particular that he was not able to raise at the hearing because of the order of questioning. The Respondent points to Madam Justice Gauthier's decision in Cortes Silva v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 920, 2005 CF 738 in support of the contention that procedural fairness is not to be evaluated in a theoretical context.

[18]                        Furthermore, the Respondent says that, contrary to Mr. Fabiano's assertions, he was "confronted" with the country of reference issue, and was given adequate opportunity to respond. The Respondent points out that the September 2003 Argentina RPD Information Package Index provided to Mr. Fabiano with his Notice to Appear, referred to the Response to Information Requests relied on by the Board in its Decision. Thus, asserts the Respondent, Mr. Fabiano was aware of these documents before the hearing. The Respondent adds that, at the hearing, the Board advised Mr. Fabiano and his counsel that country of reference was at issue, and explicitly asked counsel to address this issue in submissions. The Respondent argues that, in fact, counsel was given the opportunity to address the issue, both in questioning and in the submissions.

[19]                        The Respondent characterizes the Board's principal finding - i.e. that Mr. Fabiano has a right to Italian citizenship - as a finding of fact, which is subject to the standard of review of patent unreasonableness. This finding, contends the Respondent, is not patently unreasonable in light of the fact that Mr. Fabiano's counsel explicitly admitted that Mr. Fabiano has a right to Italian citizenship because both of his parents were born in Italy. The Respondent adds that the conclusion that Mr. Fabiano need not return personally to Argentina in order to have his application for Italian citizenship processed is supported by the documentary evidence that was before the Board, namely, the Response to Information Requests.

[20]                        In any event, says the Respondent, the Board was not required to confront Mr. Fabiano with the documentary evidence upon which it relied, even if it contradicted Mr. Fabiano's testimony that he could not obtain Italian citizenship without returning to Argentina.

[21]                        For these reasons, the Respondent asks that this application for judicial review be dismissed.

ANALYSIS

Affidavit Evidence -Preliminary Issue

[22]                        As a preliminary matter the Respondent requested that the Applicant's affidavit of October 2, 2004 be struck from the record as being argumentative, as not dealing with matters within the personal knowledge of the Applicant, and as being an attempt to bring evidence before the Court that was not before the Board.

[23]                        After hearing argument from counsel on this issue, I ordered that the affidavit and the Exhibits be struck on the grounds put forward by the Respondent except for paragraphs 1, 2 and Exhibit "A" referred to in paragraph 3 of the affidavit.

[24]                        As this Court has pointed out on many occasions "It is trite law that judicial review of a decision of a federal board, commission, or other tribunal should proceed on the basis of the evidence before the decision maker." See, for example, Lemeicha v. Canada (Minister of Employment and Immigration), [1993] F.C.J. 1333 at para. 4

[25]                        Besides evidence that was not before the Board, the balance of the affidavit is little more that the argument that counsel has placed before the Court as part of his presentation in this application. Counsel's argument should not be couched in the Applicant's affidavit.

Grounds Advanced

[26]                        The Applicant has advanced several grounds as a basis for review. Generally speaking, I do not find the procedural fairness issues or the ordering of questions issue substantiated or supported by the relevant jurisprudence. Madam Justice Gauthier's decision in Silva, and the developing jurisprudence of this Court (see, for example, the recent decision of Madam Justice Snider in Zaki v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1314) makes it clear that the effects of Guideline 7 of the Chairperson's Guidelines should not be assessed from a theoretical perspective. The Applicant has provided the Court with no evidence in this case that he was unable to raise any matter of fact or law at the hearing because of the order of questioning.

Country of Reference Issues

[27]                        The principal matter of concern is the country of references issue which the Board makes the basis for the Decision: "the determinative issue is country of reference, and it is Italy, not Argentina."

[28]                        The Board found as facts that the Applicant not only had the right to acquire Italian citizenship, but that he had a right to do this in Italy:

Considering all of the evidence in its entirety, I find that this claimant before me, application for citizenship in Italy is a mere formality, and that the Italian law of ascendancy would suggest that the authorities of Italy do not have the discretion to refuse the claimant's application which I find on a balance of probabilities can be made from within Italy, a country with which he is already familiar, and whose language he speaks. Those who are granted citizenship automatically by the operation of legal provisions are definitely nationals of that state.

[29]                        The Applicant's own evidence on whether he had a right to Italian citizenship was that "I could have had it, but I don't have it, because when I wanted to, to get it, the entire process required several years. I started it but I never completed it, because I left Argentina."

[30]                        In other words, the Applicant feels he could acquire Italian citizenship but the process was long and fraught with complex, administrative difficulties that will take considerable time and effort to resolve.

[31]                        Because of the length of time involved, he fears he will be killed if he has to conduct the process in Argentina.

[32]                        The Board does not deal with the well-groundedness of the Applicant's refugee claim, but certainly it does not raise any credibility issues concerning his narrative. The reason that the well-groundedness of the claim is not addressed is because the Board does not consider it necessary for the Applicant to apply for Italian citizenship in Argentina. In fact, the Board makes a specific finding of fact that he has a right to do this in Italy: "which I find on a balance of probabilities can be made from within Italy¼ ."

[33]                        The Board obviously felt that this finding of fact was necessary for its Decision, otherwise there would have been no need for the Board to make such a finding.

[34]                        The difficulty is that my review of the record suggests that there is no evidentiary basis to support such a finding. In fact, the evidence suggests that the Board misinterpreted the evidence it used to ground its finding in this regard.

[35]                        The Board's finding is based upon Response to Information Requests that are found in the record.

[36]                        ITA3751.E , dated July 2001, reads as follows:

In a 23 July 2001 interview, an official at the Embassy of the Italian Republic in Ottawa stated that she was not aware of any cases in which an individual from any country had initiated an application for recognition of Italian citizenship while in Canada as a refugee claimant. While the official believed that the embassy would agree to process such an application, provided that the individual in question was entitled to reside in Canada, she stated that it would be necessary for the applicant or applicant's representative to deal with Italian consular authorities in Argentina, for example to establish information concerning the applicant's birth. However, the official did not believe that the applicant would have to travel to Argentina in order to deal with such matters.

No specific information on whether an Argentinean citizen can apply for Italian citizenship while in the United States as a refugee claimant could be found among the sources consulted by the Research Directorate. However, according to the Website of the Italian Embassy in Washington,

Determination and recognition of Italian citizenship is subject to the demonstration by the applicant that his or her direct ascendants uninterruptedly maintained their Italian citizenship. The power to make this determination is the Authority with jurisdiction over the place of residence of the applicant: outside Italy it is the Consular Authority for that jurisdiction (2001).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this information Request.

[37]                        This appears to be the document relied upon by the Board for its conclusion that the Applicant's acquisition of Italian citizenship would be a "mere formality" and could be pursued "within Italy." But the document itself says it does not deal with the point at issue. Its subject is "whether on Argentinean citizen can apply for Italian citizenship while in Canada or the United States as a refugee claimant."

[38]                        The evidence is, in any event, extremely speculative about what is possible. But one thing is clear: "While the official believed that the embassy would agree to process such an application," this belief is contingent on the following important fact: "provided that the individual in question was entitled to reside in Canada ¼ (emphasis added)."

[39]                        There was no evidence that the Applicant was entitled to reside in Canada while making his citizenship application in Italy. Such an application could take years. In any event, the Board found it necessary to find as a fact that he could go to Italy and make a citizenship application there. But there is no evidence to support a finding that he could go to Italy and stay there long enough to make a citizenship claim. In fact, the Applicant's unquestioned evidence was that the process was complex and would take a long time.

[40]                        The Applicant's fear was that, if he went back to Argentina, he would be killed long before he could obtain Italian citizenship.

[41]                        The Board seems to have assumed that a return to Argentina was not necessary because the Applicant had a right to go immediately to Italy and make his citizenship claim there. But there is no evidence to support this conclusion.

[42]                        In other words, given the evidence that was before the Board, the Board's findings of fact and conclusions on the central issue of country of reference were patently unreasonable.

[43]                        This matter should be returned for reconsideration and the re-constituted Board should look carefully at the issue of what will happen to the Applicant if he applies for Italian citizenship. He is of the view that he will have to return to Argentina to do this. This is why he wants the Board to consider the well-groundedness of his claim against Argentina.

[44]                        Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party Following that, an Order will be issued.

"JAMES RUSSELL"