Date: 20041201
Docket: IMM-11-04
Citation: 2004 FC 1687
Toronto, Ontario, December 1st, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MARCO CHIONG MONTEAGUDO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Marco Chiong Monteagudo is a citizen of Cuba. He is also a citizen of the Hong Kong Special Administrative Region of the People's Republic of China (PRC). Mr. Monteagudo alleged in his Personal Information Form (PIF) that he feared persecution in Cuba. At the hearing, Mr. Monteagudo alleged for the first time that he also feared persecution in the PRC. Mr. Monteagudo's claim for refugee protection was denied, based upon the Board's finding that he could live safely in Hong Kong.
[2] Mr. Monteagudo now alleges that he was denied procedural fairness by the Refugee Protection Division of the Immigration and Refugee Board. While he was provided with pre-hearing disclosure with respect to country conditions in Cuba, he was never provided with similar information with respect to the PRC. As a consequence, Mr. Monteagudo says that the Board's decision should be set aside.
Mr. Monteagudo's Allegations
[3] Mr. Monteagudo is the son of a Cuban diplomat. He was born in Hong Kong, where his father was temporarily stationed. As a result, Mr. Monteagudo holds both Cuban and Chinese citizenship.
[4] Mr. Monteagudo grew up in Cuba, although he has been back to visit Hong Kong at least once.
[5] Mr. Monteagudo says that he had a relationship with the daughter of a military officer in Cuba. After the relationship ended, the woman told Mr. Monteagudo that her father would be investigating him. Mr. Monteagudo alleges that he then began having problems with the Cuban authorities. He says that he was repeatedly stopped and searched, and his loyalty questioned.
[6] Mr. Monteagudo remained under suspicion in Cuba from February of 2002, until he left the country on August 22, 2002.
[7] Mr. Monteagudo came to Canada on August 23, 2002 and applied for refugee protection approximately two months later.
[8] Mr. Monteagudo initially claimed only to have a well-founded fear of persecution in Cuba, based upon his perceived political opinion. In response to questions at the hearing, he also asserted that he would not be able to live safely in Hong Kong. Mr. Monteagudo says the Cuban and Chinese governments work closely, and that, as a result, he could also be persecuted in Hong Kong.
The Board'sDecision
[9] The Board found Mr. Monteagudo to be credible, apparently accepting that what Mr. Monteagudo says happened to him in Cuba actually took place.
[10] Mr. Monteagudo did not initially assert any fear of persecution in the PRC. In this regard, the Board accepted Mr. Monteagudo's explanation that he only identified Cuba in his PIF as a country where he feared persecution, as that was where the incidents in question occurred. The Board went on to find that Mr. Monteagudo would not face a serious possibility of persecution if he were to return to Hong Kong.
[11] According to the Board, Mr. Monteagudo's experiences with governmental authorities in Hong Kongamounted to nothing more than normal immigration and identification verification proceedings. Further, Mr. Monteagudo provided no evidence to support his belief that the Cuban government has links with the government of the PRC such that the two countries carry out reciprocal acts of persecution against each others' citizens. Nor did Mr. Monteagudo provide any evidence that the Cuban government would harm Cuban citizens living in the PRC.
[12] As a result, the Board concluded that Mr. Monteagudo could live safely in Hong Kong, and dismissed his refugee claim.
Issue
[13] The only issue pursued by the applicant is whether the failure of the Board to disclose the country condition information with respect to the PRC amounts to a breach of procedural fairness.
Analysis
[14] Mr. Monteagudo submits that the Board is bound by the principles of procedural fairness and natural justice. Procedural fairness requires disclosure of all relevant documents to a claimant, in order that he may know the case that he has to meet. In this case, Mr. Monteagudo did not know that his fear of persecution in Hong Kong was in issue until he attended at his refugee hearing. At no time, before or during his hearing, was he provided with country condition information with respect to Hong Kong. This, he says, resulted in a breach of the rules of procedural fairness.
[15] In support of his submissions, Mr. Monteagudo relies upon the decisions of this Court in Noormohamed v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 926; Chalal v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 497; Ousman v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 714 and Nrecaj v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 699.
[16] I do not accept Mr. Monteagudo's submissions. It is true that Mr. Monteagudo was not aware that his fear of persecution in Hong Kong was in issue until he attended at his refugee hearing. However, this is because the first time that he claimed to have such a fear was when he was in the witness stand at the hearing.
[17] The cases cited by Mr. Monteagudo all relate to situations where the Board relied on information that was either not disclosed, or was disclosed late in the day, in coming to a decision. That is not the case here.
[18] A review of the Board'sreasons discloses that the Board did not rely on any documentary evidence with respect to conditions in the PRC in coming to its decision. Rather, the Board simply found that Mr. Monteagudo failed to meet the burden on him of establishing this aspect of his claim. As a result, the situation in this case is readily distinguishable from the facts in the decisions relied upon by Mr. Monteagudo.
[19] Further, Mr. Monteagudo has not pointed to anything in the country condition information relating to the PRC that would lend any support whatever to his claim of collusion between the Cuban and Chinese authorities such that he would be exposed to a risk of persecution in Hong Kong. Similarly, Mr. Monteagudo has not indicated how he would have done anything differently in relation to the presentation of his claim, had he been provided with this information.
[20] As a consequence, I am not persuaded that Mr. Monteagudo was denied procedural fairness in relation to his refugee claim.
Conclusions
[21] For the foregoing reasons, this application is dismissed.
Certification
[22] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed
2. No serious questionof general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-11-04
STYLE OF CAUSE: MARCO CHIONG MONTEAGUDO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: NOVEMBER 30, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: DECEMBER 1, 2004
APPEARANCES BY:
Belinds Bozinovski For the Applicant
Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD:
Belinda Bozinovski
Barrister & Solicitor
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20041130
Docket: IMM-4211-03
BETWEEN:
MARCO CHIONG MONTEAGUDO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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