Date:
20120629
Docket:
IMM-9120-11
Citation:
2012 FC 838
Ottawa, Ontario, June 29, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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JOSE MANUEL
RODRIGUEZ VIEIRA
MARIA FATIMA DOS
SANTOS DE RODRIGUEZ
JONATHAN JOSE
RODRIGUEZ DOS SANTOS
FATIMA ANDREINA
RODRIGUEZ DOS SANTOS
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
José
Manuel Rodriguez Vieira and his wife Anabella Rodriguez Vieira (the principal
applicants), as well as their two adult children, Jonathan José Rodriguez Dos
Santos and Fatima Andreina Rodriguez Dos Santos, claim to fear political persecution
in Venezuela. The Refugee Protection Division of the Immigration and Refugee
Board (the Board) rejected their refugee claim, finding that the applicants
have access to Portuguese citizenship by mere formality, and that the family
could live safely in Portugal without any fear of persecution.
[2]
The
applicants do not challenge the substance of the Board’s decision. They
conceded at the judicial review hearing that they are entitled to Portuguese
citizenship. They argue instead that the Board’s decision should be set aside
because the Board denied them the opportunity to be heard concerning the persecution
they experienced in Venezuela and the reasons they cannot live in Portugal today.
[3]
For
the reasons that follow, the applicants have not persuaded me that the process
followed by the Board was unfair. As a consequence, their application for
judicial review will be dismissed.
Background
[4]
The
applicants are Venezuelan nationals. They came to Canada on January 21, 2007,
fleeing political persecution in Venezuela resulting from their involvement with
the Acción Democratica party and their opposition to the Hugo Chavez government.
They claimed refugee protection shortly after their arrival, saying that, as owners
of a food-retailing and a dry-cleaning business, they faced threats, violence
and extortion by the Circulos Bolivarianos, which are security and police
cooperatives subsidized by the Venezuelan government. The incidents allegedly
began in 2000 and continued through early 2007, when the applicants finally
fled to Canada.
[5]
Both
of the principal applicants were born in Venezuela to Portuguese parents. At an
initial hearing on March 17, 2010, the Board asked the Refugee Protection
Officer (RPO) (with the consent of the applicants) to inquire into the
applicants’ eligibility for Portuguese citizenship and the process that they
would need to follow to obtain it. The hearing was adjourned to allow the RPO
to gather that information, which the Board saw as potentially determinative of
the applicants’ claim.
[6]
The
hearing resumed on September 15, 2010, to address the dual citizenship issue.
At that time, the Board explained that if it became apparent that the
applicants did not in fact have access to Portuguese citizenship, it would
schedule a further hearing in order to address the applicants’ allegations of
persecution in Venezuela.
[7]
The
RPO’s correspondence with Portuguese consular authorities revealed that both
the principal applicants and their children had access to Portuguese
citizenship by way of a mere formality. As already noted, the applicants did
not challenge this finding before the Board and have now conceded that this is
indeed the case.
[8]
For
the applicants’ refugee claim to succeed, then, they were required to
demonstrate not only that they have a well-founded fear of persecution in both
Venezuela and Portugal, and that they are unable or unwilling to avail
themselves of the protection of both countries: see paragraph 96(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] and Williams
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 126, [2005] 3
F.C.R. 429 at para. 27.
[9]
The
applicants took the position before the Board that they faced a risk of
persecution in Portugal. The applicants’ adult daughter, Fatima Andreina, is
both blind and deaf. She requires a specialized education program that is
publicly available in Canada but not in Portugal. The applicants argued before
the Board that the denial of these specialized services to Fatima Andreina
would breach her right to education, and constitute discrimination amounting to
persecution.
[10]
The
Board rejected this argument, however, concluding that the lack of
publicly-available educational facilities in Portugal for students who are both
deaf and blind did not amount to persecution. The Board accordingly denied the
applicants’ claim for refugee protection in Canada.
Analysis
[11]
As
previously explained, the applicants do not challenge the substance of the
Board’s conclusions, including its finding that Fatima Andreina would not face
persecution in Portugal. However, they contend that they were treated unfairly
during their hearing before the Board. They say they were unable to properly
present their evidence concerning their fear of persecution in Venezuela and the reasons why they cannot live in Portugal. They also contend that they were denied
the opportunity to respond to the Board’s concerns on account of the Board’s
hostility, impatience and lack of sensitivity.
[12]
Where
issues of procedural fairness arise, the task for the Court is to determine
whether the process the Board followed satisfied the level of fairness required
in the circumstances: see Canada (Minister of Citizenship and Immigration)
v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43. If the process
adopted was unfair, the Court will not defer to the Board, but will set aside
the decision: Cardinal
v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 661.
[13]
I
have carefully reviewed the transcript of the September 15, 2010, hearing in
light of the parties’ written and oral submissions as well as the affidavit
that Mr. Rodriguez filed in support of this application. While I accept that in
some cases, intimidating, harassing or insensitive behaviour or interventions
by a Board member may give rise to a reasonable apprehension of bias or render
a hearing unfair, the transcript does not demonstrate such behaviour or
interventions were present in this case. Although it is apparent that the Board
did intervene at several points in the hearing, it did so to ensure that the
applicants answered the questions asked of them, and to encourage applicants’
counsel to confine her questions to matters relevant to the refugee claim. In
my view, there was nothing improper in the way the Board conducted the hearing.
[14]
The
Refugee Protection Division of the Immigration of Refugee Board is a
specialized tribunal and the master of its own procedure. As long as it
respects the rules of fairness, the Board may control its own process: see Prassad
v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560,
[1989] S.C.J. No. 25 (QL) at para. 16. This principle is reflected in Rules 68,
69 and 70 of the Refugee Protection Division Rules, SOR/2002-228, which
accord the Board flexibility in determining how to proceed in a given case.
Rule 68, in particular, reads:
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68. In the absence of
a provision in these Rules dealing with a matter raised during the
proceedings, the Division may do whatever is necessary to deal with the
matter.
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68. Dans le cas où les
présentes règles ne contiennent pas de dispositions permettant de régler une
question qui survient dans le cadre d’une affaire, la Section peut prendre
toute mesure nécessaire pour régler la question.
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It is,
therefore, properly part of the Board’s role to identify which issues to deal
with first, in order to secure the most just, fair and expeditious
determination of the claim coming before it.
[15]
It
was entirely reasonable in the circumstances of this case for the Board to
proceed with a hearing on the issue of Portuguese citizenship before turning to
the merits of the applicants’ claim to fear persecution in Venezuela as the citizenship issue was potentially determinative of the applicants’ refugee
claim. In
Canadian law, “where citizenship in another country is available, an applicant
is expected to make attempts to acquire it and will be denied refugee status if
it is shown that it is within his power to acquire that other citizenship”: Williams,
above at para. 27. It would make no sense to spend a half-day hearing
evaluating issues of credibility, objective fear, and state protection in Venezuela, if the applicants’ dual nationality precluded the applicants from claiming protection in Canada in the first place.
[16]
I
would also observe that during
the course of the September 15, 2010 hearing the Board
explained why it felt that the Portuguese citizenship issue could
be determinative of the applicants’ claim. As already noted, the Board also
advised the applicants that if it became clear that they had no right to
Portuguese citizenship, a further hearing would be held in order to address
their claim of persecution in Venezuela.
[17]
The
Board evidently did not have all the information before it at the September
15, 2010 hearing
concerning the merits of their fear of persecution in Venezuela. It was not, however, an error for the Board to proceed with the hearing in the
absence of that information, given that it was not relevant to the citizenship
issue being determined.
[18]
Moreover,
the applicants confirmed at the hearing of their application for judicial
review that they were not prevented from placing any information before the
Board relevant to the issue of their Portuguese citizenship. While the
applicants also point to the brevity of the September
15, 2010 hearing, the
applicants were nonetheless fully able to address the Board concerning the
citizenship issue. After considering their submissions, the Board explained why
it was satisfied that the applicants could live safely in Portugal without any fear of persecution. The applicants have not challenged these findings, and I
see no reason to interfere with them.
[19]
I
understand that the applicants are frustrated by the fact that the Board
rejected their claim without hearing their evidence on the persecution they say
they suffered in Venezuela, especially in light of the fact that the Board had
accepted certain of their family members’ claims in the past. I also understand
their concerns about their lack of family support for the family and their
daughter in Portugal. However, these are humanitarian and compassionate
considerations, and do not go to the issue that the Board was called upon to
decide at the refugee hearing. While I am sympathetic to the applicants’
circumstances, I am nevertheless satisfied that their right to be heard was
respected in the circumstances of this case.
[20]
Finally,
even if I were to accept the applicants’ submission that the manner in which
the Board proceeded rendered their hearing unfair (which I do not), it would be
futile to remit their claim to the Board for re-determination. This is because,
as a matter of law, the outcome of their refugee claim is inevitable: Mobil
Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1
S.C.R. 202 at 228; Cartier v. Canada (Attorney General), 2002 FCA 384, [2003]
2 F.C. 317 at para. 31; Yassine v. Canada (Minister of Employment and
Immigration) (1994), 27 Imm. L.R. (2d) 135, 172 N.R. 308 (F.C.A.).
[21]
The
applicants concede that they are entitled to citizenship in Portugal and have not challenged the finding that they would not face persecution in that country.
As a result, the Board would be bound by law to reject their claim for
surrogate protection in Canada.
Conclusion
[22]
For these
reasons, the application for judicial review is dismissed. Neither party has suggested a question for certification,
and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDES that:
1. This
application for judicial review is dismissed.
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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