Date: 20040226
Docket: IMM-2829-03
Citation: 2004 FC 267
Between:
Romeo Januario DE SOUZA
Renee Victoria DE SOUZA
Melissa Georgina Lucille DE SOUZA
Alvin Phillip DE SOUZA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated March 18, 2003, wherein the Board found that four of the five applicants are not Convention refugees or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[2] Romeo Januario De Souza, his wife Elena Sabina De Souza ("Mrs. De Souza") and their adult children, Melissa Georgina Lucille De Souza, Renee Victoria De Souza and Alvin Phillip De Souza came to Canada from Zimbabwe on March 8, 2002. The applicants claimed Convention refugee status on March 13, 2002. The applicants fear for their lives on the basis of their race.
[3] The applicants are of Asian Goan descent. They were all born and raised in Zimbabwe and worked there until recently when political turmoil and ethnic strife resulted in the applicants being targets of violence and persecution.
[4] Four members of the family have Portuguese citizenship. However, Mrs. De Souza does not have Portuguese citizenship.
[5] The Board found that the applicants risk persecution and torture and that they face a risk to their lives or of cruel and unusual punishment if they return to Zimbabwe.
[6] The Board concluded that Mrs. De Souza is a Convention refugee. However, the Board found that because the remaining four members of the family have Portuguese citizenship, they are not Convention refugees or persons in need of protection. The Board writes the following in support of its decision:
I find the rest of you to be credible. I accept your allegations as you've stated them. If you had citizenship only in Zimbabwe, I would find you to be Convention refugees also. However, the law is that if you have citizenship in another country, you must present information against that country to be considered refugees from that country. No information was given today of any persecution or lack of protection in Portugal for you. Based on that, I find that you could live there free of persecution. . . .
[7] Counsel for the applicants raises two issues. Dealing first with the second issue, counsel for the applicants submits that the Board committed an error of law in its failure to consider the potential loss of the applicants' Zimbabwean citizenship. The respondent submits that the potential loss of their Zimbabwean citizenship was not material to the Board's decision rejecting the claim. I agree. The applicants' fear that the government of Zimbabwe might strip them of their citizenship was relevant to establishing their fear of persecution in Zimbabwe. However, the claim was rejected because the applicants were found to have Portuguese citizenship and their fear of losing their Zimbabwean citizenship had no relation to their situation in Portugal (Chavarria v. Canada (M.C.I.), [1995] F.C.J. No. 17 (T.D.) (QL)). Consequently, I agree with the respondent that this element was not material to the rejection of the claim and therefore, the Board did not err on this point.
[8] Turning now to the first issue, counsel for the applicants submits that the Board violated principles of natural justice and procedural fairness by not allowing counsel to make submissions before rendering its decision. Subsection 170(e) of the Act provides that, "[t]he Refugee Protection Division, in any proceeding before it, must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations".
[9] In my view, the applicants were given a reasonable opportunity to present evidence and make submissions in this case. It is important to note that several days before their refugee claims were heard, the applicants' counsel filed lengthy written submissions with the Board regarding the applicants' citizenships and the implications for their refugee claims. Given also the fact that the Board member restricted the issue to that of the Portuguese nationality at the beginning of the hearing and thereafter repeatedly confronted the applicants with her concerns, I find that the applicants were given a reasonable opportunity to give evidence and representations to the Board in this case.
[10] For the reasons set out above, the application for judicial review is dismissed.
[11] The applicants proposed the following question for the purpose of certification:
Can the removal of citizenship from a refugee claimant constitute persecution notwithstanding the refugee claimant possessing citizenship in another country?
[12] Given the above reasons, it is clear that the question proposed by the applicants is not a serious question of general importance because it is not determinative of the applicants' case. There is, therefore, no certification.
JUDGE
OTTAWA, ONTARIO
February 26, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2829-03
STYLE OF CAUSE: Romeo Januario DE SOUZA, Renee Victoria DE SOUZA, Melissa Georgina Lucille DE SOUZA, Alvin Phillip DE SOUZA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 20, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: February 26, 2004
APPEARANCES:
Marvin Klassen FOR THE APPLICANTS
R. Keith Reimer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marvin Klassen FOR THE APPLICANTS
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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