PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
VALENTINA MARIA CARIAS VAAMONDE
GUSTAVO ENRIQUE CARIAS VAAMONDE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated July 11, 2005, in which the Board found that the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the IRPA). The Board concluded that the applicants could return to Venezuela, and found that there was insufficient credible and trustworthy evidence to establish the applicants' claims. The Board therefore dismissed the applications for refugee status.
[2] The principal applicant, Monica Maria Vaamonde Wulff, is a citizen of Venezuela. The other two applicants are the principal applicant's minor children, and base their claims on the claim of their mother. The applicants claim a fear of persecution from the Venezuelan government, due to the principal applicant's political opinion, and her past work for a non-government organization called SUMATE, which opposes the current Venezuelan government.
[3] The principal applicant ("PA") claims that her teaching contract with the Venezuelan Ministry of Education was not renewed, due to her work with SUMATE, and that she received threats based on her political activities on Margarita Island in June 2004. The PA alleges that she received threats while working on Margarita Island for SUMATE. She alleges that the Venezuelan government harassed SUMATE members, and claims that, in her position as a co-ordinator, she was singled out by members of the government.
[4] The PA left SUMATE in June 2004, and moved to Caracas to live with her parents. She left Margarita Island because of the threats.
[5] The PA alleges that she received further phone calls in Caracas, after moving to Caracas, to live with her family, in July 2004. The PA states that the caller inquired whether she would return to Margarita Island, as well as about her stay in Caracas. She states that the calls were received at her parents' home.
[6] In November 2004, the applicants came to Canada from Venezuela, and filed claims for refugee protection. The Board rendered a negative decision on June 30, 2005 (oral) and July 11, 2005 (written).
[7] The Board found that the applicants were not Convention refugees or persons in need of protection. The Board concluded that the applicants had established their identities, and the PA gave credible evidence regarding the loss of her employment, and the threats on Margarita Island. However, the Board concluded that the applicants' story with respect to the threats received in Caracas lacked credibility.
[8] The Board found that the PA left her employment with SUMATE in June 2004, and moved to Caracas. The Board did not accept as credible that the current government of Venezuela would track down the PA after she left her work with SUMATE, and moved to Caracas. The Board further stated that the alleged phone calls in Caracas stopped in September 2004, yet the applicants remained in Caracas until November 2004. The Board determined that, on the balance of probabilities, the PA fabricated her evidence, with respect to the alleged phone calls received in Caracas.
[9] The Board concluded that the applicants had not proven that they would face harm in Caracas, if they were to return.
[10] The Board also found that the claimant left her employment with SUMATE in June 2004. The Board found that the PA did not vote in a referendum which took place in August 2004 in Venezuela, and concluded that the applicants would not face persecution if they were to return to Caracas today.
[11] The Board went on to discuss the claimant's employment with SUMATE. The Board took notice of the fact that the PA produced a letter attesting to her employment with SUMATE, but it did not provide any corroborating evidence with respect to the alleged threats received, or any persecution she suffered during her employment. The Board drew a negative credibility inference as a result of the failure to corroborate the PA's claim of persecution.
[12] The Board went on to consider whether political opponents in Venezuela are at risk of persecution. The Board concluded that there is no such risk, noting that the most recent election was decided by a margin of 59% to 41%; that the claimant's profile is not such that she would be targeted today in Caracas by anyone. The Board also noted that the PA left her affiliation with SUMATE in June 2004, and was not involved in any political activities during her four months in Caracas.
[13] The Board then turned its attention to the issue of whether the PA would have trouble securing employment, if she were to return to Venezuela. The Board concluded that the PA has held a number of jobs in Venezuela, and has been trained as a travel agent. The Board concluded that the PA would not have trouble finding a job in Venezuela, despite the fact that she lost her teaching job due to her work with SUMATE.
[14] The Board concluded that the applicants were not Convention refugees, or persons in need of protection, and denied their claim for refugee status in Canada.
[15] The Applicants now bring the present application for judicial review of the Board's decision on the grounds that the Board made its decision in a perverse and capricious manner, without due regard to the evidence before the Board. The applicants further allege that the Board breached natural justice by considering subjective fear, internal flight alternatives and relying on documents that had been specifically set aside from the debate. The applicants also claim that the Board demonstrated a reasonable apprehension of bias. Finally, the applicants allege that the Board erred by failing to conduct a separate analysis under s. 97(1) of the IRPA.
[16] At the outset, I will note that one of the applicants' arguments has no merit. The issue of bias must be raised at the hearing, if the issue is going to be raised in the subsequent judicial review application (see Re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103). Accordingly, the issue of bias will not be considered by this court.
[17] Similarly, the issue of conducting a separate analysis under s. 97(1) can be addressed summarily. As pointed out by the respondent, the absence of a second analysis, with respect to s. 97(1), does not constitute a reviewable error (see Kulendrarajah v. Canada (Minister of Citizenship and Immigration), 2004 FC 79). The applicants' argument must be dismissed with respect to s. 97(1).
[18] With respect to the issue of procedural fairness and natural justice, the applicants argue that assurances were made that the Board would not be considering the issues of subjective fear, internal flight alternative ("IFA"), and the reliability of documents. However, the screening form for the applicant lists IFA, and reliability of documents. I am of the opinion that the applicants cannot claim that they were not aware of the possibility of IFA and the reliability of documents being considered. Accordingly, the application for judicial review can not succeed ground that the applicants were unaware of the possibility of IFA and the reliability of documents being raised.
[19] With respect to the issue of subjective fear, the applicant claims that subjective fear encompasses credibility, and, therefore, the Board is barred from issuing a decision based on credibility. However, the Screening From for the applicants clearly shows that Subjective Fear and Credibility are distinct headings, which are clearly considered separately by the Board. The Screening Form indicates that credibility is an issue for the applicants, while subjective fear is not. Therefore, I am of the opinion that the applicants' argument that subjective fear encompasses credibility must fail, and the Board's decision should not be disturbed on the grounds of procedural fairness or natural justice.
[20] Finally, the applicants allege that the Board's decision is patently unreasonable. The applicants claim that the Board engaged in a microscopic examination of peripheral issues (see Attakora v. Canada(Minister of Citizenship and Immigration)(1989), 99 N.R. 168), and derived unreasonable credibility inferences that were not supported by the facts.
[21] The applicants argue that the Board erred in drawing an adverse inference from the absence of evidence to support the allegations that the PA was receiving threats in Caracas. In addition, the Board is alleged to have erred in finding that the claimant would be able to find suitable work on her return to Venezuela. The applicants have not shown that the Board erred in coming to its conclusions on credibility. It is trite law that credibility is the heartland of the Board's jurisdiction, and a factual finding will only be interfered with by this court if the Board's conclusion is patently unreasonable. The Board's inferences, drawn from the evidence, including the letter from the SUMATE national coordinator, do not amount to a patently unreasonable decision.
[22] As regards the conclusion on employability, the PA relies on my colleague Justice Kelen's finding in Cuevas v. Canada(Minister of Citizenship and Immigration)2005 FC 1169, in which he found as follows at para 13:
The Board must assume that the principal applicant must, and will, resume his business activity if returned to Venezuela. The applicant is a businessman. He cannot be expected to become something he is not, like a farmer. A leopard cannot change his spots. If the applicant returns to his home province, or to Caracas, the risk of persecution he faces must be assessed by the Board on the assumption that the applicant resumes his life as a businessman. Man must work to live.
[23] I am of the view that the present situation is distinguishable from the situation in Cuevas. In the present matter, the Board clearly examined the PA's employment history and training, and came to the conclusion that she would be able to find work in an area which suits her employment history and training. The applicant's argument that she would not be able to resume her teaching job is not sufficient to say that she is unemployable, given her training and work history. The applicant is trained as a travel agent, and, as the Board noted, has worked in a number of jobs in Venezuelaother than teaching, including as an assistant manager, manager, account executive, and bank executive. Accordingly, I would conclude that the present situation is clearly distinct from Cuevas, and the Board's conclusion that the PA would be able to find suitable employment is reasonable.
[24] In a further memorandum of argument, the applicants raise the issue of the order of questioning, under Guideline 7 of the Chairperson's Guidelines, which deals with the preparation and conduct of a hearing. However, that argument was subsequently withdrawn and, accordingly, will not be dealt with in this judicial review application.
[25] As the minor applicants' claims are based on that of the PA, I would conclude that the application for judicial review should be dismissed in its entirety, for all three applicants.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is dismissed. No question of general importance was submitted for certification.
Deputy Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4292-05
STYLE OF CAUSE: Monica Maria Vaamonde Wulff, Valentina Maria Carias Vaamonde, Gustavo Enrique Carias Vaamonde v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Mr. Jeinis S. Patel
|
|
| Ms. Neega Logsetty
|
SOLICITORS OF RECORD:
| Jeinis S. Patel Barrister & Solicitor
|
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| John H. Sims, Q.C. Deputy Attorney General of Canada
|