Date: 20061026
Docket: IMM-1218-06
Citation:
2006 FC 1273
Ottawa, Ontario, the
26th day of October 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
OLGA
CADENAS MUNOZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
. . . It
appears obvious to us that the Division did not believe the appellant, because
it found major contradictions between his actions and his statements. This is a
conclusion that is within the jurisdiction of the tribunal and we cannot
intervene unless it was reached in an unreasonable manner, which is certainly
not the situation in the case at bar.
(Rahman v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 562 (QL), as stated by Mr. Justice James K. Hugessen)
NATURE OF THE PROCEEDING
[2]
This is an
application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (IRB) dated January 26,
2006, that the applicant is neither a “Convention refugee” nor a “person in
need of protection” under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act).
FACTS
[3]
The
applicant, Olga Cadenas Munoz, was born on February 21, 1969, in the Federal
District of Mexico City in Mexico. She is unmarried and all of her relatives
live in Mexico.
[4]
Ms. Munoz
claims to be persecuted in her country of origin by Luis Hernandez, a judicial
police officer with the Attorney General of Mexico (AGM), whom she dated in
2001. On March 7, 2002, Ms. Munoz informed Mr. Hernandez that she had feelings
for one of her work colleagues, Ana Lilia Garcia. At that time, Mr. Hernandez
became furious and insulted her. On March 9, 2002, the situation worsened when
Mr. Hernandez surprised Ms. Munoz and Ms. Garcia exchanging a kiss in public.
On that occasion, he struck her, insulted her and threatened to kill her
because of this insult to him. Ms. Munoz alleges receiving a call on March 17,
2002, from Mr. Hernandez, again insulting her and making death threats against
her.
[5]
Ms. Munoz
claims to have been approached on March 18, 2002, by one of her work colleagues
at Panasonic, who told her than an e-mail containing nude photos of her had
been sent to the human resources office and to all individuals on the human
resources contact list, including all of her clients. She suspected Mr.
Hernandez of having infiltrated the Panasonic computer system in order to send
the e-mail containing the nude photos.
[6]
Ms. Munoz
alleges that her employer, Panasonic, asked her to resign shortly afterwards.
When she refused, Panasonic dismissed her. Ms. Munoz then received many calls
requesting sexual services. She became depressed. She says that she
[TRANSLATION] “went through hell for many months”.
[7]
Following
this event, Ms. Munoz claims that Mr. Hernandez continued to harass her with
telephone calls. In view of this situation, she decided to leave Mexico to
travel to Canada in October 2002. While she was away, Mr. Hernandez made
telephone calls to Ms. Munoz’s mother. Ms. Munoz therefore decided to return to
Mexico. Upon her return to her native country, she went to live with her father
in Chiapas, where she hoped to find refuge.
[8]
Ms. Munoz
alleges that, in March 2003, friends of Mr. Hernandez found her in Chiapas and confined
her in a car. While she was being held by these people, the individuals in
question received a call from Mr. Hernandez asking them to order Ms. Munoz to
return to live in her usual residence, or else he would come and get her. On
March 5, 2003, Ms. Munoz went back to live with her mother.
[9]
On March
17, 2003, Ms. Munoz used a passport and left Mexico for the United States. She
lived in New York City until September 8, 2003. On September 9, 2003, Ms. Munoz
entered Canada and stated at the port of entry that she wanted to claim refugee
status. A few months later, the applicant sought refugee protection in Canada,
alleging a well-founded fear of persecution in her country because of her
membership in particular social group—women who are victims of conjugal
violence in Mexico—since she was the victim of a member of the Mexican federal
police force. The claim was heard on December 20, 2005, and was rejected on
January 26, 2006.
IMPUGNED DECISION
[10]
The RPD
rejected Ms. Munoz’s claim for refugee protection on the grounds that she is
not credible with regard to the essential features of her claim. In addition,
the RPD found that the applicant’s behaviour was incompatible with a subjective
fear of persecution as alleged in her claim. This finding is based on the many
contradictions and implausibilities in Ms. Munoz’s testimony.
ISSUES
1. Were
the RPD’s findings capricious and unreasonable in view of the applicant’s
credibility?
2. Did the RPD err in
law by not applying in its decision the “Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution” (Guidelines)?
3. Did the RPD err by
not taking into account the documentary evidence on the lack of protection in
Mexico for persons in Ms. Munoz’s situation?
4. Did the RPD err in
applying the Federal Court’s initial judgment in this file? Is it bound by the
principle of stare decisis?
5. Was the proceeding
fair and equitable? Did the RPD demonstrate bias?
STANDARD OF REVIEW
[11]
The
determination of a witness’s credibility and the weighing of evidence are the
responsibility of the RPD, whose expertise in determining questions of fact
and, particularly, in evaluating a claimant’s credibility and subjective fear
of persecution is well established (Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph
14).
[12]
In an
application for judicial review, the appropriate standard of review as regards
issues of credibility is patent unreasonableness. The Court must accord
considerable deference, because it is for the IRB to assess the applicant’s
testimony and to evaluate whether her allegations are credible. If the RPD’s
findings are reasonable, no intervention is warranted. However, the RPD’s
decision must be supported by the evidence; it must not be made capriciously,
based on erroneous findings of fact or without regard to the evidence (Mugesera
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100,
[2005] S.C.J. No. 39 (QL), at paragraph 38; Aguebor v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 732 (QL), at
paragraph 4).
ANALYSIS
1. Ms. Munoz’s burden
of proof
[13]
If Ms.
Munoz fails to demonstrate that the inferences drawn by the RPD are so
unreasonable as to warrant the Court’s intervention, the RPD’s findings are not
open to judicial review. The fact that remarks were made about Ms. Munoz’s
credibility in no way reduces her burden of convincing the RPD of her
credibility (Aguebor, supra, at paragraph 4).
[14]
Moreover,
the Federal Court decided in Shahamati v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 415 (QL), at
paragraph 2, that the IRB’s findings of implausibility may rely on criteria
such as “rationality and common sense”.
[15]
In
addition, Rule 7 of the Refugee Protection Division Rules, SOR/2002-228
(the Rules) specifies that the claimant must provide acceptable documents
establishing identity and other elements of the claim. In this regard, see Kante
v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 525 (QL), which states the following:
[8] The law is clear
that the burden of proof lies with the Applicant i.e. he must satisfy the
Refugee Division that his claim meets both the subjective and objective tests
which are required in order to have a well founded fear of persecution. Consequently
an Applicant must come to a hearing with all of the evidence that he is able to
offer and that he believes necessary to prove his claim.
[16]
Moreover,
in Pan v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 1116 (QL), the Federal Court of Appeal decided that the RPD was at
liberty to find that a claimant’s behaviour was inconsistent with a subjective
fear of persecution.
2. Evaluation of Ms. Munoz’s
credibility
[17]
Ms. Munoz
argues that the RPD’s findings concerning her credibility were made in a
capricious and unreasonable manner. The RPD’s decision is impugned on six
issues:
(1) The RPD
attached too much importance to the fact that Ms. Munoz had travelled to Canada
prior to the claim for refugee protection and to the amount of time it took her
to make her claim;
(2) The RPD
imposed an excessive burden of proof when it asked Ms. Munoz to demonstrate the
steps taken by Panasonic to correct the computer infiltration problems. In
addition, the RPD erred in holding it against the applicant that Panasonic did
not indicate in its letter of dismissal any mention of her being fired because
of the problems alleged by the applicant, since this admission would discredit
the business with its customers;
(3) The RPD
erred in doubting the authenticity of the nude photos simply because Ms. Munoz
was unable to produce the e-mail that accompanied the photos that she adduced
as evidence;
(4) The RPD
erred in not assigning any probative value to the letters from Ms. Munoz’s work
colleagues and from her mother;
(5) The RPD
erred in not considering Ms. Munoz’s severe depression and in not assigning
probative value to the psychological reports adduced as evidence and to her
emergency stay at the emergency hospital in the United States;
(6) The RPD erred
in not assigning any probative value to the detailed affidavit submitted at the
hearing of Francisco Rico Martinez. According to Ms. Munoz, this document
demonstrates the lack of state protection in Mexico.
[18]
Further to
an examination of the documentary evidence and the transcript, the Court is of
the opinion that the RPD was correct in basing the reasons for its decision on
the contradictions and implausibilities in the testimonial and documentary
evidence, which are amply supported in the reasons.
[19]
First,
contrary to Ms. Munoz’s arguments, the RPD did not err by attaching too much
importance to the fact that Ms. Munoz did not claim the protection of Canadian
authorities and that she subsequently returned to Mexico. On this point, the
RPD stated the following:
. . .It should be noted that the claimant had already come to Canada
at least four times: in 1999, 2000, 2001, and 2002. . . .
. . .
Finally, the claimant arrived in Canada on September 9, 2003, at the
Lacolle port of entry, and stated her intention of claiming protection from the
Canadian authorities. As mentioned above in this decision, she had come to
Canada many times before. The last time, in 2002, she allegedly shut herself in
at the Hilton Hotel at Dorval Airport for four days. She testified that, on the
other occasions when she supposedly visited Canada, she had been part of a tour
group and never thought of contacting or speaking to anyone. The panel greatly
doubts this statement, as it is strange to say the least that a person who had
been beaten and even hunted down by Mr. Hernandez and his cronies, and
threatened with death after being kidnapped, would not have claimed protection
from the Canadian authorities when she came to Canada. The panel believes
instead that she came to visit friends here.
[20]
In the
caselaw, this Court has consistently held that the voluntary return of a
claimant to his or her country of origin is behaviour that is incompatible with
a subjective fear of persecution (Bogus v. Canada (Minister of Employment
and Immigration) [1993] F.C.J. No. 1455 (QL); Caballero v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 483 (QL); Zergani v.
Canada (Minister of Employment and Immigration), [1994] F.C.J. No.
493 (QL); Hoballah v. Canada (Minister of Employment and Immigration),
[1995] F.C.J. No. 37 (QL)).
[21]
Moreover,
it was reasonable for the RPD to take into consideration in assessing the
well-foundedness of the applicant’s fear her behaviour in not taking serious
measures to protect herself. In this regard, Mr. Justice Yvon Pinard for this
Court expressed the following in Mardones v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 351 (QL):
[2] The decision of the Refugee Division is based
on the conclusion that the applicants' story is not credible. The Board reached
this conclusion because of the inconsistencies between the applicants' personal
information forms and their testimony, and also because it considered it
implausible that the principle applicant would have been targeted by the Manuel
Rodriguez Front. Lastly, the Refugee Division found that the
applicants' conduct, in that they failed to take [TRANSLATION] "serious
measures" to protect themselves, was inconsistent with a fear of
persecution.
[3] In Aguebor v.
Canada (M.E.I.), (1993), 160 N.R. 315 (F.C.A.), Mr. Justice Décary stressed the
restraint that must be adopted in respect of a finding of credibility in this
sort of case . . . .
[22]
It was
reasonable for the RPD to draw a negative inference from Ms. Munoz’s failure to
seek the protection of the United States where she stayed for several months.
If the applicant’s intention was truly to protect her life by leaving Mexico,
it is reasonable to expect that she would claim protection as soon as she had
the opportunity to do so, that is, in the United States (Heer v. Canada
(Minister of Employment and Immigration), [1988] F.C.J. No. 330 (QL); Huerta
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 271 (QL); Riadinskaia v. Canada (Minister of Citizenship
and Immigration), [2001] F.C.J. No. 30 (QL), at paragraph 7).
[23]
In Rahman, supra, Hugessen J.
wrote the following:
. . . It appears
obvious to us that the Division did not believe the appellant, because it found
major contradictions between his actions and his statements. This is a
conclusion that is within the jurisdiction of the tribunal and we cannot
intervene unless it was reached in an unreasonable manner, which is certainly
not the situation in the case at bar.
[24]
Second,
with regard to Ms. Munoz’s allegations that the RPD erred in not assigning any
probative value to the documentary evidence filed with the RPD, the Federal
Court has already decided that a finding of a lack of subjective fear in and
of itself warrants rejection of the claim for refugee protection because
both elements of the alleged fear of persecution, subjective and objective,
must be demonstrated in order to fall within the definitions of “refugee” and
“person in need of protection” (Kamana v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1695 (QL); Fernando v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 759,
[2001] F.C.J. No. 1129 (QL), at paragraph 3, in which the Court cited Kamana,
supra, with approval).
[25]
It is
reasonable for the RPD to find that Ms. Munoz’s behaviour was inconsistent with
any subjective fear and seriously undermined her credibility and the
credibility of her allegations. Moreover, it is clear from the applicant’s
submission and affidavit that she was trying to complete her evidence by giving
further details about the explanations already offered to but not accepted by
the RPD and which were satisfactory.
[26]
The most
recent reasons for the decision show that the RPD confronted Ms. Munoz
concerning the gaps in her evidence. However, the RPD, in this case, assessed
her explanations but found that they were not credible and satisfactory. In
this regard, this Court has held in other cases that explanations previously
offered to the RPD but deemed unsatisfactory by the RPD are not to be
reassessed by the Federal Court (Kabir v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 907, [2002] F.C.J. No. 1198 (QL); Muthuthevar
v. Canada ((Minister of Citizenship and Immigration), [1996] F.C.J.
No. 207 (QL); Castro v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 787 (QL).)
[27]
Finally,
in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3
F.C. 238, [1990] F.C.J. No. 604 (QL), the Federal Court of Appeal held that the
finding of a lack of credibility in the claimant’s testimony may be extended to
all relevant evidence emanating from that testimony. Although this decision
relies on the former Immigration Act, R.S.C. (1985), c. I-2, it is still
valid. Within the legislative framework of the current Act, the Federal Court
stated that “a tribunal's perception that a claimant is not credible on an important
element of their claim can amount to a finding that there is no credible
evidence to support the claim” (Chavez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at
paragraph 7; Touré v. Canada (Minister of Citizenship
and Immigration), 2005 FC 964, [2005] F.C.J. No. 1213 (QL), at paragraph
10.)
[28]
In essence, Ms. Munoz is asking the Court to
reassess the evidence in order to substitute its findings for those of the RPD,
without showing how these findings are patently unreasonable. The RPD’s
findings of fact are reasonable; the term “findings” refers to those that rely
on all of the evidence within the context of this matter. Consequently, this
Court’s intervention is not warranted on this point.
3. Guidelines on gender-related persecution
[29]
Ms. Munoz
claims that the RPD did not take into account the “Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution”. This argument is unfounded.
[30]
First, the
fact that the Guidelines were not mentioned in the reasons for the decision
does not mean that they were not taken into consideration. Moreover, in some
circumstances, the RPD is not even obliged to mention the Guidelines in its
decision (Ayub v. Canada (Minister of Citizenship and Immigration),
2004 FC 1411, [2004] F.C.J. No. 1707 (QL), at paragraph 19; Hazarat v.
Canada (Secretary of State), [1994] F.C.J. No. 1774 (QL), at
paragraph 7; Balasingam v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1717, at paragraph 20; Legault
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125,
[2002] F.C.J. No. 457 (QL), at paragraph 20).
[31]
Second,
the RPD was presented with an account that was not credible, in which there was
no credible allegation related to the claimant’s gender. Moreover, as mentioned
above, the RPD stated in clear, explicit and intelligible terms the valid
reasons why it doubted the truthfulness of Ms. Munoz’s allegations, given her
lack of credibility.
[32]
The
defects noted by the RPD were based on the evidence submitted, pertained to
major points in Ms. Munoz’s claim and were relevant and sufficient to reject
the applicant’s credibility. In this case, the RPD considered that since the
applicant’s account had been deemed not credible, her claim raised no such
issues.
[33]
The
Guidelines are used to ensure that gender-based claims are heard with
sensitivity. In this case, the RPD followed the “spirit” of the Guidelines by
means of active listening, despite the fact that this particular case does not
even lead to the application of the Guidelines primarily because the RPD
considered Ms. Munoz and the basis of her evidence to be not credible.
[34]
Finally,
it is important to reiterate that, in the caselaw, it has consistently been
held that the RPD is not bound by the Guidelines in cases where they do not
apply (Ayub, supra, at paragraph 19; Balasingam, supra).
[35]
Consequently,
failure to consider the Guidelines on gender-based persecution does not in
itself give rise to a reversible error where there is a sufficient basis for
the tribunal’s conclusion, as in this case (Sy v. Canada (Minister
of Citizenship and Immigration), 2005 FC 379, [2005] F.C.J. No. 462 (QL),
at paragraph 18.)
[36]
In the
circumstances, the Court’s intervention on this point is not required.
4. The Federal
Court’s previous judgment
[37]
Ms. Munoz
alleges that the RPD did not accept the authority of res judicata
concerning [TRANSLATION] “several important findings of the RPD” in the initial
judgment. In addition, according to the latter, certain significant evidence,
filed for the first time by Ms. Munoz with the RPD, to which the Court attached
importance, was not mentioned in the RPD’s decision.
[38]
First, the
RPD indicated at the beginning of its reasons in the Author’s note (Reasons p.
2) that the Federal Court order was taken into consideration.
[39]
Second,
the reasons for the Court’s decision indicate that the Court did not find that
the applicant was a credible claimant. This finding is therefore erroneous.
[40]
Third,
contrary to Ms. Munoz’s allegations, no evidence of unwarranted and
inappropriate comments made by the RPD was adduced in this case.
[41]
Fourth,
Ms. Munoz’s argument that the application for judicial review inevitably leads
to a final positive ruling at the end of the new hearing is not correct. The
Court would like to emphasize that a judicial review is not an appeal and that
even in cases where a decision is returned for review by a differently
constituted panel, the RPD is an independent tribunal that is responsible for
reviewing and deciding on the credibility of the evidence adduced, in
accordance with its own legislation, rules, guidelines and institutional
memory.
[42]
In this
case, the Federal Court ordered that the matter be
“referred to a differently constituted panel of the Immigration and Refugee
Board for reconsideration”.
The latter gave no instructions other than the fact that the matter was to be
heard by a differently constituted panel. All that was required of the new
panel was to reconsider the matter de novo. In the absence of specific
instructions of the Court in this respect, it was appropriate to order a new
hearing so that the RPD could construct its own opinion on the credibility of
Ms. Munoz’s evidence.
[43]
The
reasons for the RPD’s decision in this case indicate that the RPD drew its own
conclusions concerning the evidence adduced. Specifically, with respect to the
RPD’s finding concerning the fact that there was no mention in the documents from
Panasonic that Ms. Munoz was dismissed because of the problems she alleges to
have experienced, the RPD clearly set out many other reasons in its decision
for doubting that the photos of Ms. Munoz had circulated within Panasonic’s
computer system. Thus, no intervention of the Court is warranted on this basis
(Miranda v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 437 (QL).)
5. Observance of the
principles of natural justice and procedural fairness
(a) Guideline 7 – Concerning
Preparation and Conduct of a Hearing in the Refugee Protection Division
[44]
In this
case, Ms. Munoz did not establish that the principles of natural justice or
procedural fairness were violated by the fact that the tribunal applied
Guideline 7.
[45]
The
text below is simply a restatement of the current caselaw on Guideline 7,
which, in this case, does not apply primarily because of the elements mentioned
above and specified in the following text:
[46]
A
number of Federal Court decisions pertain to this Guideline.
[47]
In
Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC
16, [2006] F.C.J. No. 8 (QL), Mr. Justice Edmond P. Blanchard held that the
order of questioning at an RPD hearing does not in itself result in a breach of
the principles of natural justice because there is no inherent right to an
examination-in-chief within the context of a claim for refugee protection:
[91] The Intervener has provided some
evidence pointing to the difficulties refugee claimants face and the benefits
to them of “counsel-first” questioning. However, in my view, neither the
Applicant nor the Intervener has established that the principles of natural
justice or procedural fairness require that refugee claimants be afforded an
“examination-in-chief” in order for the refugee determination process before
the Board to be fair. The opportunity for the Applicant to make written
submissions and provide evidence to the Board, to have an oral hearing with the
participation of counsel, and to make oral submissions, in my opinion, satisfies
the requirements of the participatory rights required by the duty of fairness
in this case.
[92] After considering the factors set out
in Baker and the further factors submitted by the Intervener, I am not
persuaded that the principles of natural justice or procedural fairness demand
that the Applicant’s refugee determination hearing be conducted with a
particular order of questioning – that is, with counsel for the Applicant
questioning first – in order to ensure the Applicant has a meaningful opportunity
to present his case fully and fairly.
[48]
It
not possible at the outset to state that the RPD is required by the rules of
natural justice to allow counsel for a claimant to be the first to question his
or her client and witnesses, if any.
[45] In particular, the Applicant submits that in
Kante at paragraph 10, the Court established a refugee claimant’s right to an
“examination-in-chief”:
I would suggest to counsel
for Applicants to remember at all times that as the burden of proof is on them
they are entitled to present their case as they see fit.
[46] In my opinion, in none of these cases did
the Court establish that the principles of natural justice and procedural
fairness require that refugee claimants be questioned by their counsel first.
In fact, whether the Board’s choice of the order of questioning accorded with
natural justice or procedural fairness was not before the Court in any of the
cases. The cases all dealt with specific circumstances in which the Court held
that the Refugee Board’s conduct of the hearing was improper or led to an error
in the Board’s findings of fact.
[47] In Kante, the Applicant had not
raised any issue of procedural unfairness. Rather, Mr. Justice Nadon, then of
this Court, informed both parties that he was troubled by the fact that the
Refugee Board had told counsel not to question the claimant regarding certain
events. His comment, quoted above by the Applicant, did not concern the
validity of the order of questioning. In fact, it appears that the hearing was
conducted with the claimant’s counsel questioning first.
. . .
[50] In Veres, the Refugee Board had
adopted a procedure of directly cross-examining the claimant without having him
put his case in chief first. As the Applicant in this case points out, Mr.
Justice Pelletier did state that “…one would not think it contentious to say
that the person who has the onus of proof must be given a fair chance to meet
that onus”. However, Mr. Justice Pelletier did not conclude that in the context
of refugee determination hearings that claimants have an inherent right to lead
their evidence first, as in civil or criminal court proceedings. Nor did he
find that not allowing the claimant to go first was, in itself, a breach of
natural justice. Rather, Mr. Justice Pelletier stated that the unfairness
arises where the Board in its reasons reproaches claimants for failing to
provide some piece of evidence without putting the claimants on notice that
they are at risk on that issue. At paragraph 28 of his decision, Mr. Justice
Pelletier wrote:
It is clear that the CRDD is
the master of its procedures. It is entitled to take economy of time into
account in devising its procedures. It can equally direct which evidence it
wishes to hear from the mouth of the witness and which it waives hearing. But
when it says it does not need to hear from the witness, it cannot subsequently
complain that it has not heard from the witness.
. . .
[53] In my opinion, the cases cited by the
Applicant and the Intervener do not lead to the conclusion that a meaningful
opportunity to present one’s case includes a right to question first. Rather,
they reaffirm that the Board is entitled to control the procedures of a hearing
but that the Board must conduct the hearing in a way that does not unfairly
restrict the claimant’s right to present her or his case.
[54] The Court’s jurisprudence
has not settled whether a claimant appearing before the Board in a refugee
determination hearing has the right to an “examination-in-chief” or whether not
allowing the claimant’s counsel to question first is inherently unfair. The
Applicant and the Intervener must still establish that the principles of
natural justice and procedural fairness dictate a particular order of
questioning in refugee determination hearings before the Board
in order to succeed on their argument.
(Thamotharem, supra)
[49]
In
Thamotharem, Blanchard J. states that Guideline 7 in and of itself does
not affect the role of the Board member responsible for hearing the refugee
protection claim. The RPD is an administrative tribunal with investigatory
powers and thus Board members can take the measures that they consider
necessary to provide a full and proper hearing of the claim (section 165 of the
Act). It is therefore not wrong for the RPD to engage in a probing examination
of the claimant in order to assess the well-foundedness of the claim.
[50]
With regard to the discretion
of the member hearing the refugee claim, Blanchard J. determined in Thamotharem
that where the member feels bound by Guideline 7 and thus is prevented from
proceeding in the most appropriate manner to achieve a just and equitable
hearing, the member’s discretion has been fettered. Everything is a question of
circumstances and how the member perceives and interprets Guideline 7.
[51]
However,
it must be noted that this decision is currently under appeal to the Federal
Court of Appeal.
[52]
Moreover,
Mr. Justice Richard Mosley recently arrived at quite a different conclusion on
the issue of the Board member’s discretion in Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631
(QL):
[171] There is considerably
more evidence before me as to the manner in which Guideline 7 is actually being
applied by RPD members than there was before my colleague in Thamotharem.
On that evidence in these proceedings, I am not satisfied that the applicants
have demonstrated that the discretion of RPD members to determine the procedure
to be followed in the refugee proceedings before them has been fettered by the
implementation of Guideline 7.
[53]
There
is no evidence in this case to suggest that the RPD’s discretion was fettered.
Indeed, the reasons for the decision show that the RPD considered Ms. Munoz’s
objection and proceeded in the manner that it felt was the most appropriate. Proceeding
in this manner did not prevent Ms. Munoz from presenting her case because she
was able to adduce her evidence, and in fact was allowed to adduce it late, and
testify as to the facts of her claim for refugee protection. In addition, in
reading the reasons for the RPD’s decision and Ms. Munoz’s file, the Court
notes that Ms. Munoz’s account was clearly understood by the RPD.
[54]
In
short, the RPD must observe the principles of natural justice in carrying out
the duties and exercising the powers provided for in the Act. In this case, the
RPD did not breach any of these principles.
(b)
Allegations of bias
[55]
Ms.
Munoz claims that the atmosphere at the hearing was hostile and that her
counsel was attacked by the Board member. In addition, she emphasizes that the
reasons for the decision that pertain to the Board member’s behaviour raise the
issue of the RPD’s bias. Ms. Munoz did not directly submit any significant
particulars supporting her allegations in this regard.
[56]
First,
it appears from the reasons for the RPD’s decision that a criticism was
levelled at the proceedings:
. . .both before and during the hearing concerning the role of the
refugee protection officer and even the impartiality of the presiding member,
he went so far as to submit that the Immigration and Refugee Board acted in a
manner contrary to human rights, alleging that both the member and the Board as
an organization failed to respect the rules of natural justice.
[57]
Second,
Ms. Munoz’s allegations seemed to rely on her own impressions, hypotheses and
opinions not directly based on testimonial or documentary evidence. In
addition, Ms. Munoz did not provide any examples of questions addressed to her
that were allegedly hostile.
[58]
It
is not sufficient to allege that the RPD had a skeptical attitude; one has to
demonstrate that the RPD’s manner of proceeding resulted in a denial of natural
justice. In this case, no direct and specific demonstration of this was made.
[59]
Third,
it must be remembered that the tribunal is presumed to be impartial and that it
is up to the applicant to prove or provide a basis for an allegation of bias.
This evidence must be clear and unequivocal (D. Lemieux, Le contrôle
judiciaire de l’action gouvernementale, Montréal, CEJ 1986, 3, at
page 116). The caselaw holds that the test for a reasonable apprehension of
bias is that of an informed person having thought the matter through and that
the reasons for this apprehension must be serious, particularly in the case of
an administrative tribunal, as in this case (Committee for Justice
and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 (QL); Wu
v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D.
No. 2158.)
[60]
In
this case, Ms. Munoz’s statements in her affidavit and in her submissions do
not establish that the test for bias developed by the caselaw has been met. It
was her responsibility to show that the RPD’s behaviour towards her was
reprehensible, which would cast doubts about its impartiality. Ms. Munoz did
not show this. Her general allegations are not of this nature and are therefore
not sufficient to warrant this Court’s intervention.
CONCLUSION
[61]
In
view of the foregoing, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
2. There is no serious question of general
importance to be certified.
“Michel
M.J.Shore”
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