Date: 20061018
Docket: IMM-7441-05
Citation: 2006 FC 1222
Ottawa, Ontario, October
18, 2006
PRESENT: THE HONOURABLE
MR. JUSTICE LEMIEUX
BETWEEN:
Maria
Concepciбn ANGUIANO ACUNA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
On
November 22, 2005, the Immigration Protection Division (the panel) determined
that Maria Concepciбn Anguiano Acuna (the applicant or the claimant), a
citizen of Mexico, is not a Convention refugee or a person in need of protection.
The applicant is challenging this decision through this application for
judicial review.
[2]
The
panel points out that the applicant’s “testimony was
credible on the whole”. It dismissed her refugee claim as it was of the
view that she had an internal flight alternative (IFA).
[3]
She
raised two grounds for setting aside the panel’s decision:
1. She has a reasonable
apprehension of bias on the part of the panel because it breached its duty to
give her a fair and impartial hearing. It was ironic and sarcastic and was
disrespectful to her;
2. The panel improperly assessed
the evidence regarding the existence of an internal flight alternative for
Ms. Acuna.
[4]
The
applicant’s story is not disputed. She is a psychologist and a teacher. In
1999, she was employed as a professor at the University of Tijuana, in La Paz,
Baja California (the university).
[5]
This
institution was a private institution which was not accredited by the
Department of Education, because it did not satisfy its requirements. In the
panel’s opinion, the applicant, who was questioned by the students’ parents in
regard to pending accreditation, had to tell them that despite the claims of
university management, the university was not doing anything to become
accredited.
[6]
In
May 2002, the applicant allegedly saw the university rector trafficking drugs
on the university campus; he recognized her.
[7]
Several
months after this incident, the rector left for the city of Tijuana to run for
office in the elections; he was elected. Afterward, the university secretary
allegedly warned the applicant not to say anything whatsoever about the
rectors’ deviant behaviour.
[8]
In
July 2002, the applicant learned from workers that her office at the university
was no longer hers. Based on this, she concluded that she had lost her job and
filed a complaint with the centre for conciliation and arbitration (the
Centre).
[9]
She
claimed that in November and December 2002 she received anonymous death
threats, telling her to stop her proceedings before the Centre. In some phone
calls,, she was told that she would never work as a psychologist or teacher in
any area of Mexico ever again.
[10]
The
applicant as well as the university’s counsel, who had allegedly threatened her
with serious problems following her compliant against the university, appeared
before the Centre on April 21, 2003. Apparently, at this time, the
Centre’s decision is still under consideration.
[11]
On
June 26, 2004, the applicant, hired as a psychologist in an elementary school,
was advised that her contract would end on the 30th of the same month and that
her position had been eliminated. In September 2004, she learned from her
sister that her position had been filled by another person. According to the
panel, she determined that this was all the fault of the former university rector,
now a member of parliament.
[12]
She
submitted that following these incidents, she had been permanently marginalized
in her profession. She allegedly filed six job applications with other
universities in Mexico, which were fruitless, and she believed that she was
rejected because of bad references from the university.
[13]
The
panel explained its findings regarding the applicant’s internal flight
alternative as follows:
The
documentation tabled as evidence indicates that there are 4,183 institutions of
higher learning in Mexico, attended by 2,147,100 students. In 2002, there were
56 universities.
The claimant
had an impressive career in her field of psychology. She was a member of the
psychologists’ society of Guadalajara, since there was no such society in her home
province of Baja California.
When
questioned about the possibility of flight to another city in Mexico, such as
Guadalajara or Mexico City, cities of over a million inhabitants, the claimant
stated that her alleged persecutor . . . was responsible for her
employment not being renewed and for the lack of acknowledgment of the
applications she had sent to other educational institutions in Mexico. It was
only after she arrived in Canada that the claimant learned that the primary
school teaching position she had held, which had been abolished, had been given
to someone else in September. The claimant saw this as persecution.
The claimant
testified that after she learned that her job had been given to someone else,
she made no attempts to find a job. Although the right to earn a living is a
basic one, the work does not necessarily have to be in a person’s field or in
the place where he or she is living.
The claimant
testified that she would have no difficulty travelling to a city like
Guadalajara and finding a job, but that it was a city where the cost of living
was high. She did not demonstrate to the panel that the possibility of
internal flight was unreasonable.
The claimant
did not prove that her alleged persecutor was at the root of her inability to
get the few positions she claimed to have applied for.
[Emphasis added.]
ANALYSIS
(a) Principles
[14]
The
legal principles which apply in this case are very well known.
[15]
With
respect to the concept of reasonable apprehension of bias, I refer to the
comments of my colleague Mr. Justice Beaudry in Fenanir v. Canada
(Minister of Citizenship and Immigration) 2005 FC 150, at paragraphs 10,
11, 12 and 14 of his decision:
[10] The Supreme
Court considered the issue of bias in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII),
[2003] 2 S.C.R. 259 at paragraph 59. It stated as follows:
. . .
“[i]mpartiality is the fundamental qualification of a judge and the core
attribute of the judiciary” (Canadian Judicial Council, Ethical Principles
for Judges (1998), at p. 30). It is the key to our judicial process, and
must be presumed. As was noted by L’Heureux-Dubé J. and McLachlin J. (as
she then was) in S. (R.D.), supra, at para. 32, the presumption
of impartiality carries considerable weight, and the law should not carelessly
evoke the possibility of bias in a judge, whose authority depends upon that
presumption. Thus, while the requirement of judicial impartiality is a
stringent one, the burden is on the party arguing for disqualification to
establish that the circumstances justify a finding that the judge must be
disqualified.
(Emphasis
added.)
[11] De Grandpré J. also stated in Committee
for Justice and Liberty v. National Energy Board 1976
CanLII 2 (S.C.C.), (1978) 1 S.C.R. 369, at pages 394 and 395 ::
. . .
the apprehension of bias must be a reasonable one held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. . . . that test is “what would a informed
person, viewing the matter realistically and practically--and having thought
the matter through--conclude. Would he think that it is more likely than not
that [the decision-maker], whether consciously or unconsciously, would not
decide fairly.”
. . .The
grounds for this apprehension must, however, be substantial and I
. . . [refuse] to accept the suggestion that the test be related to
the “very sensitive or scrupulous conscience”.
[12] In Arthur
v. Canada (Attorney General), 2001 FCA 223 (CanLII),
[2001] F.C.J. No. 1091 (F.C.A.) (QL), 2001 FCA 223, we read the following at
paragraph 8 :
. . .
An allegation of bias, especially actual and not simply apprehended bias,
against a tribunal is a serious allegation. It challenges the integrity of the
tribunal and of its members who participated in the impugned decision. It
cannot be done lightly. It cannot rest on mere suspicion, pure conjecture,
insinuations or mere impressions of an applicant or his counsel. It must be
supported by material evidence demonstrating conduct that derogates from the
standard. . . .
. . .
[14] In the book
entitled Judicial Review of Administrative Action in Canada (Brown and
Evans, Toronto : Canvasback Publishing, 1998) at pages 11-31 and 11-32, it
reads:
Extensive and
“energetic” questioning alone by tribunal members will not in itself give rise
to a reasonable apprehension of bias. And particular latitude is likely to be
given to tribunals operating in a non-adversarial setting, such as refugee
determination hearings, where there is no one appearing to oppose the claim.
Nor will an expression of momentary impatience or loss of equanimity by a
tribunal member result in disqualification, particularly where it was merely an
attempt to control the manner of proceeding. Similarly, a sarcastic comment
when a party refused to give evidence, or an ill-chosen and insensitive phrase,
will not, without more, lead to disqualification. [Footnotes omitted.]
[16]
With
regard to the issue of burden of proof in the context of an IFA, I refer to a
decision by Blais J. in E.H.S. v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1325, at paragraphs 13 and 14:
[13] The
question of who has the burden of proof to establish that there is a risk
throughout the country when an IFA is raised was addressed by Linden J.A. in Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (F.C.A.),
[1994] 1 F.C. 589. Linden J.A., at paragraph 5, quotes Mahoney J.A. in Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706,
stating:
Mahoney J.A.
held that, since the question of whether or not there is an IFA is simply part
and parcel of whether or not the claimant is a Convention refugee, the onus of
proof rests on the claimant to show, on a balance of probabilities, that there
is a serious possibility of persecution throughout the country, including the
area which is alleged to afford an IFA.
[14] The
applicant therefore has the burden of establishing, on a balance of
probabilities, that there is a serious possibility of persecution throughout
the country, including the area that is alleged to be an IFA.
[17]
As
for the substance of the principle of internal flight alternatives, I refer
again to Blais J. in E.H.S., supra, at paragraphs 11 and 12:
[11] For a
person to be a Convention refugee, there cannot be an IFA. The Federal Court
confirmed that the notion of an IFA is inherent to the definition of a refugee.
Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706, stated the following at paragraph 8:
. . .
a Convention refugee must be a refugee from a country, not from some
subdivision or region of a country, a claimant cannot be a Convention refugee
if there is an IFA. . . .
[12] The
Federal Court of Appeal developed a two-part test to determine whether a person
claiming refugee status has an IFA in another part of their country. The test
was clearly reiterated by Beaudry J. in Dillon v. (Minister of
Citizenship and Immigration), [2005]
F.C.J. No. 463, at paragraph 11:
In Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (F.C.A.),
[1994] 1 F.C. 589 (C.A.) at paragraph 2, the Federal Court of Appeal listed two
elements to be considered when establishing an IFA: the Board must be satisfied
on the balance of probabilities that there is no serious possibility of the
claimant being persecuted in the part of the country to which it finds an IFA
exists, and, taking into account all the circumstances, including those
specific to the applicant, the situation in the proposed location must be such
that it would not be unreasonable for the applicant to seek shelter there.
[18]
As
we can see, the key decision is the one by Linden J.A. of the Federal
Court of Appeal in Thirunavukkarasu v. Canada, Minister of Employment and
Immigration [1994] 1 F.C. 589.
[19]
I
would like to quote a few passages from this judgment by Linden J.A. regarding
the notion of unreasonableness in the context of an IFA:
[12] Mahoney
J.A. expressed the position more accurately in Rasaratnam, supra,
at page 711:
In my
opinion, in finding the IFA, the Board was required to be satisfied, on a
balance of probabilities, that there was no serious possibility of the
appellant being persecuted in Colombo and that, in all the circumstances
including circumstances particular to him, conditions in Colombo were such that
it would not be unreasonable for the appellant to seek refuge there.
Thus, IFA
must be sought, if it is not unreasonable to do so, in the circumstances of the
individual claimant. This test is a flexible one that takes into account the
particular situation of the claimant and the particular country involved. This
is an objective test and the onus of proof rests on the claimant on this issue,
just as it does with all the other aspects of a refugee claim. Consequently, if
there is a safe haven for claimants in their own country, where they would be free
of persecution, they are expected to avail themselves of it unless they can
show that it is objectively unreasonable for them to do so.
[13] Let me
elaborate. It is not a question of whether in normal times the refugee claimant
would, on balance, choose to move to a different, safer part of the country
after balancing the pros and cons of such a move to see if it is reasonable.
Nor is it a matter of whether the other, safer part of the country is more or
less appealing to the claimant than a new country. Rather, the question is
whether, given the persecution in the claimant’s part of the country, it is
objectively reasonable to expect him or her to seek safety in a different part
of that country before seeking a haven in Canada or elsewhere. Stated another
way for clarity, the question to be answered is, would it be unduly harsh to
expect this person, who is being persecuted in one part of his country, to move
to another less hostile part of the country before seeking refugee status
abroad?
[14] An IFA cannot
be speculative or theoretical only; it must be a realistic, attainable option.
Essentially, this means that the alternative place of safety must be
realistically accessible to the claimant. Any barriers to getting there should
be reasonably surmountable. The claimant cannot be required to encounter great
physical danger or to undergo undue hardship in travelling there or in staying
there. For example, claimants should not be required to cross battle lines
where fighting is going on at great risk to their lives in order to reach a
place of safety. Similarly, claimants should not be compelled to hide out in an
isolated region of their country, like a cave in the mountains, or in a desert
or a jungle, if those are the only areas of internal safety available. But
neither is it enough for refugee claimants to say that they do not like the
weather in a safe area, or that they have no friends or relatives there, or
that they may not be able to find suitable work there. If it is objectively
reasonable in these latter cases to live in these places, without fear of
persecution, then IFA exists and the claimant is not a refugee.
[15] In
conclusion, it is not a matter of a claimant s convenience or the
attractiveness of the IFA, but whether one should be expected to make do in
that location, before travelling half-way around the world to seek a safe
haven, in another country. Thus, the objective standard of reasonableness which
I have suggested for an IFA is the one that best conforms to the definition of
Convention refugee. That definition requires claimants to be unable or
unwilling by reason of fear of persecution to claim the protection of their
home country in any part of that country. The prerequisites of that definition
can only be met if it is not reasonable for the claimant to seek and obtain
safety from persecution elsewhere in the country.
(b) The standard of
review
[20]
When
this Court is called to review a decision by an administrative tribunal bearing
on the issue of an IFA, the appropriate standard of review is that of patent
unreasonableness where, as in this case, it is a matter of applying recognized
legal principles to a set of facts, which is a question of mixed fact and law
(see the decision by Shore J. in Gilgorri v. Canada (Minister of
Citizenship and Immigration) 2006 FC 559.
[21]
It
appears that the notion of standard of review does not apply when the Court
must decide whether the conduct of the first decision-maker gives rise to a
reasonable apprehension of bias. In this case, Ms. Acuna’s counsel did not
raise any reasonable apprehension of bias during the hearing and did not make a
request for recusal. Accordingly, the panel did not decide this issue. In this
context, it is this Court’s responsibility to decide the issue by applying the
legal principles relevant to the facts identified by reviewing the transcript.
(c) Apprehension of bias
[22] Two affidavits were filed in support
of the existence of a reasonable apprehension of bias: the affidavit of
Ms. Acuna and the affidavit of Carlos Hoyos-Tello, an immigration
consultant, who represented the applicant before the panel.
[23] Ms. Acuna’s affidavit has
many pieces of evidence, including:
1. An excerpt
from the beginning of the hearing of October 5, 2005, establishing that the
panel denied Ms. Acuna the right to make her statement under oath with the
Bible, the panel stating “we no longer swear on the Bible, we are a secular
government”. The affidavit also refers to the notice to appear sent to
Ms. Acuna to the effect that “At the hearing, you will be required to make
a solemn affirmation before giving testimony. If you prefer to make an oath,
you must bring a holy book with you to the hearing.”;
2. A
statement regarding the panel’s treatment of two letters of support that her
representative had submitted to the panel. The applicant states that the panel [translation]
“showed us a great lack of respect. Once the first letter was read, he
literally threw the letter … from his desk to the desk of my immigration
advisor, passing it over the computer … he did the same with the second
letter. In both cases, the discarded letters landed on the desk of Mr. Hoyos,
my immigration advisor”;
3. A letter
from sister Agnès Bouchard, an observer at her hearing, in which she states: [translation]
“during the hearing I thought that they were treating her like a street person,
if not an offender”;
4. Certain passages from the
transcript show that the applicant had a justifiable apprehension of the
panel’s bias.
[Emphasis added.]
[24] In his
affidavit, Mr. Hoyos-Tello stated that he had been a [translation] “direct witness to the
unfair hearing that my client, Ms. Aguiano Acuna had before the member
. . . He was ironic, sarcastic and he breached his duty to properly
examine the evidence.” Carlos Hoyos-Tello also stated that the panel and the
refugee protection officer (the RPO) had been appointed at the last minute. He
referred to certain passages of the transcript in support of his statements.
[25] From the transcript of the hearing
of October 5, 2005, I listed the following passages in order to assess the
correctness of Ms. Acuna’s statement to the effect that the panel’s
comments support her claim, that they raise a reasonable apprehension of bias
on the part of the panel, i.e. a reasonable apprehension that the panel did not
decide fairly:
1. The
panel had asked Ms. Acuna whether she had any acknowledgements of receipt
for her job applications at several universities. She testified that only one
person responded by mail and that the other refusals were in person and that
she had not taped the phone calls. The panel asked her [translation] “do you know the Latin proverb? Have you ever
studied Latin? No?” Ms. Acuna replied “No”. The panel made the following
remark:
[translation] O.K. scripta valente, verba volente
[sic]; words fly, the writing remains. So, that is why I’m telling you
. . . I asked you whether you had written evidence of your refusals.
So, you’re saying that you only have one? (Certified Record, page 312).
2. Ms. Acuna
testified that during 2002-2003, when she filled temporary positions at two
universities in La Paz, she was told that there was no work for her, adding [translation] “yet I saw that there
were other people who got jobs” . . . to which the panel stated: [translation] “. . . yes, these
are things that happen in life” (Certified Record, page 313).
3. Responding
to the panel regarding how many accredited universities there were in Tijuana,
Ms. Acuna listed several, following which the panel exclaimed [translation] “Good gracious, those are
a lot of universities for one small city” (Certified Record, page 321).
4. In
response to a question from the panel, why she had never said anything about
the drug exchange, Ms. Acuna replied [translation]
“because I was so stunned” following which the panel added [translation] “but you recover from
your astonishment the next morning and run to the police where you file an
anonymous report, as it is possible to do by internet in Mexico” (Certified
Record, page 326).
5. Ms. Acuna
testified that at the university where she was teaching there were two
professors for 250 students and that the department was small, to which the
panel retorted : [translation] “well,
200 students for two professors, I find that big, myself” (Certified Record,
page 337).
6. Following
Ms. Acuna’s testimony that counsel in Mexico [translation] “can keep, if they win, can keep half of what
they win from the person” the panel exclaimed [translation]
“My goodness, Canadian legal services could model that” (Certified
Record, page 348).
7. Ms. Acuna
testified before the IRB that she was not seeking reinstatement at the
university and admitted that the $1,600 for three months of salary she was
claiming was not much (Certified Record, pages 349 and 350). The panel later
said [translation] “what I find
odd, myself, is that a person as important as a deputy would be concerned about
something ultimately costing $1,600 Canadian. I find that bizarre that a highly
placed guy could ask people to threaten you with death because you were after them
for $1,600, you don’t find that a little bizarre?” (Certified Record, page
356).
8. The
panel had asked Ms. Acuna whether she had attempted to record the
anonymous death threats she had received by telephone, she replied that she
could not buy herself an answering machine. After a discussion about the cost
of an answering machine in Mexico, Ms. Acuna submitted that she could not
buy one because she was earning less. The panel retorted [translation] “no, especially not when
one’s life is in danger, right?” (Certified Record, page 358).
9. The panel asked Ms. Acuna whether she had
applied for her old position at the private catholic elementary school when the
position was re-opened, to which she replied that she had not because she had
been in Canada, to which the panel added [translation]
“of course, naturally if the position opens and you aren’t
there, you can’t be hired, hmm?” (Certified Record, page 360).
10. At one point in her testimony she was
asked the name of the missionaries for whom she had done community psychology
in Africa. Ms. Acuna stated [translation]
“let’s say they were like the Jesuits, but we called them the
Combonians,” to which the panel replied [translation]
“okay, watch it there because I myself studied under the Jesuits”
(Certified Record, page 370).
[Emphasis
added.]
11. Ms. Acuna
was married in September 1997 in France where she studied at the Université
Catholique de Lille but was divorced in April 1999. She testified that the
couple lived in Fayence in the South of France. The panel exclaimed [translation] “lucky”, to which
Ms. Acuna said [translation] “weather-wise,
yes”, prompting the panel to state “yes, yes, I’m not referring to …
your married life” and Ms. Acuna added “yes, yes, yes, weather-wise,
it was good” (Tribunal Record, page 373).
[Emphasis
added.]
12. During the
hearing, the panel wanted to know whether something prevented Ms. Acuna from
going to Guadalajara once she had returned to Mexico from France via the Mexico
City airport and the RPO had asked her: [translation]
“you could have therefore continued on to Guadalajara? The panel added [translation] “by bus, car, foot,
donkey?” (Tribunal Record, page 379).
[Emphasis
added.]
13. In her
Personal Information Form, Ms. Acuna wrote that in June 2004, she had met the
Chairperson of the Centre and that he had informed her that her case was
difficult, very difficult and even that she would lose. Ms. Acuna
confirmed this meeting during her testimony. The panel stated that it was very
surprised by this meeting, to which Ms. Acuna responded that it was the
father of a young child from the school where she worked. The panel exclaimed
the following:
[translation]
Yes, yes, but
what I am saying, madam, is that . . . if you went to see him to talk
about ice cream, I am okay with that , but if you went to see him before a
decision was made to find out where your case was going, that’s too bad, I’m
going to change my tune right away.
You have no
right to interfere with the judicial process. So, when you say that you went to
see the Chairperson to know where your case was going , you know, there are
politicians here who are very well (inaudible), there, simply because they
talked to the judge, so … (Certified Record, page 380).
[Emphasis
added.]
14. During
Ms. Acuna’s testimony, there was the matter of the owner of the University
of Tijuana naming his son as rector. She testified that the father had a lot of
power and had been involved in fraud and that the attitude of this gentleman
was [translation] “if you are not
with me and you are against me, I will do something” to which the panel threw
out the following remark: [translation]
“yes, it’s as the Lord said, those who are not with me will be
against me” (Tribunal Record, page 384).
[Emphasis
added.]
16. During his
examination of Ms. Acuna, the panel always addressed the claimant using
the term “madam”. Nearing the end of the hearing, the panel told her [translation] “well now, I haven’t
any other questions, miss” … to which Ms. Acuna said [translation] “yes, I would like”…
the panel interrupted her, saying [translation]
“no, no, I’m not saying that to make you feel younger, I’m calling
you ‘miss’ instead of ‘madam’” (Tribunal Record, page 402).
[Emphasis
added.]
[26] It is recognized in the case law that
a panel’s interventions during a hearing can give rise to a reasonable
apprehension of bias by the claimant. Each case is determined on its own facts.
[27] Several decisions by the Federal Court
of Appeal and our Court have condemned interventions by the panel during the
hearing as an indication of a lack of impartiality:
1. The
panel’s intrusive and intimidating interventions interfered significantly with
the applicant’s presentation of his case (Kumar v. Canada, [1988] 2 F.C.
14 (F.C.A.)).
2. The
panel’s harassment during cross-examination, “cross-examination was worthy of a
criminal trial” (De Leon v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 852.
3. Intimidating,
abusive, hostile, sarcastic, inappropriate as well as gratuitous and uncalled
for interventions or comments (Mohammad c. Canada (Minister of
Citizenship and Immigration), [[2000] F.C.J. No. 319] and Guermache v.
Canada (Minister of Citizenship and Immigration), [[2004] F.C.J. No.
1058]).
4. Comments
made by a panel during the hearing which give the impression of excessive or
unfair aggressiveness or irrelevant remarks for which there are no valid
reason.
5. Sexist,
uncalled for, or highly inappropriate remarks by the panel. In Yusuf v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629,
Mr. Justice Hugessen, then a member of the Federal Court of Appeal, wrote at
paragraph 23 “The day is past when women who dared to
penetrate the male sanctum of the courts of justice were all too often met with
condescension, a tone of inherent superiority and insulting “compliments”. A
judge who indulges in that now loses his cloak of impartiality. The decision
cannot stand.” In this case, Hugessen J. noted that the panel had addressed the
claimant as “my dear lady” and had described her as “a tiny
little woman.”
6. On the
other hand, an energetic intervention intended to clarify the evidence does not
raise a reasonable apprehension of bias (Mahendran v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. 549 (F.C.A.)).
[28] My
review of the transcript of hearing does not support a finding that the panel’s
interventions prevented the applicant from filing all of the evidence that she
wanted to file in order to establish a well-founded fear of persecution if she
were to return to Mexico.
[29] As
stated, the applicant was represented by an immigration consultant with a
master’s degree in international law from the Université du Québec à Montréal
who has represented clients at the IRB for more than five years. This
consultant is a Mexican and is very familiar with Mexican cases. Further, a
refugee protection officer (RPO) was also present at the hearing.
[30] The
applicant had been questioned first by the panel. That examination was followed
by a period of questions by the RPO, whose examination was often interrupted by
the lone member. The applicant’s representative intervened several times and,
near the end of the hearing, asked his client several questions (see Certified
Record, page 391 to 396).
[31] The
applicant’s examination in this case is analogous to the one that I discussed
in Burianski v. Canada (Minister of Citizenship and Immigration), 2002
FCT 826, at paragraph 30:
My reading of the transcript shows
the tribunal members had held two prehearing conferences with counsel for the
applicants where issues were identified and lines of questions suggested. It is
true the presiding member intervened considerably but counsel for the
applicants was content with these interventions and never objected. Where he
felt it necessary to complement or supplement the answers which his clients
gave, he would do so by asking followup questions. As I see it, in a very real
sense, counsel for the applicants was working in tandem with the tribunal
members and, at the first hearing with the RCO, to elicit the applicants’
story.
[32] While I must admit that while
certain conduct and remarks made by the member were irrelevant and sarcastic, I
am not persuaded that the member’s conduct was in this case such that a
well-informed person would be led to believe that the member had not decided
fairly, given that the applicant was able to file all of the evidence that she
deemed relevant and that her credibility had not been challenged. I would add
that even if I consider that the member’s conduct is explained by his wish to
be humourous or by his penchant for theatrics, members must have a certain
decorum considering that they are hearing matters of great importance to the
parties involved.
[33] I do not think it appropriate to
condemn the panel’s refusal to let her swear on the Bible in that there is
insufficient evidence in the record: the applicant filed an incomplete
transcript. As a result, it is impossible to establish the circumstances
surrounding the refusal that Ms. Acuna is alleged to have endured and this
Court cannot base its findings on speculation.
[34] Indeed, even assuming that the
member’s conduct did betray a reasonable apprehension of bias, the failure of
Ms. Acuna’s advisor to raise this objection during the hearing amounts to
an implied waiver of the right to raise it.
[35] The principle to the effect that
an objection based on this ground must be raised in a timely fashion is firmly
established in the case law. See: Ghirardosi v. Minister of Highways
for British Columbia, [1966] S.C.R. 367, Abdalrithah v. Canada
(Minister of Employment and Immigration), [1988] F.C.J. 117 and Ithubuv.
Canada (Minister of Citizenship and Immigration), [2001]
F.C.J. 499.
[36] In order to determine that there
was an implied waiver of the right to raise a reasonable apprehension of bias,
the party or his or her representative had to be fully
cognisant of the right to take objection, as Mr. Justice Nadon
pointed out in Khakh v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 548. In this decision, the Court decided that
given the fact that the applicant’s representative was not a lawyer, waiver
could not be inferred.
[37] In the case before us, the
applicant’s advisor is not a lawyer. He alleged in his affidavit that he has a
master’s degree in international law from the Université du Québec à Montréal
and that he has represented clients before the IRB for more than five years.
He did not argue before this Court that he did not know that he could have
objected to continuing the hearing before the member based on an apprehension
of bias. Accordingly, in my opinion his failure to raise such an objection
before the member amounts to a valid waiver of the right to raise an
apprehension of bias, despite Khakh.
[38] In fact, Nadon J.’s remarks in Khakh
do not signify that the Court must find that, given that Ms. Acuna’s
representative before the IRB was not a lawyer, he was unaware that he had the
right to raise an objection based on a reasonable apprehension of bias. Mr.
Justice Reed’s remarks, at paragraphs 9 and 10 of Johnpillai v. Canada
(Secretary of State), [1995] F.C.J. 194, indeed are in agreement in
that sense:
While the applicant’s representative was
not a barrister and solicitor, it is clear that she was a representative of a
legal firm. It is reasonable to assume that if she is representing herself as
an assistant at a legal firm, she discussed the applicant’s case with someone
at that firm who had legal training. More importantly, however, I do not think
Mr. Justice Nadon’s comments in Khakh can be taken as far as counsel for
the applicant suggests. In the context of hearings before many tribunals,
refugee hearings included, an applicant has a choice of representing himself or
herself, of hiring legal counsel or of having a non-legally trained
representative appear. I am reluctant to agree that Mr. Justice Nadon set out a
rule that a claimant who chooses a non-legally trained representative or who
appears for himself or herself is in a more advantageous position when it comes
to asserting that no waiver occurred in the course of a hearing than is a
person who elects to be represented by legal counsel. Individuals who appear
before the courts or tribunals and choose not to be legally represented are, in
general, expected to know the law. They are not usually entitled to have a
decision, which goes against them, set aside at a later date because of such
unfamiliarity on their part.
At
the same time, there may be circumstances when the lack of such knowledge does
lead to a finding that there was insufficient awareness of the right so as to
vitiate implied waiver. Mr. Justice Nadon found that to be the situation in the
case before him. But, I could not find it to be so here. Indeed, there is no
evidence that the applicant’s representative in this case was unaware of the
requirement that objections based on an alleged lack of natural justice must be
made expeditiously. It is simply assumed that because she lacked the formal
credentials of a barrister and solicitor that this was so. I would not be
prepared to make that assumption and indeed, in any event, as noted, she
consented to the pre-filing.
(d) Internal flight
alternative
[39] The applicant claimed that the
IRB erred in analyzing the evidence regarding the existence of an internal
flight alternative. As I mentioned earlier, the appropriate standard of review
for this issue is that of patent unreasonableness. I consider that there is no
evidence of such an error before this Court.
[40] The burden was on the applicant to
establish on a balance of probabilities that she was at risk of persecution
everywhere in the country, despite the internal flight alternative. Insofar as
she acknowledged before the IRB that she could find employment in Guadalajara
where she was a member of the order of psychologists, the IRB was correct to
find that there was an internal flight alternative. The case law recognizes
that it is not unreasonable to identify an internal flight alternative that
does not enable the claimant to secure suitable employment (Thirunavukkarasu
v. Canada, Minister of Employment and Immigration, supra).
Insofar as we can expect that the applicant would be able to manage in
Guadalajara, it cannot be determined that the IRB erred in identifying this
city as an internal flight alternative. I must add that this finding is
supported by the fact that the applicant stated in her PIF That she lived there
from June 1, 1993 to August 30, 1995.
JUDGMENT
- The application for
judicial review is dismissed; no question of importance was proposed.
“François Lemieux”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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