Date: 20060913
Docket: IMM-396-06
Citation: 2006 FC 1087
Ottawa, Ontario, September 13,
2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
DARIO
EDGARDO RODRIGUEZ MEJIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Dario
Edgardo Rodriguez Mejia is a citizen of Honduras who sought
refugee protection in Canada based upon his alleged fear of a gang
leader known as “El Fantasma” or “the Ghost”. The Refugee Protection Division
of the Immigration and Refugee Board found that Mr. Mejia had failed to provide
credible evidence in support of his claim. The Board further found that Mr.
Mejia’s failure to seek refugee protection during the time that he lived in the
United States was inconsistent with his having a subjective fear of persecution
in Honduras.
[2]
Mr.
Mejia now seeks judicial review of the Board’s decision, asserting that he was
denied procedural fairness at his hearing, as a result of the Board member
having questioned him first. Mr. Mejia also argues that the Board erred in its
assessment of his credibility by making findings of fact that were not
supported by the evidence, and by engaging in an unduly microscopic analysis of
his evidence in an overly-zealous effort to discredit him.
[3]
For
the reasons that follow, I am satisfied that this Court should not interfere
with the Board’s decision. As a consequence, the application for judicial
review will be dismissed.
Standard of Review
[4]
The
issues relating to the Board’s use of the reverse order of questioning
procedure engage questions of procedural fairness. As such, it is unnecessary
to engage in a pragmatic and functional analysis in determining the appropriate
standard of review to be applied to such matters. Rather, it is for the Court
to determine whether the procedure that was followed in a given case was fair
or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney
General),
[2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[5]
Insofar
as Mr. Mejia’s arguments challenge to the Board’s credibility findings is
concerned, in Mugesera v. Canada (Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 100, 2005 SCC 40, the Supreme Court of Canada recently
reaffirmed that findings of fact made by the Immigration and Refugee Board may
only be set aside if made in a perverse or capricious manner, or without regard
to the material before it. Thus the standard of review to be applied with
respect to the Board’s credibility findings is that of patent unreasonableness.
Guideline Seven
[6]
It
is common ground that no objection was taken in advance of Mr. Mejia’s refugee
hearing with respect to the order of questioning to be followed at the
hearing. Similarly, although Mr. Mejia was represented by counsel at his
refugee hearing, no objection was made at the commencement of, or in the course
of the hearing regarding the order of questioning. The first time that the
issue was raised was in Mr. Mejia’s application for leave in this Court.
[7]
Mr.
Mejia’s arguments on the reverse order of questioning issue were not well
developed, in that he relies almost exclusively on the decision of this Court
in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 8, 2006 FC 16, in which Justice Blanchard found that Guideline Seven
unlawfully fettered the discretion of members of the Refugee Protection
Division.
[8]
In
addition, there is very little in the way of evidence before the Court to
suggest that Mr. Mejia suffers from any particular condition or circumstances
that would render him particularly vulnerable, nor is there much in the way of
evidence to suggest that he suffered any real prejudice as a result of the
Board having proceeded to question him first.
[9]
Mr.
Mejia does assert in this affidavit that: “Given that I have little schooling,
I was very intimidated by the questioning and I believe that it impacted
negatively on my capacity to answer questions.” It is noteworthy, however,
that Mr. Mejia does not indicate that he would have been any less intimidated,
had he been questioned first by his own counsel, or that the reverse order of
questioning itself led to him being denied a fair hearing.
[10]
There
is currently conflicting jurisprudence in this court as to whether the
seemingly mandatory wording of Guideline Seven unduly fetters the discretion of
members of the Refugee Protection Division to allow claimants’ counsel to
question their clients first: see, in particular, Thamotharem, above,
and Benitez v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 631, 2006 FC 461.
[11]
Mr.
Mejia’s case was argued solely on the basis of the jurisprudence. That is, no
meaningful evidentiary record has been put before the Court on this application
that would allow me to come to my own independent assessment as to whether
Guideline Seven results in an inappropriate fettering of members’ discretion or
not. The burden is on Mr. Mejia to make out a case of fettering. Having
failed to do so, I am thus unable to find that Guideline Seven inappropriately
fetters the discretion of members of the Refugee Protection Division.
[12]
Moreover,
even if I were to simply accept Justice Blanchard’s finding in Thamotharem
with respect to the issue of fettering, Mr. Mejia acknowledges that in Benitez,
Justice Mosley held that the failure to raise the matter of the order of
questioning at a refugee hearing must be taken as an implied waiver of any
procedural unfairness. No arguments have been advanced by Mr. Mejia to
challenge Justice Mosley’s finding in this regard. Indeed, he seemingly
accepts that he has waived any procedural unfairness that might have resulted
from the Board’s use of the reverse order of questioning procedure.
Were the Board’s
Credibility Findings Patently Unreasonable?
[13]
Central
to Mr. Mejia’s claim was his assertion that he feared for his life and that of
his family, as he had seen three individuals, one of whom was the Ghost,
fleeing the scene of a murder. Although he himself had not actually seen who
had shot the victim, Mr. Mejia testified before the Board that a security guard
and other people in the neighbourhood had witnessed the actual shooting.
[14]
Mr.
Mejia also stated that he did not approach the police with what he had seen out
of fear for his safety, and that he had not testified in Court proceedings
against the Ghost for the same reason.
[15]
The
Board rejected Mr. Mejia’s story, noting that the Ghost had been convicted of
the murder, presumably based on the testimony of other individuals. In these
circumstances, the Board reasoned that the Ghost would have no reason to want
to seek retribution against Mr. Mejia.
[16]
Mr.
Mejia says that the Board erred in finding that the Ghost had been tried and
convicted of the murder, pointing to the fact that the Ghost was allegedly
released from jail after only two years. According to the country condition
information before the Board, the sentence for murder in Honduras ranges from
between 20 and 30 years. As a result, Mr. Mejia says, the Ghost could not have
been incarcerated for the murder.
[17]
The
problem with this argument is that it is contradicted by Mr. Mejia’s own
testimony. Mr. Mejia testified, before the Board, that the Ghost had indeed
been charged with the murder, had been found guilty, and had spent two years in
jail. In these circumstances, it cannot be said that the Board’s finding that
Mr. Mejia’s story was not credible was patently unreasonable.
[18]
This
was the central finding underlying the Board’s negative decision. There were,
however, numerous other findings made by the Board in support of its overall
conclusion that Mr. Mejia had concocted his story. By way of example, the
Board noted that Mr. Mejia had testified that his wife had fled the family home
as a result of threats, leaving the children behind with another family. However,
in his Personal Information Form (or “PIF”), Mr. Mejia said that his wife had
taken the children with her when she fled.
[19]
A
review of the Board’s reasons reveals that the member turned his mind to the
explanation offered by Mr. Mejia for this inconsistency, and that the member
did not accept it. I cannot say that the Board’s finding in this regard was
patently unreasonable.
[20]
The
Board also decided not to attribute much weight to an affidavit sworn by a
Honduran lawyer, who had ostensibly been consulted by Mr. Mejia with respect to
his situation. The affidavit indicates that Mr. Mejia had sought the lawyer’s
assistance in obtaining protection from the Ghost and his gang. The reason
given by the lawyer as to why Mr. Mejia needed protection was that he had
identified the Ghost to the police as a murderer, and had acted as a police
witness, resulting in the incarceration of the Ghost.
[21]
This
description of Mr. Mejia’s role is completely at odds with Mr. Mejia’s own
testimony before the Board, where he denied having had any dealings with the
police in relation to this matter, or having testified against the Ghost with
respect to the murder. In these circumstances, it was entirely reasonable for
the Board to have given the affidavit little weight.
[22]
Finally,
the Board found that Mr. Mejia’s failure to seek refugee protection during the
15 months that he lived illegally in the United States, prior to
coming to Canada, was
inconsistent with a subjective fear of persecution on his part. In coming to
this conclusion, the Board considered and rejected the explanation offered by
Mr. Mejia for his failure to claim in the United States, and committed no error
in this regard.
[23]
I
do not intend to review each of the other findings made by the Board that are
disputed by Mr. Mejia. Suffice it to say that when the Board’s reasons are
read fairly, in their entirety, the Board’s overall conclusion that Mr. Mejia
was not credible is a reasonable one, and one that is amply supported by the
evidence that was before the Board.
[24]
I
also do not accept Mr. Mejia’s contention that the Board’s negative credibility
findings were based upon a microscopic reading of the evidence, and an
over-zealous effort to disbelieve him. While the Board did make negative
findings with respect to some peripheral issues, a number of the Board’s
negative findings related to central aspects of his claim, and were amply
supported by the evidence.
Conclusion
[25]
For
these reasons, the application for judicial review is dismissed.
Certification
[26]
Given
that a number of issues relating to the fairness of Guideline Seven and the
reverse order of questioning procedure are now before the Federal Court of
Appeal, Mr. Mejia has asked that I certify three of the questions that were
certified by Justice Mosley in the Benitez case.
[27]
The
respondent does not seriously argue that the questions proposed by Mr. Mejia
should not be certified, and having carefully considered the matter, I am
satisfied that certain aspects of the decisions of the Federal Court of Appeal
in Benitez and Thamotharem could potentially be dispositive of
this case. As a result, it is appropriate to certify these questions.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES THAT this application is dismissed. The following questions will
be certified:
1. Has
the implementation of Guideline Seven led to the fettering of Board members'
discretion?
2. Does
Guideline Seven violate natural justice by distorting the independent role of
Board members? and
3. If
Guideline Seven and the procedure mandated by it breaches natural or
fundamental justice, can a refugee claimant in any way implicitly waive the
breach, for example by failing to object to the procedure?
“Anne
Mactavish”
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