Date: 20051027
Docket: IMM-585-05
Citation: 2005 FC 1459
Ottawa, Ontario, October 27, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
HENRY MAURICIO GIL OSORIO
CATALINA RESTREPO BOTERO
OSCAR RESTREPO ANGEL (a.k.a. OSCAR
RESTREPO)
MARIA EUGENIA BOTERO LONDONO (a.k.a.
MARIA E. BOTERO LONDONO)
ESTEBAN RESTREPO BOTERO
MARIANITA RESTREPO BOTERO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1] The
Applicants are citizens of Colombia and comprise an
extended family, all of whom base their refugee claim on a fear of persecution
by the Revolutionary Armed Forces of Colombia
(“FARC”). The
principal Applicant and his wife (Oscar and Maria Eugenia) are common-law
spouses with three children. The eldest (Catalina) child is married to the
Applicant son-in-law (Henry Mauricio). In a decision dated January 10, 2005, a
panel of the Immigration and Refugee Board, Refugee Protection Division (the
“Board”) determined that the Applicants were neither Convention refugees nor
persons in need of protection.
Issues
[2] The
Applicants raise the following issues:
- Did
the Applicants fail to receive a fair hearing of their claim, in
accordance with the principles of natural justice, because of the manner
in which their claim was dealt with by the Board?
- Did
the Board err in its assessment of the Applicant son-in-law’s claim:
(a) by rejecting
or ignoring the explanation of the Applicant son-in-law that he did not believe
he would risk his U.S. visa application by visiting Canada, and by basing its
finding of a lack of subjective fear on that error; or
(b) by applying
an incorrect test for risk assessment when it concluded that the Applicant
son-in-law, as a father of a young child, did not face a risk greater than all parents
in Colombia?
- Did the Board err in its assessment of the
Applicants’ risk by failing to consider evidence of risks to businessmen
in Colombia?
Analysis
Issue #1: Did the
Applicants fail to receive a fair hearing of their claim?
[3] The
Applicants, except for the Applicant son-in-law, arrived in Canada from the United
States
in March, 2001 and immediately made refugee claims. The Applicant son-in-law
arrived on April 27, 2001, also from the United States, and made his claim on
April 30, 2001 when he was refused re-admission to the United States.
[4] Scheduling
of the hearing was difficult. For reasons that are not well-explained in the
record, the hearing of their claims did not begin until June 29, 2004. The
first day of the hearing was ended earlier than would have been the usual
practice of the Board due to a previously-scheduled appointment of the Refugee
Protection Officer (“RPO”). The resumption of the hearing was scheduled for
September 28, 2004. When the Applicants, their counsel and the RPO presented
themselves on that date, the panel did not appear. Subsequently, the Applicants
were advised that the member was ill. Re-scheduling the second day of hearing
was fraught with delays and confusion. In November 2004, when the resumption of
the hearing was again threatened with postponement, the Applicants advised that
they wished to accept the offer of the Board to start the hearing de novo
after the Board had unilaterally cancelled a hearing date. Finally, the second
day of hearing took place on November 30, 2004; this was a full day that
extended beyond the usual sitting hours.
[5] The
Applicant submits that, because of this “improper treatment” by the Board
before and during the hearing process, they were not afforded a fair hearing. The
Applicants also refer to “abusive and sarcastic” incidents of questioning by
the Board. While they acknowledge that the questioning likely does not, in and
of itself, amount to a breach of fairness, they argue that the cumulative
effect of the procedural difficulties and the abusive questioning is a breach
of procedural fairness.
[6] To begin this analysis,
I do not agree with the Applicants that the manner of questioning should be
considered cumulatively with the other administrative problems experienced by
them in the processing of their claims. There is no link, in my mind, between
the scheduling difficulties and the manner of questioning in the hearing. Other
than her illness on September 28, 2004 – which was not within her control - there is no evidence that
this particular panel of the Board was the cause of the scheduling disruptions
or that this panel acted in bad faith in the hearing process.
[7] With
respect to the manner of questioning during the hearing, based on my review of
the transcript, the questioning by the Board comes nowhere near satisfying the
test for a reasonable apprehension of bias. That test, paraphrased from the
widely-accepted views of Justice de Grandpré in Committee for Justice and
Liberty v. Canada (National Energy Board) [1978] 1 S.C.R. 369, at p.
394, is whether an
informed person, viewing the matter realistically and practically – and having
thought the matter through – would conclude that it is more likely than not
that the Board, whether consciously or unconsciously, would not decide fairly. It
is true that the transcript contains a few examples of comments that, taken in
isolation, appear to be sharply-worded. However, when read in context, each of
these incidents can be explained on the basis of the complexity of the
proceeding, the desire of the Board to clarify seemingly inconsistent testimony
or the efforts of the Board to manage a complex proceeding with six applicants
(five of whom testified). Even the Applicants acknowledge that the manner of
questioning does not approach that criticized by the Court in Herrera v. Canada (Minister of
Citizenship and Immigration) [2005] F.C.J. No. 118 or Sandor v. Canada (Minister of
Citizenship and Immigration) [2004] F.C.J. No. 2183. The actions of the
Board in its questioning, in this case, do not demonstrate a reasonable
apprehension of bias.
[8] This leaves, for
consideration, the arguments that the hearing process in this case was so
poorly managed that the Applicants were treated unfairly. In my view, to
constitute grounds for overturning a decision, a lack of fairness must be
identifiable in terms of the negative impacts on or prejudice to the affected
person. For example, a failure to allow a claimant to present his evidence may
be a breach of a claimant’s right to be heard and, thus, a breach of procedural
fairness. Delays in a proceeding which result in the disappearance of witnesses
or an impairment of memory that occurs with time may be sufficient to show a
breach of procedural fairness. Each case must be examined on its merits and, in
each case, there must be a connection between the mistreatment and prejudice to
the Applicants.
[9] In the application
before me, the Applicants have not demonstrated that there is a link between
the decision rendered by the Board in their case and the alleged lack of
integrity in the Board’s processing of their claims. There is no evidence that
the decision or the hearing was affected by the flawed procedures. The
Applicants do not argue, for example, that evidence was improperly excluded,
that they were not permitted to submit documentary evidence, or that certain
family members were not allowed to testify. Any of these actions could
reasonably be expected to cause prejudice to the Applicants.
[10] In this case, the
treatment of the Applicants by the employees of the Board appears to have been
deplorable. For long periods of time, there was no communication. The hearing
was unilaterally re-scheduled on short notice. On one occasion, parties showed
up for the hearing only to be advised that the member was ill. There was no
response to concerns about the process expressed by counsel for the Applicants.
Nevertheless, the Applicants concede that they are not able to show the
“traditional markers of prejudice”. Absent one or more of those “traditional markers”,
it is not possible to show that the Applicants did not have a fair hearing of
their claims.
[11] The
Applicants submit that the cumulative impact of the many procedural problems
and the manner of questioning is that the Board was in breach of its duty “to
establish fair and efficient procedures that will maintain the integrity of the
Canadian refugee protection system” (Guermache v. Canada (Minister
of Citizenship and Immigration), [2004] F.C. 870, at para. 4). This is, in
essence, an argument that the Board’s behaviour amounts to an abuse of process
which can, in certain circumstances, constitute an error even where the
fairness of the hearing is not directly compromised.
[12] Similar arguments were
made to the Supreme Court of Canada in Blencoe v. British Colombia (Human
Rights Commission) [2000] 2 S.C.R. 307, a case involving a delay by the
British Colombia Human Rights Commission in holding a hearing into alleged
human rights violations. Mr. Blencoe, inter alia, argued before the
court that the unacceptable delay amounted to an abuse of process. In
considering this ground for review, Justice Bastarache stated at para. 115:
I would be prepared to recognize that
unacceptable delay may amount to an abuse of process in certain circumstances
even where the fairness of the hearing has not been compromised. Where
inordinate delay has directly caused significant psychological harm to a
person, or attached a stigma to a person's reputation, such that the human
rights system would be brought into disrepute, such prejudice may be sufficient
to constitute an abuse of process. The doctrine of abuse of process is not
limited to acts giving rise to an unfair hearing; there may be cases of abuse
of process for other than evidentiary reasons brought about by delay. It
must however be emphasized that few lengthy delays will meet this threshold. I
caution that in cases where there is no prejudice to hearing fairness, the
delay must be clearly unacceptable and have directly caused a significant
prejudice to amount to an abuse of process. It must be a delay that would, in
the circumstances of the case, bring the human rights system into disrepute.
[Emphasis added.]
[13] The Board’s handling of
the Applicants’ claim was less competent than one would expect from such an
important public institution. The problems described by the Applicants in this
case constitute unacceptable behaviour from Canada’s public servants. However, it falls far
short of the threshold described in Blencoe, supra. The problems
of the Applicants were specific to their case – a complicated case involving
many different interests – and do not exemplify a systemic breakdown of the
Board’s normal procedures. I am unable to conclude that the entire refugee
claim process in Canada is brought into disrepute
by the actions of those employees and the Board member responsible for
overseeing the Applicants’ file.
[14] In brief, the Applicants
have failed to convince me that the unfairness in the process they experienced
was a reviewable error for purposes of this judicial review. They have not
persuaded me: (a) that they suffered prejudice due to the actions of the Board;
or (b) that the actions of the Board, in the circumstances of this case,
brought the entire refugee claim system into disrepute.
Issue
#2:
Did
the Board err in its assessment of the Applicant son-in-law’s claim?
Background of the Applicant son-in-law’s claim
[15] The
Applicant son-in-law asserts a fear of persecution by the FARC. In particular,
he claims that the FARC attempted to recruit him while he was at school in Armenia in 1998. He
claims to have witnessed a shooting in a restaurant that killed his best
friend. The Applicant son-in-law left Colombia on December 24, 1998 for the United
States,
where he became the subject of a visa sponsorship application initiated by his
grandparents. At the time that the Applicant son-in-law entered Canada from the
United States, he was in the process of applying for a U.S. visa. On
April 27, 2001, he came to Canada to visit Catalina, whom he had met in the United
States.
When he attempted to return to the United States on April 29, 2001, the US INS
discovered that he had been illegally working in the United States. He chose to
remain in Canada when U.S.
border officials advised that he would be placed in detention if he entered the
United
States.
The Applicant son-in-law claimed refugee status on April 30, 2001 on the basis
of a well-founded fear of persecution in Colombia from the
FARC. He is now married to Catalina.
Board’s Findings on the
Applicant Son-in-law’s Claim
[16] In
rejecting the Applicant son-in-law’s claim, the Board was not persuaded that
the FARC had any interest in him. The Board referred to the evidence that the
Applicant son-in-law continued to live at the same address and to attend school
for several months after the relevant incidents. The Board also stated that it
lacked “credible evidence that the shots fired at the restaurant were meant for
[the Applicant son-in-law], given the lack of any follow up [by the FARC]
during the four months following that incident”. In addition, the Board found
that the Applicant son-in-law’s travel to Canada from the United
States,
while his visa application was outstanding, “does not indicate a subjective
fear of persecution.”
[17] In sum, the
Board was not persuaded that the Applicant son-in-law had a well-founded fear
of persecution by the FARC. Further, the Board questioned his subjective fear
on the basis that the son-in-law had put his visa status in the United States
at risk by visiting Catalina in Canada. The Board found that
this behaviour belied the Applicant son-in-law’s claim of a subjective fear of
persecution.
Applicant
son-in-law’s Visit to Canada from the United
States
[18] The
Applicants contend the Board erred in finding that the Applicant son-in-law’s
choice to visit Canada was inconsistent with a subjective fear of persecution
for the reason that it put his U.S. visa at risk. The Applicants submit that
the Board ignored evidence put forth by the son-in-law that he thought he would
not run into any problems.
[19] The
Applicants are correct that there are no specific references in the Board’s
reasons to the explanation given by the son-in-law that a friend had been able
to visit without difficulty. Given the length of time that the son-in-law had
been in the United
States
and his evident knowledge of U.S. immigration rules and regulations, the
Board’s conclusion is not, in my view, unreasonable. Nevertheless, it would
have been preferable for the Board to explicitly refer to the explanation and
explain why it was rejected. However, in this case, any error by the Board on
this question is immaterial. This is because the Board’s decision rests
primarily on its conclusion that the son-in-law failed to convince the Board of
the basis of his claim. Any conclusion related to the son-in-law’s reasons for
coming to Canada is
supportive – but not determinative – of the Board’s decision. There is no
reviewable error.
Generalized
risk
[20] In making his
claim to the Board, the Applicant son-in-law asserted a fear on behalf of
himself and his young Canadian-born son, should they return to Colombia. With
respect to the interests of the child, the Board accurately stated that the
interests of the son-in-law’s Canadian-born child are “more appropriately addressed
through channels other than this panel”. Concerning the impact on the
son-in-law caused by having a young child with him in Colombia, the Board
stated:
Counsel
suggested, in her submissions, that it would be indirect cruel and unusual
treatment/punishment for [the son-in-law] to have to return to Colombia because of
the psychological stress that would be on him as a parent worrying about the
welfare of his son. The panel finds that the risk of this is a general risk
faced by all parents in Colombia based on the on-going
civil war, and that there is no evidence before it that [the son-in-law] faces
a risk greater than all parents there.
[21] The
Applicants submit that the Board erred in applying the test under s.
97(1)(b)(ii) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 which requires that, for a person to be in need of protection, they face
a risk that is “not faced generally by other individuals in or from that
country.” In their submission, the Board erred by equating the phrase “faced
generally by other individuals” with “faced generally by all parents.” In
support, the Applicants cite a decision of the Board where the Board found a
claimant couple was at risk of cruel and unusual treatment because of the risk
of their children being kidnapped (I.D.Q. (Re), (2002) R.P.D.D. No.
189).
[22] I first note
that the Board, in the paragraph concluding this section of their Reasons,
states its finding that the risk of the son-in-law “is no greater than or
different to the general risk faced by all persons in [Colombia].” From
this, it appears that the Board understood the correct test. The question is
whether a risk to a sub-group – in this case, parents – can be a risk
contemplated by s. 97(1)(b)(ii). The Board evidently believed that it is. The
question before me is whether this extension of the concept of “faced
generally” was correct or reasonable. In my view, it was.
[23] I do not find
the case of I.D.Q., supra to be of assistance. In I.D.Q.,
supra, the claimants were Colombian nationals who claimed a well-founded
fear of persecution from FARC. The children, in that case, had been the victims
of kidnapping attempts. The panel found that there was a serious possibility
that the children would be kidnapped should they return to Mexico and
continued on to find that, “should any of the children be kidnapped and harmed,
the adult claimants will likely suffer severe psychological trauma.” On the
basis of these two findings, the panel found that the children and the parents
were persons in need of protection. The case before me is distinguishable from I.D.Q
on its facts. The parents in that case were facing a specific and personal risk
from the criminals who had attempted to kidnap their children.
[24] It seems to
me that common sense must determine the meaning of s. 97(1)(b)(ii). To put the
matter simply: if the Applicants are correct that parents in Colombia are a
group facing a risk not faced generally by other individuals in Colombia, then
it follows that every Colombian national who is a parent and who comes to
Canada is automatically a person in need or protection. This cannot be so.
[25] The risk
described by the Applicants and the Board in this case is a risk faced by
millions of Colombians; indeed, all Colombians who have or will have children
are members of this population. It is difficult to define a broader or more
general group within a nation than the group consisting of “parents”.
[26] Further, I
can see nothing in s. 97(1)(b)(ii) that requires the Board to interpret
“generally” as applying to all citizens. The word “generally” is commonly used
to mean “prevalent” or “widespread”. Parliament deliberately chose to include
the word “generally” in s. 97(1)(b)(ii), thereby leaving to the Board the issue
of deciding whether a particular group meets the definition. Provided that its
conclusion is reasonable, as it is here, I see no need to intervene.
[27] In
conclusion, the Board reasonably concluded that the risk to which the
son-in-law and his wife would be subject is a general risk and does not make
them persons in need of protection under s. 97.
Issue #3: Did the Board err in
its assessment of the Applicants’ risk by failing to consider evidence of risks
to businessmen in Colombia?
[28] The Applicants assert that the Board committed a fatal error
by not considering the risk to the Applicants based on the fact that the
principal Applicant was the owner of a small business. The Applicants refer to
a number of instances in the documentary evidence demonstrating that owners of
small businesses are targeted for kidnapping by the FARC, even in Bogotá which
was found, by the Board, to be an internal flight alternative (“IFA”).
[29] I am not persuaded that there was an error. The Board
assessed the possible risk to the Applicants in Bogotá on the basis of the
evidence presented by the principal Applicant. That evidence included an
admission by the principal Applicant that he could find employment in Bogotá.
In other words, the principal Applicant’s own testimony was that he would not
necessarily own and operate his own construction business if he returned to Colombia and lived in Bogotá.
Even if the principal Applicant had been targeted in the past by the FARC as a
businessman, the evidence before the Board supported its finding that he did
not need to own his own business in order to practise his skills at interior
construction. As such, it was not unreasonable for the Board to find that
Bogotá was a viable IFA. In this context, there was no need for the Board to
refer to the evidence related to the targeting of business owners.
Conclusion
[30] For
these reasons, the application will be dismissed.
The Applicants propose the following
question for certification:
Can a breach of the right to a fair
hearing in accordance with the principles of natural justice be made out, even
in the absence of actual prejudice to the Applicants where, on the facts of the
case, the board has proceeded prior to and during the hearing in such an unfair
manner that justice has not seen to be done?
[31] The
Respondent opposes the certification of this question.
[32] As
discussed above, while the Board’s administrative practices were not
appropriate, they did not, in my view, rise to the level of unfairness such
that justice was not seen to be done. Accordingly, the question of whether such
unfairness could lead to a breach of the right to a fair hearing is not
determinative. The question will not be certified.
ORDER
THIS COURT
ORDERS that:
1. The
application is dismissed; and
2. No
question of general importance is certified.
Judith A. Snider
____________________________
Judge
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