Date: 20050318
Docket: IMM-4151-04
Citation: 2005 FC 371
BETWEEN:
MANILA DUONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (IRB), dated March 25, 2004, that the applicant is not a Convention refugee under section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the Act) or a person in need of protection under section 97 of the Act.
[2] Manila Duong (the applicant) is a citizen of Cambodia. She alleges that she has a well-founded fear of persecution in her country, as she would be subject to a risk to her life or a risk of cruel and unusual treatment or punishment if she had to return to her country of origin.
[3] Consideration of this application shall not take into account Exhibit P-III, included with the applicant's affidavit, as this document was not before the IRB (see Ferreya v. Canada (M.E.I.) (1993), 56 F.T.R. 270, Lemiecha et al. v. Canada (M.E.I.) (1994), 72 F.T.R. 49, Asafov v. Minister of Employment and Immigration (May 18, 1994), IMM-7425-93, and Franz v. Canada (M.E.I.) (1995), 80 F.T.R. 79).
[4] There is a general presumption that the state is able to provide protection to its citizens; the applicant must provide clear and convincing evidence of the state's inability to do so (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). In this case, the applicant submitted documentary evidence setting out cases similar to hers, involving mistresses who had been killed or attacked by the wives of their lovers. However, she never went to the police to file a complaint against her lover's wife. Moreover, the articles concerned indicate that arrests have been made in some cases, although only a limited number of people have been punished. The IRB may choose the evidence it prefers from among the evidence available; this choice is part of its role and expertise (Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (C.A.) (QL) and Tawfik v. Canada (M.E.I.) (1995), 26 Imm.L.R. (2d) 148 (F.C.T.D.)). In the circumstances, as the applicant did not avail herself of state assistance, it was not unreasonable to conclude that she did not manage to rebut the presumption that the state was able to protect her.
[5] Moreover, I am of the opinion that the following facts, taken into consideration by the IRB, enabled it to reasonably conclude that the applicant's conduct was incompatible with her alleged subjective fear:
- Although the applicant learned on June 6, 2003 that someone wanted to kill her, she still went to Bangkok in August to obtain a visa;
- The applicant came back to her country in September 2003, then left and came to Canada on October 13, 2003;
- The applicant waited three weeks after arriving in Canada before claiming refugee status on November 5, 2003.
[6] As regards the reasonable apprehension of bias allegation invoked by the applicant, who contends that the member drafted his decision while she was being questioned by her counsel, she should have raised this matter before the member himself. It is trite law that such an allegation should be raised at the first available opportunity (see, among others, Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C. R. 892, In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.) and Nartey v. Canada (M.E.I.) (1994),
74 F.T.R. 74). Moreover, the transcript of the hearing before the IRB clearly shows that the member questioned the applicant throughout the hearing, in particular concerning the date on which she claimed refugee status in Canada. In the circumstances, the applicant's allegations that the member wrote during the hearing seem to be pure speculation. A reasonable and well-informed person, aware of all the relevant circumstances and having studied the issue in a realistic and practical manner, would not conclude that the member's conduct had given rise to a reasonable apprehension of bias ([1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 and Arthur v. Canada (Attorney General) (2001), 283 N.R. 346 (F.C.A.)).
[7] For these reasons, the application for judicial review is dismissed.
"YVON PINARD"
JUDGE
OTTAWA, ONTARIO
March 18, 2005
Certified true translation
Magda Hentel
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4151-04
STYLE OF CAUSE: MANILA DUONG
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 10, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: March 18, 2005
APPEARANCES:
Geneviève Clairmont FOR THE APPLICANT
Isabelle Brochu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Étude Jean Cantin FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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