Elmahi v. Canada (Minister of Citizenship and Immigration), 2004 FC 1472

Date: 20041022

Docket: IMM-10216-03

Citation: 2004 FC 1472

Ottawa, Ontario, October 22, 2004

PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY

BETWEEN:

                                                               SAMIR ELMAHI

                                                                                                                                            Applicant

                                                                           and

                                                    MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel), dated December 5, 2003. In that decision, the panel determined that the applicant was not a "Convention refugee" within the meaning of section 2 of the Immigration Act.

ISSUES

[2]                The issues are as follows:

1.         Did the panel err in dismissing the applicant's motion to have the port of entry notes withdrawn from the record?

2.         Did the panel breach the audi alteram partem rule?

3.         Should the panel have based its decision on section 97(1) of the Immigration and Refugee Protection Act (IRPA) instead of considering the claim under the former Immigration Act?

4.         Did the panel demonstrate bias at the hearing?

5.         Did the panel make a patently unreasonable error in determining that the applicant lacked credibility?

[3]                For the following reasons, I answer these questions in the negative and I would therefore dismiss this application for judicial review.

BACKGROUND

[4]                The applicant was born in Morocco on February 25, 1970. The applicant alleges that he has a well-founded fear of persecution based on his actual or perceived political opinion. He states that he fears for his life and that he risks cruel and unusual treatment or punishment if he were to return to his country of origin.

[5]                The applicant alleges that he began to have problems on October 1, 1999, when he was arrested by an undercover police officer in a bar when he openly criticized King Mohamed VI. The applicant alleges that he was detained for five days. He alleges that when he was arrested he was subjected to Falaka (a method of torture consisting in suspending an individual by the feet and striking them violently). The applicant claims that he was hospitalized because of his injuries. Four of the toes on his left foot were amputated. Further, the applicant stated that he was burned on the right arm and was kicked in the head. He alleges that after his arrest, the police searched his home and continued to look for him.

[6]                After his release on October 6, 1999, he allegedly left the city to hide at an aunt's home in Casablanca until August 21, 2001, and on that same day flew to France. He stayed there until October 6, 2001. The next day, he arrived in Canada and claimed refugee status.

IMPUGNED DECISION

[7]                The panel denied the refugee claim, determining that the applicant was not credible.

[8]                It first pointed out that the applicant had omitted many important facts in his Personal Information Form (PIF). It found it implausible that the applicant had succeeded in leaving his country when he himself stated that the Moroccan authorities were looking for him. The panel also noted that the applicant contradicted himself a number of times, inter alia regarding the injuries suffered during his detention, the number of visits from the police looking for him and visiting his home between 1999 and 2001.

[9]                According to the panel, the applicant's testimony was inconsistent with the testimony of the witness, Gordon Schomberg.

[10]            It also noted a number of contradictions between the applicant's testimony and his statement at the port of entry. The applicant tried to exaggerate his story to increase his chances of success.

[11]            With regard to the applicant's allegations to the effect that his claim should have been heard under the new Act, the panel determined that since certain substantive evidence had been filed on April 9, 2002, the provisions of section 191 of the Act applied and, accordingly, the claim should have been heard under the former Act.

ANALYSIS

[12]            The standard of review for questions of fact is the standard of patent unreasonableness; for mixed questions of fact and law, the standard of reasonableness simpliciter; for strict questions of law, the standard of correctness (Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.) (QL), Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (F.C.T.D.) (QL).

Did the panel err in dismissing the applicant's motion to have the port of entry notes withdrawn from the record?

[13]            The Federal Court of Appeal has recognized that the Board, as a specialized tribunal, has complete jurisdiction to determine the probative value of the evidence filed before it. Unless the panel's findings are patently unreasonable, there is no reviewable error (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at pages 316 and 317 (F.C.A.)).

[14]            In this case, the applicant filed a written motion, then made an oral motion at the hearing to exclude exhibit M-4 (the notes at the port of entry) because it was not credible and trustworthy.

[15]            He alleges that the panel should have excluded that exhibit because he did not fill it out himself. At the hearing, it was established that the immigration officer at the port of entry, Mr. Jacques, filled out the form for the applicant given that the applicant had difficulty writing in French. In his testimony, officer Jacques stated that the applicant had refused the assistance of an interpreter, alleging that he could communicate in French. I do not believe that the fact that the applicant had not filled out the form himself adversely affected him. I believe rather that it is the truthfulness of the contents that matter. According to the officer's testimony, the immigration officer often fills out the document at the port of entry when claimants are unable to speak one of the two official languages or when they are unable to adequately fill out the form themselves.

[16]            The claimant alleges that the panel did not address his motion in the decision. But that motion was decided at the hearing and the reasons for dismissing it were given orally to the applicant. In my opinion, the panel did not have to repeat its reasons for keeping exhibit M-4 in evidence in its decision to dismiss the motion presented. There is no reviewable error on this point.

Did the panel breach the audi alteram partem rule?

[17]            The applicant claims that the decision-makers did not allow him to file all the evidence and question the witnesses. He submits that the audi alteram partem rule was violated because the notes at the port of entry were based on handwritten notes by another immigration officer.

[18]            When the applicant arrived at Dorval airport, he was questioned by Officer Custeau. Given the lateness of the hour, this officer postponed the matter to the following day. Officer Jacques resumed the matter and after validating the information taken by Officer Custeau with the applicant, he filled out the document at the port of entry with the applicant.

[19]            The notes taken by Officer Custeau could not be filed because they were no longer available at the time of the hearing. The applicant points out that he did not have the chance to cross-examine Officer Custeau.

[20]            It is true that Officer Jacques stated that he used the notes left by his colleague Mr. Custeau. But in his testimony, Officer Jacques stated that he confirmed and validated the notes taken the night before with the applicant. At the panel's request, Officer Jacques unsuccessfully tried to find these notes and the members decided nonetheless to admit into evidence the port of entry document.

[21]            The applicant could have cross-examined Officer Jacques. His witnesses were heard and he filed his documentation.

[22]            In my opinion, it has not been established that the audi alteram partem rule was breached.

[23]            As for the interpreter's absence, the evidence establishes that this service was offered to the applicant but that he refused it.

Should the panel have based its decision on section 97(1) of the Immigration and Refugee Protection Act (IRPA) instead of considering the claim under the former Immigration Act?

[24]            Sections 190 and 191 of the transitional provisions of the Act read as follows:

[25]            Contrary to the applicant's arguments, in my opinion the panel correctly applied the transitional rules. The primary distinction between section 190 and section 191 is based on adducing substantive evidence. Section 190 should not be read alone. Section 191 provides that if substantive evidence has been adduced and a decision has not been made, the former Act continues to apply.

[26]            The issue is therefore whether substantive evidence was adduced in this case. In Isufi v. Canada (Minister of Citizenship and Immigration), 2003 FC 880, [2003] F.C.J. No. 1208 (F.C.T.D.) (QL), my colleague Tremblay-Lamer J., relying on the Federal Court of Appeal in Aquino v. Canada (Minister of Employment and Immigration) (1992), 144 N.R. 315, addressed this issue at paragraph 10:

The filing of a PIF does not constitute substantive evidence. In Aquino v. Minister of Employment and Immigration (1992), 144 N.R. 315, the Federal Court of Appeal held that a PIF which was filed but not identified on the record nor entered as an exhibit at the hearing was not considered to be evidence adduced in the proceedings. . . .

[27]            In this case, a hearing was held on April 9, 2002, i.e. before the new Act came into effect. During that hearing the applicant himself filed into evidence an amendment to the PIF and a copy of his passport. These two items were admitted by the panel as exhibits P-1A and P-2. There is no doubt that those two material exhibits amount to substantive evidence.

Did the panel demonstrate bias at the hearing?

[28]            The right to a fair and impartial hearing is one of the most important principles of natural justice. The criteria of bias consists in asking whether a reasonable and informed person would have a reasonable apprehension of bias. This test was analyzed in Valente v. The Queen, [1985] 2 S.C.R. 673 at page 684, referring to a decision by de Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369:

. . . 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. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- concluded . . .

[29]            Persons raising the issue of bias must do so at the first opportunity failing which they could be exposed to the doctrine of waiver. Therefore, this apprehension should not be raised at the end of the proceedings (P. Foucher, Droit administratif, Common law en poche, volume 8, Éditions Yvon Blais, 1997 at page 85).

[30]            There is no evidence establishing that an objection was made at the hearing regarding the bias of the two panel members. I read the passages referred to by the applicant's counsel and I am not persuaded that a reasonable and informed person would come to such a conclusion.

Did the panel make a patently unreasonable error in determining that the applicant lacked credibility?

[31]            The applicant had problems with the Moroccan authorities in 1999. However, it was not until 2001 that he finally left Morocco. He states that he requested a Canadian visa twice, unsuccessfully. Before coming to Canada, he went through France where he visited his sisters and he stayed there for six weeks. He managed to cross the Moroccan border without incident despite the fact that the gendarmerie was looking for him. The decision-makers stated that they did not believe his story about fearing persecution. I see no grounds to intervene.

[32]            The members of the panel did not assign any probative value to Dr. Bossé's medical report or the psychological report filed. In his testimony, Dr. Bossé mentioned that five of seven of the scars observed could have been caused by different incidents. The panel was at liberty to weigh the expert evidence in accordance with the truthfulness of the facts before it (Danailov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1019 (F.C.T.D.) (QL).

[33]            In conclusion, I could not identify a patently unreasonable error in this decision.

[34]            The applicant submitted the following question for certification:

For the application of section 190 of the transitional provisions of the IRPA, the applicable test is not: "in respect of which . . . no decision has been made".

[35]            The respondent objects to this question. I believe that here it is rather section 191 of the transitional provisions which apply. Accordingly, no question will be certified.

ORDER

THE COURT ORDERS:

1.         The application for judicial review be dismissed.

2.         No question is certified.

                                                                                 "Michel Beaudry"                

                                                                                                   Judge                           

Certified True Translation

Kelley A. Harvey, BCL, LLB

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  IMM-10216-03

STYLE OF CAUSE: SAMIR ELMAHI and

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:         Montréal, Quebec

DATE OF HEARING:           October 6, 2004

REASONS FOR ORDER

AND ORDER:         THE HONOURABLE MR. JUSTICE BEAUDRY

DATE OF REASONS:           October 22, 2004

APPEARANCES:

Lucrèce M. Joseph                   FOR THE APPLICANT

Lisa Maziade                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Lucrèce M. Joseph                   FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                     FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec