Date: 20000113
Docket: IMM-342-99
Ottawa, Ontario, January 13, 2000
BEFORE: Rouleau J.
Between:
CHRISHNA ANDY ALBERT,
SONIA MARGARITA GUTIERREZ DE ALBERT,
YNDIRA SUE ALBERT GUTIERREZ,
MELISSA SUS GUTIERREZ ALBERT,
STEPHANIE GUTIERREZ ALBERT,
Plaintiff,
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
ORDER
[1] The application for judicial review is dismissed. I was not persuaded that the question raised by counsel for the plaintiff should be certified.
Certified true translation
Bernard Olivier, LL. B.
Date: 20000113
Docket: IMM-342-99
Between:
CHRISHNA ANDY ALBERT,
SONIA MARGARITA GUTIERREZ DE ALBERT,
YNDIRA SUE ALBERT GUTIERREZ,
MELISSA SUS GUTIERREZ ALBERT,
STEPHANIE GUTIERREZ ALBERT,
Plaintiff,
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
ROULEAU J.
[1] The case at bar concerns an application for judicial review of a decision of the Refugee Division ("the panel") on December 15, 1998 that the plaintiffs are not Convention refugees.
[2] The plaintiffs are citizens of Venezuela. The principal plaintiff and his wife are active members of the Venezuelan Pentecostal Evangelical Church in the Barquisimeto area. They took part in evangelical campaigns and denunciation meetings to combat delinquency, drug addiction, kidnapping of children, traffic in human organs and the proliferation of satanic cults in the area.
[3] The plaintiff maintained that insults were directed at him during these campaigns from August 1992 onwards. He claimed he was insulted by individuals in the audience when he was giving public sermons. However, he was not physically attacked except on one occasion in August 1993, when stones were thrown at him. The only other acts of aggression against himself and his family were acts of vandalism and attempts to steal his vehicle.
[4] As of July 1994, the plaintiff and his wife were more actively involved in a campaign to denounce satanic cults, in particular the kidnapping of children practised by those cults. As a result of these campaigns, the plaintiff alleged he suffered two attempted thefts.
[5] In April 1995, when he was preparing a denunciation campaign, the plaintiff said he suffered another attempted theft. Two months later, he said he was followed by two individuals on motorcycles twice. However, he was not attacked.
[6] The plaintiff maintained that he received two telephone threats in September 1994 and two more in July 1995. He said he was told that his car would be burnt and if he continued to be active in denunciation campaigns he would regret it. He submitted that around July 1995 other members of the Church were watched and followed.
[7] Although he did not know the identity of the individuals harassing him, the plaintiff feared his children would be kidnapped and sacrificed by the satanic cults. Further, he feared that members of the satanic cults he had denounced were connected to the police or other groups, which in Venezuela are corrupt.
[8] The plaintiff, feeling increasingly threatened, took precautionary measures by changing his itineraries and increasing security at his residence. He submitted that the police refused to intervene and he felt it necessary to flee the country in order to ensure his family"s safety.
[9] The plaintiffs accordingly left Venezuela on August 19, 1995 and claimed refugee status in Canada on their arrival on August 21, 1995.
[10] The panel determined that the plaintiffs had not discharged their burden of establishing a well-founded fear of persecution and therefore concluded they were not Convention refugees.
[11] The panel felt that the principal plaintiff exaggerated his fear of the members of the satanic cults and noted that there had been no physical attacks against himself and his family. It stated that any connection between the plaintiff"s denunciation activities and the acts of theft or vandalism was only speculative.
[12] The panel felt it was unlikely for the plaintiff to be so much a target that his safety was threatened. When questioned about the nature of the cults threatening him, the plaintiff could provide no information. His knowledge of these cults was limited to what was reported in the local press and on television.
[13] In its decision the panel referred to the documentary evidence, which indicated no connection between the activities of the Evangelical Church and any type of human rights violations in Venezuela. In fact, the panel found no documents relating to mistreatment suffered by Evangelicals. In this connection, the plaintiff alleged that the events were not publicly known because of their fear of reprisals by the police. The panel dismissed this explanation since there was nothing and no one to corroborate it.
[14] The plaintiffs filed a letter written by their pastor on September 1, 1998 which only referred very vaguely to the continuing problems caused by satanic cults and offences committed against the church, without the proper authorities taking direct action. The panel indicated that there was no mention in the letter of any concrete, direct or serious threat against the claimants. The panel concluded that if the plaintiffs had really been victims of serious attacks the members of their church could certainly have mentioned it.
[15] The panel concluded that the plaintiffs had not established that their fears extended outside Barquisimeto or that there was no government protection. Further, the panel stated that in light of the evidence as a whole it was entirely unlikely that the plaintiffs could reasonably fear that government authorities were so involved in the activities of the satanic cults that they would be unable to obtain government protection.
[16] The hearing before the panel took place on August 25, 1998. Counsel for the plaintiffs asked to make submissions in writing, and this was granted. The written submissions were received by the Refugee Division on September 8. On September 30, counsel for the plaintiffs received a letter from Ms. Weston, operations support manager, stating:
| Please find enclosed a copy of the reply to information request No. VEN30067.F, dated September 25, 1998, from the documentation centre in Ottawa which the RCO Section is filing in this case. |
The principal plaintiff answered reply VEN30067.F in writing and the plaintiff"s answer was received by the IRB on October 13, 1998.
[17] The principal plaintiff stated that the letter of September 30 containing a reply to a request for information is documentary evidence (evidence VEN30067.F). He noted that Ms. Weston is not a hearing officer and accordingly has no authority to intervene in the case at bar. The plaintiff responded to the said documentary evidence and stated that his response, namely his letter received on October 13, 1998, constituted evidence received and considered outside the hearing without his having given authorization to that effect.
[18] In his affidavit the principal plaintiff stated that he had no opportunity at the hearing to address the panel fully on the evidence he received following the hearing. He maintained that he did not have an opportunity to explain his situation and to respond to the panel"s comments regarding this documentary evidence.
[19] He claimed that the Refugee Division had no jurisdiction to request evidence outside Canada, and if it had such a power the obtaining of documentary evidence was contrary to the Instructions, in particular section 3.8 of the Instructions for the Acquisition and Disclosure of Information for Proceedings in the Refugee Division. The plaintiff stated that non-compliance with the Instructions was the result of the fact that the form for acquiring information was not supplied to the parties and this was an error of law.
[20] Further, the plaintiff stated that since it knew that the documentary evidence obtained after the hearing was questionable, the panel should have recommenced and allowed a complete hearing to be held. He maintained that he was the only one who could respond to the said documentary evidence, by his letter of October 13.
[21] Finally, the plaintiff alleged that the evidence received after the hearing could not be set up against his testimony.
[22] The defendant alleged that the plaintiffs had an opportunity to respond to the document filed after the hearing. He submitted that the plaintiffs did not object to the filing of Exhibit VEN30067.F in their response and that their comments dealt rather with the way in which the evidence was obtained and the fact that they were not able to cross-examine. Although the principal plaintiff stated he was the only one to have responded to Exhibit VEN30067.F, the defendant maintained that all the plaintiffs had an opportunity to respond to it, since their counsel acted as their alter ego.
[23] The defendant maintained that the fact that the persons mentioned in the documentary evidence in question were not cross-examined could not deprive it of all evidentiary value. He stated that it was for the Refugee Division to decide what value it had.
[24] Where the Instructions on acquiring information were concerned, the defendant stated that the plaintiffs did not mention non-compliance with the Instructions in their reply of October 13, and so could not raise that point at this stage. The defendant relied on ss. 67(2)(d) and 68(2) and (3) of the Immigration Act as showing that the Refugee Division had the power to admit documentation VEN30067.F in evidence. In this connection he also relied on Rule 39 of the Refugee Division Rules.
[25] The defendant submitted that the precedents provide that evidence may be considered after a hearing: Yushchuk v. Canada (M.E.I.), [1994] F.C.J. No. 1324; Sorogin v. Canada (M.E.I.), [1999] F.C.J. No. 630.
[26] The defendant further submitted that documentary evidence filed after the hearing was admissible when the plaintiff had an opportunity to submit his comments in reply. Further, ss. 67(2)(d) and 68(2) and (3) of the Immigration Act appeared to give the Refugee Division a broad power to admit and consider evidence. Those sections provided that the Refugee Division was not bound by the formal requirements of the rules on the admission of evidence: see Fajardo v. Canada (M.E.I.), [1993] F.C.J. No. 915 (F.C.A.).
[27] It should be noted that the additional documentary evidence, VEN30067.F, was entered in the record after the hearing as No. A-10.
[28] Before the hearing was closed counsel for the plaintiffs suggested a serious question central to the issue. He submitted this question should be certified. The said question is the following:
| Is the RCO Section, the operations support manager or a hearing officer entitled to obtain and file outside the limits of a hearing specific information relating to a specific claim before the Refugee Division consideration of which has begun, in light of the provisions of the Immigration Act in the French version of its s. 68.1, namely: |
| 68.1 Les agents d"audience nommés en vertu du paragraphe 64(3) peuvent, conformément aux règles mentionnées au paragraphe 65(1) régissant la section du statut, et dans le cadre de l"audience, convoquer des témoins, y compris l"intéressé, et les interroger, produire des documents et présenter des observations. |
| If not, does the English version of the wording of s. 68.1 have the effect of authorizing the filing of such information outside the hearing without a formal request to reopen it? Section 68.1 reads as follows in its English version: |
| 68.1 A refugee hearing officer who is appointed under subsection 64(3) may, in accordance with rules made under subsection 65(1) governing the activities of the Refugee Division, call and question any person who claims to be a Convention refugee and any other witnesses, present documents and make representations. |
| In view of the presence of the words "dans le cadre de l"audience" in the French version and the absence of this stipulation in the English version of the Act, we submit that it is in the public interest that this discrepancy be resolved. |
[29] In his reply counsel for the defendant submitted the following three arguments to persuade the Court that no question should be certified:
| 1. the proposed question is a new argument of law which was never raised in the plaintiffs" memorandum; |
| 2. evidence does not have to be obtained at a hearing; |
| 3. the plaintiffs waived the right to a hearing. |
[30] As regards the submission that the proposed question is a new argument of law which was not raised in the plaintiff"s memorandum, it can be seen from reading the plaintiff"s memorandum of an application for leave and an application for judicial review, to be found at p. 167 of the plaintiff"s record, that the question was in fact raised.
[31] Counsel for the defendant submitted that the evidence did not have to be obtained at a hearing and referred the Court to this comment by Tremblay-Lamer J. in Sorogin v. M.C.I., IMM-1681-98, March 8, 1999. In that case Tremblay-Lamer J. wrote:
| However, as counsel for the respondent submits, subsection 69.1(4) was repealed after Lawal, so in his opinion, it would now be acceptable to have a more informal procedure, whereby evidence may be filed outside a hearing where the parties consent to such a procedure and where the rules of natural justice are observed by allowing the claimant to comment on that evidence. |
| The repeal of subsection 69.1(4) certainly relaxed the rule established by Lawal, since the panel is no longer required to hold a hearing in the claimant"s presence. Parliament thus prefers a more flexible procedure. |
(My emphasis)
[32] I am persuaded that a certain distinction must be made between Sorogin and the case now under consideration, in that the plaintiffs in the case at bar did not expressly consent to the filing of the additional evidence. However, they did have an opportunity to comment on it, which was done in the letter from counsel dated October 13, 1998.
[33] Finally, counsel for the defendant submitted that the plaintiffs waived the right to a hearing since they responded by letter when they received the new documentary evidence. He maintained that the plaintiffs implicitly waived the right to object to the said additional evidence or to a new hearing. He further submitted that this evidence filed outside the hearing had caused the plaintiff no harm and that if there was a procedural error the Court was not justified in intervening if the irregularity had no impact on the decision.
[34] A careful reading of the Refugee Division"s decision indicates that it referred to the additional evidence after determining that the plaintiffs were not Convention refugees.
[35] I am satisfied that, after a detailed analysis of the evidence, the Refugee Division correctly concluded that the plaintiffs did not have a well-founded fear of persecution, noting that there had been no physical attacks and the principal plaintiff had little knowledge of the satanic cults threatening him.
[36] In my view, although on several occasions the Refugee Division referred to the additional evidence acquired after the hearing, it nevertheless concluded that the claimants did not meet the requirements of the Convention and that the additional evidence had no serious impact on the decision. Further, I am satisfied that even if the additional evidence had been filed at the hearing counsel for the plaintiffs could not have cross-examined the authors of those documents.
[37] If I had the slightest suspicion that there had been a lack of fairness or infringement of natural justice in the case at bar, or that the reopening of the hearing or a re-hearing could have had any influence on the final decision, I would have allowed the plaintiffs" submissions. Referring to Sorogin , supra, which now provides a more flexible procedure, I am persuaded that there is no basis for granting the remedy sought by the plaintiffs.
| [38] For these reasons, the application for judicial review is dismissed. I was not persuaded that the question raised by counsel for the plaintiffs should be certified. |
OTTAWA, Ontario
January 13, 2000
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: CHRISHNA ANDY ALBERT et al. v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: DEC. 15, 1999 |
| REASONS FOR ORDER BY: ROULEAU J. |
APPEARANCES:
| MICHEL LE BRUN FOR THE APPLICANT |
| MICHEL PÉPIN FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MICHEL LE BRUN FOR THE APPLICANT |
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
Email this Content