Date: 19990430
Docket: IMM-3020-98
Ottawa, Ontario, April 30, 1999
Before: Pinard J.
Between:
MANUEL ROLANDO PINEDA HERNANDEZ,
ALEXANDER DAVID PINEDA PEREZ,
EDSON ROLANDO PINEDA PEREZ,
SANDRA ELIZABET PEREZ DE PINEDA,
Plaintiffs,
- and -
THE MINISTER,
Defendant.
ORDER
The application for judicial review from the decision by the Convention Refugee Determination Division on May 26, 1998, determining that the applicants are not Convention refugees, is dismissed.
Certified true translation
Bernard Olivier, LL. B.
Date: 19990430
Docket: IMM-3020-98
Between:
MANUEL ROLANDO PINEDA HERNANDEZ,
ALEXANDER DAVID PINEDA PEREZ,
EDSON ROLANDO PINEDA PEREZ,
SANDRA ELIZABET PEREZ DE PINEDA,
Plaintiffs,
- and -
THE MINISTER,
Defendant.
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Convention Refugee Determination Division ("the Refugee Division") on May 26, 1998 determining that the applicants are not Convention refugees. The principal applicant ("the applicant") claimed refugee status against Guatemala, alleging a well-founded fear of persecution for his political opinions. His wife and children, the other applicants, based their claim on his own.
[2] The Refugee Division noted that the applicant's claim was based on two primary activities: (1) the fact that he was an employee of BANDESA; and (2) the fact that he helped peasants from neighbouring villages.
[3] The tribunal first found it improbable that the applicant had problems for over eight years after leaving his employment with BANDESA. Then, as to the attack of which he was allegedly a victim, the tribunal found it improbable that he could have identified his attacker, whose head was covered with a hood, and whose physique resembled that of most of the police officers in his country. The Refugee Division also noted that the applicant's visit to the U.S. was inconsistent with his allegation of a fear of persecution. Finally, relying on documentary evidence showing that widespread violence still exists in Guatemala, the tribunal concluded that the applicant's son had been a victim of criminal gangsters and that his murder was not in any way related to one of the grounds in the Convention.
[4] In so far as this application for judicial review has to do with questions of fact and credibility, I was not persuaded that the Refugee Division, which is a specialized tribunal, made an error justifying intervention by this Court. Although I do not entirely concur in its analysis of the facts I nevertheless feel in light of the evidence that the inferences drawn could in general reasonably have been drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315).
[5] Additionally, as the applicant's testimony was not found to be credible, the tribunal was entitled to conclude that the minimum basis for the claims was absent. In Sheikh v. M.E.I. (1990), 112 N.R. 61, the Federal Court of Appeal established that when such a tribunal finds that a claimant is not credible it may conclude that there is no credible evidence on the basis of which the claimant could be regarded as a refugee. Further, in M.E.I. v. Mathiyabaranam (December 5, 1997), A-223-95, the Federal Court of Appeal confirmed that this rule is valid for s. 69.1(9.1) of the Immigration Act, concerning the question of the minimum basis.
[6] The claimant's argument based on a reasonable apprehension of bias must be dismissed on the basis that the claimant should have raised this point at the first reasonable opportunity, namely at the hearing before the Refugee Division. In Nartey v. M.E.I. (1994), 74 F.T.R. 74, Denault J. for this Court set out the test to be applied to determine whether bias exists, at 77-78:
| In determining whether Mr. Sordzi's decision is reviewable on the basis of a reasonable apprehension of bias because of his ethnicity, the proper test to apply is that set out in Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369, at p. 394: would an informed person, viewing the matter realistically and practically and having thought the matter through, think it more likely than not that the decision-maker would unconsciously or consciously decide an issue unfairly . . . . |
| In addition, neither the applicant nor his counsel raised the issue of a reasonable apprehension of bias during the course of the hearing. In Abdalrithah v. M.E.I. (1988), 40 F.T.R. 306 (T.D), I held that: |
| Moreover, even if the facts had shown a probability of bias on the officer"s part, which is not the case, the failure of the applicant"s attorney to raise this issue forthwith leads to a presumption that he had given up on invoking the reasonable apprehension of bias. |
| I believe this principle still applies, notwithstanding the recent judgment of my colleague, Nadon J., in Khakh v. M.E.I. (November 4, 1993), 70 F.T.R. 26, Court file no. T-315-93. In his decision, Nadon J., canvassed the jurisprudence and literature on the issue of whether the failure to raise the issue of bias during the hearing is fatal to a later determination of the question. He found that a failure to raise the issue does not constitute waiver if the applicant or his counsel was unaware of the right to object on the ground of a reasonable apprehension of bias or of the facts giving rise to the disqualification (in that instance the applicant was unrepresented). . . |
[7] In Del Moral v. M.C.I. (June 4, 1998), IMM-2062-97, my brother Dubé J. arrived at a similar conclusion:
| The courts have clearly established that a party reasonably apprehensive of bias on the part of a tribunal must allege a violation of natural justice at the earliest practicable opportunity:1 |
| . . . Correlatively, the right of the individual who apprehends bias on the part of the tribunal before which he is brought has always been, again as I understand the jurisprudence, a right to object to being judged by the tribunal, but a right that exists only until he expressly or impliedly submits to it. It is only because Mr. MacBain raised his objections at the outset that his attack on the proceedings could be successful. |
. . .
| However, even apart from this express waiver, AECL's whole course of conduct before the tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. |
________________________
| 1 In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103, at pages 110 and 113. |
[8] Finally, I am not persuaded from reading the transcript of the hearing before the Refugee Division that the audi alteram partem rule was infringed. Procedural equity seems to me to have been sufficiently observed and the applicant's argument in this regard is without foundation.
[9] For all these reasons, the application for judicial review must be dismissed.
[10] Counsel for the plaintiffs submitted two questions for certification. The first, concerning the appropriate test for the minimum basis, is not a question of general importance for certification, in view of the foregoing judgments of the Federal Court of Appeal in Sheikh and Mathiyabaranam. The question suggested regarding the compatibility of the Refugee Division's hearing procedures in Montréal with s. 7 of the Charter of Rights and Freedoms also does not require to be certified as the factual background in the case at bar does not warrant it and, in any case, the evidence of the general practice by the Refugee Division in
holding its hearings in Montréal was quite insufficient. There is thus nothing here for certification (see Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4, at 5 (F.C.A.)).
OTTAWA, ONTARIO
April 30, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3020-98
| STYLE OF CAUSE: Manuel Rolando Pineda Hernandez et al. v. |
The Minister
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 20, 1999
REASONS FOR ORDER BY: Pinard J.
DATED: April 30, 1999
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General
of Canada
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