Date: 20100218
Docket: IMM-3517-09
Citation: 2010 FC 179
Montréal, Québec, February 18, 2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
MIRIAM ARACELI DENA HERNANDEZ
ALEJANDRO CERVANTES DENA
DIANA CAROLINA DENA
LAURA HERMINIA DENA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Hernandez
and her three minor children, Diana, Laura and Alejandro, are Mexican
nationals. Their claim for refugee protection was refused on
June 19, 2009, by the Refugee Protection Division of the Immigration
and Refugee Board of Canada (the tribunal), hence this application for judicial
review.
I. ALLEGATONS OF THE APPLICANTS
[2]
Ms. Hernandez
states that she fears her former spouse, Raul Tapia Rangel, who not only abused
her physically and psychologically, but also allegedly threatened her life
after she filed a paternity complaint with respect to Diana and Laura. The twin
sisters are both severely physically handicapped. Not only do they face
discrimination, but their chances of being accepted into and studying in a
Mexican school are practically non-existent according to Ms. Hernandez,
who is the designated representative of the three minor children.
[3]
As
for at the factors for subjective fear, Ms. Hernandez stayed with
Mr. Rangel until the month of July 2002. At that time, he allegedly
beat her while she was pregnant with the twins. That was when she decided to
leave him. After the twins were born, Ms. Hernandez needed financial
assistance to meet their special needs, but Mr. Rangel refused to help.
[4]
In
December 2003, Ms. Hernandez met Javier Atahualpa Cervantes Macias.
Her new spouse agreed to pay the twins’ medical expenses. On
June 2, 2005, Ms. Hernandez gave birth to a third daughter (who
remained in Mexico with her
father, Mr. Macias). The situation turned sour after Mr. Macias lost
his job and Ms. Hernandez became pregnant with a fourth child, Alejandro.
Ms. Hernandez and Mr. Macias decided to separate in August 2006.
[5]
Ms. Hernandez
then began looking for a school for the twins, who were almost four years old.
The only school that accepted the twins, given their physical problems, was
Multiple Attention Center 5, a school for mentally disabled children. However, because
the twins suffer exclusively from motor difficulties, they were notified in
May 2007 that their enrolment had been terminated.
[6]
Ms. Hernandez
tried unsuccessfully to find a new school for the girls. One of the schools she
contacted informed her that the girls [translation]
“could not be accepted into this group because of their motor difficulties, as
it would be difficult for them to perform some of the activities that would be
expected of them”. Unable to find another school, Ms. Hernandez complained
to the Secretary of Public Education; all she did was to provide
Ms. Hernandez with a list of schools to contact. None of these schools
accepted the twins, according to Ms. Hernandez.
[7]
In
January 2007, Ms. Hernandez filed a paternity complaint against Mr. Rangel.
Not only did he refuse to recognize the twins as his own, but he once again
threatened Ms. Hernandez. In August 2007, she went to the police to
file a complaint against Mr. Rangel, but they did nothing.
[8]
In
the meantime, in June 2007, Ms. Hernandez left Aguascalientes with
her children to go live with her sister in Leon Guanajuato, a city about
200 kilometres from Aguascalientes. Ms. Hernandez continued to
try to find a school for the twins, still without success. Furthermore, she had
not succeeded in escaping Mr. Rangel, who called her to tell her that she
would not be able to outrun him if she did not withdraw her complaint. That is
when she decided to return to Aguascalientes.
[9]
On
September 10, 2007, Ms. Hernandez, a physician, the twins’ tutor
and Mr. Rangel had to appear before a judge for DNA testing. Neither the
physician nor the tutor appeared. After the hearing, Mr. Rangel went to
Ms. Hernandez’s workplace to threaten her, telling her that it would not
be the least time that the physician and tutor would fail to appear. Again he
told her to withdraw the complaint or he would kill her. After this incident,
Ms. Hernandez left Mexico with her three children.
II. CONCLUSIONS OF THE TRIBUNAL
[10]
The
tribunal decided that the applicants were neither refugees within the meaning
of the Convention nor persons in need of protection. The tribunal essentially
found that Ms. Hernandez was not credible and that she had failed to rebut
the presumption of state protection. Also, while the tribunal recognized that
the twins were discriminated against, it did not conclude that they were
persecuted.
[11]
The
reasonableness of each and every one of the tribunal’s conclusions is
challenged by the applicants, who also call into question the conduct at the
hearing by the member who heard the case. The respondent, on the other hand,
submits that the decision in question was reasonable and that there has been no
denial of justice, nor is there a reasonable apprehension of bias.
III. ANALYSIS
[12]
For
the reasons that follow, the impugned decision must be overturned and the claim
for refugee protection returned to the tribunal for a new hearing and
redetermination by a different member.
A. GENERAL
FINDING OF NON-CREDIBILITY
[13]
First,
the Personal Information Forms (PIFs) and transcript of Ms. Hernandez’s
oral testimony show that the truth of the principal facts outlined above by the
Court and supporting the applicants’ claim for refugee protection has not
really been questioned by the tribunal in its decision, except perhaps obliquely,
as explained below. In the decision under review, the tribunal has not pointed
to any implausibilities, inconsistencies or contradictions in
Ms. Hernandez’s written narrative or her testimony at the hearing.
[14]
The
general finding of non-credibility is based solely on Ms. Hernandez’s
failure to file supplementary documents. The tribunal’s reasons are succinct.
First, the tribunal criticizes Ms. Hernandez for not having tried to
obtain a letter from her lawyer about the complaint she had filed with the
office of the General Prosecutor. As for the twins’ personal situation, the
tribunal criticizes Ms. Hernandez for not having submitted [translation] “evidence corroborating
the claim that the two girls could not be accepted by a regular school, a school
that would meet their needs”.
[15]
However,
the tribunal does not, in its decision, question the fact that
Ms. Hernandez filed a paternity complaint or that, before leaving Mexico, she filed a
complaint with the police with respect to Mr. Rangel’s threats. The
existence of the complaint corroborates Ms. Hernandez’s testimony. The
mere failure to follow up on the complaint to the police does not taint
Ms. Hernandez’s claim of subjective fear, but is instead relevant to
whether she was able to demonstrate to the tribunal’s satisfaction that she
could not benefit from the protection of the Mexican state.
[16]
The
medical evidence in the file clearly establishes that as a result of a
respiratory problem at birth, the twins suffer from encephalopathy in the form
of diplegia, and one of the consequences of their diplegia is incontinence. In
support of the claim for refugee protection, the applicants submitted several
medical documents from Mexico and Canada. Among the
most recent documents are various letters and reports from specialists (social
worker, physiotherapist, physiatrist, occupational therapist, psychologist)
describing in considerable detail the twins’ motor functions and the assistance
they require (see in particular Exhibits P‑14 to P‑20).
[17]
Moreover,
Ms. Hernandez’s testimony regarding her unsuccessful attempts in
Aguascalientes and Leon Guanajuato to register the twins in a school is
corroborated by the single letter she received from a school refusing to
register the twins. Finally, the general documents filed in evidence by the
applicants deal with the difficulties experienced in Mexico by persons with
physical disabilities both in the job market and in accessing education (see
the newspaper articles filed as Exhibit P‑13 and the documents in
the National Documentation Package on Mexico).
[18]
Although
he saw the twins in their wheelchairs before the hearing began and was provided
with a diagnosis by a physician explaining that the twins suffered from
encephalopathy in the form of diplegia and were incontinent, the member seemed
determined to deny the limitations suffered by the twins.
[19]
In
fact, when Ms. Hernandez attempted to explain at the hearing that the
documents already filed were the only ones she had, but that she could
demonstrate to the member the twins’ physical limitations, the member dryly
responded,
[translation]
- That it not how I
wish to proceed. I expected reports from physicians or specialists explaining
exactly this kind of things, what they can and cannot do. A physician telling
me, for example, that they need to wear diapers in the classroom. Now you are
telling me that you have nothing in writing, and it could have been obtained,
because this is a medical condition.
[20]
Not
only that, the member even seems to have expressed doubts during the hearing
about the twins’ incontinence, or worse, not understood the meaning of the word
“incontinent”. Although he had already seen the diagnosis indicating that the
twins were incontinent, when Ms. Hernandez explained that the twins needed
diapers, he seemed surprised:
[translation]
A. They
require special care.
-
OK.
Q. What kind of special care? Do
you, do you mean the building must
be accessible to children in
wheelchairs?
A. Yes, that’s right, but I’m also
talking about other special needs,
that is—and children who wear
diapers.
BY COUNSEL (to the person concerned)
Q.
Why do
they use diapers?
A.
Because of
their incapacity.
BY THE PRESIDING MEMBER (to the person concerned)
-
OK. But
that’s the kind of thing I’m not seeing mentioned.
[21]
In
short, no document seemed to satisfy the member. When Ms. Hernandez
testified about the contents of a psychologist’s report on the twins, the
member said that he would have preferred a report prepared by a physician. And
when Ms. Hernandez referred the member to a report prepared by
Dr. Marois, a physician specializing in physiatry and rehabilitation, the
member asked her for letters from a neurologist.
[22]
The
following exchange between the member and Ms. Hernandez is particularly
revealing:
[translation]
A. A doctor of
physiatry. That means a medical doctor specializing in physiatry and
rehabilitation.
Q. And letters from a
neurologist or—follow-ups in writing, you have nothing from the neurologist
Fernandez?
A.
No.
Q.
He never
gave you anything in writing?
A.
Everything
was given to the physiatrist so that he could make a diagnosis.
Q.
And you
never received anything?
A. No, it was only when
I asked for a letter about the children’s incapacities that they gave me this.
It was the same here in Canada, I asked, I asked for a certificate for—in
writing, saying that the children were handicapped and they gave me this
document as evidence that they were handicapped. Normally, doctors don’t, they
generally don’t give anything in writing, just a diagnosis.
Q. But now, are you
talking about Mexico or Canada?
A. Both.
[23]
The
member clearly seems to be in bad faith. The twins were seen by several
specialists in Montréal, through the physiatry clinic’s Cerebral Motor Deficits
Program. In his report dated May 29, 2008, Dr. Pierre Marois,
physiatrist, provides a thorough description of Laura’s handicap, adding that
her condition requires specialized equipment:
[translation]
There were several complications during
the neonatal period and, like her sister, she presented neurological complications.
Eventually, neonatal encephalopathy with diplegia was diagnosed. This is a
young patient who a few years ago underwent bilateral lengthening of the
triceps surae and an adductor tenotomy possibly combined with an obturator
neurectomy. She currently has no specialized equipment. She does not walk. She
is able to move herself with hand support. It seems that she previously had a
back support walker that she was able to propel over short distances.
[24]
As
for Diana, who is more severely affected than Laura, Dr. Marois noted the
following on the same day in a separate report:
[translation]
She presented a serious neurological
lesion and is somewhat more affected than her sister Laura. She cannot move
herself in the vertical position. She has some mobility on the ground. She has
previously undergone hip surgery, specifically, an adductor tenotomy possibly
combined with an obturator neurectomy. She has also undergone bilateral
lengthening of the triceps surae.
. . .
This is a little girl presenting encephalopathy
with quadriparesis. She was born of a twin pregnancy. Her sister has problems
that are relatively similar. She is a little girl who cannot move autonomously
in a vertical position. She crawls.
[25]
Having
read the transcripts attentively, the Court notes that Ms. Hernandez’s
testimony was never hesitant or confused at any point during the hearing, which
lasted several hours. Again, she admitted that she did not have any additional
evidence regarding the steps taken with the various schools, which should have
satisfied the member’s appetite, but he continued to insist, for no useful
purpose. Pushed to the limit, Ms. Hernandez replied in desperation:
[translation]
A.
What kind
of proof do you need? My word, my word is good. I’m a mother—
- I am aware of that.
A. —and every day, I
went out looking for an education for my children.
- OK—
A.
—and that
I was pos—
- But apart from
your word, there would have been evidence available from the Department of
Education, which could have attested, in writing, to what was available for
those two (2) girls.
A. First of all, Sir,
they do not give that out.
- But Madam, you
say—Wait a moment Madam, when I am speaking, please stop.
A.
All right.
[26]
As
my colleague Mr. Justice Pinard recently pointed out in Mejia v. Canada
(Minister of Citizenship and Immigration), 2009 FC 1091 at
paragraph 18, the panel “can raise the absence of relevant documentary
evidence if it finds contradictions or inconsistencies” in a claimant’s
testimony and find that it is not credible. However, that is not the case here.
This case is properly distinguished from other cases in which the claimants’
numerous credibility problems had already been developed by the panel in
substantial, clear and well-articulated reasons (for example, Ramirez v.
Canada (Minister of
Citizenship and Immigration), 2010 FC 136).
[27]
The
Court is therefore of the view that that it was unreasonable in the case under
review to require documentary evidence other than that already filed by the
applicants, which in this case constitutes a determinative error justifying the
setting aside of the general finding of non‑credibility (Zheng v.
Canada (Minister of Citizenship and Immigration), 2007 FC 974 at
paragraph 9).
B. OBJECTIVE BASIS OF CLAIM
[28]
To
rebut the presumption that states are able to protect their citizens, a
claimant must provide the tribunal with clear and convincing evidence of the
inability of the state in question to provide adequate protection. Also, had it
not been for the other fundamental errors affecting the validity of the
decision under review, the tribunal’s analysis of state protection may have
enabled the Court to uphold the legality of the finding that Ms. Hernandez
was neither a refugee within the meaning of the Convention nor a person in need
of protection.
However,
this is not just about whether the Mexican state can offer adequate protection
in cases of conjugal violence, indeed, when a woman has received death threats
from an ex-spouse and has complained to the police as is the case here.
[29]
Here,
in the case of the claim made on behalf of the twins, the tribunal first had to
determine whether they were persecuted, and that is where we run into
difficulty.
[30]
The
Court has already discussed above the pernicious and unreasonable nature of the
tribunal’s finding that the record contained no [translation] “corroborating evidence to the effect that the
two minor girls could not receive the particular education and care they
required in Mexico.”
[31]
On
this point, Marie-Ève Morin, a social worker with the Centre de santé et de
services
sociaux
of Ahuntsic and Montréal-Nord who saw the twins, provided a helpful summary, in
a letter dated April 6, 2009, of the extent of their day-to-day needs,
which require that they be placed in a specialized educational institution:
[translation]
Ms. Hernandez and her two daughters
have been known to the ID-PDD program at the Ahuntsic CLSC since
December 2008 given the handicaps of the girls, Laura-Herninia and
Diana-Carolina (DOB: 2002-12-22). They have cerebral palsy and are paralyzed
from the lower limbs to the pelvis. They therefore require assistance with
mobility and day-to-day activities.
. . .
The twins have integrated well in school
and are doing very well. Unfortunately, the services Laura-Herninia and
Diana-Carolina are receiving here (technical assistance and inclusive
education) would not be available to them in their country of origin; their
development would therefore be seriously compromised, and they would also run a
significant risk of suffering from discrimination.
[32]
Ms. Hernandez
confirmed at the hearing before the tribunal that the twins were registered at the
Victor-Doré school in Montréal. This institution provides adapted educational
services for children with physical handicaps and accommodates children in wheelchairs
and those who wear diapers, like the twins.
[33]
In
her testimony, in addition to her own experience and in response to a question
from her counsel asking whether she knew of any persons with handicaps who were
unable to access educational resources in Mexico,
Mrs. Hernandez said the following:
[translation]
A. . . . In the town
where I live, a town without very many resources, there is a handicapped child,
who—he does not get medical education or education services, because the
parents lack the resources. He has not been accepted by any government
institutions. Therefore, the child does not study and is not receiving an
education, because the lists are very long.
[34]
Despite
Ms. Hernandez’s testimony and the extrinsic evidence corroborating the fact that
it is practically impossible for the twins to be accepted into a school in Mexico, the
tribunal nevertheless found that they were not victims of “persecution” within
the meaning of the Convention. The tribunal’s sole justification for this was
the following terse reasoning found at paragraph 31 of the impugned
decision:
[translation]
Document P‑12, from the
rehabilitation centre at Sainte‑Justine in Montréal at dated
September 24, 2008, mentions a non-inflammatory brain condition and
degenerative conditions and brain lesions that complicate certain
intoxications, namely, encephalopathies, with the result that the young girl
cannot hold in her urine. The fact that this is a difficult situation and that
they might be the target of a certain amount of discrimination does not
necessarily mean that they will be persecuted.
[35]
It
goes without saying that the characterization of what constitutes
discrimination as opposed to persecution is a highly complex exercise that
naturally falls within the specialized expertise of the tribunal. However, the
reasoning underlying the tribunal’s conclusion must be clear, which is not the
case here. As a result of the effective lack of analysis of the evidence,
including the documentary evidence related to the condition of persons with
handicaps and their access to education in Mexico, the Court
is justified in returning this case to the tribunal.
[36]
Moreover,
with respect to the burden of proof that must be met by the applicants, the
member mentioned more than once during the hearing that the twins’ physical
handicap must make their lives [translation]
“intolerable” in Mexico. There is no universally accepted definition of
“persecution”. It is only in certain circumstances that “discrimination” will
be equivalent to “persecution”. It is therefore necessary that a tribunal not
approach a claim for refugee protection with prejudices or preconceived
opinions, especially since the personal situation of a claimant may vary
considerably from one country to another.
[37]
Speaking
of prejudices or preconceived opinions, the member said the following at the
hearing:
[translation]
. . . I can see people in wheelchairs who
can attend normal classes. I mean, with other students, I’ve seen it before.
[38]
The
intolerable nature of a discriminatory situation certainly falls under the
category of “persecution”. However, this finding does not depend on the
objective severity of the handicap, but rather the discriminatory treatment
experienced by the person suffering from the handicap.
[39]
It
is also important to remember that “cumulative grounds” can give rise to a
valid claim for refugee status within the meaning of the Convention: “This
would be so if measures of discrimination lead to consequences of a
substantially prejudicial nature for the person concerned, e.g. serious
restrictions on his right to earn his livelihood, his right to practise his
religion, or his access to normally available educational facilities.” (Handbook
on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees (the
Handbook) reedited, Geneva, January 1992, at paragraphs 53 and 54).
[40]
It
is well established in the jurisprudence that persecution may be caused by
discriminatory acts that are sufficiently serious and occur over such a long
period of time that it can be said that the claimants’ physical or moral
integrity is threatened (N.K. v. Canada (Solicitor
General), [1995] F.C.J. No. 889 at paragraph 21 (TD) (QL); Soto v.
Canada (Minister of Citizenship and Immigration), 2002 CFPI 768 at
paragraph 12). Thus, a person may be the victim
of persecution if, because of a Convention ground, he or she is prevented from
continuing his or her education (Alfredo Manuel Oyarzo
Marchant v. Minister of Employment and Immigration), [1982] 2 F.C. 779
(F.C.A.) at paragraph 5; Ali v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1392 at
paragraph 4 (QL)).
[41]
The
tribunal should at least have clearly explained its conclusion and considered
all of the evidence, which includes the uncontradicted allegations in the PIFs,
Ms. Hernandez’s testimony at the hearing, the letters and reports filed by
the applicants, and documentary evidence regarding the situation of persons
with handicaps in Mexico.
[42]
For
example, in the 2008 document “U.S. Department of State. ‘Mexico’. Country
Reports on Human Rights Practices for 2007” says the following:
Although the law prohibits discrimination
against persons with physical and mental disabilities in employment, education,
access to health care, and the provision of other services, the government did
not effectively enforce all these provisions.
[43]
While
the tribunal is not required to refer to every piece of evidence in its
decision, it must at least deal with any evidence that is relevant to the
outcome of the case (Mohacsi v. Canada (Minister of
Citizenship and Immigration), 2003 CFPI 429 at paragraph 45).
Without necessarily finding that the twins were victims of persecution, the
lack of effective analysis in the impugned decision renders unreasonable the
tribunal’s finding that the twins were not persecuted.
C. MEMBER’S CONDUCT
[44]
Justice
must of course be rendered, but it is equally important that justice appear to
be rendered without bias. It goes without saying that members must, at all
times, be above reproach and objective, especially because, in practice, this
is often a claimant’s only opportunity to be heard in person (Guermache v.
Canada (Minister of Citizenship and Immigration), 2004 FC 870
at paragraphs 5 and 6).
[45]
With
all due respect to the member, who had a difficult task, and without wishing to
disparage him, it seems to me that the member did not pay sufficient attention
to the applicants’ personal situation, nor was he very interested in hearing
Ms. Hernandez’s testimony. First, he clearly showed unjustified
aggressiveness and impatience toward Ms. Hernandez and her counsel.
Second, it seems that the member had a preconceived idea of the outcome of the
case, making one impossible demand after another and cutting Ms. Hernandez’s
explanations short.
[46]
At
one point, Ms. Hernandez, frustrated that the member would not let her
speak, politely requested that he grant her [translation]
“five (5) minutes” to explain the origin of a highly relevant document written
in Spanish explaining why Diana’s enrolment in a school for handicapped
children had been terminated. Rather than listen to her explanations, the
member put forward another interpretation of the same document.
[47]
Half
way through the hearing, Ms. Hernandez objected to the member’s
interruptions and aggressive tone, but he did not respond and preferred to
continue his questioning:
[translation]
A. —Would you allow me,
Sir, to make an objection?
Q. An objection to what, Madam?
- You wish to object
as well, OK.
Q. What is your
objection, Madam?
- I am listening to
your objection.
A. That you not get
angry. It’s because you won’t let me explain myself.
- But—
A. Is it, it’s because
you get angry before I can explain and—
- I don’t understand—
A. —and I am embarrassed to—
- —what you are
objecting to. I am trying to understand your objection.
A. I am asking, I am begging you.
- Madam, I am asking
you questions the answers to which I need to render my decision. I am asking
about the complaint you filed, in writing, that I have a copy of here.
Q. What
did the authorities do with this?
[48]
Worse
still, counsel for Ms. Hernandez made an objection when he noted that his
client did not understand the meaning of the word [translation] “supervisor” being used by the member, whose
irritation level was rising by degrees. The following exchange is particularly
symptomatic of the malaise that was progressively invading the hearing:
[translation]
BY COUNSEL (to the
presiding member)
- Mr. Member,
objection.
BY THE PRESIDING
MEMBER
(to the person concerned)
- You
are not answering my question. I want a yes or a no.
Q. Do you ask the
person to whom you made the complaint, to see the supervisor, yes or no?
BY COUNSEL (to the
presiding member)
- Objection—
A. No.
- —Mr. Member.
A. No,
I want to hear the answer.
BY THE PERSON
CONCERNED
(to the presiding member)
- Yes,
I asked.
. . .
BY COUNSEL (to the
presiding member)
- Mr. Member, I
object, because you are talking about a supervisor, but within the office of
the General Prosecutor, there is no supervisor, Mr. Member.
A. There
is a hierarchy.
- It is—if you, if
you look at the documentary evidence, it is clear that the General Prosecutor
is the sole authority for the laying of information, so there is no hierarchy
to speak of. Ms. Hernandez is not a professional, we don’t know, you are
talking about a supervisor, but there is no supervisor in the office of the
General Prosecutor.
A. OK,
you can save that for your arguments.
- No, but just,
objection because you keep asking about supervisors, supervisors, but
Ms. Hernandez does not know the word supervisor.
A.
So,
that’s all she has to say, that she doesn’t know what a supervisor is.
[49]
Here
is another example of an objection, apparently fully justified, from counsel for
Ms. Hernandez, regarding a supposedly deficient translation, which did not
get very far with the member:
[translation]
BY COUNSEL (to the presiding member)
- Excuse me,
Mr. Member, there were some problems with the translation in the sense
that I, that the question was not really clear. It’s, perhaps the question
could be asked again with a bit more explanation.
BY THE PRESIDING MEMBER (to counsel)
Q. Do you have an
objection, Counsel? Is that an objection or a comment?
A.
Yes, it’s
an objection.
Q. An objection to what?
A. The objection, the
translation was not right. Could the question simply be repeated and explained—
-
If you
have an objection—
A.
That’s
right.
-
—with
respect to the translation, there are ways to object, as you know.
A. Mr. Member, I
am simply objecting because there has been a translation error. All I am asking
is that the question be—
Q. So you want an
expert opinion? Do you want an expert opinion?
A. No, Mr. Member,
it’s not to waste time, I’m just asking that the question be reformulated.
-
I told
Hs. Hernandez, if you don’t understand the question, don’t hesitate to
have it reformulated.
BY THE PRESIDING MEMBER (to the person concerned)
Q. Did you make the
complaint to your persecutor, the father of your two (2) children?
BY THE INTERPRETER (to the presiding member)
-
Make the
complaint to the persecutor.
A.
Yes.
BY COUNSEL (to the presiding member)
- I am asking,
Mr. Member, the question is not clear, it just means, means—in the sense
that Ms. Hernandez have you—
BY THE PRESIDING MEMBER (to counsel)
Q.
Counsel,
do you have an objection?
A.
Yes,
because the question was not clear—
-
I heard
you.
A. —Mr. Member.
-
Ms. Hernandez
will tell me if she does not understand the question. If you have an objection,
say so.
A.
Yes,
Mr. Member.
[50]
At
the end of the marathon of questioning to which Ms. Hernandez was
subjected, the member acquiesced, though not without making his impatience
known, to her counsel’s request to ask a few additional questions, reminding
him that the facts had already been submitted in Ms. Hernandez’s
narrative, so she did not need to repeat the whole story. Therefore, one might
think that after hours of questioning by the member, Ms. Hernandez would
finally have the opportunity to answer her counsel’s questions fully, subject
to the possibility that the tribunal would later in its decision point to any
contradictions between her answers and what she stated in her PIF. However, the
following exchange illustrates particularly well the vicious nature of the
member’s interruptions:
BY COUNSEL (to the
person concerned)
Q. Madam, you have been the victim
of conjugal violence?
A. Yes.
Q. Could you please tell us about
the first time that your—
BY
THE PRESIDING MEMBER (to counsel)
- Counsel, we
already have all that in the, in the facts. I said I was taking for granted
that everything—
A. OK.
- —would be the same—
A. OK.
- —as what’s already there, in
writing. I don’t see—
A. So as far as the tribunal is
concerned, there are no issues of credibility.
- I
did not say that.
A. But
if you—
- But
what Ms. Hernandez has already written, she has in her narrative.
A. OK.
- She
talked about
A.
But—
- —of
her, of the rape, she talked about death threats.
A. Rape,
no, there was no rape Mr. Member.
- Wait,
she talked about—
BY
COUNSEL (to the person concerned)
Q. Was
there rape, Madam, rape?
BY
THE PRESIDING MEMBER (to counsel)
- Physical.
A. Ah.
-
Excuse me.
BY
THE PERSON CONCERNED (to counsel)
- Physical,
physical assault.
BY
COUNSEL (to the person concerned)
- Physical
assault.
A. Yes.
- Yes,
but not rape.
[51]
It
is surprising, to say the least, that at the end of the hearing, the member
would suggest that Ms. Hernandez had been raped, when she never claimed to
have been. Either the member had simply not read her narrative attentively, or
he wanted to trip her up by asking a question that was certainly not warranted
in the circumstances.
[52]
The
member is always entitled to ask questions to clarify a claimant’s responses,
even if those questions come across as abrupt and repetitive (Moualek v.
Canada (Minister of Citizenship and Immigration), 2009 FC 539 at paragraphs
54 and 55; Mahendran v. Canada (Minister of Employment and Immigration),
[1991] F.C.J. No. 549 (F.C.A.) (QL)). However, in this case, the member’s
question about “rape” was not asked in order to clarify a point, since
Ms. Hernandez never once mentioned rape in her PIF or in her testimony.
[53]
The
questionable choice of certain descriptive terms by the member during the
hearing is equally troubling. Twice, the member compared the twins with persons
he described as “normal”. The fact that the member immediately corrected
himself indicates that he himself was aware of the inappropriateness of his
choice of words.
[54]
The
language used by the member during the hearing is a way of measuring whether
justice is both done and seen to be done. The member must at all times be
attentive and sensitive to claimants, and it is not clear that this was the
case here. That each member speak impeccably and respectfully toward the
persons appearing before the tribunal is the price to pay to have reviewing
courts grant the latitude requested on behalf of the tribunal for assessing the
credibility of each claimant.
[55]
The
respondent submits to the Court that the member was very patient and that he
even allowed the applicants to file evidence after the deadline. The fact that
the tribunal was not obliged to receive this additional evidence does not
compensate for the member’s reprehensible conduct at the hearing. In this case,
it is reasonable to doubt the member’s mindset and impartiality.
[56]
The
respondent also submits that it is not open to the applicants to argue a
reasonable apprehension of bias, as the law requires that this be invoked at
the earliest possible opportunity. Such an argument cannot succeed here.
[57]
As
this Court noted in Khakh v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 548 at paragraph 31
(T.D.), we must not be too quick to infer a waiver of the applicants’ rights.
Although the applicants’ previous counsel made no written submissions on the
possibility of a reasonable apprehension of bias, Ms. Hernandez herself
raised an objection at the hearing to the member’s conduct, and he did nothing
to address the situation.
[58]
Overall,
it is clear that there has been a denial of justice. In this case, the member’s
conduct at the hearing falls outside of the reasonable limits (Ramirez,
above, at paragraph 5). The next question is whether the member’s conduct
at the hearing raises a reasonable apprehension of bias. Having read the
transcripts attentively, an informed person, applying himself to the question
and viewing the matter realistically and practically, would conclude that the
member’s general conduct at the hearing raised a reasonable apprehension of
bias (Committee for Justice and Liberty v. Canada (National Energy
Office), [1978] 1 S.C.R. 369 at pages 394 and 395).
IV. CONCLUSION
[59]
For
the reasons above, the application for judicial review is allowed. Given that
no serious question of general importance has been submitted by the parties,
the Court shall not certify any.
JUDGMENT
THE COURT ORDERS that:
1.
The
application for judicial review is allowed;
2.
The
decision rendered on June 19, 2009, is set aside and the matter
returned to the tribunal for a redetermination of the claim for refugee
protection and a new hearing by a different member;
3.
No
question is certified.
“Luc Martineau”
Certified true
translation
Francie Gow, BCL,
LLB
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