Date: 20100521
Docket: IMM-5479-09
Citation: 2010 FC 561
Ottawa, Ontario, May 21,
2010
PRESENT: The Honourable
Mr. Justice Harrington
BETWEEN:
EMMA BADALYAN
MARIA MANDALYAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1]
In
2006, Emma Badalyan and her daughter, Maria Mandalyan, claimed refugee
protection in Canada. It appears
that they had been pursued by men working for the Armenian president who were
looking for documents. Their claim for refugee protection was rejected by a
member of the Refugee Protection Division (RPD) of the Immigration and Refugee
Board (IRB), who determined that the applicants are not Convention refugees or
persons in need of protection under subsection 97(1) of the Immigration and
Refugee Protection Act. The applicants are now seeking judicial review of
that decision.
[2]
Both
applicants are Armenian citizens, while Ms. Badalyan’s other daughter, Anna
Mandalyan, is, for her part, a Canadian citizen currently living here.
[3]
Ms.
Badalyan’s husband, Vladimir Mandalyan (who died in 2005), was manager of a
chain of restaurants. In 1994, after the fall of the communist regime, the
chain was privatized. Mr. Mandalyan was alleged to have had documents in
his possession linking Serge Serkassian, the current president of Armenia and at that
time head of the secret police, to a corruption scheme involving the
privatization of the restaurants.
[4]
Following
Mr. Mandalyan’s death, two men allegedly visited Ms. Badalyan and demanded the documents
in question. She was unable to find them. The men apparently returned several
times, becoming more violent and threatening each time. Ms. Badalyan and her
daughter then went to the police, but since they did not know the identity of
their aggressors, they refused to file a complaint.
[5]
When
they got back from the police station, they received another threatening call.
They deduced that these men must have been told about their visit to the police
station. The threats continued. In November 2006, the two men allegedly
kidnapped Ms. Mandalyan and threatened to kill her if they did not get the
documents by the end of the month. They apparently came back again in December.
In desperation, the applicants left Armenia that same month and
claimed refugee protection upon their arrival at Dorval.
DECISION UNDER REVIEW
[6]
The
RPD cast doubt on the applicants’ credibility on several grounds, specifically:
a. Because Ms.
Badaylan’s son-in-law, Artyom Gejakushyan (Artyom), seemed to know more about
the reasons for the persecution than the applicants.
b. Because the
applicants failed to indicate in their PIF that Ms. Badalyan’s husband had allegedly
been kidnapped and held in Moscow for two years, while Artyom attested to
the fact that he had been.
c. Because upon
their arrival, the applicants did not know the identity of their persecutors,
while now they say that it was Serge Sarkassian, the country’s strongman. If
they did not know this when they filled out their PIF, why was this detail not
added in July 2009, when they amended their PIF?
d. Because documents
dating back to 1994 could not cause serious problems for a man who was elected
easily in a country where corruption is rampant and not shocking to most people.
e. Because the
applicants would not have been able to leave the country if Mr. Sarkassian
was determined to get a hold of those old documents.
[7]
The
member noted that she had taken into account both the psychological report and
the Chairperson’s Guidelines regarding women who are victims of violence.
[8]
Essentially,
the applicants raise two issues: the lack of procedural fairness (which is
reviewable on a standard of correctness), and findings of fact made in a
capricious manner (which are reviewable on a standard of reasonableness).
PROCEDURAL FAIRNESS
[9]
At
the hearing before the RPD, counsel for the applicants was expecting Ms.
Badalyan’s son-in-law, who knew more about Ms. Badalyan’s husband’s past than
she did, to testify first, and had made an application to that effect. This was
important due to the fact that Ms. Badalyan suffered from post-traumatic
stress, according to the report by the psychologist, Mr. Woodbury. This
post-traumatic stress made her nervous testifying and could have given the
impression that she was being a bit vague, which was what in fact happened.
Her counsel had also assured her that she would not be the first to testify.
[10]
I
refer to the Federal Court of Appeal’s decision in Canada (Minister of
Citizenship and Immigration) v. Thamotharem, 2007 FCA 198. This
decision concerns the statutory powers given to the Chairperson of the
Immigration and Refugee Board to issue guidelines and make rules. Guideline 7 (Concerning Preparation and Conduct of a Hearing
in the Refugee Protection Division), provides that ‘‘[i]n a claim for
refugee protection, the standard practice will be for the R[efugee] P[rotection]
O[fficer] to start questioning the claimant’’ (para. 19), although the
member of the RPD hearing the claim ‘‘may vary the order of questioning in
exceptional circumstances’’ (para. 23).
[11]
The
Federal Court of Appeal concluded that the Guideline did not breach procedural
fairness and did not fetter the presiding member’s discretion. However, as
counsel for the applicants noted, the case before the Federal Court of Appeal
was concerned with who should question witnesses first, and not the order in
which they should be called to testify. Given that the burden of proof rests on
the applicants, their counsel is suggesting that the applicants should have the
right to choose the order of questioning, at least where special circumstances
are involved, as in this case.
[12]
It
should be noted that paragraph 19 of the Guideline 7
stipulates:
|
19.
In a claim for refugee protection, the standard practice will be for the RPO
to start questioning the claimant. If there is no RPO participating in the
hearing, the member will begin, followed by counsel for the claimant.
Beginning the hearing in this way allows the claimant to quickly understand
what evidence the member needs from the claimant in order for the claimant to
prove his or her case.
|
19. Dans toute demande d'asile, c'est généralement l'APR qui
commence à interroger le demandeur d'asile. En l'absence d'un APR à
l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil
du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur
d'asile de connaître rapidement les éléments de preuve qu'il doit présenter
au commissaire pour établir le bien-fondé de son cas.
|
[13]
The
applicants, however, refer to paragraph 51 of the decision, which reads as
follows:
In summary, the procedure
prescribed by Guideline 7 is not, on its face, in breach of the Board’s
duty in fairness. However, in some circumstances, fairness may require a
departure from the standard order of questioning. In those circumstances, a
member’s refusal of a request that the claimant be questioned first by her
counsel may render the determination of the claim invalid for breach of the
duty of fairness.
[14]
At
the hearing the member stated, as can be seen from page 243 of the tribunal
record: [translation]
Mr. Jankowski, you have asked that we
start with the witness’s testimony. I, however, would prefer to begin with the
ladies, have the witness leave the room and have him come back to testify a bit
later. I am the one leading these proceedings – and I think it would be better
for the claimants if they testified first. It is also a matter of credibility.
And that is that.
[15]
It
goes without saying that the Board is master of its own procedure, provided
that the principles of natural justice are upheld. In my view, the decision was
perfectly reasonable. The parties could not be excluded from the hearing, but a
third witness could be, particularly when there were legitimate concerns with
regard to credibility.
[16]
The
applicants maintain that, since the burden of proof rests on them, they should
have the right to choose the order of questioning. However, the hearing was
inquisitorial rather than adversarial and the member was more than justified in
choosing the order of questioning.
CREDIBILITY
[17]
It
is not necessary to address the Minister’s concerns with regard to the
psychologist’s qualifications. The member had the right to take into account
inconsistencies in the various statements made at different times, and to draw
negative conclusions from the fact that there was no mention in Ms. Badalyan’s
PIF that her husband had been kidnapped and held for two years or that the
persecutor was the president of the country. Her findings largely fall within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law, as explained in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para. 47. This omission has nothing to do with whether
or not she suffers from post-traumatic stress.
CERTIFICATION OF A
SERIOUS QUESTION OF GENERAL IMPORTANCE
[18]
The
applicants proposed the following question:
Does the Board’s discretionary power with
regard to the order of the questioning of witnesses infringe on the rights of refugee
claimants to procedural fairness?
[19]
I
am not inclined to certify this question. In my view, it is of no general
importance and should not be certified. While the facts might be slightly
different, I think that the Federal Court of Appeal’s observations in Thamotharem
are relevant here. Logic would dictate that the refugee claimant be questioned
first.
ORDER
FOR
THESE REASONS;
THE COURT ORDERS
that:
1.
The
application for judicial review is dismissed.
2.
No
serious question of general importance arises from the matter.
‘‘Sean Harrington’’
Certified true
translation
Sebastian Desbarats,
Translator
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