Date: 20120625
Docket: IMM-8818-11
Citation: 2012 FC 809
Ottawa, Ontario, June
25, 2012
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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JAIME
FRANCISCO TRASVINA RAMIREZ
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicant is a citizen of Mexico who seeks refugee
protection in Canada due to an alleged fear of persecution by the Mexican
Government and authorities. The Applicant left Mexico in 1993 and remained in
the United States, without making any attempts to regularize his status in that
country, until he came to Canada in 2009. In a decision dated November 3, 2011,
a panel of the Refugee Protection Division of the Immigration and Refugee Board
(the Member) determined that the Applicant was neither a Convention refugee,
pursuant to s. 96 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], nor a person in need of protection, pursuant to s. 97
of IRPA. The Member’s decision was based on two conclusions: (a) the
Applicant failed to establish a subjective fear and an objective basis to his
claimed fear in Mexico; and (b) he failed to rebut the presumption of state
protection.
[2]
The Applicant seeks to overturn this decision.
II. Issues
[3]
The following issues arise on this application for judicial
review:
1.
Did the Member’s conduct give rise to a reasonable
apprehension of bias?
2.
Did the Member err in finding that adequate state
protection existed in Mexico?
3.
Did the Member err in concluding that the Applicant did not
have subjective fear?
III. Standard of Review
[4]
The first issue of reasonable apprehension of bias is not
one that gives rise to a standard of review; either the apprehension is
established on the evidence or it is not. The remaining issues are reviewable
on a standard of reasonableness. The Court will not intervene unless the
decision is unreasonable. As taught by the
Supreme Court, in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190, “reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process”, as well as with “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”.
IV. Analysis
A. Issue
#1: Did the Member’s conduct give rise to a reasonable apprehension of bias?
[5]
As discussed in the decision, during a mid-hearing
conference held after the Member had finished questioning the Applicant and
midway through counsel’s questions, counsel for the Applicant alleged that the
Member was biased and brought made a motion asking the Member to recuse
herself. The Member denied the motion providing her reasons for doing so in the
decision. In particular, the Member explained that she had considered the
nature of the motion, the fact that it had only been made after she had
completed her questions and requested a conference for an unrelated purpose,
and no specific references had been provided to the Member. The Member also
noted that she had not been accused of having prejudged the case, and that she
had not in fact done so. In addition, the Member observed that the Applicant
had not appeared to be intimidated and that the questions previously put to the
Applicant by the Member elicited the same answers when asked by counsel.
[6]
The Applicant argues that the Member’s behaviour was
“intimidating” and “threatening” and describes her demeanour, from the
beginning of the hearing, as “upset”. In short, he submits that the Member’s
conduct during the hearing demonstrated a reasonable apprehension of bias and
that he was not accorded a fair hearing.
[7]
The test for a reasonable apprehension of bias was
articulated by Justice de Grandpré in his dissenting opinion in Committee
for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR
369 at 394:
The proper test to be applied in a matter of this type was
correctly expressed by the Court of Appeal. As already seen by the quotation
above, 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—conclude. Would he think that
it is more likely than not that [the decision-maker], whether
consciously or unconsciously, would not decide fairly.”
[8]
The transcript suggests that the hearing was not a pleasant
one for anyone involved. While the Applicant, his counsel and co-counsel have described
the Member’s behaviour as “threatening”, “intimidating” and “hostile”, the
Member complained that counsel was disrespectful, refused to take direction,
and that his tone was also intimidating.
[9]
In assessing whether the Member’s behaviour rises to the
level of reasonable apprehension of bias, I have carefully reviewed the
affidavits of the Applicant and an articling student who attended the hearing
as co-counsel (the student), together with the transcript. Several factors lead
me to give the affidavit evidence little weight.
[10]
First, I observe that the affidavits were sworn almost
three months after the hearing. It appears that time has affected the memories
of the affiants.
[11]
There are important discrepancies between the allegations
made in the student’s affidavit and the transcript of the hearing. Whereas the
student deposes that she told the Member that she “felt threatened by her” and
that she found the Member’s “manner and demeanor intimidating”, the transcript
reveals that, when asked whether she found the Member threatening, the student
responded that she “did not say threatening exactly, possibly intimidating,
slightly”. Bias is a serious allegation. As the Court of Appeal explained in Arthur v
Canada (Attorney General), 2001 FCA 223 at para 8, 283 NR 346, such
allegations challenge the integrity of a tribunal and cannot be made lightly;
they “must be supported by material evidence demonstrating conduct that
derogates from the standard” rather than “mere suspicion, pure conjecture,
insinuations or mere impressions of an applicant or his counsel”. Given the significant discrepancies between the transcript
and the student’s affidavit evidence, I give her affidavit little weight.
[12]
I also have concerns with the Applicant’s affidavit. During
the hearing, counsel for the Applicant led the Applicant extensively with his
questions about the alleged intimidation. For example (Certified Tribunal
Record at 359 [CTR]):
COUNSEL: [.
. .] Do you feel intimidated when the member ask[s] you questions?
CLAIMANT: Yes
I do.
[13]
Such leading questioning was inappropriate and elicited an
obvious response. I draw a strong inference that the Applicant was led by such
questions or prompted by counsel to state that he felt intimidated, whether or
not that was the Applicant’s feeling at the time. Accordingly, I put little
weight on the Applicant’s affidavit. The Applicant, having been prompted by his
counsel, may now honestly believe that the Member was intimidating towards him.
However, as discussed below, his current views are not supported by the record.
Further, in his affidavit, the Applicant does not identify a single question
that he would have answered differently; rather, his concerns are very general.
[14]
I agree with the Applicant that a transcript cannot reflect
the nuances of demeanour or tone of voice. However, a transcript can and does
show many things; for example, a transcript would readily demonstrate if a claimant’s
responses to questions have been cut off or if counsel has not been permitted
to present his case. None of those kinds of problems are seen in this
transcript. I pause to note that it would have been helpful had the Applicant
submitted the audio recording of the hearing to the Court. There is precedent
for the Court to listen to such recordings in considering an allegation of bias
(see e.g. RMQM v Canada (Minister of Citizenship and Immigration), 2011 FC 1150 at para 81, 398 FTR 139). In the absence of an audio
recording, and faced with unreliable affidavit evidence, it is difficult to
ascribe any merit to the Applicant’s allegations regarding the Member’s tone.
[15]
The hearing began with general introductory matters and
questioning by the Member. A review of this portion of the transcript indicates
no problems. In seven pages of preliminary matters and 28 pages of questioning
by the Member, there is not a single objection from counsel or concern about
any question posed to the Applicant or in respect of the demeanour of the
Member. I see no evidence that the Member cut any responses short or used
abusive or intimidating language in her questions.
[16]
I also carefully reviewed the questioning of the Applicant
by his counsel to see whether counsel was prevented from completing his
examination. He was permitted to proceed and was given considerable latitude in
his questioning. Contrary to the assertion of the Applicant in his affidavit
that “when my counsel was asking questions, he was frequently interrupted by
the Member . . .”, I find few examples of any interruptions. The Member, as
entitled and expected, interjected a very few times to try to direct the
hearing and to avoid repetitive questioning.
[17]
Even if I accept that the Member may have used an intimidating
tone, the questions posed by the Member were in no way inappropriate, and did
not suggest that the Member had prejudged the claim. Indeed, many of the
Member’s questions were repeated by counsel for the Applicant. Perhaps most
importantly, the Member did not curtail counsel’s ability to question the
Applicant or to make submissions. For example, after the mid-hearing
conference, the Member allowed counsel to ask precisely the question which had
precipitated the conference: That is, whether electoral fraud is common in Mexico (see CTR at 354, 360).
[18]
Finally, the transcript does not support the emphasis which
the Applicant places on the Member’s decision to open the door: The Member
asked whether others were hot before opening the door, and explained that the
public would not overhear the proceedings. In any event, no testimony occurred
while the door was open. This was not, as now asserted by the Applicant, a
failure of the Member to appreciate the confidentiality of the hearing. There
never was any threat to confidentiality.
[19]
I acknowledge that the transcript shows that there were
some sharp exchanges between the Applicant’s counsel and the Member. However,
these particular exchanges were not between the Member and the Applicant and
did not take place until well into the hearing. At no time did the Member ask
an inappropriate question or address a negative remark to the Applicant. In the
presence of the exchanges between counsel and the Member, I do not doubt that
everyone in the room felt uncomfortable. However, the fact that the Applicant
may have felt uncomfortable – or even intimidated – does not amount to bias.
[20]
What would a reasonable and well-informed person conclude
from a review of the transcript, the Member’s decision and the affidavits? I first
note that, as explained by Justices L’Heureux-Dubé and McLachlin in R v S
(RD), [1997] 3 S.C.R. 484 at para 36, 151 DLR (4th) 193, “[t]he person
postulated is not a ‘very sensitive or scrupulous’ person, but rather a
right-minded person familiar with the circumstances of the case”.
[21]
In my view, a well-informed person would understand the
inherently intimidating environment of a refugee hearing. In general, a hearing
is likely a somewhat fearful experience for a claimant who would normally feel
somewhat intimidated by the decision-maker who was
there to assess
his credibility. Particular to this hearing, it appears to me that the key
reflections of an informed person would be the following:
·
The Member completed all of her questioning without
incident.
·
Counsel for the Applicant completed all of his questioning
of his client and was permitted to make final argument on all aspects of the
Applicant’s claim.
·
There were very few interruptions by the Member during
counsel’s questioning of the Applicant.
·
As alleged in the affidavits, the Member may have presented
herself as “upset” and possibly angry from the beginning of the hearing and may
have used a strong tone of voice from time to time.
·
Almost all of the angry verbal exchanges were directly
between the Member and the Applicant’s counsel.
·
At no time did the Member pose a threatening or
objectionable question to the Applicant.
·
There was only one short direct exchange between the Member
and the Applicant on the subject of the Member’s attitude, which exchange was
not characterized by any offensive or aggressive language.
[22]
In addition, a well-informed person would likely appreciate
that counsel for the Applicant must bear some responsibility for the
difficulties that arose during the hearing. On at least two occasions prior to
the mid-hearing conference, the Member asked counsel to be more respectful:
First, after counsel refused the Member’s request that he stop repeating
questions, and again after counsel interrupted the Member when she sought to
clarify an aspect of the Applicant’s evidence (see CTR at 330-331, 346-347). While
the Member clearly allowed her frustration with counsel to show in her body
language, her tone of voice and certain of her remarks to counsel, her conduct,
although possibly intemperate and regrettable, does not amount to a reasonable
apprehension of bias.
[23]
As this Court has previously held, sarcastic and harsh
language will typically not be sufficient on its own to demonstrate that a
member has lost impartiality (Varaich v Minister of Employment and Immigration (1994), 75 FTR 143 at para 11 (TD), [1994] FCJ No 336 (QL)). This is not a case
such as Munoz v Canada (Minister of Citizenship and Immigration), 2012
FC 227, [2012] FCJ No 245 (QL) [Munoz], where Justice Scott held that
the member’s conduct did raise a reasonable apprehension of bias. In that
regard, Justice Scott made the following findings at paragraph 42:
The Court, after a careful
reading of the transcript of the hearing, notes that the Member questioned the
applicants in a somewhat erratic and haphazard manner and even went so far as
to attribute a purely fictional reaction to the applicants’ counsel in her
decision. This is sufficient proof of the member’s bias. A decision maker
cannot simply invent facts to support their findings.
[24]
That is not the case here. While the Applicant alleges that
the Member “had to resort to facts that are simply not true, in order to
justify her negative decision” on the recusal motion, and specifically
challenges the Member’s statement that “[t]he claimant gazed at his counsel and
answered in the affirmative when he was asked whether he found the Member
intimidating”, the Member’s observations may well have been justified. As noted
above, the transcript indicates that counsel asked the Applicant leading
questions regarding whether he felt intimidated. Regardless of whether the
Applicant “gazed” at counsel, his response was clearly prompted.
[25]
Moreover, while counsel alleged during the hearing that the
Member’s questions were “very unorganized”, I see no reviewable error in the
manner in which the Member questioned the Applicant, nor did counsel object to
any of her questions. When asked by the Member whether her “manner” had
affected his ability to answer questions, the Applicant only indicated that it
made it difficult to express himself in English; however, he maintained that he
did not require an interpreter. This stands in contrast to the type of comments
at issue in Munoz, above at paragraphs 44-45, which Justice Scott found
the comments were capable of interfering with the claimant’s testimony.
[26]
Overall, I find that an informed person,
viewing the matter realistically and practically—and having thought the matter
through— would conclude that the dispute between counsel and the Member did not
result in a situation where it was more likely than not that the Member,
whether consciously or unconsciously, would not decide fairly.
B. Issue
#2: Did the Member err in finding that adequate state protection existed in Mexico?
[27]
The Applicant submits that the Member ignored or
misapprehended several pieces of evidence which established that state
protection does not exist in Mexico, as there are “systemic issues of
corruption, human rights abuses by a myriad of government security agencies,
and rampant violence throughout Mexico”.
[28]
A refugee who claims that state protection is inadequate or
non-existent bears the evidentiary burden of adducing evidence to that effect,
and the legal burden of persuading the trier of fact that his claim is well-founded.
The presumption of state protection is rebutted by clear and convincing
evidence that the state protection is inadequate or non-existent (Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 38, [2008] 4 FCR
636).
[29]
Contrary to the Applicant’s assertion, the Member did not
ignore evidence regarding crime and corruption in Mexico. Rather, the Member
explicitly acknowledged this evidence and carefully weighed it against the
other evidence in the record.
[30]
While the Applicant clearly disagrees with the Member’s
conclusion that corruption was not systemic and that adequate state protection
exists, that does not render the Member’s decision unreasonable.
C. Issue
#3: Did the Member err in concluding that the Applicant did not have subjective
fear?
[31]
The Member found that the Applicant had failed to establish
a subjective fear and an objective basis for his claimed fear of returning to Mexico. In particular, the Member reasoned that the Applicant’s failure to make an asylum
claim in the United States after he discussed returning to Mexico with his family in 1995 and his failure to seek protection in Canada with his family in 1996
established that there was a lack of subjective fear.
[32]
The Applicant submits that the Member ignored or misapprehended
the evidence in finding that he did not have subjective fear. In particular,
the Applicant argues that his decision to not seek refugee protection with his
family in 1996 is explained by his ability to remain safely in the United States. In the Applicant’s view, he did all that a reasonable person would have done
by seeking legal advice and obtaining help from his family.
[33]
Contrary to the Applicant’s assertion, the Member did not
ignore or misapprehend the evidence in finding that the Applicant did not have
subjective fear. The Member specifically acknowledged the Applicant’s evidence
that he remained in the United States because he believed he was safe and was
happy living there. As reflected in the decision, the Member simply did not
believe that, prior to 2009, the Applicant was safe living as an illegal
immigrant in the United States, or that someone who truly feared torture would
be content to live in such a precarious situation.
[34]
The Applicant does not point to any evidence to establish
that the Member erred in concluding that he could have been deported from the United States at any time. Indeed, the Applicant agreed with the Member when she asked him
whether anyone who is in a country illegally is at risk of being deported. The
Member’s conclusion that the Applicant lacked subjective fear was open to her,
given this evidence.
V. Conclusion
[35]
In sum, there is no reason to intervene in the decision.
The Applicant has not persuaded me that the Member’s behaviour was such as to
give rise to a reasonable apprehension of bias or that the decision does not
fall within the range of possible, acceptable outcomes which are defensible
in respect of the facts and law. The application will be dismissed.
[36]
Neither party proposes a question for certification. None
will be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
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