Date:
20121116
Docket:
IMM-3303-12
Citation:
2012 FC 1331
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 16, 2012
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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GERMAN HERNANDEZ
RODRIGUEZ
IRMA GABRIELA ORTIZ
BLANCA
GERMAN HERNANDEZ
ORTIZ
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Applicants
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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
[1]
The
applicants are challenging the legality of the decision dated February 17, 2012,
by the Refugee Protection Division of the Immigration and Refugee Board [the panel],
rejecting their claim for refugee protection essentially because of a lack of
credibility and subjective fear.
[2]
It
is the second application for judicial review of a decision of the panel involving
the applicants. On May 25, 2011, their application for refugee protection was
rejected for the first time by Member Bissonnette. On May 25, 2011, the Federal
Court quashed the first decision of the panel and referred the matter back for redetermination:
Rodriguez v Canada (Minister of Citizenship and Immigration), 2011 FC
587 [Rodriguez 1]. On February 17, 2012, Mr. Aronoff [Member] heard the
matter de novo and rendered the decision being challenged today by the
applicants.
[3]
At
the outset, the applicant submits that the panel erred in law or otherwise
showed a lack of respect towards the Court by failing to consider in its
analysis the findings of Member Bissonnette and the judgment of the Court in Rodriguez
1. It should be noted that my colleague Justice Pinard reversed the
first decision of the panel because the panel erred in determining the existence
of state protection and, to a lesser degree, in its assessment of the evidence (Rodriguez at
paragraphs 10-12). With respect, the Court cannot accept the
applicants’ argument.
[4]
First,
because it is a de novo hearing, the panel was not obliged to
address only the question of state protection (Munoz v Canada (Minister of
Citizenship and Immigration), 2006 FC 1273 at paragraphs 41-42). However,
given that the first decision was quashed, there is no stare decisis or res
judicata, whether it involves questions of credibility or other aspects such
as state protection (Lee v Canada (Minister of Citizenship and Immigration),
2003 FCT 743 at paragraph 11). Furthermore, it turns out that the panel
did not repeat the errors identified by this Court in Rodriguez 1, especially
since the impugned decision is based on evidence and reasoning in whole or in
part different.
[5]
I
now turn to the main reason for quashing the impugned decision, namely, that
the panel allegedly ignored relevant evidence or rendered an otherwise
unreasonable decision. There is no reason to intervene
in this case. On the one hand, the findings of credibility made by the panel are
clear, well articulated and based on the evidence on file. On the other hand, the
allegations of reasonable apprehension of bias against the Member are not
justified, nor are the other grounds raised by the applicants.
Applicants’
Allegations
[6]
I
will begin by summarizing the applicants’ main allegations. As will be
discussed further on, the panel did not find the allegations to be credible or
supported by the evidence on the record.
[7]
The
applicants are citizens of Mexico and base their fear of persecution or risk to
life on the account of Irma Gabriela Ortiz Blanca [female applicant], wife of German
Hernandez Rodriguez and the mother of German Hernandez Ortiz, their son. The
female applicant fears a man called Rafael Pellegrin Breton with whom she did
business in Puebla, Mexico.
[8]
Mr.
Pellegrin Breton is a representative of a Mexican company which had a business
relationship with the company of the female applicant for the acquisition of
calling cards. However, on May 2, 2007, three federal police officers allegedly
attempted to arrest the female applicant at her home, on the ground that Mr.
Pellegrin Breton had instituted a criminal action against her allegedly for fraud
or breach of trust. According to the female applicant, Mr. Pellegrin Breton―who
was in collusion with the federal police―sought to implicate her in a
fraud for which he was solely responsible.
[9]
On
May 4, 2007, the female applicant retained the services of a lawyer who
immediately brought an action to stay the arrest warrant. Once the stay was
granted, according to the applicants, they left Mexico for Phoenix, Arizona,
where they resided for 25 days. Owing to financial reasons, they did not go
back to Puebla, but rather moved to Tuxtla, in the state of Chiapas, for four
months, that is, until their lawyer informed them that the Federal Mexico Court
rendered a favourable decision.
[10]
Upon
their return to Puebla, the female applicant stated that she received
threatening telephone calls. She allegedly tried to file a complaint with the police,
but they allegedly refused to take her complaint given the lack of evidence. In
the meantime, on February 19, 2008, the applicants allegedly met with Mr.
Pellegrin Breton in a shopping centre and he allegedly threatened them. Following
that incident, on February 24, 2008, the female applicant filed a complaint
with the public prosecutor, but on February 28, 2008, Mr. Hernandez Rodriguez was
allegedly beat up by three men. Fearing for their lives, the applicants decided
to leave Mexico and arrived in Montréal on June 9, 2008, to claim refugee status.
[11]
Since
the applicants have been in Canada, a judgment has been rendered against the female
applicant by default in Mexico on or about March 29, 2011. The female applicant
alleges that the second action of Mr. Pellegrin Breton is fraudulent as it
involves the same charges laid against her in 2007 and of which she has already
been acquitted.
Reasonableness
of the Impugned Decision
[12]
In
my view, the panel rendered a reasoned decision in which the reasons for
rejecting the refugee claim are set out in a clear and intelligible manner. In this case, the decision to reject the claim falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law. I will simply discuss some salient or
determinative aspects of the panel’s reasoning, and not necessarily in the
order in which they were dealt with by the panel in the impugned decision or by
counsel for the parties at the hearing before this Court.
[13]
As
regards the lack of subjective fear, the panel considers that it is unlikely
that the applicants hid for a period of four months in Tuxtla, in the state of Chiapas.
This conclusion does not strike me as being unreasonable. With
the exception of two medical prescriptions issued in Tuxtla on October 4 and 10,
2007, there is no credible evidence on the panel’s file corroborating the applicants’
assertions. Also, in its decision the panel wonders why exactly the applicants
felt it was necessary to move to Chiapas. After all, their purported departure follows
the stay of the arrest warrant and the evidence does not make it possible to
conclude that the female applicant had received threats at the time.
[14]
Furthermore,
the panel notes that a letter from counsel for the female applicant informing
her that her life was in danger and that she had to consider leaving the
country, was falsified by the addition of the date of October 19, 2007, written
in different characters. The panel concludes that, in all likelihood, the
letter was rather written during the first two weeks of September 2007 (versus
October 19, 2007). That conclusion also appears reasonable to me as it is based
on contradictory evidence on file, particularly the testimony of the female
applicant that she was informed by her lawyer that she could return to Puebla following
the favourable decision of the Mexican Court dated October 4, 2007.
[15]
The
panel also notes that the female applicant does not at all mention the alleged
death threats she said she had received since October 2007 in the complaint she
filed on February 24, 2008, with the public prosecutor. The panel also notes that
the applicants did not file a complaint against Mr. Pellegrin Breton after the
assault on Hernandez Rodriguez on February 28, 2008, and that they continued to
live and work at the same place every day. Again, these are determinative aspects
of the applicants’ claim.
[16]
This
is a determinative aspect and it significantly affects the claim for refugee
protection. The applicants submit today that it was unreasonable for the panel
to conclude that the female applicant had not mentioned in her statement to the
public prosecutor the death threats uttered by Mr. Pellegrin Breton. They
submit that the complaint made mentioned serious threats. However, a simple reading
of the complaint shows that there is no mention of the death threats by telephone.
[17]
According
to the evidence, the female applicants husband continued to work after February
28, 2008, that is, after being threatened, which is not challenged in this case.
The applicants nevertheless argue that the female applicant’s husband explained
to the panel that he needed to work to earn a living. In any event, in my
opinion, the panel could have reasonably concluded that this fact, coupled with
the fact that the applicants did not file a complaint against Mr. Pellegrin
Breton after the assault and with the fact that they continued to live at the
same place after the attack, supports the finding of lack of subjective fear or
risk to life.
[18]
The
applicants also reproach the panel for having disregarded or ignored in its
analysis the medical evidence that the female applicant suffers from major
depression and from post-traumatic stress, in addition to the medical evidence
in relation to the assault of Hernan Rodriguez. The reproach also appears to be
unfounded to me, considering the fact that the general account of the the
female applicant was not found to be credible by the panel. It should be noted
that the panel is presumed to have considered all of the evidence submitted to
it. This presumption will only be rebutted where the evidence not discussed is
significant and relevant to a crucial element. In the case at bar, the medical
evidence of the female applicant’s mental health does not corroborate the facts
in support of her refugee protection claim. Although the medical evidence of
the assault of
Mr. Gernan Rodriguez demonstrates that
he was injured, it has little probative value. In fact, there is no evidence
that the injuries were caused by Mr. Pellegrin Breton’s men.
[19]
The
applicants take issue with the fact that in its analysis the panel attaches
little importance to the corruption that many denounce in Mexico. The panel
notes in passing that the applicants’ claim that the legal system itself is
corrupt appears to be unfounded in this case, as the female applicant was in
fact actually able to obtain a withdrawal of the warrant for arrest that had
been issued against her. However, the panel concluded that the applicants were
not forthright about the content of the Mexican judgment on the dismissal of the
criminal charges. According to the panel, contrary to the female applicant’s submissions,
the Mexican judge did not indicate that the female applicant or her company
owed money to the company of Mr. Pellegrin Breton; the judge rather indicated
that the failure to pay for merchandise upon receiving it did not constitute a breach
of trust on the part of the female applicant.
[20]
While
the execution of the arrest warrant was suspended, the fact remains, in the applicants’
view, that corruption is ubiquitous in Mexico, which renders the panel’s
findings unreasonable. The applicants submit that the existence of the second judgment,
in which the charges are identical to the first, shows that Mr. Pellegrin
Breton managed to bribe or intimidate a judge to obtain judgment in his favour because
the same case was tried twice. In any event, the female applicant was unable to
obtain protection from the Mexican police and on that basis the applicants conclude
that their claim for refugee protection should have been granted by the panel. The
findings drawn by the panel from the Mexican judgments are being vehemently
challenged today by the applicants who reproach the panel for having mischaracterized
the nature and scope of the legal proceedings, thus wrongly treating the entire
matter as though it resulted from a commercial dispute—Mr. Pellegrin Breton having
brought an action against the female applicant because she owed his money, which
she strongly denies.
[21]
For
its part, the respondent submits that the panel did not err in determining that,
because the two decisions address different issues, the existence of the second
decision does not prove that the state of Puebla is corrupted. Relying on R
v Kienapple, [1975] 1 S.C.R. 729 at page 748, the respondent submits that there
is no res judicata between the two decisions. The first examines whether
there was a breach of trust in the criminal context, whereas the other considers
whether the female applicant owed money to Mr. Pellegrin Breton after the contracted
sale on credit was complete, for commercial purposes. Also, the respondent submits
that the applicants cannot invoke that the same case was tried twice if they
did not raise the issue before the Mexican court at the time of the second proceeding
(United Laboratories, Inc v Abraham et al, [2002] OJ No 3985 at paragraphs
33 and 34, confirmed by United Laboratories, Inc v Abraham, [2004] OJ No
3063).
[22]
I
need not determine today whether the reading of panel’s and the respondent’s
reading of the Mexican judgments is correct. Suffice it to say here that it is
not unreasonable to find that the two decisions address different issues.
Essentially, the applicants are asking me to review all of the evidence and substitute
my judgment for that of the panel. That is not the role of the judge in a
judicial review. I am of the opinion here that all of the panel’s findings are
supported by the evidence on file and the panel’s reasoning does not appear to
be capricious or arbitrary to me.
No
Reasonable Apprehension of Bias
[23]
Although
it is an alternative argument, the applicants submit strongly argue before this
Court that the Member’s conduct during the refugee claim hearing raises a reasonable
apprehension of bias. This is a serious allegation that the Court cannot take
lightly. To that end, the Court must determine whether an informed person,
viewing the matter realistically and practically—and having thought the
matter through—would
think that there is a reasonable apprehension of bias (Committee for Justice and Liberty c Canada (National Energy
Board), [1978] 1 S.C.R. 369 at pp 394 and 395). I have carefully read the
transcripts of the hearing and find no grounds for reproach against the Member
in the circumstances.
[24]
Although
the applicants submit that the Member was [translation]
“biased” and that he was [translation]
“cantankerous and negative throughout the hearing of the evidence,” counsel for
the applicants cannot point out any particular passage of the transcripts where
the Member acted inappropriately, especially since counsel for the applicants
continued to insist that the Member limit the scope of his investigation. The Member
simply resisted the repeated and manifestly unfounded requests of counsel for
the applicants to address only the question of state protection. The applicants
also rely upon an affidavit of an observer at the hearing who stated that the
Member [translation] “played with
his papers and stared at the wall” when counsel for the applicants interviewed
the female applicant, but the observer was not present throughout the hearing
and it is necessary to consider the Member’s conduct as a whole before rushing
to the conclusion that he was biased.
[25]
Nor
was there any breach of procedural fairness during the hearing as the learned
counsel for the applicants now seems to suggest. There was indeed much confusion
at the hearing before the panel on the interpretation or the effect of the
Mexican judgments relied upon by the applicants. It is unfortunate, but the
applicants must, in my opinion, assume full responsibility. All evidence of payment
of invoices relied upon by the female applicant should have been submitted in a
timely fashion, whereas the applicants had three years to obtain and have all
relevant documents translated, including the most important judgment on which
they rely now.
[26]
It
should also be noted that foreign law is a question of fact, which
must be proved to the satisfaction of the Court (Lakhani v
Canada (Citizenship and Immigration), 2007 FC 674 at paragraphs 22 and 23).
The panel cannot in this case be faulted for having asked the Spanish
interpreter at the hearing to provide an unofficial translation of the judgment
in Spanish, especially since the panel is not even legally obligated to
consider the document at the hearing because it was not translated into French
or English by the applicants.
[27]
The
applicants also complain about the numerous interventions by the Member at the
hearing. However, the fact remains that the female applicant did not always
answer the Member’s specific and legitimate questions. In my view, it is
necessary to treat the multiple interventions for what they are, that is, a simple
call to order. Finally, as noted by the respondent, this is a case where the
energetic interventions alone by the Member do not in themselves give rise to a reasonable apprehension of bias; I
agree with the respondent. See Veres v Canada (Minister of Citizenship and
Immigration), [2001] 2 FC 124 at paragraph 36; Ithibu v Canada (Minister
of Citizenship and Immigration), 2001 FCT 288 at paragraph 68; Llana v
Canada (Minister of Citizenship and Immigration), 2011 FC 1450 at paragraphs
20 and 22. Moreover, none of the interventions by the Member prevented the
applicants, who were represented by the same counsel as today, from eventually
providing explanations and arguing their point of view.
The rights under
the Charter and the international instruments are not directly threatened
[28]
Finally,
the applicants claim that their removal to Mexico would
place their lives and their physical integrity at risk, thus violating sections
7 and 12 of the Canadian Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982, constituting Schedule B to the Canada
Act 1982 (UK), 1982, c 11, and Canada’s international obligations
under Article 3 of the United Nations’ 1984 Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. Nevertheless,
I agree with the respondent that this argument is premature, while the
applicants are not in imminent danger of removal to their country.
[29]
For
these reasons, the application for judicial review is dismissed.
[30]
The
applicants propose that the Court certify the following questions:
a. What
is the role of the Federal Court’s first judgment in a de novo hearing?
b. Does
the Member in the case have the right to depart from the Federal Court’s
findings of law or fact without providing a clear explanation?
The respondent opposes the certification
of the above two questions.
[31]
A
certified question must transcend the interests of the immediate
parties to the litigation and contemplate issues of broad significance or
general application and be determinative of the appeal (see Canada
(Minister of Citizenship and Immigration) v Liyanagamage, [1994] FCJ 1637
at paragraph 4; Boni v Canada (Minister of Citizenship and Immigration),
2006 FCA 68 at paragraphs 10 and 11).
[32]
In
my view, it is clear that the proposed questions do not meet the criteria established
by the case law. On the one hand, the proposed questions have already been
sufficiently addressed by the case law. Such is the case of the nature of a de
novo hearing and stare decisis issues. On the other hand, the
proposed questions do not transcend the impugned
decision, are not of general interest and would not bring the dispute to an end.
Accordingly, no question will be certified by the Court.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES that
this application for judicial review is dismissed. No question will
be certified.
“Luc
Martineau”
Certified
true translation
Daniela
Guglietta, Translator
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