Date: 20070404
Docket: IMM-3049-06
Citation: 2007 FC 359
Ottawa, Ontario, April 4,
2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
SARA
CUEVA LOPEZ
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, ch. 27 (IRPA) of a decision of the Refugee Protection Division (RPD)
of the Immigration and Refugee Board (IRB), dated April 26, 2006, finding that
Sara Cueva Lopez (Applicant) is neither a Convention refugee, pursuant to
section 96 of IRPA, nor a person in need of protection, pursuant to section 97
of IRPA.
I. Facts
[2]
The
Applicant is a citizen of Peru.
[3]
The
Applicant seeks refugee protection on the basis that she fears abuse at the
hands of her former partner, Juan Carlos Valenzuela, if returned to Peru.
[4]
Between
September 1998 and May 1999, the Applicant lived with Mr. Valenzuela in Peru.
[5]
The
Applicant alleges that in May 1999, Mr. Valenzuela returned home from a night
of drinking and asked her to have a child with him. When the Applicant
explained that she did not want to start a family, Mr. Valenzuela became angry,
pushed the Applicant down the stairs and threatened to hurt her and her
family. At that point, the Applicant told Mr. Valenzuela that she was leaving
him. Mr. Valenzuela then broke a beer bottle and used the jagged glass to cut
the Applicant’s arm.
[6]
Following
the attack, the Applicant sought refuge at her mother’s house.
[7]
In
August 2000, the Applicant left Peru for Chile. In
September 2000, the Applicant left Chile and moved to Argentina. The
Applicant remained in Argentina until April 2002.
[8]
In
April 2002, the Applicant returned to Peru where she remained
until August 2002. In August 2002, the Applicant left Peru for Brazil where she
remained until September 2002. She then left Brazil and travelled via France to Canada. She
arrived in Canada on October
1, 2002 and made a refugee protection claim on October 23, 2002.
II. Issues
(1) Did the RPD
violate procedural fairness by applying Guideline 7 in a manner that improperly
fettered its discretion?
(2) Did the RPD
err in concluding that the Applicant was not credible?
III. Applicable standards of review
[9]
The first issue, namely whether procedural
fairness was violated by the RPD’s application of Guideline 7, will be reviewed
on the correctness standard as the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 at
paragraph 46, determined that all questions of procedural fairness are to be
reviewed on the correctness standard.
[10]
As
for the RPD’s finding that the Applicant was not credible, this finding will be
reviewed on the patently unreasonable standard. The jurisprudence is clear;
the Court will not interfere with findings of the RPD relating to credibility
unless they are patently unreasonable. The Court has stated repeatedly that
the RPD is in a better position than the Court to make credibility determinations
as it is a specialized tribunal and it has the opportunity to observe first
hand the testimony given by refugee claimants (Aguebor v. Canada (Minister
of Employment and Immigration), (1993), 140 N.R. 315 (FCA); Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.); Tekin v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 357).
IV. Analysis
(1) Did the RPD
violate procedural fairness by applying Guideline 7 in a manner that improperly
fettered its discretion?
[11]
The
Applicant submits that based on Justice Blanchard’s decision in Thamotharem
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 16, the RPD violated procedural
fairness by using the “reverse order of questioning” procedure set out in Guideline
7. In Thamotharem, above, Justice Blanchard determined that Guideline 7
may unlawfully fetter the discretion of the RPD, but does not necessarily do so
in all cases. As Justice Blanchard stated at paragraph 112 of Thamotharem,
above:
Guideline
7, unlike guidelines that deal with general policy considerations applicable to
substantive decisions, deals essentially with procedure in the conduct of the
hearing. As I have determined earlier in these reasons, the guideline, as
drafted, does not inherently violate the principles of natural justice or
procedural fairness. The guideline may nevertheless be unlawful if it can be
shown to fetter the discretion of a Board member. Whether Guideline 7 fetters
the discretion of Board members, will depend on whether the Chairperson’s
standard order of questioning procedure crosses “the Rubicon between a non‑mandatory
guideline and a mandatory pronouncement having the same effect as a statutory
instrument”.
[Emphasis added]
[12]
The
finding that Guideline 7 may fetter discretion was further expanded upon by
Justice Mosley in Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461. In that decision, Justice
Mosley found that Guideline 7 was not mandatory and as such Guideline 7 did not
fetter the discretion of the RPD. However, Justice Mosley did recognize that
there may be situations where a RPD member may apply the guideline without
exception, thus ignoring the evidence and the submissions of counsel that there
are reasons to vary procedure. In such cases, Justice Mosley stated that
applying Guideline 7 may amount to an unlawful fettering of the RPD’s
discretion (Benitez, above at paragraph 172).
[13]
Moreover,
in Fernando v. Canada (Minister of Citizenship and Immigration), 2006 FC
1349, Justice Blais summed up the jurisprudence on Guideline 7 and found that
absence evidence indicating that procedural fairness required an
examination-in-chief by a refugee claimant’s own counsel, reverse order
questioning does not violate procedural fairness. Finally, Justice Mactavish
in Mejia
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1087, found
that where a refugee claimant fails to object to reverse order questioning at
their hearing before the RPD, the claimant implicitly accepts its use.
[14]
In
all the aforementioned cases, the Court determined that Guideline 7 does not
inherently violate procedural fairness. Instead, the Court found that
Guideline 7 violated procedural fairness where the circumstances of a
particular case indicated that an RPD member applied the guideline without
exception, and thus considered reverse order questioning as a mandatory
procedure.
[15]
In
the case at hand, counsel for the Applicant objected to the use of reverse
order questioning at the hearing. The transcript of the hearing indicates that
following this objection the RPD considered whether counsel for the Applicant
should be permitted to lead evidence-in-chief, and decided that this was not
necessary to guarantee procedural fairness. The relevant portion of the transcript
reads as follows:
Presiding Member:
Counsel, do you have something else to add?
Counsel: As you’re well
aware of the decision Samosaren (phonetic) [Thamotharem], with
respect to reverse order questions, I would just like to note my objection on the
record to having the member… sorry, to having the refugee protection officer
proceeding first with questioning. Of if I could at the alternative make the
request to proceed with the questioning.
Presiding Member: Your
objection is taken care of, but I will say to that objection the following.
Since I am a board member here at Immigration Refugee Board, I have always,
this is not just new because the rules and all that, I have always consider
that the tribunal is the master of the proceeding and everything which is
happening here. And I would like taking in account… I would like taking in
account that in the past I have never breached any rule of transparency or
natural justice. I would like Mr. RPO will start, and you will have the time
you need to do your proof. And I feel that there is no breach of natural
justice, and there will not be any breach of transparency. And I want to make
sure that everybody here understands that. And one of the fundamental right of
the claimant, and I have worked a lot in refugee camp before coming here, and I
have realized that one of his fundamental right is that we let the interpreter
translate everything properly in order for her to understand everything what is
going on here.
[16]
The
portion of the transcript reproduced above clearly shows that the RPD exercised
its discretion when determining to proceed with reverse order questioning. The
Presiding Member clearly stated that as master of the proceeding she was
choosing to have the Refugee Protection Officer proceed with questioning
first. In my opinion, this is clearly demonstrative of the Presiding Member
exercising her discretion. Consequently, there is no basis for the claim that
the RPD applied Guideline 7 in a manner that improperly fettered its
discretion.
[17]
It
is to be noted that counsel for the Applicant’s submission to the Court that
“given the particular vulnerability of the Applicant fearing gender related
persecution the Panel ought not to have taken an adversarial role but rather an
adjudicative role…” was not raised at the RPD hearing. Counsel for the
Applicant claims that this was not raised, as she felt cut off by the Presiding
Member at the hearing and thus did not have the opportunity to delineate the
special circumstances of the case. Moreover, counsel submits that as the
special circumstances of the Applicant could not be raised, the RPD did not
exercise their discretion in a fulsome manner. In response to this claim, I
must note that whether counsel for the Applicant felt cut off during her initial
objection to reverse order questioning, she had the rest of the hearing to once
again raise her concerns with reverse order questioning, given what she
believed where the Applicant’s special circumstances.
[18]
In
summary, at the RPD hearing a general opposition to reverse order questioning
was raised, and this general objection was dealt with. Moreover, counsel for
the Applicant admitted that she had the full opportunity to conduct an
examination of the Applicant and to deal with the inconsistencies in her
testimony and other issues of concern. I can therefore only say that had
counsel for the Applicant wished to lead evidence-in-chief on the basis that
the Applicant was vulnerable, as a victim of domestic violence, this argument
should have been raised during the hearing or at minimum should have been
mentioned at that time.
[19]
This
being said, the jurisprudence of this Court echoes what the IRB’s Guideline 4
on Women Refugee Claimants Fearing Gender-Related Persecution establishes,
namely that when dealing with gender based claims the RPD must be particularly
sensitive to the special circumstances of the claimant (see Garcia v. Canada
(Minister of Citizenship and Immigration), 2007 FC 79; Jones v. Canada (Minister of
Citizenship and Immigration), 2006 FC 405). I note that neither
Guideline 4 nor the jurisprudence of this Court establishes that where a person
is claiming refugee protection on the basis of gender related persecution they
are entitled to lead evidence in chief. In the case at hand, the RPD was aware
that it was dealing with a gender based claim. As such, I can but conclude
that the RPD acted in a manner that was in line with Guideline 4 and the
jurisprudence of this Court relating to gender based claims.
(2) Did the RPD
err in concluding that the Applicant was not credible?
[20]
As
mentioned above, the RPD is in the best position to assess the truthfulness of
the testimony given by a refugee claimant at a RPD hearing. As such, the RPD
is entitled to disbelieve the Applicant’s narrative, if it is not patently
unreasonable to do so.
[21]
In
the case at hand, the RPD found the Applicant’s narrative and submissions to be
not credible. The RPD took particular issue with the following :
(a) Although the
Applicant claimed to have live with Mr. Valenzuela for several months, she did
not know the address where they had lived or the names of the members of his
family;
(b) The Applicant
made contrary statements as to the age of Mr. Valenzuela. At the RPD hearing
she stated that Mr. Valenzuela was two years younger than her, whereas in her
“Information on Individuals seeking Refugee Protection” form she stated that he
was two years older than her;
(c) The Applicant
stated at the RPD hearing that her problems began in May 1999, despite having
stated in her PIF that they began in December 1998;
(d) The Applicant
alleges she fears for her life in Peru, yet she returned there
in 2002 for several months before coming to Canada. Moreover,
the Applicant made no mention in her PIF that she had experienced problems during
the several months she spent in Peru in 2002 or that Mr. Valenzuela had tried
to contact her during that period;
(e) The
Applicant’s explanation that her testimony contradicted what was written in her
PIF and “Information on Individuals seeking Refugee Protection” form because
she was nervous upon entry to Canada, due to the fact that she entered the
country with false documents.
[22]
I
have reviewed the Applicant’s submissions. The submissions offer alternate
explanations and inferences that the Board could have drawn from the
Applicant’s testimony and the discrepancies in the evidence. However, the
Applicant’s submissions do not establish that the RPD’s finding, as to the Applicant’s
credibility, was patently unreasonable. Moreover, the Applicant presented no
evidence to satisfy the Court that the RPD’s assessment of credibility was
based on irrelevant considerations or that in arriving at their conclusion the
RPD ignored relevant evidence. Consequently, the Court cannot interfere with
the RPD’s finding that the Applicant is not credible.
V. Conclusion
[23]
For
the reasons stated above, this application for judicial review is dismissed.
VI. Certified Questions
[24]
The
parties were invited to submit a question for certification. Counsel for the Applicant
proposed that all the questions that were certified by Justice Mosley in Benitez,
above, except for question 7, be certified in the case at hand. The
questions certified in Benitez, above, were the following:
1.
Does the implementation of paragraphs 19 and 23 of the
Chairperson’s Guideline 7 violate principles of natural justice by unduly
interfering with the claimant’s right to be heard?
2.
Has the implementation of Guideline 7 led to the fettering of
Board members’ discretion?
3.
Does Guideline 7 violate natural justice by distorting the
independent role of Board members?
4.
Does Guideline 7 violate the principles of fundamental justice
under s. 7 of the Charter of Rights and Freedoms?
5.
Is Guideline 7 unlawful because it is ultra vires the
guideline making authority of the Chairperson under the IRPA?
6.
If Guideline 7 and the procedure mandated by it breaches natural
or fundamental justice, can a refugee claimant in any way implicitly waive the
breach, for example by failing to object to the procedure?
7.
Is Guideline 7 ultra vires the IRPA and Regulations
thereunder?
8.
Does “reverse order questioning” constitute a denial of the
principles of fundamental justice and denial of s. 7 of the Charter in:
a) Denying the right to effective and competent counsel?
b) Denying the right to be heard?
9.
Does reverse order questioning as mandated by Guideline 7 constitute:
a) A
breach of the right to an independent judiciary and constitute a reasonable
apprehension of institutional bias contrary to the preamble of the Constitution Act, 1867?
b) A
breach of the right to a hearing before a fair and independent tribunal and a
reasonable apprehension of institutional bias contrary to s.7 of the Charter?
10.
With respect to Guideline 7 and the objection/non‑ objection of the
claimant’s counsel at the refugee hearing:
a) Does
the respondent confuse the doctrine of waiver with that of the failure to
object before the trier of fact as constituting an issue estoppel on judicial
review?
b) If no
such confusion exists, then what “right” is being purportedly waived by the
claimant at the hearing by not registering an objection to Guideline 7?
c) As a
matter of fundamental justice, is the exercise of a Board member’s purported
discretion pursuant to any Guideline ever in the claimant’s hands to “waive”?
[25]
The
Federal Court of Appeal in Liyanagamage v. Canada (Minister of Citizenship
and Immigration) (1994), 176 N.R. 4,
established that to qualify for certification, the issues underlying a
question must: (a) transcend the interests of the immediate parties to the
litigation; (b) be of broad significance or of general application; and (c)
must be determinative of the appeal. In the case at hand, the questions
proposed for certification would not be determinative of the case as there is
no live issue left to be determined as I have concluded that the RPD’s
application of Guideline 7 did not fetter its discretion and the RPD’s finding
that the Applicant was not credible was not patently unreasonable.
Consequently, no questions will be certified.
JUDGMENT
THIS COURT ORDERS THAT:
-
The application for judicial review is dismissed;
-
No questions are certified.
“Simon
Noël”
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3049-06
STYLE OF CAUSE: SARA CUEVA
LOPEZ
Applicant
-
and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY,
MARCH 26, 2007
REASONS FOR ORDER BY: Noël J.
DATED: April 4, 2007
APPEARANCES BY: Ms. Donna Habsha
For
the Applicant
Mr.
Ian Hicks
For
the Respondent
SOLICITORS OF RECORD: Ormston, Bellissimo,
Rotenberg
Barristers
& Solicitors
Toronto, Ontario
For
the Applicant
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
For
the Respondent
Email this Content