Date: 20070822
Docket: IMM-4074-06
Citation: 2007 FC 845
Ottawa, Ontario, August 22, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
ISHMAEL
JUNIOR BEMA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), for
judicial review of a decision of the Immigration and Refugee Board, Refugee
Protection Division (the Board), dated July 4, 2006, denying the applicant’s
claim for refugee protection under section 96 and subsection 97(1) of the Act.
BACKGROUND
[2]
Ishmael
Junior Bema (the applicant) is a citizen of Zimbabwe.
[3]
The applicant bases his claim of having a well-founded fear of
persecution on grounds of membership in a particular social group and political
opinion. As a person opposing the government of Zimbabwe and as a member of the Movement for
Democratic Change (MDC), the applicant alleges that he is a person in need of
protection who would face a risk to life or a risk of cruel and unusual
treatment or punishment in his country of origin. Specifically, the applicant
claims to have been beaten by three members of the Zimbabwe Africa National
Union (ZANU-PF) green bombers who told him that he must join the green bombers
or be killed. Following this incident, his parents sent him to live with
relatives while they arranged for him to obtain a visa to travel to the United States.
[4]
The
applicant arrived in the United
States in July
2005. He then came to Canada on November 16, 2005, and
made a claim for refugee protection.
[5]
At the time of his arrival in Canada, the applicant was 17 years old and as such, Ms. Daiva Kelertas, a
settlement worker at the Fort Erie Multicultural Centre, agreed to be the
applicant’s designated representative. The applicant was also represented by
counsel at the time he completed his Personal Information Form (PIF) as well as
at the hearing. Moreover, at the time the hearing was held on May 23, 2006, the
applicant was 18 years old.
[6]
In a decision dated July 4, 2006, the Board determined that
the applicant was neither a Convention refugee nor a person in need of
protection, in light of the inconsistencies and pivotal omissions in his
testimony. The Board stated that the determinative issue in the applicant’s
claim was the lack of credibility in his testimony, particularly with regards
to establishing an objective fear of persecution at the hands of the green
bombers and to his claim of being sought as a member of the MDC or as the
family member of an MDC member.
ISSUES FOR CONSIDERATION
[7]
The following issues are raised in this application:
1)
Did the Board err in making a negative credibility finding
based on the failure of the applicant to include in his PIF the measures taken
against his family?
2)
Did the Board err by not adjourning the hearing to allow
the applicant to file additional documentation?
3)
Did the Board violate the applicant’s right to procedural
fairness through its failure to follow the Chairperson’s Guideline respecting
unaccompanied minor refugee claimants?
STANDARD OF REVIEW
[8]
As was confirmed by the Supreme Court of Canada in Mugesera
v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 100, the choice of the proper standard of review for substantive decisions of
the Board is driven mainly by the nature of the decision. On questions of fact,
such as the Board’s findings on the credibility of the applicant and its
assessment of the evidence, the proper standard of review will be patent
unreasonableness. Therefore, on questions of fact, the reviewing court can
intervene only if it considers that the Board “based its decision or order on
an erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it”, as per the wording of paragraph
18.1(4)(d) of the Federal Courts Act R.S.C. 1985, c. F-7.
[9]
With
respect to any issue of procedural fairness, the Supreme Court of Canada has
held that correctness is the proper standard (Ellis-Don Ltd. v. Ontario (Labour Relations
Board),
[2001] 1 S.C.R. 221). Therefore, if a breach of procedural fairness is found,
the decision must be set aside (Congrégation des témoins de Jéhovah de
St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650).
ANALYSIS
[10]
As a
preliminary matter, the applicant seeks to file a document from the Institute of War and Peace Reporting, in which it is stated that the Zimbabwe Military only recruits young
people between the ages of 18 and 22. This document is meant to provide an explanation for why the
green bombers did not attempt to recruit the applicant’s brothers who were 29 and 30 years old at the time the alleged incident occurred.
The applicant maintains that he would have filed this document with the Board had he
known that he was to include measures, or lack of such, taken against his
family.
[11]
It is settled law that, barring exceptional circumstances,
evidence that was not before the decision-maker is not admissible before the
Court in a judicial review proceeding (Bekker v. Canada, [2004] F.C.J. No. 819
(2004), 323 N.R. 195
(F.C.A.)). In the present case, I am not satisfied that there are exceptional circumstances that would permit the introduction of
this new evidence.
[12]
Moreover, having reviewed the transcript of the hearing, I
am not satisfied that this new evidence can be said to support the allegations
made by the applicant. When asked why his brothers were not targeted by the
green bombers for recruitment, the applicant’s initial answer was that he did
not know. If the green bombers only recruit from a specific age group, I would
expect the applicant who supposedly lived in fear of them to know this fact. He
later explained that one of his brothers was mentally challenged and that the
other was addicted to marijuana. Evidently, the document the applicant now
seeks to introduce does nothing to support these explanations provided to the Board
and is of no use in reviewing the reasonableness of the credibility finding by
the Board.
1) Did the Board err in making a negative credibility
finding based on the failure of the applicant to include in his PIF the
measures taken against his family?
[13]
In finding that the applicant was not credible, the Board
focused on a number of elements, including an important contradiction between
the Port-of-Entry (POE) notes and the PIF narrative, with regards to the
measures taken against his family. In the POE notes, the applicant stated that
the altercation with the green bombers prompted his family to leave their home
and move from relative to relative. In his PIF however, the applicant made no
mention of this, but instead stated that, following his departure from the
country, his parents’ home was destroyed by the green bombers, allegedly for
being improperly zoned, and one of his brothers was badly injured in the
process. As per the PIF, it was following this incident that his family began
living with relatives and moving from place to place.
[14]
When asked by the Board why the story told in the POE notes
was not included in the PIF, the applicant’s initial explanation was that he
must have forgotten to include it. When asked again by his counsel, he gave the
same explanation and stated that he thought that if he made too many changes to
his PIF it would look like he was putting too much information that was
irrelevant. Towards the end of the hearing, after a brief recess where counsel
conferred with the applicant and his representative, the applicant’s counsel
sought permission from the Board to ask a few additional questions to the
applicant. One of those questions was with respect to his understanding of the
information to be included in the PIF. It is only at this point that the
applicant stated that he believed he was only supposed to talk about himself,
not his family, as it is called a ‘personal’ information form, and that he did
not recall reading the instructions on question 31 which set out the type of
information to be included in the narrative.
[15]
The applicant argues that the Board made a reviewable error
by holding the applicant accountable for not mentioning measures taken against
his family in his PIF, even though he specifically told the Board that he was
not aware that he needed to mention such measures.
[16]
I can find no merit to the applicant’s argument since the
Board, in assessing the credibility of the applicant, was
entitled “to base its decision on evidence adduced in the proceedings which it considers
credible and trustworthy in the circumstances” (Mugesera, above,
paragraph 38). Considering the different explanations provided by the
applicant, the fact that this requirement is
clearly stated under question 31 of the PIF, and the fact that the applicant
had the assistance of a designated representative and a legal counsel in
filling out this form, the Board was perfectly justified in assigning little
weight to the explanations provided by the applicant. This conclusion of the
Board was reasonable and does not create a ground for review.
[17]
The Board further noted that the applicant claimed during
the hearing to have asked his father to swear an affidavit with regards to the
destruction of his house and to submit documents confirming that his brother
was seriously injured and hospitalized, but that his father refused to do so,
which the Board found puzzling and which further undermined the applicant’s
credibility. Furthermore, as noted by the respondent, the fact that the
applicant sought such documents in the first place does seem to indicate that
he was aware that measures taken against his family would be an issue and that
supporting documentation might be needed.
[18]
Finally, the issue was not simply one of omission from the
PIF, but one of blatant contradiction between the POE notes and the PIF and its
impact on the plausibility of his story, to which the applicant could provide
no satisfactory explanation.
2) Did the Board err by not adjourning the hearing to allow
the applicant to file additional documentation?
[19]
The applicant argues that the Board, having found that the
applicant did not submit sufficient evidence to support his case, should have
adjourned the hearing to allow the applicant to acquire more documents to
support his claim. Again, the applicant argues that allowances should have been
made for the fact that he was unaware that he should have included evidence to
support allegations relating to his family.
[20]
It is important to note that no adjournment was requested
by the applicant’s counsel at the hearing, so that the applicant is not arguing
that the Board erred by failing to grant the adjournment requested by the
applicant, but by failing to suggest such an adjournment.
[21]
On this point, the respondent submits that the lack of
supporting documentation was only one factor that led the Board to reject the
claim, as the Board mainly based its negative credibility finding on the
important inconsistencies and omissions in the applicant’s testimony. The
respondent relies on the decision of the Federal Court of Appeal in Sheikh v. Canada (Minister of Employment and
Immigration), [1990] F.C.J. No. 604, where the Court held that a
general finding of lack of credibility may extend to all relevant elements
emanating from a claimant’s testimony, and that it was thus open to the Board
to dispose of the applicant’s claim on the basis that they simply did not
believe him, making the submission of additional evidence superfluous.
[22]
On this issue, I find that the applicant’s argument is
wholly without merit. Essentially, as the respondent notes, it is trite law
that the onus is on the applicant to prove his claim at the hearing, and thus
to submit the necessary documentation (Refugee Protection Division Rules,
SOR/2002-228, Rule 7). I would add that there is certainly no requirement on
the part of the Board to adjourn a hearing, without even being asked, so that a
claimant who has failed to submit sufficient documentation to support his case
can be given another chance to do so.
3) Did the Board violate the applicant’s right to
procedural fairness through its failure to follow the Chairperson’s Guideline
respecting unaccompanied minor refugee claimants?
[23]
The applicant submits that the Board violated his right to
procedural fairness by failing to follow the provisions respecting
unaccompanied minor refugee claimants in Guideline 3 on Child Refugee Claimants
(the Guideline). Specifically, the applicant argues that the Board failed to
expressly refer to the applicant’s age in its reasons, that it did not consider
the special evidentiary issues that arise when eliciting evidence of children
and addressing that evidence, and finally, that no pre-hearing conference was
held.
[24]
First, it must be kept in mind that the Board was not
dealing with a young child or a young teenager, but someone who arrived and
claimed refugee protection in Canada just 4 months shy of his 18th birthday. He had the assistance
of a designated representative and legal counsel throughout the application
process, and was legally an adult at the time of the hearing. Furthermore,
while the Guideline is meant to apply to all claimants under the age of 18, it
is obvious that different evidentiary issues will arise when dealing with a
5-year old, a 12-year old or someone of the applicant’s age, so that
flexibility in the interpretation of the Guideline will be required to reflect
the particular circumstances of each case.
[25]
The applicant relies on the decision of Madam Justice
Eleanor Dawson in Duale v. Canada (Minister of Citizenship and Immigration),
2004 FC 150. Referring to the reasons of the Board in that case, Madam Justice
Dawson noted:
The failure to
expressly acknowledge Mr. Duale’s age and the impact that age may have had on
the completion of his PIF, his testimony and the assessment of his testimony,
while perhaps by itself not a reviewable error, does not enhance the
credibility findings.
[26]
Not only did Madam Justice Dawson not find the omission of
the Board to be, in itself, a reviewable error, but that case can easily be
distinguished, as the claimant was only 16 years old at the time he arrived in Canada, and never received the assistance of a designated
representative. In the present case, the Board did note, in the first paragraph
of its reasons, that the applicant was 18 at the time of the hearing and that
he had a designated representative at the time his PIF was prepared who was
also in attendance at the hearing. The Board was clearly aware of the
applicant’s age and its failure to mention it elsewhere in the decision does
not constitute a reviewable error.
[27]
In terms of the conduct of the hearing and the application
of the Guideline, I note that there did not appear to be any objection from
counsel or from the designated representative to the Board member’s approach in
conducting the hearing. There was no request for any conference during the
hearing and the Board member did ask the applicant’s counsel at the beginning
of the hearing if he objected to her questioning the claimant first, which he
did not. As such, I can find no reviewable error in the approach of the Board
at the hearing.
[28]
While I can find no violation of procedural fairness
arising from the conduct of the hearing by the Board, it is indisputable that
no pre-hearing conference was held in this case, despite the fact that it is
clearly stated in the Guideline that “a pre-hearing conference should be
scheduled within 30 days of the receipt of the Personal Information Form”.
[29]
The respondent argues that the Chairperson’s Guidelines,
including Guideline 3, are not binding, and that failure to fully apply them
does not vitiate a decision. Furthermore, the respondent maintains that the
applicant has failed to show that he was prejudiced by the absence of a
pre-hearing conference.
[30]
On this point, I agree with the respondent that the
Guidelines are not legally binding. However, as argued by the applicant, Board
members are normally expected to follow these Guidelines. The applicant refers
this Court to the case of Khon v. Canada (Minister of Citizenship and Immigration),
2004 FC 143, where Madam Justice Danièle Tremblay-Lamer wrote at paragraph 18:
Although the panel is
not obliged to apply the Guidelines because they do not have the force of law,
they must be examined by the members of the panel in appropriate cases.
[31]
While I agree that the Board should normally follow the
Guidelines, I do not believe that the omission of the Board to hold a
pre-hearing conference in this case would be sufficient to justify setting
aside the decision, unless the applicant can show that he was prejudiced in
some way by this omission. In Duale, above, Madam Justice Dawson set
aside the Board’s decision because she concluded that the appointment of a
designated representative was likely to have “affected the outcome” of the
case, as the designated representative could have assisted the applicant in
gathering the necessary evidence to support his claim. In Gajic v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 108, the applicant also argued
that she was denied procedural fairness because the Board failed to properly
apply the Guideline. This argument was rejected by Mr. Justice John A. O’Keefe
who wrote, at paragraph 24:
Although the guideline
was not fully applied in this case, I am of the view that this did not result
in any prejudice to the applicant.
[32]
Here, the applicant claims to have been prejudiced by this
omission, as the lack of a pre-hearing conference and what the applicant
considers to be a non-informative screening form, deprived him of his right of
reasonable notice and opportunity to present evidence. While counsel’s argument
was not entirely clear, the issue once again appears to revolve around the
applicant having no knowledge of the fact that he was required to provide
information regarding any incident of persecution affecting family members.
[33]
It must first be noted that even if there had been a
pre-hearing conference, it would have had no impact on the preparation of the
PIF, which would have preceded the pre-hearing conference in any event. At
most, the applicant could have made amendments to his PIF following the
pre-hearing conference.
[34]
Second, it must be emphasized that it is the applicant’s
responsibility to read the PIF instructions and that the instructions for
question 31 clearly state: “Indicate the measures taken against you and members
of your family”. Moreover, at the time the applicant prepared his PIF, he not
only had the assistance of a designated representative, but also had legal
representation. As noted by the respondent, not only should these individuals
have been in a position to advise him of the relevant issues of the claim, but
they could also have requested a pre-hearing conference if they felt that it
was necessary. In Diagana v. Canada (Minister of Citizenship and
Immigration), 2007 FC 330, at paragraph 25, Mr. Justice Frederick E. Gibson considered the absence of any objection at or before the hearing
to be a waiver of procedural defect:
The presiding member
of the RPD was thorough in ensuring that both the Applicant and his counsel at
hearing were ready to proceed and had no objections to the process before the
RPD, to that time, that they wanted to raise. In particular, they were
given full opportunity to raise failure to fully comply with the
Guideline. In light of the foregoing, I am satisfied that the Applicant
and his counsel waived any procedural defect in the process leading to the
hearing before the RPD, including compliance with the Guideline.
[35]
Third, as for the screening form sent to the applicant in
preparation for the hearing, it did contain instructions to the effect that the
applicant should provide documents showing “personal and family membership and
activity with the MDC, and documents establishing loss of property and
claims/reports made by claimant’s parents regarding this”, ‘this’ evidently
referring to the destruction of the family home described in the PIF.
[36]
Fourth, as I have noted above, the fact that the applicant
sought an affidavit, medical documents and proof of membership in the MDC from
his father, does seem to indicate that he was aware that measures taken against
his family would be an issue and that supporting documentation might be needed.
[37]
Finally, as previously discussed, lack of documentary
evidence was only one factor on which the Board based its decision, and what
was clearly more troubling to the Board was not the fact that the applicant had
failed to obtain supporting evidence from his family, but that he claimed to
have contacted his father who refused to sign an affidavit and provide copies
of medical records. In light of the applicant’s claim to have been sent abroad
by his loving parents to protect him, the Board felt that this refusal was most
peculiar, particularly since the applicant did submit a letter allegedly
obtained by his father testifying to his membership in the MDC. Once again, it
is highly unlikely that a pre-hearing conference could have helped to address
this weakness in the applicant’s claim as the Board could not force the
applicant’s father to submit supporting documentation.
[38]
In light of these factors, I am not convinced that the
absence of a pre-hearing conference affected the outcome of the claim or
prejudiced the applicant in anyway and therefore, that there was a breach of
the duty of procedural fairness, which justifies the intervention of this
Court.
[39]
For the above reasons, this application for judicial review
is dismissed.
[40]
The applicant suggests a question for certification:
If the Refugee
Protection Division, without any reason whatsoever, does not schedule or hold a
Pre-hearing Conference for an unaccompanied minor refugee claimant, as required
under the Immigration and Refugee Board Chairperson’s Guideline 3, is this a
Breach of Procedural Fairness?
[41]
The respondent opposes the certification on the basis that
the question does not raise a question of general importance.
[42]
In fact, this question of the absence of a pre-hearing
conference is a minor point in this case. Counsel representing the applicant at
the time of the hearing asked for a hearing as soon as possible but never asked
for a pre-hearing conference. As pointed out by counsel for the respondent, the
major reason why the applicant’s claim for refugee protection was denied is the
absence of credibility.
[43]
In my view, this question does not raise a question of
general importance and therefore, will not be certified.
JUDGMENT
- The application is dismissed.
- No question for certification.
“Pierre
Blais”
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