Date: 20081106
Docket: IMM-2152-08
Citation: 2008 FC 1245
Toronto, Ontario, November 6,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ALFREDO SOLIS BOTELLO, MARIA
ISABEL OERTEGA BALTIERRA
ALFREDO ANTONIO SOLIS ORTEGA, RODRIGO
SOLIS ORTEGA and
MARITZA MONSTSERRATT SLOIS ORTEGA by
their litigation guardian
MARIA ISABEL OERTEGA BALTIERRA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are a family consisting of the father (Botello), the mother
(Baltierra) and three minor children. All are Mexican citizens. They fled Mexico in 2006 and
came to Canada where they
made refugee claims. A hearing was held in respect of those claims on April 15
and 17, 2008 and, in a written decision dated April 24, 2008 those claims were
rejected. This is a judicial review of that decision.
[2]
For
the reasons that follow, I find that the application is dismissed. No question
requires certification. There is no Order as to costs.
[3]
The
Applicants, by their counsel, raise a number of issues with respect to the
decision under review namely:
- Whether the Board
completely failed to assess the children’s claim and denied the minor
claimants the right to a fair hearing?
- Whether the Board
made perverse findings without evidence, and in disregard to the evidence,
in that the Board:
- Ignored
documentary evidence based on “expert” conclusions without expert
testimony/evidence?
- Ignored
documentary evidence and wife’s corroboration?
- Did not weigh
evidence not found to be non-credible?
- Whether the Board
erred in its implausibility findings?
- Whether the board
was nit-picking on irrelevant considerations as a basis to undermine
overall credibility?
- Whether the
Applicants were denied the right to a fair hearing?
Issue # 1 – Children’s
Determination
[4]
The
Applicants argue that the Reasons of the Member, whose decision is under review,
do not make specific mention of any claim or individual circumstances of the
children. However at the outset of the Reasons, the Member states that he
rejects the claims of the Applicants naming them all individually and, at the
conclusion of his Reasons, the Member states that he is satisfied that the
principal claimant was not a credible witness and that the claimants have
failed to establish that there is a serious possibility that they will be
persecuted or that, on a balance of probabilities, that they will be subjected
personally to a risk to life or risk of cruel and unusual treatment or
punishment or danger of torture in all parts of Mexico.
[5]
A
review of the record, including the tribunal record, indicates that the
children made no independent claim. Their PIFs (Personal Information Form)
simply refer to their father’s PIF: “See narrative in my father’s PIF”. At the
outset of the hearing, the Applicants’ counsel made a request on behalf of the
Applicants that the children be excused and wait outside, their mother was
designated to protect their interests. No separate submissions were made in
respect of the children. No evidence was led that would link any event that
may have occurred to the children such as a minor automobile accident to
matters raised by the parents as supporting a credible claim for refugee
status.
[6]
The
circumstances here are quite different from those set out by Kelen J. in his
reasons in Gonsalves v. Canada (MCI), 2008 FC 844 at paragraph 27 to 29,
a case relied upon the Applicants’ counsel. In that decision, Kelen J. was
careful to state that there was extensive evidence as to the ill-treatment and
harm experienced by the children including a threat of sexual assault.
[7]
I
find no reviewable error in respect of the manner in which the Applicant’s
children’s claim was dealt with by the Member.
Issues 2, 3 & 4:
Findings of the Member
[8]
Issues
2, 3 and 4 as articulated by Applicants’ counsel are essentially the same
issue, namely: were the evidentiary findings of the Member reasonable.
[9]
As
stated by the Supreme Court of Canada in Dunsmuir v. New Brunswick
[2008] 1 S.C.R. 190, where a tribunal has made evidentiary findings in the area
of its expertise, those findings are to be reviewed on the basis of
reasonableness with deference given to the tribunal whose expertise lies in the
particular area under review. In Aguebor v. Canada (MCI) (1993), 160
N.R. 315 the Federal Court of Appeal held that evidentiary issues including
those of credibility lie within the particular expertise of the tribunal at
issue here and should not easily be displaced.
[10]
Time
and again, the Member in his reasons stated that he found that the evidence led
was implausible, could not be accepted and lacked credibility. There has been
nothing pointed out by counsel in the evidence or apparent to me in reviewing
the Tribunal Record, that such findings were not reasonable.
[11]
Counsel
for the Applicants argue that the Member improperly dealt with the
psychologists report as to the Applicant mother. Here is what the Member said:
I accept the female claimant
has psychological problems as outlined in the psychology report. Due to the
lack of credible evidence, I do not accept these problems are a result of the
events described to the author of the report. Counsel submitted the facts in
the psychology report were based on the original narrative that was provided to
the author of the report.
Again, I give this report
insufficient weight to offset my credibility concerns or to advance the claim
on its own.
[12]
What
the Member said was that he accepted that the Applicant mother has
psychological problems but he was not persuaded that the problems were caused
by the alleged events upon which the refugee claim was based. He gave the
psychologists report little weight since it was based in respect of the events
alleged to have occurred in Mexico, in respect of which he had no direct
knowledge.
[13]
I
find, therefore, in respect of these issues, 2 to 4, that no reviewable error
has been made.
Issues # 5 – Fair
Hearing
[14]
The
Applicants argue in their written argument but not orally, based on an
affidavit of the Applicant mother filed with this Court, that they were denied
a right to a fair hearing first on the basis that the Spanish/English
interpreter in attendance on the first day failed to translate accurately and
completely.
[15]
Second,
in the written argument but not raised orally, it is alleged that the Member
determined the hearing on the first day without soliciting the Applicants’
preference and needs. The Applicants allege that the Member was “fixated on
denying our claim” and was accusatory and hostile and ultimately appeared
disinterested.
[16]
First,
as to the Spanish/English interpreter present at the first day of the hearing,
there is no indication that, at the time of the hearing or at any time before
the Member’s decision was released, was any objected raised by or on behalf of
the Applicants as to this interpreter. Counsel for the Applicants was unable
to point to any errors in the transcript that would raise any concern as to the
interpretation. In find no reviewable error or reason to set aside the
Member’s decision in this regard.
[17]
Second,
as to the conduct of the Member, again no objection was raised at the time of
the hearing or at any time before the Member’s decision was given, as to any
concern that the Applicants might have had in this regard. As to the
adjournment at the end of the first day of the hearing, it is entirely clear,
particularly at pages 60 and 61 of the transcript, that the member clearly
discussed with Applicants’ counsel the matter of the adjournment and asked how
much time Counsel needed at the next hearing. Counsel asked that the matter be
adjourned to another date and that an hour would be sufficient to conclude the
matter. The Applicants and their Counsel were properly and adequately
consulted. I find no reviewable error or other reason to set aside the
Member’s decision.
Conclusion
[18]
For
the reasons given, I find no basis upon which to set aside the Member’s
decision dated April 24, 2008. The matters are fact specific and no general
question of law arises such as would require certification on an issue. There
is no Order as to costs.
JUDGMENT
For the
Reasons provided:
THIS COURT
ORDERS that:
1. The
application is dismissed;
2. There is no
question for certification;
3. No Order as
to costs.
“Roger T. Hughes”
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