Docket: IMM-7877-14
Citation:
2015 FC 716
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 8, 2015
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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SERGIY PANOV
(ALIAS SERGIY
VLADIMIROVICH PANOV) (ALIAS SERGIY KHOUROZ)
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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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JUDGMENT AND REASONS
I.
Preliminary
[1]
It is within the mandate and expertise of the
Refugee Protection Division (RPD) to question an applicant with respect to the
key aspects of his or her testimony and such an investigation may sometimes
lead to questions that may be perceived to be unpleasant or fastidious. It is
not unusual for the RPD to consider further points that are considered to be contentious
with respect to the genuineness of the applicant’s documents or credibility.
II.
Introduction
[2]
This is an application for judicial review under
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) against
an RPD decision dated October 24, 2014, rejecting the applicant’s refugee
claim and the recusal request made regarding the member during the hearing.
III.
Factual background
[3]
The applicant is a 41-year-old Ukrainian citizen.
[4]
Between April 2009 and February 2011, the
applicant was working as a financial tax inspector in the city of Ismail, Ukraine.
[5]
After the applicant reported on discussion
forums the corruption of certain mayoral candidates of the city of Ismail, who
were involved in tax evasion activities, the applicant was threatened.
[6]
On July 20, 2010, the applicant was
attacked and beaten by three individuals, who also insulted him regarding his Moldovan
origins. Following this incident, the applicant contacted the police, in vain.
[7]
In August 2010, a contractor and mayoral
candidate, who the applicant considered to be corrupt, attributed his loss in
the municipal elections to the applicant and threatened him.
[8]
In February 2011, following the applicant’s
objections to a development project between the city of Ismail and this contractor/candidate,
the applicant was fired.
[9]
On February 22, 2011, the applicant was kidnapped,
beaten and threatened with death by four individuals. The applicant contacted
the police, who, however, stated that they could not intervene without a license
plate number.
[10]
On March 14, 2011, the applicant left Ukraine
for Portugal to work on a commercial ship.
[11]
On July 3, 2011, the applicant’s spouse
informed him that after an investigation on corruption that had been opened in
Ismail, men came to their home and threatened to kill the applicant, who could
appear as a witness, if he returned to the Ukraine.
[12]
The applicant then arrived in Canada and made a
refugee claim on July 8, 2011.
[13]
Following a hearing that took place on June 26,
2014, the RPD found that the applicant is not a Convention refugee or a person
in need of protection under sections 96 and 97 of the IRPA, since he [translation] “was
not able to show credibly that his current fear of persecution is well-founded”
(RPD’s decision, Tribunal Record, at p 11).
IV.
Statutory provisions
[14]
The statutory provisions relevant to the determination
of refugee status are reproduced below:
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Convention refugee
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Définition de “réfugié”
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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V.
Issues
[15]
The application for judicial review raises the
following two issues:
1.
Did the RPD raise a reasonable apprehension of
bias?
2.
Is the RPD’s decision reasonable?
VI.
Analysis
A.
Reasonable apprehension of bias
[16]
The applicant stated that the RPD breached its
duties of procedural fairness and natural justice by showing bias.
[17]
It is well established that an allegation of a
breach of procedural fairness must be reviewed on a standard of correctness (Canada
(Attorney General) v Sketchley, [2006] 3 FCR 392).
[18]
The appropriate legal test is set out in Committee
for Justice and Liberty, according to which an 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”. The criterion consists in asking oneself “what would an informed person, viewing the matter
realistically and practically…conclude?” (Committee for Justice and
Liberty et al v Canada (National Energy Board), [1978] 1 S.C.R. 369 at pp 394 and
395).
[19]
It is not necessary to show actual bias; an appearance
of bias is sufficient (Cipak v Canada (Minister of Citizenship and
Immigration), 2014 FC 453 at para 33). Furthermore, the burden is on the
applicant to show, on a balance of probabilities, the appearance of reasonable
apprehension of bias.
[20]
Such an allegation cannot be raised lightly and
must be supported by concrete evidence:
[8] It seems to me that the applicant's
counsel has confused the audi alteram partem rule with the right of his client
to a hearing by an impartial tribunal. An allegation of bias, especially actual
and not simply apprehended bias, against a tribunal is a serious allegation. It
challenges the integrity of the tribunal and of its members who participated in
the impugned decision. It cannot be done lightly. It cannot rest on mere
suspicion, pure conjecture, insinuations or mere impressions of an applicant or
his counsel. It must be supported by material evidence demonstrating conduct
that derogates from the standard. ...
(Arthur v Canada (Attorney General),
[2001] FCJ 1091 at para 8)
[21]
The applicant criticized the RPD for showing [translation] “disregard”
toward him, specifically in its examination regarding the applicant’s identity
documents and his academic and professional training. The apprehension of bias,
which arose during the hearing, allegedly deprived the applicant of the opportunity
to fully bring forward the evidence in support of his application.
[22]
The RPD’s hearing transcript reveals that
counsel for the applicant first asked the member to be less [translation] “dismissive”
(Hearing transcript, Tribunal Record, at p 198). Following an exchange between the
member and counsel for the applicant on how a question was asked by the member,
counsel then submitted a recusal request.
[23]
At the hearing, counsel for the applicant raised
a few reasons in support of her recusal request. Among other things, the member
had called into question certain documents by [translation]
“diverting them from their purpose” and by
insisting on specific points, such as variations in the applicant’s name. Furthermore,
counsel for the applicant criticized the member for making dismissive
statements regarding the applicant, such as [translation]
“one can become a [tax inspector] just like that, without
training” and [translation]
“in the Ukraine, documents can be blocked” (Hearing
transcript, Tribunal Record, at p 203).
[24]
The Court considers it timely to reproduce the member’s
reasons regarding the recusal request made against her:
[translation]
[10] In response, first, the panel wishes to
explain that Ms. Venturelli cited a list of grievances against the member
without providing reasons. She did not seek to show how these allegations in support
of her recusal request could illustrate an appearance of bias by the member.
[11] With respect to the documents alleged
by Ms. Venturelli, it appears that the panel noted that the applicant presented
himself under different identities, Khoroz Sergiy, Panov Sergiy, Panov Vladimir
Sergiy. Each of these names is found on a separate document from the others.
[12] The panel clarified the real name of
the applicant by taking the precaution of having him read his Ukrainian
passport himself, in which he acknowledged that his name was Sergiy Panov. Then,
he read his identity card, on which his name was Sergiy Vladimirovitch Panov.
[13] The panel asked him whether his passport
was based on his birth certificate. The applicant answered that this was indeed
the case. Therefore, the question naturally arises as to why the applicant’s passport,
based on his birth certificate, does not consist of the same identity taken
from the birth certificate.
[14] Moreover, the last document presented
by the applicant was his workbook, in which a name was struck out and another
was carried by hand. Thus, the panel legitimately asked whether he is aware
that in Ukraine administrative documents are modified so simply by merely
striking them out. Each time, the applicant had the opportunity to explain himself
and the panel did not draw any inference at the time when counsel made her recusal
request.
[15] Therefore, as the applicant himself
confirmed, a person who acts reasonably and in good faith, would have asked
these questions, which are considered to be legitimate, when faced with so many
problems, but he or she could not, in light of the explanations noted and the
lack of comment from the member, deduce that she had allegedly shown bias and a
lack of respect in the applicant toward whom there is no reason to hold any
adverse feelings, which he will recognize when the member asks the question
directly to him. Indeed, he will answer that he did not consider that the
member’s attitude was arrogant, aggressive or, a fortiori, dismissive.
[16] If it had not been legitimate and,
thus, reasonable to ask the question of how a person coming from a mechanical
school, which could lead you to believe a mechanic or a machinist, could then
have performed the profession of an accountant, as he claims, and especially
that of a sailor and a cook, then suddenly becoming a tax inspector after
recognizing, in his own words, after he was asked the question, that this duty
would have required, even in the Ukraine, a specialization.
[17] Could a reasonable person, in good
faith, avoid asking such a question? The applicant had the opportunity to explain
himself, which the panel will note again, without commenting or, a fortiori, drawing
an inference of any kind. All the questions asked by the panel merit being
asked by a person who is vested with the same responsibilities as the panel. Ms. Venturelli
could not, by the mere fact that these questions were asked, deduce that the
panel would have been religious regarding the outcome of her client’s request.
[18] These statements were considered to be
insulting to the member. She let him know it and expressed her surprise and
considered them unprofessional in a lawyer, since they were not based on objective
considerations. These statements were characterized as provocative, according
to the panel, for the purpose of deliberately creating an incident leading to
stopping the hearing in progress. To date, the panel has maintained its integrity,
calm and conducted its hearing as a reasonable person would. Ms. Venturelli
also raised, without demonstrating it, the fact that the member refused the
submission of a document, which was also without basis because all the documents
filed were accepted even when they were made the day before the hearing,
contrary to rule 34.3.a, i.e. within at least 10 days before holding a
hearing.
[19] Even these untranslated documents in
the normal language of work of the panel were accepted without comment. Even better,
at the end of the hearing, the panel gave him additional time to submit documents
after the fact.
[20] For these reasons, the only outcome for
such a recusal request is rejection because it is without basis; no reasonable
person could have concluded that the panel’s judgment would have been issued, affected
or biased to the point of allowing the appearance of a fear of partiality.
(RPD’s decision, Tribunal Record, at pp 5 to
7)
[25]
The Court found that the RPD’s conclusions regarding
the allegation of apprehension of bias are anchored in the evidence on the
record. Although the Court may recognize the existence of a strained
environment at the hearing, it is not sufficient on its own to raise a reasonable
apprehension of bias.
[26]
“Extensive and
energetic” questioning will not give rise to a
reasonable apprehension of bias (Bankole v Canada (Minister of Citizenship
and Immigration), [2005] FCJ 1942 at para 23 (Bankole)). Similarly,
case law establishes that “harsh” or “sarcastic” language is not generally sufficient to
demonstrate a panel’s partiality (Ramirez v Canada (Minister of Citizenship
and Immigration), 2012 FC 809 at para 23; Varaich v Canada (Minister of
Employment and Immigration), [1994] FCJ 336 at para 12; Kankanagme v
Canada (Minister of Citizenship and Immigration), [2004] FCJ 1757 at para
19).
[27]
Moreover, the Court finds that the member’s
statements at the hearing do not correspond to such descriptions.
[28]
It falls within the RPD’s mandate and expertise to
question an applicant as to the key aspects of his testimony and such an
investigation may sometimes lead to questions that may be perceived to be
unpleasant or fastidious. It is not unusual for the RPD to consider further the
points considered to be contentious with respect to the genuineness of the
documents or the applicant’s credibility.
[29]
In this respect, the Court adopts the statements
of Justice Richard G. Mosley in Bankole, above at para 25:
[25] Having reviewed the transcript closely,
I am not persuaded that the manner of questioning in this case amounted to a
denial of procedural fairness in the conduct of the hearing despite my concerns
about specific excerpts. Overall, the transcript discloses that the member went
to considerable lengths to obtain the applicant's complete evidence and to
attempt to clarify the contradictions and inconsistencies in his testimony. The
hearing as a whole, while flawed, was not unfair.
[30]
Moreover, the Court considers that the applicant
had a fair hearing that allowed him to fully make his case. Following counsel
for the applicant’s recusal request, the hearing resumed.
[31]
With respect to the foregoing, an informed person
assessing the issue in a practical manner and in depth would not come to a conclusion
that a reasonable apprehension of bias exists.
B.
Reasonableness of the RPD’s decision
[32]
The issue relating to reasonableness of findings
of fact and mixed fact and law that are within the RPD’s areas of expertise
must be reviewed on a standard of reasonableness. Therefore, the Court must
show deference to these findings and must intervene only if the RPD’s decision does
not fall within the range of possible, acceptable outcomes which are defensible
in respect to the facts and law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190
at para 47).
[33]
The applicant alleged that the RPD conducted a microscopic
analysis of the evidence and without regard for the explanations provided by the
applicant, for the sole purpose of undermining his credibility, particularly
with respect to his professional qualifications, his employment as a tax
inspector and the use of his name. Furthermore, the applicant alleged that the RPD
neglected to analyze the documentary evidence regarding corruption in the
Ukraine, when this is fundamental to the applicant’s refugee claim. Finally, the
applicant claims that the RPD neglected to assess the personalized risk to
which the applicant is exposed, to the extent that he became vulnerable following
his dismissal from the government and that he was personally targeted by his
agent of persecution.
[34]
With respect to the RPD’s analysis of the testimony
and the evidentiary record before it, the Court cannot agree with these claims.
[35]
The RPD’s reasons reveal that the RPD considered
the evidence before it and analyzed it to identify its probative value. It was reasonable
for the RPD conclude that the applicant lacked credibility with respect to the
evidence on the record, which includes inconsistencies and raises doubts regarding
the genuineness of some evidence that is considered key to the applicant’s
story.
VII.
Conclusion
[36]
With respect to the foregoing, the Court dismisses
the application for judicial review.
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