Docket: IMM-7383-14
Citation:
2015 FC 1007
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, August 25, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
CLAUDIA PATRICIA SILVA ANDRADE
|
|
ALEXANDER NINO CUELLAR
|
|
JUAN CAMILO NINO SILVA
|
|
Applicants
|
|
and
|
|
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
Respondent
|
ORDER AND REASONS
I.
Introduction
[1]
All three applicants are Colombian citizens.
Alexander Nino Cuellar and Claudia Patricia Silva are husband and wife (the
principal applicants or the parents); Juan Camilo Nino Silva (Juan Camilo) is
their son. Claiming to have been threatened by the Revolutionary Armed Forces
of Colombia (FARC), they fled Colombia and sought Canada’s protection in
May 2006. Their claim was allowed in May 2008, and a few months
later, they were granted permanent resident status.
[2]
In the meantime, in October 2008, having been
unable to recover their passports from Citizenship and Immigration Canada
officials and expressing a desire to travel to the United States, the principal
applicants filed an application for new passports with Colombian consular
officials. After receiving their new passports, the applicants used them to
make three trips to Colombia between June 2009 and December 2012, for
periods of 50, 40, and 25 days respectively. They also made 15 trips
to the United States.
[3]
In June 2014, the respondent submitted an
application to cease refugee protection with the Refugee Protection Division of
the Immigration and Refugee Board of Canada (the RPD), pursuant to
paragraph 108(1)(a) of the Immigration and Refugee Protection Act,
SC 2001, c. 27 [the Act], on the basis that the applicants, in
applying for new Colombian passports and returning to that country three times,
had voluntarily reavailed themselves of the protection of their country of
nationality.
[4]
On October 17, 2014, the RPD allowed the
respondent’s application and found that the refugee protection granted to the
applicants in May 2008 was therefore lost. The RPD found, particularly
because they had applied for new Colombian passports, that a presumption of an
intention to reavail themselves of that country’s protection had been raised
against the applicants, a presumption which they had not, in its opinion, succeeded
in rebutting.
[5]
The applicants level a series of criticisms
against the RPD’s decision, most of them related to considerations of
procedural fairness, and ask the Court to set aside said decision.
[6]
More specifically, they argue that the RPD (i)
provided the parties and the Court with an incomplete Certified Tribunal
Record; (ii) refused to disclose all the evidence that was before it;
(iii) gave rise, through the conduct of the Member who presided over the
hearing (the Member), to a reasonable apprehension of bias; (iv) failed, both
substantively and procedurally, to adequately consider the interests of
applicant Juan Camilo, who was 17 years old when the hearing was held; and
(v) erred in its assessment of the credibility of the explanations given
by the parents with regard to the application for new passports and the trips
to Colombia.
[7]
In my opinion, the only argument with any merit
is the one concerning how Juan Camilo was treated at the hearing, given his
exclusion.
II.
Analysis
[8]
It is trite law the standard of review
applicable to procedural fairness issues is correctness. This means that in
such matters, the Court owes no deference to decision of the RPD (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras 54, 79 and 87; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339,
at para 44).
[9]
In this case, counsel for the applicants submits
that before excluding Juan from the hearing room, the Member was required to
make inquiries and determine for herself, in light of the applicant’s age and
in accordance with Chapter 7 of the Guide to Proceedings before the
Immigration Division, which addresses, among other things, the attendance
and participation of minors at RPD hearings, whether it was appropriate for him
to be there and, if so, to what degree he should participate in the hearing. In
counsel’s view, the Member completely ignored this guideline, such that Juan
was deprived of a hearing even though, according to the Guide to Proceedings,
when the minor is old enough to testify, as was the case with Juan Camilo, it
is preferable to require his or her presence.
[10]
On this point, counsel for the applicants pleads
that Juan Camilo had separate interests from those asserted by his parents.
More specifically, she submits that when they applied for new passports and
decided to travel to Colombia, he was too young to form a different opinion
from that of his parents and that it was therefore impossible to say, in his
case, whether the conditions for losing refugee protection were met, particularly
the conditions relating to the voluntary nature of the impugned act and the
intention to reavail themselves of Colombia’s protection. Given that he was
personally targeted by the FARC in the incidents that prompted the family to
flee Colombia, she adds, it was reasonable to believe that Juan Camilo’s intent
may have been different from that of his parents, having regard to the facts
and actions giving rise to the application to cease refugee protection.
[11]
The respondent counters when Juan Camilo left
the hearing room without testifying, he did so of his own free will. He adds
that it was in fact at the request of counsel representing the applicants at
that hearing, and after Juan Camilo’s father, who was acting as designated
representative, was consulted, that Juan Camilo left the room to look after the
couple’s second child, who was three years old at the time. From this, the
respondent concludes that Juan Camilo was not denied the opportunity to testify.
[12]
I disagree. The consequences of losing refugee
protection are considerable, insofar as this also results in the loss of permanent
resident status and in inadmissibility, as prescribed by paragraph 46(1)(c.1)
and subsection 40.1(2) of the Act, respectively. This calls for heightened
vigilance on the part of the RPD in applying the relevant rules of procedural
fairness, particularly where the attendance and participation of minors at
hearings are in question.
[13]
Although the Guide to Proceedings before the
Immigration Division does not have force of law, it nonetheless does
reflect, in this regard, the concerns expressed by certain members of the Court
(Mandi v Canada (Minister of Citizenship and Immigration), 157 FTR 157; Cadena
v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 67).
I find that the Member should not have simply agreed to the request of counsel
for the applicants to exclude Juan Camilo from the hearing room. Even after
seeking the consent of Juan Camilo’s father to this request, she should have
made inquiries and determined for herself whether it was preferable for Juan
Camilo to be present and testify. As was the case in Mandi, above, no
one asked the main person concerned what he wanted to do, even though he was 17
years old and had certainly acquired the capacity to form and express an
opinion as to his intention to reavail himself of the protection of his country
of origin.
[14]
In a context where the consequences of losing
refugee protection could be especially significant for him, particularly
because he was personally targeted by the FARC, this inquiry was necessary, in
my opinion, and it was up to the Member to do so.
[15]
In this respect, and this respect only, the
RPD’s decision, when analyzed in accordance with the correctness standard of
review, must be set aside and the file, referred back to a differently
constituted panel of the RPD so that Juan Camilo can be given an opportunity to
be heard.
[16]
As I stated above, in every other aspect, the
application for judicial review must fail.
[17]
First of all, I cannot agree with the argument
that the RPD’s decision is fatally flawed because the Certified Tribunal Record
prepared by the RPD for the purposes of these proceedings is incomplete because
it does not contain the file for the refugee protection claim that, according
to the parents, was before the RPD at the time of the hearing.
[18]
As the respondent notes, if the principal
applicants thought that the Certified Tribunal Record was incomplete, they
could have filed a motion to correct the situation, if such a correction was necessary
and justified (Yadav v Canada (Minister of Citizenship and Immigration),
2010 FC 140, at para 23). For one reason or another, they did
not do so. At any rate, this ground must be rejected for another reason: it is
clear from the hearing transcript that the refugee protection claim file, even
though it was erroneously submitted to the Member at the beginning of the
hearing because of the RPD Registry’s operating procedures, at least at the
time, was separated from the file for the application to cease refugee
protection and was not considered when that application was reviewed.
[19]
The hearing transcript indeed reveals that the
Member took care to point out to the parties, at the opening of the hearing,
that she had both the file for the application to cease refugee protection and
the refugee protection claim file before her. She also very clearly advised the
parties that she had no intention of reading or considering the refugee
protection claim file for the purposes of the decision she had to render on the
application to cease refugee protection and that said file would be returned to
the Registry. She proposed, [translation]
“just to be sure”, to show them the
refugee protection claim file if they thought it desirable.
[20]
It therefore seems clear to me, in this context,
that the refugee protection claim file did not have to be included in the
Certified Tribunal Record because, according to the hearing transcript, it was
disregarded by the Member, as it should have been. In the circumstances, I find
that the Member was as transparent as possible and dispelled any doubt as to
what material was relevant for the purposes of considering the application to
cease refugee protection.
[21]
Moreover, the principal applicants did not
contest this modus operandi before the RPD. As the Federal Court of
Appeal very recently reiterated in Maritime Broadcasting System Limited v Canadian
Media Guild, 2014 FCA 59, at paragraph 67, a party must raise an
alleged procedural violation at the earliest practical opportunity, that is, as
soon as it is reasonable to expect him or her to raise an objection. If that
party does not do so, he or she is considered to have waived any rights to
raise the matter on judicial review. Such is the case here.
[22]
I cannot agree either with the argument that the
Member breached the rules of procedural fairness by giving counsel for the
applicants 15 minutes to look over the refugee protection claim file and
select documents to photocopy, instead of disclosing the entire file to him.
[23]
Once again, this is not what is to be understood
from what happened at the hearing. This argument, too, is related to the
refugee protection claim file. As I just noted, the Member, in the interests of
transparency, offered to let the parties look over this file before returning
it to the Registry and identify the documents of which they wanted copies made.
Only counsel for the applicants took advantage of this offer, as the
respondent’s representative stated at the outset that he did not need any
documents. The hearing was suspended for 15 minutes to allow counsel for
the applicants to look over the refugee protection claim file. After this
break, counsel for the applicants stated that he needed only one document,
namely, the list of exhibits. He was given a photocopy of said document. At no
time did counsel for the applicants object to this way of proceeding.
[24]
This argument is therefore without merit. In any
event, on the basis of Maritime Broadcasting System Limited, the
applicants are barred from raising it at this stage of the proceedings because
there was nothing stopping them from telling the Member of their reluctance to
proceed in this manner, or from asking her for more time to look over the file.
None of this was done.
[25]
The applicants are also barred from claiming
that the Member was biased. As the Court has noted on numerous occasions,
alleged bias must be raised promptly, so as to allow the decision-maker the
opportunity to recuse him- or herself, and to save scarce judicial resources. This
principle is well entrenched in the case law, and failing to comply with it
usually precludes relying on a bias argument (Acuna, above at
para 35; Fletcher v Canada (Minister of Citizenship and Immigration),
2008 FC 909, at para 17; Cao v Canada (Minister of
Citizenship and Immigration), 2012 FC 1398, 422 FTR 108, at
para 26).
[26]
In this case, the applicants, despite being
assisted by counsel at the hearing, neither asked that the Member recuse
herself nor expressed their concerns regarding what they now claim to be
reprehensible conduct on her part. On this basis alone, this argument must
fail. In any event, it is entirely without merit.
[27]
I would point out that an allegation of bias is
a serious matter, since it challenges the decision-maker’s integrity. According
to the case law, such an allegation cannot be taken lightly and must therefore
be supported by material evidence demonstrating conduct that derogates from the
standard. In other words, it cannot rest on mere suspicion, pure conjecture,
insinuations or mere impressions of a party or his or her counsel (Arthur v Canada
(Attorney General), 2001 FCA 223, at para 8; Gabor v Canada
(Citizenship and Immigration), 2010 FC 1162, at para 34; Ramirez
v Canada (Minister of Citizenship and Immigration), 2012 FC 809,
at para 11; Maxim v Canada (Minister of Citizenship and Immigration),
2012 FC 1029, at para 30).
[28]
In the case, the criticisms levelled against the
Member do not hold water. First, the applicants take offence to the fact that
they were not allowed to obtain a copy of the entire refugee protection claim
file, supposedly for environmental reasons. The matter of the refugee
protection claim file has already been discussed, and there is no more to add.
The Member’s so-called [translation] “environmentalist speech” was, for her, a colourful way
of saying that there was no point in copying the entire file if it was not
strictly necessary to do so.
[29]
It goes without saying that this would not raise
a reasonable apprehension of bias in the eyes of an “informed
person, viewing the matter realistically and practically—and having thought the
matter through” (Committee for Justice and Liberty v Canada (National
Energy Board), [1978] 1 SCR 369, page 394).
[30]
The principal applicants also criticize the
Member for having asked them—or for allowing them to be asked—on two occasions
questions that could mislead or confuse them. I agree with the respondent that
the applicants are sinking into an ex post facto microanalysis of how
the hearing was conducted. I also agree with the respondent that the hearing
transcript shows that the Member was patient and attentive. The Member did
indeed ask the parents to stop whispering to each other, but it should also be
mentioned that their counsel, too, deemed it necessary to tell them to stop.
[31]
The bias argument is dismissed.
[32]
Finally, the claim that the Member erred in her
assessment of the credibility of the explanations provided by the two parents
with regard to application for new passports and the trips to Colombia do not,
in my view, warrant the Court’s intervention. Here, the standard of review is
different. This ground must be reviewed on the reasonableness standard because
it raises questions of mixed fact and law falling within the expertise of the
RPD. According to this standard of review, the Court must defer to the
conclusions drawn by the RPD and will therefore not intervene unless these
conclusions, first, do not exhibit justification, transparency and
intelligibility and, second, do not fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para 47).
[33]
Under this standard, the Court cannot substitute
its own appreciation of the evidence in the record for the one at which the RPD
arrived (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 SCR 339, at para 59).
[34]
As the RPD correctly noted, three conditions
must be met to conclude that the protection granted by Canada to a foreign
national has ceased because of an act of that foreign national: (i) the
act must be voluntary; (ii) the foreign national must intend by this action to
reavail him- or herself of the protection of his or her country of origin; and
(iii) the foreign national must actually obtain such protection. Moreover,
if the foreign national applies for a passport from his or her country of
origin, the intent to reavail him- or herself of that country’s protection is
presumed (Nsende v Canada, 2008 FC 531, 327 FTR 315).
[35]
In this case, the RPD found that by returning
three times to Colombia, a country where they believed their lives and that of
their son were in danger, to seek medical care (treatment for tendonitis,
orthodontic work and an annual check-up) which, by the way, was not urgent and
was available in Quebec or places other than Colombia, the principal applicants
had reavailed themselves of the protection of that country within the meaning
of paragraph 108(1)(a) of the Act. The RPD called into question,
among other things, the fact that on each occasion, despite the imminent
danger, the entire family travelled to Colombia—to Cali, no less, the place
where the threats that led them to leave the country were made—and that they
did so for clearly non-imperative reasons.
[36]
In light of the evidence in the record, I cannot
say that this conclusion falls outside the range of possible, acceptable
outcomes which are defensible in respect of the facts and law. In other words,
it has a rational basis, such that the Court’s intervention on this point is
unwarranted.
[37]
This application for judicial review will
therefore be allowed only in respect of applicant Juan Camilo Nino Silva, so as
to give him the opportunity to be heard.
[38]
Neither party submitted a question for
certification by the Federal Court Appeal, as paragraph 74(d) of
the Act permits. I also find that there is no question to be certified.
Email this Content