Docket:
IMM-11262-12
Citation: 2013 FC 1232
Ottawa, Ontario, December 9, 2013
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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ORISON RAMIREZ VELA
by his litigation guardian SUSAN WOOLNER
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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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REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This is an application, pursuant to the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a
decision of the Immigration and Refugee Board [the “Board”] dated October 11,
2012, refusing the applicant’s claim for refugee protection.
Background
[2]
The applicant is a citizen of Peru who claims that if returned he will be persecuted by a narco-terrorist named Mr
Tecse. Tecse was allegedly associated with a known convicted drug trafficker
named Zevallos.
[3]
The applicant worked for the National Institute
of Culture [“NIC”] in Peru. In the course of his duties, he reviewed an
application for a permit to use a facility, filed by Tesce. This permit
application was on behalf of an organization called the Association of Producers
and Artisans [“APAR”]. The applicant refused to issue a permit because APAR
was not a registered organization.
[4]
The applicant was allegedly told by a colleague
that Tesce was a narco-terrorist. On January 9, 2007, Tesce filed a complaint
against the applicant and his manager, accusing them of racism. The applicant
allegedly began receiving threats. He filed a report with the police.
[5]
The threats continued. In March 2007, the applicant
was beaten in the street. He moved around to different places but was found.
[6]
The applicant fled to Canada on June 20, 2007,
and made a claim for refugee protection.
[7]
In its decision, the Board made a number of
adverse credibility findings because the applicant’s testimony contained a
number of inconsistencies, and he provided misleading evidence. The Board also
found that if Tesce were truly a narco-trafficker, the applicant would have
been able to produce reliable evidence to substantiate that claim. He did not.
Issues
[8]
The issues before the Court are:
a. Did
the Board proceedings give rise to a reasonable apprehension of bias?
b. Did
the Board err in its credibility assessment or in its assessment of the
evidence?
Standard
of Review
[9]
With respect to the interpretation of provisions
governing the appointment of a designated representative, because these relate
to fundamental fairness in ensuring that a party is able to appreciate the
nature of the proceedings, the issue engages a standard of correctness. See for
instance Black v Canada (Minister of Citizenship and Immigration), 2009
FC 703 at paras 29, 31:
29 The Applicant submits the following
issue on this application:
1) Whether the IAD breached the Applicant's right to
procedural fairness by not meaningfully appointing a designated representative.
[. . .]
31 The issue raised by the Applicant
involves a question of procedural fairness: I find the appropriate standard of review is correctness: Suresh v.
Canada (Minister of Citizenship and Immigration) 2002 SCC 1.
[10]
Conversely, with respect to a Board member’s
exercise of discretion to determine whether an applicant can appreciate the
proceedings, based on the testimony at the hearing, the standard of review is
the deferential one of reasonableness. Similarly, a refusal to grant an
adjournment, although an aspect of fairness, is a matter of mixed fact and law
and also attracts a standard of reasonableness. So too is reasonableness the
appropriate standard for issues concerning a Board member’s evaluation of the
evidence and credibility determinations (Pathmanathan v Canada (MCI), 2012 FC 519 at paras
27-30).
Analysis
A. Did the Board proceedings give rise to a reasonable
apprehension of bias?
[11]
The applicant claims that the member’s actions
gave rise to an apprehension of bias when he refused to appoint a designated
representative or to adjourn the preceding once aware of the applicant’s
difficult mental and physical situation. Related to this issue is the
submission that the member erred in his credibility assessments because of his
refusal to give proper consideration to the medical evidence suggesting that
the applicant was not able to properly participate in the proceedings.
[12]
With respect to the underlying issues said to
inform a claim of apprehension of bias, the respondent makes a twofold
argument:
(i)
First, no prejudice was occasioned the applicant
as a result of the member’s not appointing a designated representative or
adjourning the matter; and
(ii)
Second, the applicant demonstrated by his answer
to the member’s questions that he was capable of appreciating the nature of the
procedures such that he did not meet the requirements for the appointment of a
designated representative. Furthermore, in the circumstances that occurred at the
hearing, an adjournment was not denied, nor apparently required.
(i) No Prejudice
[13]
I am in agreement with the respondent that
regardless of the circumstances of the failure to appoint a designated
representative or to adjourn the matter, no prejudice occurred to the
applicant.
[14]
The impugned events occurred at the opening of
the hearing on April 6, 2010. The proceedings of that day were much truncated
due to the applicant’s physical condition of vomiting. As a result the hearing
was brief, limited only to questions about the appointment of a designated
representative and some preliminary considerations with respect to the personal
information form. In addition, the member provided some general explanations to
the applicant on how the matter would proceed in the future.
[15]
When the hearing resumed 11 months later in
March 2011, the member countermanded his earlier decision refusing to appoint a
designated representative. After further questioning of the applicant, he
concluded that he was not capable of appreciating the nature of the proceedings
and required assistance of a designated representative. The matter was then
adjourned and not brought back on until September of the same year. The
evidence upon which the decision was based was introduced after the appointment
of the designated representative.
(ii) The Initial Refusal to Appoint a Designated
Representative and Adjourn the Hearing
[16]
Although no direct prejudice can be said to have
resulted from the refusal to appoint a designated representative or adjourn the
proceedings, these issues nevertheless retain some relevance. The applicant
argues that the member’s conduct in originally refusing to appoint a designated
representative and not adjourning the matter when the applicant was obviously
not well should be considered as evidence of bias indirectly prejudicing the
applicant, a bias which contributed to the member’s negative conclusions about
the applicant’s conduct and credibility. Accordingly, I will deal with these
issues.
(i) Designated Representative
[17]
The member applied the correct test for
determining whether a designated representative should be appointed. Section
167(2) of the IRPA provides that a designated representative should be appointed
when the decision-maker is of the opinion that the person is unable to
appreciate the nature of the proceedings. I cite the provision below:
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(2) If a
person who is the subject of proceedings is under 18 years of age or unable,
in the opinion of the applicable Division, to appreciate the nature of the
proceedings, the Division shall designate a person to represent the
person.
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(2) Est
commis d’office un représentant à l’intéressé qui n’a pas dix-huit ans ou n’est
pas, selon la section, en mesure de comprendre la nature de la procédure.
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[Emphasis
added]
(ii) Representation
[18]
In light of these provisions, the member was
correct in concluding that he could not “appoint a designated representative
for someone who understands the hearing and the process”. The member was
entitled, and indeed I would say required, in the circumstances to question the
applicant to be able to determine whether he could appreciate the nature of the
proceedings.
[19]
Similarly he cannot be criticized for proceeding
to ask questions on this issue when it was the applicant who was seeking the
appointment of a designated representative and this information was required in
order to be able to accede to that request.
[20]
The member was also not required to rely upon
medical opinions produced by the applicant on this subject for this purpose. He
could reject these opinions if satisfied on the basis of the answers to his
questions that the applicant was capable of appreciating the nature of
proceedings.
[21]
As was demonstrated by the applicant’s capacity
to appreciate and participate in the process in answer to the member’s
questions, both before and after the request for the adjournment, sufficient
evidence resulted to support the member’s conclusion that the applicant was
capable of appreciating the nature of the proceedings.
(iii) Refusal to Adjourn
[22]
The issue concerning appointment of a designated
representative became entwined somewhat with the further issue of the member’s
alleged refusal to grant an adjournment. This came after the decision not to
appoint a designated representative. The evidence on this issue at page 14 of
the transcript is as follows:
Claimant: I heard before that
you mentioned you were going to accommodate me today. Right now I would like to
go to the hospital; are we going to continue now or can I …
Member: You were going to go to the hospital now?
Claimant: Yes, I am not feeling well …
Member: Do you need me to call
some hospital for you … I mean an ambulance for you?
Claimant: I want to see my
doctor to ask her why I am having these side effects [vomiting from the
medication].
Member: Oh, I understand that,
that is a good question and you should ask your doctor that. We are not going
to be very much longer, maybe another 15 minutes, 20 minutes or so. Do you
think you will be able to … to make it that long or no?
Claimant: Can I go to the washroom now?
Member: Yes, of course you can.
Member: [upon returning] Okay,
so I would just try to make some final comments. So I know the hearings can be
difficult, all refugee claims are difficult but this one may be more difficult
given the medication and the side effects and so on, but please try to relax,
there is … nothing will happen to you while you are here today or when we come
back the next time nothing will happen to you here.
[23]
From the foregoing evidence it is seen that
while the applicant originally demanded to be accommodated to permit him to
proceed to the hospital, when the offer was made to call an ambulance, he
indicated that he only wanted to ask his doctor why he was having side effects
from the medication. From that point where the urgency was considerably
downgraded, the member asked whether the applicant could last another 15 to 20
minutes. I interpret the applicant’s request to be excused to go to the
washroom and his return to the hearing as a voluntary response to the member’s
request. The member then tried to calm the applicant’s anxieties so as to
encourage him to engage in the process.
[24]
I am of two minds with respect to these facts.
If someone is debilitated such as by vomiting, normally there is no issue of
asking the witness to stay on, even if the purposes were to obtain some
preliminary information on the personal information form and explain the
process to the applicant.
[25]
However, one must recall that only the member
was in a position to judge what was appropriate. He had been told that the
applicant could not appreciate the nature of the proceedings, and that this
opinion was supported by medical evidence. But the member’s questioning led
him, with reason, to conclude otherwise.
[26]
First day anxiety at a hearing is also a common
occurrence. Somewhat like giving a speech, once over the initial anxiety the
person usually settles down. In this case, from the evidence in the transcript,
the member tried to assure the applicant of the situation after which the
applicant participated well in the process. By doing so he further demonstrated
that he was able to understand the proceedings and actively partake in them.
For example, a typical exchange after he returned was as follows:
Member: Well what about the
part about why you were afraid to go back to Peru; was that part read back to
you in Spanish?
Claimant: No, I am telling you
that a translation was done very fast because they had to submit it. They had
to submit it right away and they were going on holiday, vacation. And when I
said translation she is meaning to the answers, from Spanish to English …
Member: Yes, okay.
Claimant … not from English to Spanish.
Member: Okay and is the same
true of the attachments … the additional questions rather?
Claimant: I rather because the
personal information form was done in a rush that is why there were questions
not answered and that is why … you requested those …
Member: Yes, and who … who
helped you complete the additional questions?
Claimant: Same place, I went
back to them. I did not have anybody else.
[27]
I do not see any problem with the decision-maker
trying to keep a party or a witness engaged in the proceeding so as to avoid
wasting time and resources caused by adjournments and the like. In addition,
delay is a strategy resorted to in all forms of litigation, including in
immigration proceedings. Given the scarcity of costly court and administrative
tribunal resources, I see nothing untoward, and indeed would encourage some
gentle “testing” of requests for adjournment or statements of inability to
continue if the circumstances are appropriate.
[28]
I find the member’s handling of the situation
appropriate in this instance. He was not insensitive or unaware of the
applicant’ a situation and treated him with respect and consideration as he
attempted to deal with the issues before him. As a result, he succeeded in
engaging the applicant and completed those limited tasks that he had hoped to
accomplish so as not to entirely waste the time which had been booked, all
without prejudicing the applicant’s case.
[29]
I therefore find misplaced the strong criticism
directed at the member for how he handled the situation. There is no basis to
assume an apprehension of bias, partiality or unfairness in his conduct towards
the applicant, which allegation I reject entirely.
B. The Board’s Credibility Assessment and Consideration of
the Evidence
[30]
The applicant challenges the reasonableness of
the member’s decision based upon his alleged failure to take into consideration
the applicant’s psychological difficulties and his “microscopic” approach to
the evidence which prevented him from properly considering the totality of the
applicant’s claim.
[31]
On the first point, there is no basis to
conclude that the applicant’s medical condition and psychological disability
were not taken into consideration in assessing the applicant’s evidence. At
paragraphs 16 and 20 of the reasons and elsewhere, the member gives
consideration to the applicant’s psychological difficulties while discussing
his concerns about inconsistencies in the applicant’s testimony. For example,
he states at paragraph 16 the following:
[16] The
psychological reports do state the claimant might have difficulty with memory
or concentration, and that appears to have been the case here. On the other
hand, when the claimant does recall, he seems to be able to recount precisely
as stated in the narrative. It would appear the claimant’s memory does work
quite well sometimes.
[32]
In addition, in Kaur v Canada ((MCI),
2012 FC 1379 [Kaur] at para 33, Chief Justice Crampton noted that recent
Supreme Court jurisprudence “has significantly reduced the scope for setting
aside decisions of the Board on the basis that it did not consider or did not
sufficiently consider the contents of a psychologist’s report.” In Kaur
at para 36, the Court went on to find:
The fact that there
may be something in the psychologist’s report which provides an alternative
potential explanation for all or some [inconsistencies, contradictions or
omissions”] will not change the fact that those [inconsistencies,
contradictions or omissions], once confirmed through a review of the record,
provide a reasonable basis, or rational support, for the Board’s adverse
credibility finding and its ultimate conclusion.
[33]
I also do not find that the member’s analysis
was microscopic or too focused on credibility issues. His reasons are
admittedly detailed and extensive regarding the applicant’s credibility
problems. However, credibility findings were central to the rejection of the
applicant’s evidence. More importantly, the applicant did not challenge most of
the significant inconsistencies described by the member in his reasons, nor the
conclusion that there was no evidence linking Mr. Tecse to the death threats
upon which his case was founded.
[34]
The applicant also points to the failure of the
member to give weight to a newspaper clipping from 2007 reporting that the
applicant was being threatened with death through anonymous phone calls after
being denounced for ethnic racism by an association of artists represented by
Tecse. The member discounted the weight of this evidence due to its lack of
attribution to an author and given that it appeared to be printed in one of Peru’s less reputable and reliable news sources. The article contains no indictment against
Tecse, noting only that that the applicant was denounced by him in his
workplace.
[35]
Even if the member’s criticisms of the newspaper
article were somewhat anemic, the evidence was far from probative and did
little to support the claim in comparison with the detailed analysis in the
reasons describing extensive inconsistencies found in the testimony and story
of the applicant.
[36]
In consideration of all the foregoing, I
conclude that the decision of the member was reasonable and within the range of
possible outcomes based on the facts and law engaged in this matter.
[37]
Accordingly, the application is dismissed.
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