Date: 20030227
Docket: IMM-1621-02
Neutral citation: 2003 FCT 249
Toronto, Ontario, Thursday, the 27th day of February, 2003
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
CHARLOTTE TCHIEGANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Proceeding
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), rendered February 14, 2002, wherein Charlotte Tchiegang (the "Applicant") was found not to be a Convention Refugee.
Background
[2] The Applicant is a 33 year old female citizen of Cameroon. She claims that she is afraid of the government and the security forces in Cameroon. She fears returning to Cameroon because she is HIV positive and she would not be able to access treatment in her country, would be an outcast and would have no support. She also fears returning to Cameroon because she was not officially released from prison.
[3] According to the Applicant's Personal Information Form (PIF), her political activities started during the election campaign in 1996 when she formally joined the opposition party, the Social Democratic Front (SDF). The Applicant states that she took an active part in this election campaign and that she continued to take part in various SDF initiatives after the election.
[4] In January 2000, demonstrations against the policy of the government and the discrimination of the English speaking provinces took place. On January 9, 2000, the Applicant went to Buea with many other SDF members in order to take part in a demonstration to support independence for the English speaking northwest and southwest provinces. This demonstration was broken up by the Gendarmerie Nationale and local police forces who opened-fire on the crowd, killing many on the spot and wounding many others. In her PIF, the Applicant states that she was arrested and put in prison. She later heard in prison that opposition leaders such as James Sabum, Justice Ebnong and chief Ayamba were also arrested that day. During her one month stay in prison, the Applicant states that she suffered degrading and inhumane treatment, was tortured and sexually abused.
[5] On February 22, 2000, the Applicant was escorted by a prison guard to her brother-in-law, who arranged for her to come to Canada. She arrived in Canada on February 23, 2000 and claimed refugee status on September 25, 2000.
[6] One week after she arrived in Canada, the Applicant became ill and had to spend a week in the hospital. Approximately a week after she was discharged from the hospital, she was informed by her doctor that she was HIV positive. The Applicant did not disclose this information in her PIF because she felt that it was a personal matter and not relevant to her refugee claim. The Applicant testified at the hearing that her HIV had developed into full-blown AIDS.
The Board's Decision
[7] The Board found inconsistencies in the evidence and concluded that the Applicant's claim was not credible. The Board did not accept that the Applicant was politically active in Cameroon as she claimed.
[8] The Applicant produced her current SDF membership card. However, she had difficulty recounting the number of prior SDF membership cards that she had and was unable to provide consistent evidence as to where she had left those cards. The Applicant also testified that her membership in SDF was not the reason that she was in Canada; as a result, she did not think that she had to contact SDF to obtain a letter. The Board found the Applicant's refusal to approach the SDF for a letter demonstrated her lack of credibility. In addition, her political knowledge was not consistent with her claimed profile as a political activist in her PIF. The Board expected that if the Applicant was active in the SDF as she claimed, she would have been aware of the details of the elections.
[9] The Board did not accept that the Applicant took part in the rally on January 9, 2000. The Applicant did not provide any news articles on this rally or its outcome; the Board would expect that if a rally of this magnitude took place and a number of people were killed, wounded or arrested, that this would be reported in the newspapers. The Applicant's reference to the opposition leaders who were imprisoned as a result of the Buea rally was incorrect. Those leaders were actually imprisoned for participating in a rally that took place in Limbe. The Board found that the Applicant's evidence regarding the Southern Cameroon National Council, the location of the rally and the purpose of the rally brought forth at the hearing was an attempt on her part to have the evidence in her narrative confirm with the documentary evidence. The Board preferred the documentary evidence to that of the Applicant.
[10] The Board did not accept that the Applicant was imprisoned for participation in the rally as claimed. Even if the Applicant was imprisoned, there was not sufficient credible and trustworthy evidence that she was not officially released from prison and therefore faces a serious possibility of persecution on that basis.
[11] The Board did not find sufficient credible or trustworthy evidence that the Applicant faced a serious possibility of persecution for a Convention ground in Cameroon because of her HIV positive status or AIDS disease. There was no documentary evidence before the panel as to the treatment of persons in Cameroon with this disease. The Board did not find it credible that the Applicant did not know that she was HIV positive before she came to Canada.
Analysis
[12] For the reasons that follow, I am the view that this application should be dismissed.
Issue #1: Is there a reasonable apprehension that the Board was bias against the Applicant?
[13] In the Applicant's submission, the Presiding Member's treatment of her during the hearing raises a reasonable apprehension of bias. In support of this submission, the Applicant referred to a number of cases where similar behaviour on the part of a decision-maker was found to raise a reasonable apprehension of bias (e.g. Asante v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 405 (T.D.) (QL); Mannikkavasagar v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1675 (T.D.) (QL); Saleh v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 745 (T.D.) (QL)).
[14] The test for a reasonable apprehension of bias was set out by de Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394-95 as follows:
... the 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. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
... The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience.
[15] The threshold for a finding of real or perceived bias is high (R. v. R.D.S., [1997] 3 S.C.R. 484). The onus of demonstrating bias lies with the person alleging its existence; in this case the Applicant. If the words or conduct of the decision-maker, when viewed in their entire context, do not give rise to such an apprehension, the findings of the decision-maker will not be tainted, no matter how troubling those comments or conduct are (R.D.S., supra).
[16] The jurisprudence of this Court indicates that extensive and energetic questioning by a decision-maker will not in and of itself give rise to a reasonable apprehension of bias, particularly where the purpose of that questioning is to focus the Applicant's evidence and to clarify her answers (Hernandez v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 680 (C.A.) (QL); Osuji v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 539 (T.D.) (QL); Paramo-Martinez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 261 (T.D.) (QL); Elaweremi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1236, [2001] F.C.J. No. 1691 (QL)). In addition, efforts by the decision-maker to speed up or control the proceedings will not necessarily give rise to a reasonable apprehension of bias (Hernandez, supra; Paramo-Martinez, supra). Finally, "an expression of momentary impatience of loss or equanimity" on the part of a decision-maker or tribunal will generally not give rise to a reasonable apprehension of bias (Paramo-Martinez, supra at para. 16; Elaweremi, supra).
[17] A review of the transcript indicates that the Presiding Member questioned the Applicant extensively and energetically on a variety of the issues before the Board. It is apparent from the transcript that the purpose of the questions asked by the Presiding Member was to focus and clarify the Applicant's evidence. The Applicant was distressed while giving her evidence; as a result, she did not always testify in a clear manner. The Presiding Member's questions served to focus that evidence and generally assisted the Applicant in putting forth her story in a complete and coherent manner.
[18] There is no question that the Presiding Member demonstrated frustration and impatience at some points in the transcript; as for example when the Applicant was being questioned about the past membership cards and about when she was first aware that she was HIV positive. Further, the questions posed with respect to her work permit, volunteer work and the disclosure of her health status were insensitive and not relevant to the Board's determination. Nevertheless, it would be a very large stretch to find that this established that the Presiding Member had "a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues". (R.D.S., supra at para. 105).
[19] The threshold for finding an apprehension of bias is high; the Presiding Member's energetic and extensive questioning and impatience, although sometimes troubling, do not meet this threshold.
Issue #2: Did the Board ignore relevant evidence and make findings unsupported by the evidence in its analysis of the Applicant's credibility?
[20] The Applicant submitted that the Board's negative credibility findings were not supported by the evidence, the Board's reasons for disbelieving the Applicant were inadequate and the Board's examination of the evidence was microscopic (Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL); Armson v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 800 (C.A.) (QL); Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (C.A.) (QL)).
[21] A high level of deference should be accorded to the decisions of the Board made on the basis of a credibility finding, because the Board has the benefit of hearing the testimony of the witnesses (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 at para. 4 (C.A.) (QL)). The appropriate standard of review of credibility determinations of the Board is patent unreasonableness, which means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor, supra; Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.) (QL); Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1). The "patently unreasonable test sets a high standard of review" (Canada (AG) v. Public Service Alliance of Canada, [1993], 1 S.C.R. 941 at 963). The Board is permitted to make a negative credibility finding based on implausibilities alone (Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (C.A.) (QL); Muthiyansa v. Canada (Minister of Citizenship and Immigration), 200 FCT 17, [2001] F.C.J. No. 162 (QL)). However, the Board must give reasons for its negative credibility finding in clear and unmistakable terms (Hilo, supra).
[22] The Board found that the Applicant's claim was not credible based on the inconsistencies and implausibilities in her evidence. The Board gave reasons for this finding in clear and unambiguous terms. In particular, the Applicant was unable to provide consistent evidence regarding the whereabouts of her expired SDF membership cards; her testimony on the SDF rally of January 9, 2000 was inconsistent with the documentary evidence; the Applicant was unaware of the details of the elections in Cameroon, despite claiming that she was active in the SDF; the Applicant assumes she was not officially released, but never made any enquiries surrounding the circumstances of her release; she did not mention her HIV positive status in her PIF; and the Applicant did not know when she found out she was HIV positive. In addition, there was no documentary evidence before the Board on the treatment of HIV positive individuals in Cameroon.
[23] These inconsistencies are supported by the transcript and other information in the Certified Tribunal Record. The Board, overall, demonstrated a grasp of the issues and the conclusions it drew were open to it on the record.
[24] Therefore, the Board did not err in making its negative credibility findings, and its decision cannot be overturned on this ground.
Issue #3: Was fundamental justice denied to the Applicant by the Board's failure to have the RCO or Applicant's counsel seek evidence of the treatment of persons who are HIV positive and/or living with AIDS in Cameroon?
[25] Finally, the Applicant submitted that the Board should have advised the Applicant and her counsel that they would require some documentary or expert evidence on the treatment of persons with HIV and AIDS in Cameroon. In the Applicant's submission, the Board had a duty to inform the Applicant of the case that she had to meet and to give her an opportunity to respond to that case; the failure of the Board to do this constitutes a denial of natural justice (Muliadi v. (Canada) Minister of Employment and Immigration, [1986] 2 F.C. 205 (C.A.); Johal v. (Canada) Minister of Employment and Immigration, [1987] F.C.J. No. 918 (T.D.) (QL)). The Applicant further argued that the fact that Applicant's counsel may have been negligent in not seeking such evidence as soon as he learned of the new issue does not relieve the Board of its obligations to the Applicant (Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (C.A.)). The Applicant referred to a number of decisions of the Board where refugee claimants from various countries were found to have a well-founded fear of persecution because of being HIV positive or suffering from AIDS.
[26] In a refugee hearing, the obligation is on the Applicant to place all of the information that is relevant and necessary to prove her claim before the Board. However, the Applicant must be informed of the case that she has to meet (Muliadi, supra).
[27] On two occasions during the hearing, the Presiding Member indicated her concern regarding the lack of documentary evidence on the problems of HIV positive persons in Cameroon. In my view, the statements by the Presiding Member were sufficient to inform the Applicant of the case she had to meet (Muliadi, supra). The Applicant was then required to provide the Board with all of the necessary and relevant evidence. Her failure to do so is not a reviewable error.
[28] The Applicant submitted that the failure to provide this evidence was the fault of her then counsel and that she should not be penalized for his omission.
[29] In Shirwa, supra, at pages 60 and 61, Denault J. discussed the jurisprudence on incompetent counsel:
While each of the foregoing cases involve a different type of misconduct on the part of counsel, it seems clear that the incompetence of counsel in the context of a refugee hearing provides grounds for review of the tribunal's decision on the basis of a breach of natural justice. The criteria for reviewing such a decision are not as clear, but it is possible to derive a number of principles from these cases. In a situation where through no fault of the applicant the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred...
In other circumstances where a hearing does occur, the decision can only be reviewed in "extraordinary circumstances", where there is sufficient evidence to establish the "exact dimensions of the problem" and where the review is based on a "precise factual foundation." These latter limitations are necessary, in my opinion, to heed the concerns expressed by Justices MacGuigan and Rothstein that general dissatisfaction with the quality of representation freely chosen by the applicant should not provide grounds for judicial review of a negative decision. However, where the incompetence or negligence of the applicant's representative is sufficiently specific and clearly supported by the evidence such negligence or incompetence is inherently prejudicial to the applicant and will warrant overturning the decision, notwithstanding the lack of bad faith or absence of a failure to do anything on the part of the tribunal.
[30] In my view, the facts of this case do not support the conclusion that the Applicant's then counsel was negligent. The threshold for a finding of negligence on the part of counsel is high; the evidence in this case does not meet the standard set out by Denault J. in Shirwa, supra. The comments of the Applicant's then counsel, at page 175 of the Certified Tribunal Record, indicate that he looked for this documentary evidence but could find nothing.
[31] Moreover, the Applicant's testimony indicates that she did not fear persecution because of her illness; rather, she feared inadequate medical treatment and isolation from her family and friends. The Applicant referred to a number of decisions of the Board where refugee claimants from various countries were found to have a well-founded fear of persecution because they were HIV positive or suffering from AIDS. However, the determination of whether an individual is a Convention refugee is fact-specific. As a result, the mere fact that other claimants were granted Convention refugee status based on similar grounds is not sufficient to establish that this particular Applicant should be granted Convention refugee status.
[32] In addition, the fear of the lack of adequate medical treatment, without a clear link to a Convention ground, does not constitute persecution (Mare v. Canada (Minister of Citizenship and Immigration), 2001 FCT 450, [2001] F.C.J. No. 712 (T.D.) (QL)). The Applicant did not provide the Board with any evidence that she would be denied medical treatment based on a Convention ground. As a result, there was no basis for the Board to grant Convention refugee status on this ground.
[33] Since there was no question proposed for certification, none will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review be dismissed. There is no question of general importance for certification.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1621-02
STYLE OF CAUSE: CHARLOTTE TCHIEGANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 25, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: THURSDAY, FEBRUARY 27, 2003
APPEARANCES BY: Ms. Carole S. Dahan
For the Applicant
Mr. Greg G. George
For the Respondent
SOLICITORS OF RECORD: Carol S. Dahan
Parkdale Community Legal Services
1266 Queen Street West
Toronto, Ontario
M6K 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030227
Docket: IMM-1621-02
BETWEEN:
CHARLOTTE TCHIEGANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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