Date: 20050204
Docket: IMM-4230-04
Citation: 2005 FC 174
BETWEEN:
JOSEPH NIYONKURU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DE MONTIGNY J.
[1] This is an application for judicial review from a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board). According to that decision dated April 16, 2004, the applicant is not a Convention refugee or a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).
FACTS
[2] The applicant is a citizen of Burundi. He studied in law and taxation and worked for the Ministry of Finance as a civil servant before coming to Canada. He is of mixed origin, the child of a Hutu father and a Tutsi mother. He claimed refugee status, alleging a well-founded fear of persecution for his perceived political opinion and his mixed ethnic origin.
[3] In July 2000, when he was going to visit his parents and to see his cattle and plantations, he said that he was approached by individuals and asked to meet with the commander of the FNL Palipehutu. He stated that these individuals asked him to support their cause. When the applicant refused, the commander asked him to pay for 50 pairs of shoes for the new recruits and to contribute each month. To save his life, the applicant said he promised to deliver the shoes and contribute: however, he did not keep his promises and did not support the cause.
[4] Two months later, the commander sent for him again but the applicant refused to meet him. The applicant claimed that he then began receiving telephone calls threatening him and calling him a traitor.
[5] In May 2001, the applicant alleged that the rebels killed all his cattle in reprisal. He telephoned the commune police to report the rebels' actions. He subsequently left his country and came to Canada on August 5, 2002, for training relating to his work. He applied for refugee status one month later, on September 9, 2002.
Board's decision
[6] The Board first considered whether the evidence justified excluding the applicant pursuant to paragraph 1(F)(a) of the Refugee Convention, in view of the applicant's allegations that he had been forced to contribute to the rebel cause. That provision reads as follows:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes . . .
[7] In view of the fact that at the hearing the applicant maintained that he had never delivered the shoes or contributed financially to the rebel cause, though he had promised to do so in order to save his skin, the panel came to the conclusion that the evidence was insufficient for it to exclude the applicant under the abovementioned of the Convention paragraph. It nonetheless expressed doubts as to the truth of the applicant's allegations, stating that in its opinion he had changed his version of the facts when the possibility of exclusion was mentioned.
[8] On the other hand, the panel did not assign any weight to the applicant's fear of return, on the ground that his actions were not consistent with those of a person who feared for his life. In the panel's view the reasons given by the applicant to explain the delay in claiming refugee status were "childish" and indicated a lack of subjective fear.
[9] Those reasons, reported by the panel, were the following: he did not know he could claim protection at the airport; at that time he had many concerns; he believed it would be rude not to honour the invitation for training; he had to have time to seek advice from his co-nationals; the training was very demanding; and finally, it was not until the end of the training period that he said he was able to contact a co-national.
Parties' arguments
[10] The applicant first maintained that, by adjourning the hearing to allow the Minister to intervene and present his arguments regarding the applicant's possible exclusion, the panel had demonstrated bias and loss of impartiality. However, it should be stated that at the hearing counsel for the appellant did not insist on this point.
[11] Additionally, the applicant repeated that he never followed through on his promises, and in any event that could not be a ground of exclusion since in the circumstances his complicity could be explained by the threat made against him.
[12] Finally, counsel for the applicant argued that the panel's decision on the applicant's lack of subjective fear was illogical and contradictory: the panel could not invite the Minister to intervene on the basis of facts related by the applicant and then change its mind and attach no credibility to his testimony on account of the delay, when the Minister decided not to intervene. At the hearing, it was also argued that the applicant in any case had a visitor's visa which allowed him to validly reside in Canada until January 16, 2003, and that a delay of one month was not unreasonable for a decision of such importance.
[13] The respondent, for his part, maintained that a decision-maker does not lose his impartiality simply because he has ruled against a party in a prior case. What is more, he added that the fear of bias should be raised at the first opportunity, otherwise the applicant is deemed to have waived his right to make this argument later.
[14] Further, the respondent considered that it was not illogical to find there was insufficient evidence to apply the exclusion clause (even though the panel had doubts regarding the delivery of the shoes or the financial contribution), and then decide that the applicant's actions were inconsistent with the existence of a subjective fear. The respondent noted that the applicant had not established that he had a subjective fear, given the delay in leaving his country and claiming refugee status once he arrived in Canada.
Point at issue
[15] Two questions must be decided in connection with the application for this judicial review: (1) did the Refugee Protection Division of the Immigration and Refugee Board demonstrate bias by suspending the hearing to allow the Minister to seek exclusion of the applicant? (2) did the Board conclude that the applicant had no subjective fear based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it?
Analysis
[16] Turning first to the apprehension of bias alleged by the applicant, I feel this is unfounded. The mere fact that the member of the Board suspended the hearing to allow the Minister to make submissions on exclusion of the applicant did not in any way vitiate his impartiality, and nothing in the transcript of the hearing suggests that he had any bias against the applicant. By acting in this way the panel was not taking any position, simply trying to ensure that the question of exclusion would be decided on the basis of the arguments which both parties might make.
[17] It should further be noted that, by giving the Minister notice that the instant application might involve reference to paragraph 1(F)(a) of the Refugee Convention, the panel was only complying with subsection 23(1) of the Refugee Protection Division Rules (SOR/2002-228), which provides:
23. (1) Notice to the Minister of possible exclusion - before a hearing - If the Division believes, before a hearing begins, that there is a possibility that sections E or F of Article 1 of the Refugee Convention applies to the claim, the Division must notify the Minister in writing and provide any relevant information to the Minister.
[18] Subsection 2 of that section, which gives the panel the same power during a hearing, is even more explicit as to the reason for the procedure: it states that such notice must be given if the panel "is of the opinion that the Minister's participation may help in the full and proper hearing of the claim".
[19] Even assuming that staying the proceeding could be likened to an interlocutory decision, it is well settled that the mere fact that a decision-maker hears a case involving a party when in an earlier proceeding he or she had rendered judgment against the party does not compromise his or her ability to be impartial (see inter alia Arthur v. M.E.I., [1993] 1 F.C. 94; Ahani v. M.C.I., [2000] F.C.J. No. 1114 (QL)).
[20] Finally, it is clearly established that an apprehension of bias must be mentioned at the first opportunity, and that if this is not done the applicant is presumed to have waived his or her right to raise such an apprehension subsequently ([1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; MacBain v. Lederman, [1985] 1 F.C. 856; Human Rights Tribunal v. Atomic Energy of Canada, [1986] 1 F.C. 103; Del Moral v. M.C.I., [1998] F.C.J. No. 782 (QL); Wijekoon v. M.C.I., [2002] F.C.J. No. 1022). In the case at bar, this argument is fatal to the applicant since there is nothing to indicate that he raised this apprehension of bias before the Board.
[21] As to the conclusions drawn by the Board regarding the applicant's credibility, it is not in dispute that the applicable standard of review is that of the patently unreasonable decision (Aguebor v. M.C.I., [1993] F.C.J. No. 732 (QL); Chen v. M.C.I., [1999] F.C.J. No. 551; Yu v. M.C.I., [2003] F.J.C. No. 932). Consequently, the question we must ask ourselves is whether, based on his testimony and the circumstances in which he claimed refugee status, it was unreasonable for the RPD to conclude that the applicant had not established a subjective fear of returning to his country.
[22] The Board attached considerable importance to the fact that the applicant had let a month go by before claiming refugee status. Clearly this was a relevant point which the panel could take into account in assessing the applicant's credibility, even if it could not be a determinative factor in itself (Huerta v. M.C.I. (1993), 157 N.R. 225, [1993] F.C.J. No. 271 (F.C.A.) (QL); Rahim v. M.C.I., [2005] F.C.J. No. 56 (QL)).
[23] It is true that the applicant had a visa which allowed him to remain in Canada until January 2003. The fact remains that his actions were not those of someone truly fearing for his life if he were to return home. Not only are the reasons he gave for waiting for the end of his training before going to the Immigration Canada office unconvincing, but it was also apparent from the transcripts that he had the time to travel on weekends.
[24] Even if one were inclined to believe the applicant when he mentions his workload during the training as an explanation for his delay, there is other evidence which undermines his credibility. In particular, consider the fact that the applicant waited over two years after being approached by the rebel commander and over one year after his cattle were killed to leave his country, together with the ambiguity surrounding the position taken by him following his first meeting with the commander of the FNL Palipehutu.
[25] All things considered, and after a careful review of the evidence and the Board's decision, the Court considers that the panel's determination regarding the applicant's credibility was not unreasonable and could be inferred from the facts placed before it.
[26] For these reasons, this Court would not be justified in intervening and setting aside the panel's decision. Additionally, the parties did not propose any serious question of general importance for certification.
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(s) "Yves de Montigny"
Judge
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Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4230-04
STYLE OF CAUSE: JOSEPH NIYONKURU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: January 26, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice de Montigny
DATED: February 4, 2005
APPEARANCES:
Dan Bohbot FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dan Bohbot FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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