Date: 20041202
Docket: IMM-9774-03
Citation: 2004 FC 1690
Toronto, Ontario, December 2nd, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
NIURKA NIEBLA GALVEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Niurka Niebla Galvez is a citizen of Cuba. She claims to fear persecution by Cuban governmental authorities by reason of her perceived political opinion and membership in a social group - that is, those who do not want to join political parties. She also claims to be a person in need of protection.
[2] Ms. Galvez' claim for refugee protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board.
[3] She now seeks to have the Board's decision set aside, asserting that she was denied a fair hearing by the Board. She further argues that several of the Board's credibility findings were patently unreasonable, and that the Board overlooked important evidence with respect to the risk that she would face if she were forced to return to Cuba.
Was Ms. Galvez Denied a Fair Hearing by the Board?
[4] Ms. Galvez points to several instances in the transcript where, she says, the actions of the presiding member prevented her from properly presenting her case. I have carefully reviewed the transcript, and see no merit whatsoever in this submission.
[5] The first incident referred to by counsel for Ms. Galvez consisted of the presiding member telling Ms. Galvez that she should listen to the question being asked and to try to answer these questions. I see nothing inappropriate about this admonition.
[6] It is notable that the Board member's intervention immediately follows a request from Ms. Galvez' own counsel that she not keep repeating her answers.
[7] Ms. Galvez next refers to a point in the hearing where the presiding member asks her if she was alright, and whether she needed a break. She submits that this showed that she was under stress in the hearing. There is no doubt that testifying in a legal proceeding is very stressful, particularly where the allegations in issue are of the nature routinely heard by the Board. However, in this regard, the transcript reveals nothing more than solicitude on the part of the presiding member towards Ms. Galvez.
[8] At another juncture, the presiding member asked Ms. Galvez to let the RPO complete his questions before she tried to answer them. This is an eminently reasonable request, as it becomes difficult to transcribe the hearing when more than one person is speaking at a time.
[9] I am also not persuaded that the fact that Ms. Galvez evidently had a headache during the hearing somehow compromised the fairness of the process. Ms. Galvez was represented before the Board by experienced immigration counsel. If she was too ill to continue, no doubt counsel would have sought an adjournment on her behalf. Further, it is noteworthy that Ms. Galvez does not assert that her ability to put her case forward was compromised by illness.
[10] Finally, counsel points to an exchange between Ms. Galvez and the presiding member, where Ms. Galvez accuses the member of telling her to keep quiet. Counsel for Ms. Galvez concedes that the member never told Ms. Galvez to keep quiet, but submits that the question is
whether Ms. Galvez felt limited in her ability to present her story and apprehended bias on the part of the presiding member.
[11] The test as to whether a reasonable apprehension of bias exists in a given set of circumstances is well-known. In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369, the Supreme Court of Canada described the test as "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude?". The test is an objective one.
[12] Even taking all of the incidents referred to cumulatively, I am not persuaded that a reasonable person would have apprehended bias on the part of the presiding member in this case. This is so even if I were to accept that the comments referred to above were made in a sharp tone of voice. Having reviewed the transcript, I am also not persuaded that Ms. Galvez was at all limited in her ability to present her case.
Were the Board's Credibility Findings Patently Unreasonable?
[13] The Board found that Ms. Galvez was not credible. Its conclusion was based on a number of inconsistencies between Ms. Galvez' Personal Information Form (or 'PIF'), and her testimony at the hearing. Further, the Board noted that Ms. Galvez had omitted to mention a number of significant events in her PIF.
[14] The Board noted that in her PIF, Ms. Galvez described having organized a "rally" in memory of neighbours who had drowned while trying to escape from Cuba. In her oral testimony, Ms. Galvez described the event as a "wake". Counsel for the respondent conceded that when viewed in context, the two terms were not really inconsistent. However, counsel submitted that this, by itself, was an insufficient basis for setting aside the Board's decision. I agree.
[15] The other alleged error identified by Ms. Galvez with respect to the Board's credibility findings has to do with her claim to having been arrested and psychologically tortured by Cuban authorities in 1999. The Board noted that this was a significant incident which had not been mentioned in her PIF, concluding from this that Ms. Galvez was embellishing her story on this point.
[16] Ms. Galvez points to a reference in her PIF to her having been arrested, submitting that this demonstrates that the Board was in error on this point. However, a review of Ms. Galvez' PIF discloses that the reference cited by counsel relates to an arrest in 2002. The Board was quite correct in noting that Ms. Galvez made no mention of a 1999 arrest in her PIF.
Did the Board Overlook Evidence with Respect tothe Risk Faced by Ms. Galvez in Cuba?
[17] The final argument advanced by Ms. Galvez relates to the risk that she says that she would face if she were forced to return to Cuba, given that she overstayed her exit permit. In this regard, Ms. Galvez points to an IRB document dated June 1, 2001, dealing with the Cuban authorities' treatment of people who had overstayed their exit visas. This document indicates that people who have been found to have overstayed their exit visas could lose their residence, their property, their job and their food rations.
[18] The Board applied the Federal Court of Appeal's decision in Valentin v. Minister of Employment and Immigration, [1991] 3 F.C. 390, and found that a law concerning unauthorized exits or overstays is a law of general application and not a form of persecution. The Board noted that people who have not suffered persecution in their home country should not be allowed to create the basis for a refugee claim by violating such a law.
[19] The Board also cited the decision in Castaneda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1090, which held that the penalties in Cuba for violation of the laws governing unauthorized exits or overstays were no more excessive than those in Valentin.
[20] I am not persuaded that the Board erred in this regard. Firstly, the failure of an adjudicator to mention specific documents does not mean that he or she did not take the
documents into account in coming to a decision: see Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102">[1973] S.C.R. 102 and Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946.
[21] Moreover, the report cited by Ms. Galvez also notes that repression against human rights advocates is on the decline in Cuba, and that an illegal exit is no longer considered to be a political crime. Further, while noting that a number of factors determine how a person is treated on his or her return to Cuba, the document also states that generally, the punishment is not incarceration, but "possible job loss and various minor administrative annoyances".
Conclusion
[22] For these reasons, the application is dismissed.
Certification
[23] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious questionof general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9774-03
STYLE OF CAUSE: NIURKA NIEBLA GALVEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: DECEMBER 1, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: DECEMBER 2, 2004
APPEARANCES BY:
Ms. Christina Gural For the Applicant
Ms. Catherine Vasilaros For the Respondent
SOLICITORS OF RECORD:
Christina Gural
Barrister & Solicitor
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20041202
Docket: IMM-9774-03
BETWEEN:
NIURKA NIEBLA GALVEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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