Amaya v. Canada (Minister of Citizenship and Immigration), docket IMM-166-98

Date: 19990108

Docket: IMM-166-98

     OTTAWA, ONTARIO, FRIDAY, JANUARY 8, 1999

     PRESENT:      MR. JUSTICE TEITELBAUM

BETWEEN:

MARIANO VASQUEZ AMAYA

     Applicant

AND:

     MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     ORDER

     The application for judicial review is dismissed and the following question is certified:

May the panel members, on their own initiative, obtain information on the issue before them, whether that information comes from Canadian sources or foreign sources, and then confront the claimant with that information, knowing that the person who provided them with the information cannot be cross-examined?

                                 Max M. Teitelbaum

                            

                                 J.F.C.C.

Certified true translation

Peter Douglas

Date: 19990108

Docket: IMM-166-98

BETWEEN:

MARIANO VASQUEZ AMAYA

     Applicant

AND:

     MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

INTRODUCTION

[1]      This is an application for judicial review of a decision of the Immigration and Refugee Board, dated December 15, 1997, which determined that the applicant is not a "Convention refugee". The applicant is seeking to have the Court quash that decision and order that a hearing be held before different Board members.

FACTS

[2]      The applicant, a citizen of Honduras, claims refugee status for reasons of membership in a particular social group. The facts below are taken from the Board"s decision of December 15, 1997. According to the applicant, he worked at the Terraza hotel in San Pedro Sula from April 1990 to June 1996. In April 1994, he was involved in forming a union and agreed to be the coordinator. In May 1996, he demanded improvements in working conditions, which to some extent were agreed to by the employer. Also in May, the hotel owner told the applicant that he had learned of his union involvement from people in the Criminal Investigations Directorate (Dirección de Investigación Criminal"DIC) who were in a position to know. On June 2, 1996, the hotel owner summoned the applicant to tell him that he was putting the applicant in charge of the employees of an affiliated Spanish restaurant. This promotion brought the applicant a considerable wage increase in addition to room and board.

[3]      According to the applicant, three incidents took place after that. First, he says that he was attacked and robbed by two armed individuals on November 29, 1996. He went to the DIC office to file a complaint. He said that he was asked for money to conduct an investigation and that he recognized one of his attackers at the DIC office. Second, he says that two individuals threatened him when he went back to work on December 22, 1996, but that he did not file a complaint with the DIC because he was convinced that the attack had been orchestrated by individuals at the DIC. As a result of these incidents, the applicant decided to quit his job at the restaurant. Third, he asserts that he was followed by two individuals while leaving home to look for work on January 3, 1997.

[4]      The applicant left Honduras for Guatemala, where he allegedly remained until February 15, 1997. He then stayed in Mexico until April 30, 1997, and came to Canada on May 18, 1997, after crossing the United States.

ISSUE

[5]      Did the Immigration and Refugee Board err in law or in fact in making its decision, or fail to observe a principle of natural justice?

REPRESENTATIONS OF THE PARTIES

[6]      The applicant raises four grounds in support of his application for judicial review. However, he did not make oral submissions on the first issue.

(1)      The Board erred in the assessment of the oral evidence. The decision indicates that the applicant filed two complaints, whereas the transcript of the hearing shows that he filed only one complaint.

(2)      The Board disregarded the evidence when it based its decision on the finding that the attacks and threats were unrelated to the Terraza hotel union activities. The applicant argues that the attacks on him are related to the activities at the restaurant in Ciguantepeque, not the Terraza hotel. After getting his promotion, he encouraged the employees of that restaurant to demand wage increases, and that is what triggered the attacks and threats.

(3)      The Board"s decision indicates that there is nothing in the evidence to suggest a connection between the employer and the DIC. The applicant argues that his testimony shows that there is a connection and that the Board should have had regard to such extrajudicial evidence.

(4)      The applicant argues that the Board erred in law in having regard to the information obtained from the personnel director at the Terraza hotel about the formation of the union. The information was obtained outside Canada, whereas the Immigration Act does not allow commissions and requests outside Canada. Furthermore, the evidence is not credible because the director was hired after the union was formed, and he cannot testify about a time when he was not there.

[7]      In response to the applicant"s arguments, the respondent argues that the Board"s decision is not based on the number of complaints filed with the DIC, but rather on the applicant"s lack of credibility and the lack of fear of persecution associated with the union activities. The respondent argues that in light of all the evidence, the Board was justified in finding no causal connection between the applicant"s alleged union activities and the attacks and threats. With respect to the extrajudicial admission, the respondent submits that it is merely one part of the applicant"s testimony and is insufficient to establish the alleged complicity. The other facts in the record for the most part tend to contradict that statement. Last, the respondent submits that under subsection 68(3) of the Immigration Act , the Refugee Division is not bound by any legal or technical rules of evidence. Furthermore, the personnel director"s response to the information request includes general information admissible in evidence, on which the Board was not required to allow cross-examination.

ANALYSIS

Error with respect to the number of complaints filed with the DIC

[8]      The applicant argues that the Board erred in the assessment of the facts in that the decision indicates that he filed two complaints with the DIC, whereas the oral evidence shows that he went only once to the DIC because he suspected that the DIC was responsible for the attacks. The respondent submits that the decision is not based on the number of complaints filed by the applicant, but rather on the applicant"s lack of credibility and the lack of fear of persecution associated with his union activities.

[9]      Like the respondent, I am of the view that the error is inconsequential and that the Board"s decision is not based on it. It is not an error that warrants the Court"s intervention.

Causal connection between the union activities and the attacks and threats

[10]      The applicant argues that the Board erred in finding no causal connection between the union activities and the attacks and threats about which he complained. The applicant argues that the Board disregarded the evidence, since it appears from the evidence that the attacks and threats happened after he was promoted to the restaurant, because he allegedly encouraged the employees to demand wage increases. The applicant quotes the following passage from the Board"s decision to show the alleged error:

[TRANSLATION] As for the attacks, the panel cannot find them to be connected to the claimant"s union activities, especially as his union involvement was never mentioned in the attacks or in the threats he allegedly received. He had not been working at the Terraza hotel for some months when they supposedly occurred.

[11]      The respondent points out in this respect that all of the facts in evidence underlie the Board"s finding that there was no connection between the union involvement and the attacks. In finding that the applicant was not credible, the Board had regard, inter alia , to the facts in evidence that support a lack of connection, including the employer"s behaviour, the fact that there were no confrontations, the applicant"s promotion, and the fact that the applicant was not assigned to a different job in order to get rid of him.

[12]      In my view, this argument of the applicant"s is unsound. The passage he quotes does not show that the Board failed to have regard to the facts, or that it misjudged the facts behind the attacks and threats. The Board is not obliged to refer in its reasons for decision to all of the evidence that was before it: Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73. Furthermore, it appears from the Board"s reasons that the decision is based, inter alia , on a fair amount of evidence and the applicant"s credibility. In my opinion, the Board made no unreasonable error in the assessment of the evidence or the applicant"s credibility in making its decision.

Finding of fact on the connection between the employer and the DIC

[13]      The applicant argues that the Board erred in finding [TRANSLATION] "nothing in the evidence" to suggest a connection between the employer and the DIC. The applicant submits that the Board disregarded his testimony to that effect and was required to have regard to that evidence/extrajudicial admission. As the respondent points out, and I agree with this statement, the Board is master of the assessment of the facts, and it has all the discretion required to assess their credibility and weight. The Board may thus give greater weight to documentary evidence than to oral evidence: M.E.I. v. Zhou , A-492-91, July 18, 1994. In the case at bar, the Board heard the applicant"s testimony on the admissions his employer purportedly made to him, and it cannot be claimed that the Board disregarded that evidence merely because the decision says that [TRANSLATION] "there is nothing in the evidence to suggest a connection". In my opinion, that expression cannot be taken literally. In my view, that passage indicates that the evidence does not show a connection between the employer and the DIC. In fact, it also appears from the decision that the Board had regard to the applicant"s arguments in that respect and found them implausible.

[14]      In my view, this argument is unsound. The applicant raises no argument showing that the Board made an error that warrants the Court"s intervention.

Admissibility of information obtained by way of information request

[15]      In response to an information request, the Research Directorate of the Immigration and Refugee Board contacted the personnel director at the Terraza hotel. A brief note detailing the information obtained"that the union was formed in 1996 and that since its formation there had been no conflict with management or the authorities"was filed at the hearing.

[16]      The applicant argues that the response to the information request is inadmissible because the Immigration Act does not allow commissions, because he did not have an opportunity to cross-examine the personnel director and because the director did not work at the hotel at the relevant time. The applicant cited Nrecaj v. Canada, [1993] 3 F.C. 630, to establish that obtaining information from sources other than the hearing, and producing that information only at the hearing, constitute a breach of natural justice. That case provides no support for the statement put forward by counsel for the applicant and does not apply to the facts of the case at bar.

[17]      The respondent argues that under subsection 68(3) of the Immigration Act, the Board is not bound by any legal or technical rules of evidence. Furthermore, the information request does not deal with personal information; it is a general information request about the union in a restaurant that has been in operation for 25 years. The Board was not required to get the applicant"s permission or to allow him to cross-examine the personnel director.

[18]      Subsection 68(3) of the Immigration Act reads:

The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.

La section du statut n"est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu"elle juge crédibles ou dignes de foi en l"occurrence et fonder sur eux sa décision.

[19]      In Fajardo v. Canada (Minister of Employment and Immigration), A-1238-91, September 15, 1993, the Federal Court of Appeal considered the application of subsection 68(3) of the Immigration Act and dismissed the argument that an affidavit was inadmissible because it was not possible to conduct a cross-examination:

By s. 68(3) of the Immigration Act, the Refugee Division is not bound by legal or technical rules of evidence and it may base a decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances. If the tribunal here is suggesting that the affidavit evidence of patently respectable deponents as to facts within their knowledge may be discounted because, in the very nature of the process, the deponents are not available to be cross-examined, the tribunal is wrong. It is not for the Refugee Division to impose on itself or claimants evidentiary fetters of which Parliament has freed them.

[20]      I am not satisfied that the Board erred in admitting into evidence the information obtained from the hotel"s personnel director. Subsection 68(3) provides that the Board is not bound by the rules of evidence, as long as it considers the evidence credible or trustworthy. It was general information about, in particular, the date of the union"s formation, not personal information about the applicant. As the Federal Court of Appeal said in Fajardo , supra, the fact that there is no cross-examination does not make the evidence inadmissible.

CONCLUSION

[21]      The applicant has not shown that the Board made an error that warrants this Court"s intervention. The errors he raises in the decision are inconsequential and do not underlie the Board"s decision, which is mainly based on the applicant"s credibility and the lack of fear of persecution.

[22]      Counsel for the applicant filed the following question for certification:

[TRANSLATION] Is the hearing officer or the Refugee Division entitled to have evidence gathered"in the case at bar, evidence of an employee of the alleged agent of persecution, the substance of which is summarized in Response to Information Request HND28206.F"outside the hearing and outside Canada, without the claimant"s permission or knowledge before doing so, and in such a way that no cross-examination can be conducted or is afforded in the course of the hearing?"

[23]      I do not accept the question to be certified as drafted because its scope is much too broad and goes beyond the facts of this case.

[24]      Nevertheless, I am willing to certify the following question:

May the panel members, on their own initiative, obtain information on the issue before them, whether that information comes from Canadian sources or foreign sources, and then confront the claimant with that information, knowing that the person who provided them with the information cannot be cross-examined?

[25]      The application for judicial review is dismissed, and the above question, as restated, is certified.

                         Max M. Teitelbaum

                                 J.F.C.C.

Ottawa, Ontario

January 8, 1999

Certified true translation

Peter Douglas

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              IMM-166-98

STYLE OF CAUSE:          MARIANO VASQUEZ AMAYA v. MINISTER OF

                 CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:      Montréal, Quebec

DATE OF HEARING:      December 17, 1998

REASONS FOR ORDER OF TEITELBAUM J.

DATED              January 8, 1999

APPEARANCES:

Michel Le Brun                              FOR THE APPLICANT

Thi My Dung Tran                              FOR THE RESPONDENT

SOLICITORS OF RECORD:

Michel Le Brun                              FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                              FOR THE RESPONDENT

Deputy Attorney General of Canada