Date: 19991105
Docket: IMM-5628-98
OTTAWA, ONTARIO, THIS 5TH DAY OF NOVEMBER 1999
PRESENT: THE HONOURABLE MR. JUSTICE NADON
BETWEEN:
ALEXANDER HENRI LEGAULT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
This application for judicial review is dismissed.
Marc Nadon
JUDGE
Date: 19991104
Docket: IMM-5628-98
BETWEEN:
ALEXANDER HENRI LEGAULT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of an Immigration and Refugee Board (the "Board") decision made on September 17, 1998, which dismissed the Applicant"s Convention refugee claim.
[2] The Applicant, an American citizen, arrived in Canada in January 1982. In December 1993, he claimed refugee status on the basis of a fear of persecution by virtue of having allegedly provided confidential information and damaging evidence against the CIA.
[3] The Applicant related the following story. He worked for the CIA in the 1970's while studying in France, and signed a confidentiality agreement as a result of his employment. He was married in August 1980. His mother-in-law, Florence Langleben, was one of the victims of the mind-control experiments conducted at the Allan Memorial Institute in Montreal during the 1950's. According to the Applicant, his mother-in-law"s family knew, at least by 1979, that these experiments formed part of a CIA-funded project called MKULTRA and he set out to help them. To this end, the Applicant stated that in 1980, he provided confidential and damaging information against the CIA to Joseph Rauh, a lawyer representing some of the victims of MKULTRA in the United States. The Applicant believes that this evidence led to, or at the very least, played an important part in the settlement-judgment against the CIA handed down by the Federal Court of the District of Columbia in 1988.
On March 14, 1986, a U.S. federal grand jury returned a bill of indictment against the Applicant for various offences involving fraud " in particular, conspiracy to commit wire and mail fraud, fraud, falsely making a bill of lading, and use of fictitious names. Based on this indictment, the U.S. District Court issued a warrant for the Applicant"s arrest on the same day.
As a result of the indictment and warrant, a deportation order was made against the Applicant on December 10, 1993. The Applicant then commenced judicial review proceedings and the deportation order was set aside by the Trial Division of this Court. The decision was appealed to the Federal Court of Appeal, which set aside the Trial Division"s decision and upheld the deportation order. The Supreme Court denied the Applicant leave to appeal.
The Applicant believes that Mr. Rauh must have divulged his name to the CIA and that the CIA has mounted a false case against him in order to punish him for disclosing confidential CIA information to Mr. Rauh. He contends that he is innocent of all the charges and submits that the CIA has framed him on false charges and fabricated evidence. Consequently, on December 8, 1993, twelve years after his arrival to Canada and five years after the settlement of the MKULTRA case, he claimed refugee status.
During his refugee hearing, the Applicant testified that new criminal charges had been brought against him in Florida in February 1997 and that these were also trumped-up charges fabricated by the CIA to punish him for disclosing damaging information to Mr. Rauh in 1980.
The Board dismissed the Applicant"s refugee claim on the grounds that the Applicant had not met his burden of proof.
The Board did not find the Applicant credible and described his account as "incoherent and illogical." It characterized his claims regarding his divulging of evidence to Mr. Rauh as fabricated allegations. The Board found it unlikely that the Applicant was involved in Mr. Rauh"s mounting case against the CIA in 1980 since his mother-in-law alleged, in her Statement of Claim against the CIA, that she learned only in 1982 of the CIA involvement in MKULTRA. The Applicant"s position on this issue is that he never said his mother-in-law was aware of MKULTRA as early as 1979, only that her family (i.e., her husband, her daughter/Applicant"s wife, her son) was aware of MKULTRA at that point.
Further, the Board did not consider the expert evidence of four witnesses produced by the Applicant because of its conclusion regarding his credibility.
In his Memorandum, the Applicant submits that his judicial review proceedings raise the following issues:
| 1. Did the Board act outside its jurisdiction when it sought out and added to the evidence after the hearing? |
| 2. Did the Board commit a reviewable error of law in ignoring relevant corroborative evidence which was specific to the applicant"s claim and which clearly supported his position? |
| 3. Did the Board commit a reviewable error of law when it misconstrued evidence which led to its findings of contradictions and implausibilities in the applicant"s evidence? |
The Applicant argues that the Board acted outside its jurisdiction when, after the closing of the evidence, it referred to and filed in the record the decisions of the Federal Court of Canada, Trial and Appeal, and the decision of the Supreme Court which refused to hear his appeal. The Respondent submits that these decisions do not relate to the matter at hand, namely, the Applicant"s refugee claim, and further, that the Board did not rely on these decisions when it denied him refugee status.
The Applicant also argues that the Board erred when it did not consider the corroborative evidence of an expert witness who testified about CIA operations. The Respondent submits that this expert could only speak to CIA operations in general and could not shed light on the Applicant"s alleged contact with Mr. Rauh, which was the pivotal issue in this case.
Finally, the Applicant submits that the Board"s conclusion that he lacked credibility is based on misconstrued evidence and therefore constitutes an error in law reviewable by this Court. The Respondent takes the position that the Board made no error and that its deliberated conclusion demonstrates nothing unreasonable with respect to its appreciation of the Applicant"s credibility or absence thereof.
ANALYSIS
The Board found that the Applicant had not proved he was a Convention refugee. The Board based its finding on several inconsistencies in the Applicant"s evidence. For instance, the Board rejected the Applicant"s statement that he started making inquiries into the MKULTRA affair in 1980 by pointing to his mother-in-law"s Statement of Claim which indicated that she only learned of the CIA involvement in MKULTRA in 1982. Accordingly, the Board found it unlikely that the Applicant would have made these inquiries when he claims he did.
In response, the Applicant asserts in his Memorandum that he never claimed his mother-in-law was aware of CIA"s involvement in MKULTRA in 1980, only that her family was. However, I note that in his Personal Information Form ("P.I.F."), the Applicant states that his mother-in-law engaged Mr. Rauh to launch a lawsuit against the CIA in the autumn of 1980. Although this was subsequently amended in an Annex which states that his mother-in-law joined the suit in 1983, I still find that the Board did not misconstrue the evidence with respect to the Applicant"s credibility and that its conclusion was not unreasonable. In his P.I.F., the Applicant states that he married his wife in August of 1980, and that at that time, he was unaware of the dispute between his wife"s family and the CIA. However, later on in his statement, the Applicant relates that he met Sydney Williams in the summer of 1980, and that he asked him to enquire about MKULTRA. After reading the Applicant"s P.I.F. and his viva voce evidence, I can easily understand why the Board came to the conclusion that the Applicant was not credible.
With respect to the issue of the Board "adding" evidence (i.e., the Federal Court of Canada decisions and the Supreme Court decision concerning the judicial review application of the deportation order) after the conclusion of the refugee hearing, I agree with the Respondent"s position. Although the Board referred to these decisions and filed them on record, it did not rely on them in reaching its conclusion which, significantly, deals solely with the matter of the Applicant"s lack of credibility. In effect, the Board"s assessment of the Applicant"s credibility or lack thereof was not in any way informed by the decisions.
On the issue of corroborative evidence, I also see no reason to disturb the Board"s decision not to consider the expert evidence. The witnesses testified on CIA matters and covert operations, but they had no direct knowledge of whether and to what degree this particular Applicant was involved in the MKULTRA matter.
On this matter of corroborative evidence, I would note that one such key witness who could have been pivotal in the Applicant"s case was Sydney Williams, who was, according to the Applicant, another CIA employee. The Applicant indicated that he met Mr. Williams in 1980 and asked him to inquire about MKULTRA and report back to him. Mr. Williams apparently made such inquiries, reported back to the Applicant, who in turn, disclosed the information to Mr. Rauh. Mr. Williams subsequently informed the Applicant that CIA counsel had contacted him and questioned him about the Applicant. The Board saw this as further fabrications by the Applicant. Had Sydney Williams been called as a witness, perhaps the Board might have taken a different view. However, he was not called and the Board did not believe the Applicant.
For the above-noted reasons, this application for judicial review shall be dismissed.
Counsel for the Applicant submits that the following questions should be certified:
| 1. Whether a breach of natural justice, consisting in the admission of evidence, or of any material from which factual inferences can be drawn, invalidates the decision under review? |
| 2. Whether corroborative evidence by an independent witness must be referred to by the Board when a case is resolved on credibility? |
In Liyanagamage v. Canada (Minister of Citizenship and Immigration (1994), 176 N.R. 4, Décary J.A., for the Court of Appeal, clearly explained when a question ought to be certified, pursuant to s. 83(1) of the Immigration Act. At page 5, Décary J.A. states that:
| In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman, J., in Rankin v. McLeod, Young, Weir Ltd et al. (1986), 57 O.R. (2d) 569 (H.C.), but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case. |
In my view, neither question proposed for certification by the Applicant "transcend[s] the interests of the immediate parties to the litigation". The questions are limited, in my view, to the particular circumstances of this case and address only the immediate interests of the parties. As this Court has affirmed: "a certified question is not about the case at bar; it seeks to clarify an undecided legal point of general importance" (see Huynh v. Canada , [1995] 1 F.C. 633 (T.D) at p. 651 and affirmed at [1996] 2 F.C. 976).
I am therefore not prepared to certify the questions proposed by the Applicant.
Marc Nadon
JUDGE
OTTAWA, Ontario
November 5, 1999
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