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Federal Court
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Cour fédérale
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Date: 20090924
Docket: IMM-1276-09
Citation: 2009 FC 961
Ottawa, Ontario,
September 24, 2009
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
CELIA LAURA MORALES RAMIREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Morales Ramirez fled Mexico because she was raped by her lover,
who was also her boss, and because she was molested by two of her mother’s
lovers. Her refugee claim was refused because the Member of the Refugee
Protection Division of the Immigration and Refugee Board did not believe her.
This is the judicial review of that decision.
[2]
Ms. Morales Ramirez raises two interrelated
issues. Before the close of the hearing the Member was asked to recuse himself
on the grounds of apparent bias. He refused. This bias is said to have coloured
his findings on credibility, his disregard of medical evidence and his
disregard of country conditions.
[3]
In my opinion no apparent bias was shown, and it
was reasonably open for the Member, on the record before him, to disbelieve her
allegation that she had any sort of relationship with her boss, much less that
she was twice raped.
APPEARANCE
OF BIAS
[4]
At the outset of the hearing reference was made
to the Gender Guidelines, and it was agreed that Ms. Morales Ramirez’s counsel
was to examine-in-chief. There was no Refugee Protection Officer present.
[5]
Ms. Morales Ramirez had every opportunity to put
her case forward. The only interruptions by the Member of the Refugee Protection
Division were minor and were to clarify a few points. It was only when the
Member began to question her that the transcript reveals antagonism, but
antagonism initiated by her own counsel. The Member was interrupted nine times.
[6]
The questions were in no way aggressive, nor was
the questioning prurient. The Member had a duty to get to the truth and he did
so in a matter of fact way. Actually it was this “matter of fact” style which
caused Ms. Morales Ramirez, at the resumption of the hearing, to claim that she
was not being believed and that she was being mocked. She was entitled to be
treated with respect and she was. If she thinks she was entitled to a hug and
that the Member was required to say “I feel your pain,” she was sadly mistaken.
The transcript suggests that the antagonism was caused by an overprotective
counsel. The Member could have been far more pointed in questioning and could
have been far more rigorous and extensive before going over the line (Martinez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1065, [2005] F.C.J. No. 1322
(QL)).
[7]
The universally accepted test as to whether
there is a legitimate apprehension of bias, in this case arising from the
Member’s behaviour, is that set out by Mr. Justice de Grandpré in Committee for Justice and Liberty v. Canada (National
Energy Board), [1978] 1
S.C.R. 369, at p.394 (Committee for Justice and Liberty):
“… 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…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."”
[8]
The fact that it is a psychologist’s opinion
that Ms. Morales Ramirez is under stress is not relevant. She may well be under
stress. However it was the duty of the Member, not a psychologist hired by the
applicant, to determine whether the events in question actually happened.
CREDIBILITY
[9]
The basis of the Member’s decision is as follows:
The panel finds that the claimant failed to provide sufficient
credible or trustworthy evidence to support her allegation of a relationship
with Mr. Acevedo Reyes based on the omission in her Port of Entry (POE) and
Personal Information Form Narrative (PIF) that Mr. Acevedo Reyes was a police
officer, and based on the lack of other credible or trustworthy evidence in
support of the relationship.
[…]
Even if the panel found that the claimant had a relationship with
Mr. Acevedo Reyes, the panel finds that the claimant did not provide sufficient
credible or trustworthy evidence to support her allegation of rape based on
credibility concerns with the claimant’s testimony related to the timing of the
first rape; the credibility concerns with the medical report; credibility
concerns with the claimant’s allegations related to her reporting the rape; and
credibility concerns with the claimant’s testimony of the timing of the second
rape in November.
[…]
The panel finds that the claimant has not provided sufficient
credible or trustworthy evidence in support of her allegations of a pattern of
molestation by her mother’s partners based on differing descriptions of the
molestation in her PIF, oral testimony, and psychological report; and based on
omissions from the PIF and psychological report that she moved to her aunt’s
for a period of 6 months as a result of the abuse.
[10]
Based on the record, these findings are within
the realm of the reasonable, and are not to be disturbed (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. No. 109).
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that:
1.
The application for judicial review is dismissed.
2.
There is no serious question of general
importance to certify.
“Sean Harrington”
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