Date: 20080829
Docket: IMM-5304-07
Citation: 2008 FC 983
Ottawa, Ontario, August 29,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SEFER HASSIDIM LIBERATO
GONZALEZ
ARELI VEGA MUNOZ
ASEEM ZMSHAEL LIBERATO VEGA
LAKSHMI
ARELI LIBERATO VEGA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Sefer Hassidim Liberato Gonzalez is a
citizen of Mexico, whose claim for refugee protection was rejected by the
Refugee Protection Division of the Immigration and Refugee Board on the grounds
that he had a viable internal flight alternative in Mexico City, amongst other
places, and because adequate state protection was available to him in Mexico. The remaining
applicants are Mr. Liberato’s wife and children, whose claims were based upon
that of Mr. Liberato, and were dismissed for the same reasons.
[2]
The applicants submit that the Board’s
decision should be set aside, as they have a reasonable apprehension of bias on
the part of the presiding member. The applicants further assert that the Board
erred in making unreasonable findings of fact, in misconstruing the basis for
the applicants’ claim, and in making unreasonable findings in relation to the
availability of state protection and an internal flight alternative for the
applicants within Mexico.
[3]
For the reasons that follow, I find
that having failed to raise the issue of bias at the earliest reasonable
opportunity, the applicants have waived their right to object to the conduct of
the presiding member. I am also satisfied that the Board’s finding that the
applicants had a viable internal flight alternative available to them in Mexico
City was one that was reasonably open to the Board. Given that the
availability of an internal flight alternative is dispositive of the
applicants’ claim, it is not necessary to address the applicants’ remaining
arguments.
The Bias Issue
[4]
The applicants take issue with certain
comments made by the presiding member shortly after the commencement of their
refugee hearing. In order to put these comments into context, it is necessary
to have an understanding of the nature of the applicants’ claim.
[5]
Mr. Liberato was employed as a manager
at a propane company in Hidalgo, where, he says, he enjoyed a very good relationship with
his employees. Because of this, Mr. Liberato claims that he was approached by
representatives of a union. These individuals wanted him to exert influence
over his employees, in order to get them to vote for the governing PAN party in
the upcoming elections.
[6]
Mr. Liberato says that he did not want
to become involved with the union because it was corrupt, and because its members
engaged in violent activities. As a consequence, he declined to assist as
requested. Mr. Liberato says that he was then subjected to various threats,
and that his wife was stalked and assaulted by an associate of the union.
[7]
From a review of the transcript, it
appears that early in the course of the applicants’ refugee hearing, the
presiding member was having some difficulty understanding the nature of the
applicants’ claim. In particular, the member could not understand how, as a
manager, Mr. Liberato could have been expected to join the union. Moreover,
given that elections in Mexico were carried out by way of secret ballot, the presiding
member also could not understand how Mr. Liberato could have been expected to
force his employees to vote in a particular way.
[8]
In an apparent effort to understand the
nature of the claim, an exchange took place between the presiding member,
counsel for the applicants and Mr. Liberato with respect to the prevalence of
electoral corruption and voter manipulation in Mexico. The relevant portion of the transcript is included as an
appendix to this decision.
[9]
The applicants’ hearing then proceeded,
without any objection to the presiding member continuing on with the case being
made by counsel for the applicants on the basis that a reasonable apprehension
of bias had arisen as a result of the comments in issue. At the conclusion of
the evidentiary portion of the hearing, the presiding member then asked counsel
if he wished to provide written submissions, an offer which counsel accepted.
[10]
Counsel provided his written
submissions to the Board some two weeks later, in accordance with the timetable
that had been established by the presiding member. Those submissions contained
the following statements:
I have serious reservations about how the panel conducted
this hearing and submit that the panel should withdraw from consideration of
this claim and remit the claim for a further hearing.
What concerned me the most was the panel’s assertion early
in the hearing that the claim made no sense, apparently on the basis that it
involved electoral corruption. This leads me to believe that the panel does not
entertain the idea of government corruption existing in Mexico. This is amply
documented in the material, as I have stated.
[11]
The presiding member dealt with the
applicants’ request that he recuse himself in his reasons for decision. In
dismissing the request, the member observed that the hearing is the most
opportune time to make bias objections, and that no timely objection had been
raised in this case.
[12]
The presiding member went on to hold
that counsel’s allegations did not give rise to a reasonable apprehension of
bias on the part of the member, and that the hearing had been conducted fairly.
[13]
Counsel for the applicants, who, it
should be noted, was not the counsel appearing for the applicants before the
Board, submitted in argument before this Court that it is not always essential
that an objection on the basis of a reasonable apprehension of bias be raised
at the earliest reasonable opportunity, especially in refugee cases, given that
refugee hearings often proceed in phases.
[14]
In support of this contention, counsel
relies on the decision of this Court in Moin v. Canada (Minister
of Citizenship and Immigration), 2007 FC
473.
[15]
Counsel further submitted that the
presiding member’s finding that his own conduct did not give rise to a
reasonable apprehension of bias was clearly in error, and that the decision
should be set aside on this basis.
Analysis on the Bias Issue
[16]
Neither side addressed the issue of the
applicable standard of review in relation to the bias issue. Given that a
finding of a reasonable apprehension of bias on the part of an adjudicator goes
to the fairness of the hearing, I am of the view that no deference is owed to
views of the presiding member in this regard, and it is up to this Court to
form its own opinion as to the fairness of the hearing: see Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, at paragraphs 129
and 151, and Canada (Attorney General) v. Clegg, [2008]
F.C.J. No. 853.
[17]
The jurisprudence regarding when
objections based upon a reasonable apprehension of bias must be made is very
clear. That is, an objection to the jurisdiction of an administrative
tribunal based upon a reasonable apprehension of bias must be raised at the
earliest practicable opportunity, failing which a party will be deemed to have
waived its right to object: see for example, the decisions of the Supreme Court
of Canada in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R.
892, and of the Federal Court of Appeal in Zündel v. Canada (Canadian Human
Rights Commission) (re Canadian Jewish Congress), [2000] F.C.J. No. 1838,
and In Re Human Rights Tribunal and
Atomic Energy of Canada Ltd., [1986] 1 F.C. 103 at p. 112.
[18]
The applicants were represented by
counsel at their refugee hearing. Moreover, this is not a case where the
significance of the member’s comments could not have been immediately apparent
to the applicants or their counsel, nor was it a case where additional matters
arose during the course of the hearing that, when taken cumulatively with the
member’s earlier comments, gave rise to a reasonable apprehension of bias.
[19]
Having regard to the nature of the
applicants’ objection in this case, it is clear that as soon as the disputed
words were out of the mouth of the presiding member, the applicants and their
counsel were in possession of all of the relevant information and evidence
relating to the matters that they now say gives rise to a reasonable
apprehension of bias on the part of the presiding member.
[20]
Not only did the applicants and their
counsel not raise their bias objection at the time that the impugned statements
were made, they continued on with the evidentiary portion of the hearing to its
completion, without objection. Indeed, it was not until some two weeks later
that the applicants first raised the issue of apprehended bias on the part of
the presiding member.
[21]
In such circumstances, it cannot be
said that the applicants have raised their bias objection at the first
reasonable opportunity. As such, they are deemed to have waived their right to
object.
[22]
I have considered Justice de Montigny’s
decision in the Moin case relied upon by the applicants. In my view,
the case is of limited assistance, turning, as it does, on the particular facts
of that case. Moreover, not only did Justice de Montigny conclude that the
issue in that case was not actually one of bias – actual or apprehended - but
rather was one of a misapprehension of the evidence, more importantly, he
himself reiterated the principle that objections involving allegations of bias
had to be raised at the first reasonable opportunity: see Moin, at
paragraph 41.
[23]
Before leaving this issue, I would like
to observe that nothing in this analysis should be viewed as approving of the
comments made by the member in this case, which were most certainly
ill-advised.
Internal Flight Alternative
[24]
The applicants submit that the Board
erred in concluding that they had an internal flight alternative in Mexico City. Given that Mexico City is the
location of the union’s head office, the applicants say that it was simply not
reasonable to expect the applicants to have moved there.
[25]
It is not disputed that the burden is
on the applicants to demonstrate that they could not have lived safely in any
part of their country of origin, and counsel for the applicants candidly
conceded that the evidence on this point was very thin.
[26]
Given that the applicants’ problems
allegedly related to Mr. Liberato’s position with the propane company, the
Board found that it would not have been unreasonable for him to have quit his
job and relocated to Mexico City in order to avoid the difficulties that he was
encountering with the union.
[27]
Mr. Liberato submitted that the Board
erred in its internal flight alternative analysis, as it was unreasonable to
expect him to quit his job in order to avoid the risk that he says that he and
his family faced in Mexico. I do not agree.
[28]
In Sanchez v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 99, the Federal Court of Appeal
considered the extent to which a claimant should be expected to make choices to
free him- or herself from the risk of harm, before being able to seek
international protection. In this regard, the Court concluded that it was not
unreasonable to expect an individual to take steps to protect themselves that
would not deprive the individual of a general ability to earn a living. There
is no evidence in this case that Mr. Liberato would
not be able to find another job in Mexico City.
[29]
Moreover, the fact that the union had
its head office in Mexico City does not mean that Mexico City could not be
a reasonable internal flight alternative for the family. Once Mr. Liberato
resigned from the company, he would presumably no longer be in a position to
influence his employees, and would thus be of little interest to the union.
[30]
Moreover, the suggestion that the union
would continue to pursue the family, even if Mr. Liberato resigned from the company
as part of a personal vendetta is really based on nothing more than
speculation.
[31]
As was noted in the introductory
comments to this decision, the applicants have raised a number of issues on
this application for judicial review. However, the Board’s finding that the
applicants had a viable internal flight alternative in Mexico City is
dispositive of the claims, and it is therefore unnecessary to address the
remainder of the applicants’ arguments.
Conclusion
[32]
For these reasons, the application for judicial review is dismissed.
Certification
[33]
Counsel for the applicants has suggested a question for certification
regarding whether it is necessary to raise an issue of bias at an applicant’s
refugee hearing in order to be able to raise it on judicial review. In my
view, the law in this area is well-settled. Moreover, what will be considered
to be the first reasonable opportunity in a particular
case will turn entirely on the facts of that case. As a consequence, I
decline to certify the proposed question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
APPENDIX
PRESIDING MEMBER: You see, sir,
you tell us that it is against the law to join a union as a manager. This union
that wanted you to join is a union supported by the federal government. What I
have trouble with, sir, they must know the law. Why would they want you to join?
MALE CLAIMANT: Because as I was
just explaining to you, that they are people who are corrupt and they want to
handle things in an underground manner, in a surreptitious manner. And then
they wanted my workers to be forced by me and not by the union, to be forced to
vote for them by me and not by the union.
PRESIDING MEMBER: Sir, nobody
can force anybody to vote in a certain way if the vote is confidential, secret.
MALE CLAIMANT: Yes, that’s right.
That is part of the Mexican Constitute (sic); the vote is exercised
freely.
PRESIDING MEMBER: How could they
force you to force them to vote PAN?
MALE CLAIMANT: Well, because the
PAN is the government – I mean PRI is part of the government right now but they
still want the masses to support them. They need people. They need members.
PRESIDING MEMBER: But it’s got
nothing to do with you, sir. You could not force the people to vote a certain
way, is that correct?
MALE CLAIMANT: Legally, no.
PRESIDING MEMBER: Even
illegally, sir, because the vote is secret.
MALE CLAIMANT: But if any of the
workers reports me to the federal government, then I will be penalized. I would
have been punished.
PRESIDING MEMBER: That’s not the
question, sir. I asked you how could you force them how to vote. And you said
legally you could not do that. If the vote is secret, how could you force them
in any way?
MALE CLAIMANT: Well, in fact I
don’t know through what means I could force them to vote a certain way, because
I’m not used to that. But, for example, for argument’s sake, if for example I
threaten the workers with firing them if they do not join the PAN ranks, that
could be a way, because if they join the PAN ranks they would get a party
membership card.
PRESIDING MEMBER: That’s
pretty far fetched.
MALE CLAIMANT: But what else
could I do?
PRESIDING MEMBER: I don’t
know, sir.
COUNSEL: You think voter
manipulation in Mexico is far-fetched, Mr. Member?
PRESIDING MEMBER: No, but how
would you find them if they didn’t join the union? And yes, it’s far-fetched in
Mexico. The vote is secret. I’ve been there for 30 years.
COUNSEL: So, you think it’s
been free and fair elections in Mexico for 30 years?
PRESIDING MEMBER: Most of the
time. Just as fair as here. I don’t want to argue about it.
COUNSEL: You don’t want me to
argue about it?
PRESIDING MEMBER: No, this is
not a political argument. I don’t understand this whole story.
COUNSEL: Well, we told you. They
want him to influence politically. It’s right here sitting in the PIF. And he’s
told you it’s not right. It’s in the PIF in paragraph 5. So –
PRESIDING MEMBER: But he can’t
join if he’s a manager.
COUNSEL: Well, he told you that.
He doesn’t need to be told that, it’s sitting right here in paragraph 5.
PRESIDING MEMBER: So, then the
rest of the story doesn’t make any sense. If he can’t join, why would all this
happen?
COUNSEL: Voter manipulation.
Pressure by someone in a position of influence to behave in a certain way
because –
Mr. Member, you’re on record
as saying that elections in Mexico have been the same as in Canada
for 30 years.
PRESIDING MEMBER: So, we were
having a discussion. We’re not putting anything on the record. If that’s what
---
COUNSEL: Well, I don’t know,
that’s what I heard. I think that’s –
PRESIDING MEMBER: If that’s
how you want to go, then we can argue about Mexico and forget
about your claimant. Do you want that?
If the law says as a manager
he can’t join and he doesn’t join, then the rest of the story makes no sense.
And I’m trying to find out how it makes sense. We’re not talking about voter
manipulation. We’re talking about him. How did he become involved with that if
he by law could not join? It makes no sense. And that’s what I’m trying to find
out. How does that make sense? Why would a union supported by the government force
him to do something illegally, something he couldn’t do, something his company
would not allow him to do? So, I’m trying to find out what his story is all
about. Do we get the truth here?
COUNSEL: Okay.
PRESIDING MEMBER: Do you
understand what I’m saying?
COUNSEL: Yeah, well, if the
member is saying that it’s the member’s view that it’s impossible in Mexico
to manipulate elections ---
PRESIDING MEMBER: I never
said it was impossible. I’m trying to find out how it is.
COUNSEL: Then you’re reading a
different history of Mexico than I’m reading, Mr. Member.
PRESIDING MEMBER: Okay. I
haven’t heard it yet.
COUNSEL: He’s tried to make it
clear that he is doing so surreptitiously.
PRESIDING MEMBER: Counsel,
you ask the questions. I will go off from asking questions. You ask the
questions. You try to find out for me how that works. [Emphasis added]
Email this Content