Docket: IMM-3881-13
Citation:
2014 FC 512
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 27, 2014
PRESENT: The Honourable Mr. Justice Roy
|
BETWEEN:
|
|
ISAAC EMMANUEL MEDINA TORRES
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
CONSIDERING the
application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board dated April 10, 2013;
[2]
CONSIDERING that
the RPD refused to proceed with an application made pursuant to sections 96 and
97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the
Act);
[3]
CONSIDERING that
this is an application for judicial review under section 72 of the Act;
[4]
CONSIDERING the
parties’ submissions and having examined the record, the Court has concluded
that the application for judicial review must be dismissed and announced this
finding at the hearing on May 22. Here are my brief reasons.
[5]
The applicant, a citizen of Mexico, claimed the
status of a refugee and person in need of protection, stating that he feared a
drug dealer and his accomplices.
[6]
He recounted that he had been working as an assistant
operator at the General Lazaro Cardenas refinery. His problems reportedly
started on October 23, 2010, when, at about three in the morning, he and three of
his friends were assaulted at a nightclub by seven drunken individuals. The
brawl continued outside. On November 5, one of the applicant’s friends was
accused of injuring the eye of someone named Jerson or Gerson during the altercation.
[7]
This person’s family was claiming 150,000 pesos
in damages. The friend allegedly paid the money on November 18, 2010, and
signed a document absolving his three friends of any responsibility. However, Jerson
was a drug trafficker, and the applicant feared he would not forget the incident.
Indeed, according to his narrative, in November 2010 Jerson and some accomplices
had parked in front of his home, lying in wait, and that same week someone
delivered two death threats in writing to his house. He did not keep these.
[8]
He further added that he received threats by
telephone during the second week of November. At the hearing he recounted an
incident during which a black pickup truck pulled up alongside him and the
passenger inside pointed a weapon at him and threatened him with death.
[9]
He claimed to have filed a complaint with the
public prosecutor’s office in December 2010, but the person in the office did
not write up a report because the applicant was unable to provide details, such
as the names of the individuals or the licence plate number of the pickup truck.
The official merely took note of the incident without adding it to the official
records. A subsequent telephone threat purportedly included the statement [translation] “we
are the Zetas and we are everywhere; we are going to kill you.”
[10]
In December the applicant fled to his sister’s
and later to an uncle’s, abandoning his job. An uncle who had previously
visited Canada advised him to leave the country for a while to hide from the
Zetas.
[11]
He filed two applications for a visa to come to
Canada, with the first one from January 26, 2011, being denied, and the
second one, from April 28, 2011, being accepted. In the second application he
affirmed that he was still working at the refinery; at the hearing he
acknowledged that this was not true but explained that he thought he would not
receive a visa if he had no money or was not working. He also stated having
characterized his trip to Canada as a sightseeing and pleasure trip.
[12]
He arrived in Montréal on June 26, 2011. He only
claimed refugee protection four months later.
[13]
The RPD found the applicant not to be credible,
his testimony being tarnished by numerous contradictions with his written
narrative. These are well-documented and explained in the decision under
review. Thus, the applicant could not recall the month in which the incidents
he recounted had occurred, placing the incidents in November when he had
previously stated that they had occurred in December. He invoked translation
errors, which led the panel to provide him with the original Spanish version of
his narrative, at which point he declared that he was confused. When the panel
raised the contradiction between his initial statement that he was still
working at the refinery in April 2011 and his story about having hidden out at
his sister’s and uncle’s, he explained that he was referring to a contractual
rather than a work period, an explanation the panel did not accept.
[14]
Although the applicant testified having been
assaulted during the second week of November 2010, which allegedly prompted him
to leave, the Personal Information Form refers rather to a summons to appear on
November 11 as being the catalyst. The death threats he is purported to have
received that same week are not even mentioned in the Personal Information Form.
[15]
The applicant had explained the reason for his
visa application as being to “visit Montréal, visit its
museums, and have fun”. Four months after his arrival, he claimed
refugee protection in Canada. He explained this delay at the hearing by stating
that at first he did not know he could make a claim for refugee protection,
although the member noted that he stated that his uncle had recommended that he
come to Canada for his safety.
[16]
The RPD came to the conclusion that the
applicant’s testimony was not credible; having the burden of proof, he had in
no way shown that he was a refugee or a person in need of protection.
[17]
The two issues in this case are whether there is
a reasonable apprehension of bias and whether the RPD’s conclusion is reasonable.
At the hearing, the applicant’s counsel devoted all of his arguments to the
first issue.
[18]
The standard of review for matters of procedural
fairness is correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 (Dunsmuir) and Sketchley v Canada (Attorney General),
[2006] 3 FCR 392; 2005 FCA 404 (Sketchley)). As for issues of
credibility and sufficiency of evidence, these are reviewable on a standard of
reasonableness.
[19]
The allegation that there was a breach of
procedural fairness arising from a reasonable apprehension of bias on the part
of the RPD, a serious allegation, is not supported by any evidence. At best,
the applicant’s counsel stated that he had successfully used the same type of
argument against the same member in one case and that a similar finding had
been made in another matter. He pointed out two comments in the transcript that
could be viewed as being sarcastic.
[20]
This allegation must be demonstrated. An
analysis of apprehended bias must be carried out on the basis of the
circumstances and context of each case (Wewaykum Indian Band v Canada, [2003]
2 SCR 259; 2003 SCC 45, at paragraph 77).
[21]
In addition, the issue must be raised in the
early stages. The Federal Court of Appeal characterized this duty in the following
terms in Kozak v Canada (Minister of Citizenship and Immigration),
[2006] 4 FCR 377; 2006 FCA 124 at paragraph 66:
[66] Parties
are not normally able to complain of a breach of the duty of procedural
fairness by an administrative tribunal if they did not raise it at the earliest
reasonable moment. A party cannot wait until it has lost before crying foul.
[22]
In this case, the counsel acting on behalf of
the applicant did not request a recusal either before the RPD or before this
Court and the applicant did not raise any issue at the time of the hearing. The
mere existence of a case in which counsel successfully argued the facts in
circumstances where there was an apparent reasonable apprehension of bias is in
no way sufficient to establish that there was bias or a reasonable apprehension
of bias in another matter. Counsel for the applicant was inferring that there
was a certain amount of animosity that was expressed in the first matter. My
reading to the transcript of the hearing confirms no such animosity. In fact,
the applicant’s version was sufficiently flawed that it warranted questioning
by the RPD.
[23]
As for the reasonableness of the decision, the
role of a reviewing judge is not to substitute his or her own vision of the
facts, but rather to ensure that the decision lies within the realm of
reasonableness as set out in Dunsmuir:
In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
(Para 47)
[24]
I am of the view that the RPD’s findings with
regard to credibility are entirely reasonable. The applicant had no acceptable
explanation for the inconsistencies and contradictions that undermined his
testimony. His narrative was not credible and he was unable to meet the burden
of proof that was incumbent upon him. The panel’s reasoning was justified, transparent
and intelligible.
[25]
Similarly, the delay in claiming refugee
protection, while not determinative, could have been considered. The applicant
filed a visa application in which he stated that he wished to do some
sightseeing (“visit Montréal, visit its museums, and have
fun”, RPD decision, para 20), yet he claimed to be under serious threat
and, four months after his arrival, made a claim for refugee status. When you
add the fact that his version of the facts, which are not complex, is far from
being clear due to the inconsistencies and contradictions carefully noted by
the RPD, one can only conclude that the decision is reasonable.
[26]
At the outset, the applicant’s counsel indicated
that he had not had contact with the applicant for at least four months. In the
finest tradition of the Bar, he nonetheless pleaded the case on the basis of
the memorandum upon which the application for leave and judicial review had
been allowed. He did the utmost to serve his client in the best way possible in
the circumstances.
[27]
Accordingly, the application for judicial review
is dismissed. No serious question of general importance was proposed by the
parties and there is no question to certify.
Email this Content