Date: 20021128
Docket: IMM-2005-01
Neutral citation: 2002 FCT 1229
BETWEEN:
JOSE CIPRIAN GONZALES GONZALES
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The applicant, a citizen of Cuba, seeks judicial review of, and an order setting aside a decision of the Immigration and Refugee Board (the "Board") dated March 30, 2001, which denied the applicant's claim to be a Convention refugee as defined by s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act").
[2] Two issues are raised as grounds for the application. The first, is whether the Board denied procedural fairness when it determined to conduct its hearing in relation to the applicant's claim by video conference. The second is whether the Board's conclusion was reached without regard to the totality of evidence, or was erroneously based on facts found capriciously or perversely in light of the evidence.
PROCEDURAL FAIRNESS OF A HEARING BY VIDEO CONFERENCE
[3] The hearing by the Board was arranged by video conference with the Board members and an interpreter in Ottawa and the applicant and his counsel in St. John's, Nfld. At the commencement of the hearing counsel for the applicant objected to the video conference proceeding and referred to a letter sent by fax the day before to the Board in which the objection was stated, with a request that the matter be heard by personal appearance before the Board. The letter had not reached the Board members in advance of the hearing. After hearing the objection the Board rejected it and proceeded with the hearing. By its decision it stated its belief that "natural justice is not compromised by this means of communication" and that the applicant could testify and respond clearly to the questions put to him. At the conclusion of the hearing the Board granted a request by counsel for the applicant and permitted two months for post-hearing submissions to be made in writing.
[4] For the applicant it is urged that video conference facilities do not permit accurate assessment of the demeanour of a claimant, particularly where a different culture and language is represented by the claimant. No specific indications of how those general concerns may have adversely affected the hearing in this case are set out, though specific shortcomings with administrative arrangements for the conference are described in argument. While these may have created some confusion, and because of local time differences some inconvenience for the applicant, once the conference was underway it appears to have been completed without specific adverse effect for the applicant.
[5] I am not persuaded that in the circumstances of this case the conduct of the hearing by video conference adversely affected the procedural fairness owed by the Board to the claimant.
THE BOARD'S FINDINGS AND THE EVIDENCE
[6] It is urged that the Board ignored relevant evidence in two major respects. It relied on a response to an information request, dated June, 1999 that stated there were no known recent cases of arrest of persons returning to Cuba after they had failed to establish refugee claims abroad. In light of this the Board discounted the applicant's stated fear that he would be arrested and jailed if he were returned to Cuba.
[7] For the applicant it is urged there was other documentary evidence before the Board, dated later than the report relied upon by it, which indicated failed refugee claimants might be arrested on their return. The Board concluded that the applicant, a long-term mechanic serving with the Cuban fishing fleet, did not appear to fit the profile, from documentary evidence, of persons arrested; for they were opposition leaders, critics, lawyers, journalists, human rights workers and academics. That assessment was supportable on the evidence before the Board and it supported the conclusion that the applicant was not likely to be arrested if he were returned.
[8] It is also urged the Board's decision appears to have ignored post-hearing submissions and documentary evidence forwarded by counsel for the applicant. That submission is based on the Board's failure to refer to those matters in its relatively brief decision. Yet it is well settled that failure to refer to evidence or argument is not by itself the basis for an inference that the evidence or argument was ignored by the Board in reaching its conclusion (Hassan v. M.E.I. (1992), 147 N.R. 317 (F.C.A.)).
[9] The applicant claimed to fear persecution for his perceived political opinion, based upon his belief that a Cuban state agency observed and reported upon individuals, ultimately controlling their life, but he gave no example of particular adverse affect upon him. His claim that his fear related to perceived political opinion because he had challenged the captain of his ship about the conditions of work, and the contract of employment for him and other crew members. At the hearing he implied that he was a spokesman for the crew but when questioned why that was not set out in his written response in his Personal Information Form, he did not respond directly but rather he indicated that he was not a spokesman for them and that he was unaware of their particular interests.
[10] When asked to speak about alleged unjust happenings to him in Cuba, he declined to answer the question, though it was pointed out to him that the purpose of the hearing was to ensure he had opportunity to fully explain his claim. The Board was not persuaded that he had suffered significant difficulties for no specific difficulties were provided, and moreover he had been employed as a mechanic with the Cuban fleet for many years.
[11] Counsel for the applicant urged that the circumstances were comparable to those in Klinko v. Canada (Minister of Citizenship and Immigration) [2000] 3 F.C. 327 (C.A.) and also to those in Dieguez v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 764 (Q.L.) (T.D.).
[12] In the former, the Court of Appeal found the applicant's claimed fear of persecution on grounds of political opinion to be established where it was said to arise from the filing by the applicant of a formal complaint denouncing corruption of state officials, a finding based on evidence that government of the country concerned was engaged in the activities about which the applicant had complained. There is no such evidence in this case that would support a conclusion that the applicant's complaint to his captain would be seen to be political opposition against the Cuban government. In the second case, Madam Justice Tremblay-Lamer found that the selective use of documentary evidence, relied upon by the Board, ignored other relevant evidence and the evidence as a whole did not support the Board's conclusion. In my view, Dieguez is distinguishable, for in this case the Board's conclusions were supportable on the evidence before it.
CONCLUSION
[13] In my opinion, there is no basis for the Court to intervene and set aside the decision of the Board. Insofar as it discounted the evidence of the applicant by refusing to accept it, its comments were supportable in light of the reasons it expressed, and on the evidence before it. There is no ground to upset its assessment of portions of the applicant's evidence that it found not to be credible. Its conclusion, that the applicant's claim to be a Convention refugee because of perceived persecution on political grounds was not established, was open to the Board on the evidence before it.
[14] For these reasons, an order goes dismissing this application for judicial review. Neither party suggested a question for consideration pursuant to s. 83(1) of the Act, and no question is certified.
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
November 28, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2005-01
STYLE OF CAUSE: JOSE CIPRIAN GONZALES GONZALES
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: ST. JOHN'S, NEWFOUNDLAND
DATE OF HEARING: APRIL 26, 2002
ORDER AND REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MacKAY
DATED: NOVEMBER 28, 2002
APPEARANCES:
MS. JOAN DAWSONFOR THE APPLICANT
MR. LOR RASMUSSENFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MS. JOAN DAWSONFOR THE APPLICANT
ST. JOHN'S, NEWFOUNDLAND
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA