Ottawa, Ontario, August 8, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MARIEL SANCHEZ DE GARCIA,
JURIEL GARCIA SANCHEZ
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Juan Jose Garcia Martinez, the principal male Applicant, his wife, Ms. Mariel
Sanchez de Garcia and their minor son, Juriel Garcia Sanchez, are citizens of Mexico. Juriel, having been born in the United States, is also a citizen of that country. They seek asylum in Canada based on their fear of a former public official, working together with the police, who would allegedly kill the Applicants to prevent them from providing information on the murder of another former politician.
[2] The male Applicant's problems began in 1992 after the male claimant claimed that he and his cousin witnessed a brutal murder of a prominent politician by police. Shortly after, the male Applicant claims that he was abducted and severely beaten by the police. In 1993, the male Applicant entered the United States illegally, where he remained, except for three return trips to Mexico - one to obtain a visa and two when he was deported from the United States - until deported a second time to Mexico in February 2001. He met and married his wife and his son was born while he was in the United States. In June 2001, the family came to Canada where they made a refugee claim in January 2002.
[3] In a decision rendered orally on June 18, 2004, and in writing on July 26, 2004, a panel of the Immigration and Refugee Board (Refugee Protection Division) (the "Board") found that the Applicants were neither Convention refugees nor persons in need of protection. Simply put, the Board did not believe the male Applicant's story, citing numerous inconsistencies and implausibilities. The Board also noted the male Applicant's returns to Mexico and the failure to make a successful refugee claim in the United States during the eight years he was there. The Applicants seek judicial review of this decision.
ISSUES
[4] This application raises the following issues:
- Did the Board's conduct give rise to a reasonable apprehension of bias or prevent the Applicants from receiving a fair hearing?
- Were the Board's findings related to re-availment, failure to claim in the United States and delay in claiming in Canada patently unreasonable in that they were made without regard to the evidence?
- Was the Board's finding with respect to state protection patently unreasonable in that it is "devoid" of analysis?
ANALYSIS
Standard of Review
[5] Whether the Board's conduct gives rise to a reasonable apprehension of bias or breach of procedural fairness is subject to review on a standard of correctness. If the Applicants succeed on this argument, the decision should be overturned. However, if there has been no breach of procedural fairness, the other issues are reviewable only on a standard of patent unreasonableness.
Issue #1: Reasonable apprehension of bias
[6] The Applicants point to the Board's conduct in the oral hearing as their strongest argument for granting this application. In their submission, the frequent interruptions by the Board prevented the counsel for the Applicants from conducting his examination in the way that he would have wanted. The assertions of the Applicants are strongly worded; they submit that the Board:
- set the male Applicant up to contradict himself;
- set traps for the male Applicant by the lines of questioning;
- deliberately presented evidence in a distorted way to force the male Applicant to make concessions or to confuse him;
- took objections by the counsel personally; and
- did not approach the hearing with an open mind.
[7] In sum, they argue that the conduct of the Board should lead to a conclusion that the Applicants were not afforded a fair hearing. The question is whether the behaviour of the Board demonstrates a reasonable apprehension of bias or a lack of procedural fairness such that the Applicants were not afforded a fair hearing.
[8] The well-established test for reasonable apprehension of bias was stated by Justice de Grandpré in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394:
. . . 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. . . . the test of "what would an 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."
[9] In the context of immigration proceedings before the Board, the Federal Court of Appeal has stated that the "reasonable person" for purposes of this test is not synonymous with the losing party in the process (Ahumada v. Canada (Minister of Citizenship and Immigration), 2001 FCA 97, at para. 23).
[10] A review of the transcript demonstrates that the Board began its questioning very early on in the hearing. After permitting the Applicants' counsel to begin with its examination-in-chief, the Board jumped in after only one question and answer. Thereafter, the Board's questioning was extensive. At times, the questioning went beyond clarification of a line of interest opened by the counsel to a different subject matter.
[11] Some guidance on the conduct of a Board member may be obtained from the jurisprudence.
- Vigorous, extensive and energetic questioning by the Board does not necessarily lead to a conclusion that there has been a breach of natural justice or that there has been a reasonable apprehension of bias (Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (F.C.T.D.), at para. 36), although a demonstration of hostility by the member might do so (Hundal v. Canada (Minister of Citizenship and Immigration), 2003 FC 884, at para.6).
- In the absence of a refugee hearing officer, it is particularly appropriate for the member to confront a claimant with his concern (Paramo-Martinez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 261 (F.C.T.D.), at para.16).
- A reasonable apprehension of bias has been found where a member commences a hearing with comments that the case was "frivolous" and an abuse (de Freitas v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 60 (F.C.A.)).
- Where the transcript shows almost exclusive questioning by the Board with little or no opportunity for the counsel for the claimant to participate, a breach of natural justice has been found (Ledezma v. Canada (Minister of Citizenship and Immigration), 2005 FC 90, at para. 28).
- In Ganji v. Canada (Minister of Citizenship and Immigration) (1997), 135 F.T.R. 283 (F.C.T.D.), the Court found the actions of a member of the Board in seizing control of a claimant's case, ordering that an unprepared 15-year old girl testify and conducting the examination himself to be unacceptable.
- The applicant was successful in Atwal v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 258, where the member refused an adjournment request in retaliation to actions of counsel and took other procedural steps that prejudiced the claimant's ability to proceed with his claim.
[12] A unifying thread that one can draw from the jurisprudence is that the Board is afforded considerable latitude in how it conducts its hearings. A review of the cases also demonstrates that, where an allegation of this nature is raised, "[t]he dividing line between permissible and impermissible behaviour is one of fact" (Hundal, at para. 10). For this purpose, the transcript is an important assessment tool for the Court. With this jurisprudence in mind, I will turn to an examination of the record before me, including the transcript.
[13] There was no refugee hearing officer in this case. Accordingly, it was necessary for the Board itself to clarify areas of the evidence and to put inconsistencies to the witnesses.
[14] At the opening of the hearing, the Board asked the Applicants' counsel whether it was agreeable with him that the Board would ask questions "as we go along rather than leaving them to the end". Counsel agreed to proceed on that basis. While I do not think that counsel expected the number of interruptions, he did little to try to change the conduct of the hearing. In spite of this assertive questioning, however, I note that the counsel intervened to object to the questioning only once. On that instance, the Board - without hesitation, in my view - allowed the male Applicant to augment his answers. Counsel's only other effort to intervene was to attempt to bring an oral motion at the commencement of the second day of hearing for the Board to recuse itself. The Board, properly, declined to hear the motion on the basis that notice could have and should have been brought earlier, given the month-long break between the two days of hearing. If counsel felt that he had lost control of his case, he could have and should have raised that concern with the Board as the hearing progressed.
[15] More importantly, the Applicants are unable to point to any particular testimony that they were prevented from putting forward. At no time, did the Board refuse to allow counsel to continue questioning. After the Board's interventions, counsel was, without exception, able to continue his own questioning. Counsel was given an opportunity to re-examine the male Applicant after the conclusion of questioning by the Board. Counsel also made final submissions. In short, while the Applicants may not have presented their case in the manner that counsel originally intended (although I have no explanation of what was intended and how the presentation of the case might have been different), the Applicants were not prevented from putting forward their case.
[16] The Applicants' argument that the Board was setting traps for them is without merit. I see nothing improper in the Board seeking detailed clarification, as it did on a number of issues. For example, the Board's questioning on the Applicants' return to Mexico City was, in my view, quite appropriate and relevant to the issue of re-availment. Whether these questions were asked at the end of the direct examination or during it, the fact that they brought out evidence that was not favourable to the Applicants does not mean that the Board was deliberately confusing or setting a trap for the Applicants.
[17] Finally, I do not accept that the argument that the Board took comments by counsel "personally". Having reviewed the transcript, I note that counsel, at times, used language that was intemperate and bordered on improper conduct for an officer of the Court. It was quite proper, in those circumstances, for the Board to interject. Ensuring that counsel demonstrate proper decorum and respect is a matter directly relevant to the integrity of the Board as a tribunal; it is not a demonstration that the Board was taking the comments "personally".
[18] In conclusion on this issue, while the Board's conduct in questioning as it did was assertive and disruptive of the counsel's direct examination of the Applicants, there is not an evidentiary basis upon which I could conclude that it was more likely than not that the Board, whether consciously or unconsciously, would not decide fairly.
[19] However, I do not wish this decision to be seen as condoning the Board's behaviour in this hearing. Members of the Board are entrusted with the responsibility of making decisions that have a profound impact on claimants who appear before them. With that responsibility comes a duty on Board members to conduct themselves according to high standards. Patience, respect and restraint should be components of best practices of the Board. Conduct which does not meet these expectations can easily lead to applications for judicial review where an arguable issue is raised that warrants the granting of leave. Although the Applicants were not ultimately successful on the issue in this case, there has been use of judicial resources, expense to the Applicant and investment of time by a number of participants. None of this would have been necessary if the Board had shown more patience in its approach to this hearing.
Issue #2: Re-availment, failure to claim and delay
[20] As noted, the male Applicant spent eight years in the United States without making a claim for asylum in that country. The Board noted this stating that:
It was inconceivable to me that someone who fled from Mexico, allegedly in fear of such an important official, would fail to make a refugee claim (or an asylum claim) while he was in the United States. In my view, the excessive time that he spent in the United Stateswithout doing so was even more of an indication that he was not at risk in Mexico.
[21] The Applicants submit that the Board erred by failing to take into account the male Applicant's explanation. It is true that the Board does not refer to the explanation in its reasons. However, even if this is an error, in the context of the many implausibilities and findings of lack of credibility, such an error would be immaterial. Further, even taking the explanations into account, an eight-year stay in the United States without any attempt to regularize his status raises a serious question about a claimant's subjective fear.
[22] The Board also considered the male Applicant's returns to Mexico. There were three returns in all; the first was in 1997 when he voluntarily returned to Mexico City and remained there for some months; the other returns were when he was deported from the United States. When deported the second time to a town on the border, he voluntarily returned to Mexico City. The Board found his actions "completely inconsistent with their alleged fear of an important official or former official who wanted to try to kill him [in Mexico City]". This was a reasonable finding by the Board.
[23] Finally, the record shows that the Applicants did not file their claims in Canada for several months after their arrival. While this too could have led to a finding that the Applicants' delay was not consistent with a subjective fear, it appears that the Board did not rely on the delay; I assume that the Board accepted the explanation.
[24] In sum, I can see no reviewable error on these points of the decision.
Issue #3: State Protection
[25] At the conclusion of its oral decision, the Board stated that:
Even if I had found the evidence to be credible, both of these issues [state protection and internal flight alternative] led me to conclude that subsequently to 1992, there was protection available to them, which they did not seek.
[26] The Applicants submit that the Board's statement is "devoid of analysis". In my view, whether the statement is devoid of analysis or not, any error would be immaterial. As noted by the Board, in light of the lack of credibility of the male Applicant's testimony, the claim failed before there was any need for the Board to consider any evidence on the issues of state protection or internal flight alternatives. Accordingly, while the comment of the Board may be described as gratuitous, there is no finding by the Board of state protection. In the absence of a finding, there is no error.
CONCLUSION
[27] While the Board may have been excessive in its intervention at the two days of hearings, its behaviour did not cross the line to create a reasonable apprehension of bias or breach of procedural fairness. Putting aside this issue, the decision of the Board was careful in its detailed analysis of the evidence and I can see no reason to intervene.
[28] Neither party proposed a question for certification; none will be certified.
ORDER
This Court orders THAT:
1. The application for judicial review is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7247-04
STYLE OF CAUSE: JUAN JOSE GARCIA MARTINEZ et al v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 26, 2005
AND ORDER BY: The Honourable Madam Justice Snider
APPEARANCES:
Neil Cohen FOR APPLICANTS
Gordon Lee FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister & Solicitor FOR APPLICANTS
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada