Date: 19990506
Docket: IMM-3029-98
OTTAWA, ONTARIO, MAY 6, 1999
BEFORE: TEITELBAUM J.
BETWEEN:
ALFREDO BARAJAS COTA,
Plaintiff,
AND:
MINISTER,
Defendant.
O R D E R
For the reasons given in the Reasons for Order, the application for judicial review is dismissed.
| Max M. Teitelbaum J.F.C.C. |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990506
Docket: IMM-3029-98
BETWEEN:
ALFREDO BARAJAS COTA,
Plaintiff,
AND:
MINISTER,
Defendant.
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review from a decision by the Refugee Board dated May 27, 1998, concluding that the plaintiff is not a Convention refugee. The plaintiff is asking this Court to quash the decision, find that the procedure adopted at the hearing contravenes the Canadian Charter of Rights and Freedoms ("the Charter") and order that a new hearing be held before a panel of different members.
FACTS
[2] The facts that follow are taken from the decision of the Refugee Division and the plaintiff's personal information form. The plaintiff, a citizen of Mexico, alleged he had a fear of persecution on account of his political opinions and his membership in a particular social group.
[3] The plaintiff is an air conditioning instructor and also owns a refrigeration and air conditioning company in Mexico City. In February 1997, after suggesting that the school administration change the gases used in the refrigerating equipment, which destroy the ozone layer, namely R11 and R12, he found that there was fraud and spoke about it to a colleague who belonged to a union dissenting from the National Government Workers Union (N.G.W.U.). He joined the union. On June 2, 1997 the plaintiff was summoned by the director and recognized the commander of the judicial police. The director offered him a percentage of the orders and he refused. He said he had obtained evidence of double billing and gave them to the representative of the "Coorinara" movement, a breakaway movement of the Institutional Revolutional Party (P.R.I.). He then received telephone threats and was attacked in a kidnapping on July 21, 1997. He said a plastic bag was put over his head and he received blows in his sides and stomach. He said he was forced by the judicial police to sign false statements.
[4] The plaintiff stated that he laid no complaint with the Mexican authorities since they were responsible for the death threats he had received. He left Mexico on August 9, 1997.
Decision of Refugee Board
[5] The analysis by the Refugee Board consisted only of the few passages reproduced below:
| [TRANSLATION] |
| The plaintiff did not establish in a credible and a trustworthy way that he had a reasonable fear of persecution. |
| When he was asked who he feared, he mentioned the judicial system but without being more specific. We do not believe that, though he may in fact have been a witness of corruption, the plaintiff constituted a threat to the authorities. He never spoke out about the frauds except to a colleague who had known about it as long as he did. He was able to work for several months without any problems. We therefore find it unlikely that the director suddenly decided, without any new developments in the matter, to give him a chance to participate in the fraud. That would be like an admission of guilt without any need to make it. |
| In short, the plaintiff's testimony did not seem credible to the Board. |
ISSUES
[6] The plaintiff raised two questions in particular:
| (1) did the Refugee Division commit a reviewable error in assessing the plaintiff's credibility by failing to consider or to refer to the documentary evidence in the record regarding the infringement of human rights in Mexico? |
| (3) did the Refugee Division infringe the provisions of the Charter, namely ss. 7, 12 and 15, by rendering an arbitrary decision, allowing the hearing officer to question the plaintiff before his own counsel had done so and scheduling several hearings of Mexican claimants on the same afternoon? |
SUBMISSION
Plaintiff's submissions
[7] The plaintiff maintained that the Refugee Division erred by arbitrarily rejecting the plaintiff's credibility without giving valid reasons, relying on secondary evidence and neglecting to take into account the documentary evidence in the record regarding the infringement of human rights in Mexico.
[8] The plaintiff further argued that by allowing the hearing officer to proceed to interrogate the plaintiff before his own counsel had questioned him, allowing the officer to bombard the plaintiff with questions during his examination and scheduling the holding of several hearings in the same afternoon, the Refugee Division had created a reasonable fear of impartiality* and so infringed the rules of fundamental justice in s. 7.
[9] The plaintiff further argued that the Board discriminated against Mexican claimants by scheduling several hearings in the same afternoon and so infringed s. 15 of the Charter. Additionally, the plaintiff maintained that the Refugee Board's decision infringed s. 12 of the Charter by refusing to grant political asylum to a victim of serious abuses as this in itself constituted cruel and unusual treatment.
Defendant's submissions
[10] The defendant submitted that the Refugee Division was entitled to conclude on the basis of logic and common sense that the plaintiff's story was unlikely. It was up to the plaintiff to show that the Refugee Division's conclusion was arrived at unreasonably.
[11] The defendant further submitted that the Division was not required to mention all the evidence in the record and was presumed to have considered all of the evidence before arriving at its decision. The plaintiff submitted no evidence to contradict the Refugee Division's conclusion that his story was improbable and could not claim that the Division had ignored the evidence filed. The defendant cited Sheikh v. Canada (M.E.I.), [1990] 3 C.F. 238 (F.C.A.), noting that the credibility of evidence and the credibility of the plaintiff are two separate things and that the panel"s perception that the plaintiff is not a credible witness amounts to a conclusion that there was no credible evidence on which the second hearing level could rely in allowing the claim.
[12] Furthermore, the defendant submitted that the Refugee Division had clearly stated the reasons for finding that the plaintiff's story was not credible. Those reasons, though brief, suffice since they enable the plaintiff to know why his claim was dismissed and to consider the possibility of challenging the decision by judicial review pursuant to s. 69.1(11) of the Immigration Act.
[13] On the arguments regarding a lack of impartiality by the Division, the defendant referred the Court to the comments of Dubé J. in Del Moral v. Canada (M.C.I.), IMM-2062-97, June 4, 1998, F.C.T.D., which dismissed practically identical arguments.
[14] The defendant further submitted that the arguments based on the Charter had no bearing on the facts in the case at bar since the Division found that the plaintiff did not risk being persecuted if he had to go back to Mexico, and were premature since the Division only determines whether a person is a Convention refugee, not whether he or she should be deported.
ANALYSIS
No basis for reasonable fear of persecution
[15] The plaintiff alleged that the Division erred in arbitrarily concluding that he was not credible.
[16] In a recent case, Antonippillai v. Canada (Minister of Citizenship and Immigration), IMM-2724-98, March 22, 1999, F.C.T.D., I had occasion to summarize certain rules of law applicable to the assessment of credibility by the Refugee Division, in paras. 9 and 10:
| There is no question that the Board has all the necessary discretion to assess the credibility of the testimony of people who claim refugee status, and may have regard to a multitude of factors in so doing. The Board may base its findings on internal contradictions, inconsistencies and evasive statements, which are the "heartland of the discretion of triers of fact", and other extrinsic factors such as rationality, common sense and judicial notice, but those findings must not be made in a perverse or capricious manner or without regard for the material before the Board: Sbitty v. Canada (M.C.I.), (IMM-4668-96, December 12, 1997), Shahamati v. M.E.I., (F.C.A.) (A-388-92, March 24, 1994). |
[17] In the instant case the Refugee Division concluded that the plaintiff had not shown in a credible and trustworthy manner that he had a reasonable fear of persecution. In its reasons the Division explained that the plaintiff could not be specific as to whom he feared and simply referred to the judicial system. The Division also noted that the plaintiff had never spoken out about fraud in the management of the school and had only talked to a colleague who was already aware of it, and was able to work for several months without any problem. On the basis of these findings, the Division concluded that although the plaintiff had been a witness of corruption in the school he did not constitute a threat to the authorities.
[18] It appears to the Court that the Division drew an inference from the facts in the record that there was no reasonable basis for the plaintiff's fears of persecution. In view of the evidence in the record, this inference does not seem unreasonable or arbitrary to the Court.
[19] The plaintiff further argued that the Division did not take into account the documentary evidence regarding the infringement of human rights in Mexico and erred by not referring in its decision to those documents.
[20] A presumption exists that the Division has taken all the evidence in the record into account in assessing the claim, and the burden on the Division to provide reasons for its findings by referring to the evidence in the record varies depending on the significance of the evidence in relation to the plaintiff's allegations: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), IMM-596-98, October 6, 1998, F.C.T.D. Evans J. made the following comments in this regard, at paras. 6 and 7:
| On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. |
| However, the more important the evidence that is not mentioned specifically and analysed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its findings of fact. |
[21] The plaintiff referred the Court to various documents, including the Special Report of the North American Project of the World Policy Institute, Democracy and Human Rights in Mexico, May 1995, in which it is reported that women and children are mistreated or tortured by security forces and the judicial police in order to extract admissions used by the courts, and the Annual Report of Amnesty International, 1996, reporting that arbitrary arrests and torture are endemic in Mexico. Additionally, the plaintiff also referred the Court to the Courrier International in which it is reported that a bishop objecting to infringements of human rights was the victim of an armed attack by Paz y Justicia, a group connected to the Institutional Revolutionary Party (P.R.I.).
[22] The plaintiff maintained that these documents supported his allegations that people opposing the P.R.I.'s corruption run a risk of threats, torture and death. The plaintiff further argued that all the circumstances in Mexico create a presumption that the P.R.I.'s opponents are liable to be persecuted. No decision was cited for this proposition.
[23] In my opinion, the documents referred to by the plaintiff report and establish that an endemic infringement of human rights exists in Mexico. It would have been better for the division to discuss this documentary evidence, since it would then be possible to determine with greater certainty whether the Division had taken it into account. However, I am not persuaded that the documentary evidence referred to by the plaintiff supports the plaintiff's allegations that he runs the risk of being persecuted or contradicts the Refugee Division's findings of fact. In my opinion, the failure to mention this evidence in the Refugee Division's analysis of the plaintiff's credibility does not constitute reviewable error in the case at bar and does not support a conclusion that the Division ignored it. The Division indicated elsewhere in the decision that the evidence submitted consisted essentially of the plaintiff's testimony and documents regarding the human rights situation in Mexico.
Fear of impartiality*
[24] The plaintiff alleged that the procedure adopted by the Section created a fear of impartiality in allowing the refugee hearing officer to begin the examination of the plaintiff, letting the hearing officer ask the plaintiff a great number of questions and scheduling the holding of several hearings in the same afternoon. The plaintiff further submitted that the procedure adopted at the hearing infringes the right to fundamental justice conferred by s. 7 of the Canadian Charter of Rights and Freedoms.
[25] As the defendant noted, these points have already been considered by the Federal Court in Del Moral v. Canada (M.C.I.), IMM-2062-97, June 4, 1998, F.C.T.D. Dubé J. dismissed the allegations of bias as follows:
| Counsel who represented the applicants at the hearing of this application for judicial review challenges the panel's decision on the ground that it showed bias against these applicants in particular and all applicants from Mexico in general. He pointed out to the Court that the hearing lasted only 30 to 45 minutes, which was a short period of time, and that the panel showed no interest in the explanations the applicants tried to provide about the dangerous situation in Mexico. |
| Counsel further submits that the panel's [TRANSLATION] "standard practice" is to deal with the cases of Mexican claimants, who are [TRANSLATION] "presumed to be economic refugees", as quickly as possible. The panel apparently heard three or four other claims by Mexicans that same afternoon. He also questions the panel's order that the refugee hearing officer begin her examination first, which he considers an unfair procedure intended to arrive at a quick negative response. He submits that the panel based its decision on two insignificant contradictions and completely disregarded the situation in Mexico in general, and the principal applicant"s well-founded fear in particular. |
| Counsel for the applicants did not however object to the proceedings and did not raise any issue of apprehension of bias on the part of the panel's members. |
| It is well established that a panel is the master of its own procedure and is not bound by the formal rules of a court. The applicants had every opportunity to prove the merits of their case. Moreover, subsections 68(2) and 68(3) of the Immigration Act (the Act) are very clear on this point: |
| 68 (2) The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit. |
| (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
| As can be seen from the transcript of the testimony at the hearing, the presiding member opened the hearing, summarized the facts and started to question the principal applicant. The refugee hearing officer and counsel for the applicants also participated. Toward the end of the hearing, the presiding member granted counsel the right to speak and he presented his arguments. |
| The courts have clearly established that a party reasonably apprehensive of bias on the part of a tribunal must allege a violation of natural justice at the earliest practicable opportunity [see Note 1 below]: |
______________
| Note 1: In re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103, at pages 110 and 113. |
______________
| . . . Correlatively, the right of the individual who apprehends bias on the part the Tribunal before which he is brought has always been, again as I understand the jurisprudence, a right to object to being judged by the Tribunal, but a right that exists only until he expressly or impliedly submits to it. It is only because Mr. MacBain raised his objections at the outset that his attack on the proceedings could be successful. |
| . . . |
| However, even apart from this express waiver, AECL's whole course of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. |
| Furthermore, the Supreme Court has clearly established that an apprehension of bias must be reasonable. In Comm. for Justice v. National Energy Board [see Note 2 below], at pages 394-395, de Grandpré J. stated the following at page 395: |
______________
| Note 2: [1978] 1 S.C.R. 369. |
______________
| The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the Tribunal. As stated by Reed, Administrative Law and Practice, 1971, at p. 220: |
| . . . 'trubunals' is a basket word embracing many kinds and sorts. it is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias to another. |
| Concerning the participation of the applicant's first counsel before the panel, there is surely no reason to impose on the panel an obligation to come to the applicant's aid. In Gholam-Nejad v. Minister of Employment and Immigration [see Note 3 below], Gibson J. of this Court stated that he found nothing on the face of subsection 18.1(4) of the Federal Court Act that would authorize the intervention of this Court where the problem is due to the failure on the part not of the panel but of counsel for the applicant. Gibson J. referred to a decision by Mahoney J.A., then of the Federal Court of Appeal, in Paterno v. Minister of Employment and Immigration [see Note 4 below] that dismissed an application for leave as follows: |
______________
| Note 3: 77 F.T.R. 44. |
Note 4: A-1770-92, June 23, 1992 (unreported).
______________
| Notwithstanding the consent of the respondent, this application for leave to appeal is dismissed. The incompetence of counsel chosen by a refugee claimant is not, of itself, a ground upon which it may be reasonably agreed that the refugee division erred. |
| I am not of course concluding that the first counsel in the instant case was incompetent. I am simply referring to the argument presented by the second counsel. I would also like to add a perfectly apposite comment made by Rothstein J. of this Court in Cam Hoa Huynh [see Note 5 below]: |
______________
Note 5: 92-T-1772, June 24, 1993, at pages 5-6.
______________
| . . .That the applicant's story was not told or did not come out clearly may have been a fault of counsel or it may have been that the applicant did not properly brief counsel. As I understand the circumstances, counsel was freely chosen by the applicant. If counsel did not adequately represent his client, that is a matter between client and counsel. |
[26] In the case at bar counsel representing the plaintiff at the hearing did not mention fear of impartiality at the hearing, which constitutes an implicit waiver of reference to this argument in connection with judicial review. Further, the fact that the officer began the hearing by questioning the plaintiff does not as such create a reasonable fear of impartiality. First, the Refugee Division is master of its procedure; second, the process of determination of refugee claims is not based on an adversary system.
[27] As regards s. 7, mentioned by the plaintiff, the Supreme Court of Canada has held that the process of determining refugee claims must proceed in accordance with the rules of fundamental justice set out in s. 7 of the Charter: Singh v. Canada (M.E.I.) (1985), 14 C.R.R. 13 (S.C.C.). However, the arguments raised by the plaintiff regarding the procedure adopted by the Division do not establish that there was a breach of the rules of fundamental justice set out in s. 7 or the rules of natural justice. In my view, the plaintiff has not shown that he was not entitled to a fair and impartial hearing before an impartial tribunal.
[28] As regards the various questions which the refugee hearing officer put to the plaintiff at the hearing, that does not as such raise a reasonable fear of impartiality, and should be distinguished from the aggressive cross-examination which the Federal Court of Appeal disapproved in Mahendren v. Canada (M.E.I.) (1991), 14 Imm. L.R. (2d) 30, F.C.A.
Infringement of s. 12 of the Charter
[29] The plaintiff argued that the refusal to grant political asylum to a victim of serious abuse such as the plaintiff is in itself cruel and unusual treatment and infringes s. 12 of the Canadian Charter of Rights and Freedoms.
[30] This argument is without merit. The Federal Court of Appeal held in Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3 (F.C.A.) that it was premature to determine whether the plaintiff's deportation was cruel and unusual since the Minister had not yet determined whether the plaintiff represented a danger to the public placing him in imminent danger of deportation. It follows that it is equally premature to determine whether a decision refusing to grant the plaintiff refugee status infringes s. 12 of the Charter.
[31] This is also what Heald J. held in Kaberuka v. Canada (M.E.I.), [1995] 3 F.C. 252 (F.C.T.D.), at para. 13:
| It does not, however, engage section 12 of the Charter. The ineligibility provision and the review of the applicant's removal, individually or in combination, do not involve the question of cruel or unusual treatment or punishment. It is only at the stage of the actual removal of the applicant that this issue arises. On this point I rely on the comments of MacGuigan J.A., writing for the Court, in Barrera v. Canada (Minister of Employent and Immigration), [1993] 2 F.C. 3 (C.A.) as follows [at pages 23-24]: |
| But, in any event, it is only a return to Chile which could conceivably put the appellant in any section 12 danger, and it is only the Minister who has the statutory power to subject him to that danger. The Minister cannot even make a decision as to the country of removal until the issue of deportation is settled by the Board. |
| For this reason I take the view that the appellant cannot succeed in overturning subsection 27(2) or section 32. His case must therefore rest on a challenge to section 53, which is the only provision that can put the appellant's section 12 rights in jeopardy, because it is the only provision that allows him to be returned to Chile. |
Infringement of s. 15 of the Charter
[32] The plaintiff further alleged that the fact of holding several Mexican refugee hearings on the same afternoon constituted discrimination that infringed s. 15 of the Charter.
[33] I will dispose of this argument forthwith since the plaintiff did not show that this practice of scheduling several consecutive hearings on the same day denotes a distinction based on personal characteristics or any similar unlawful ground. There is no evidence in the report that this practice is used only for Mexican claimants. Further, even if there were a practice of scheduling several Mexican refugee hearings on the same afternoon, there is no evidence that such a practice unfavourably affects the claimants or causes them any harm whatever. In my opinion, no guaranteed right was infringed.
CONCLUSION
[34] The application for judicial review is dismissed.
[35] No question was submitted for certification by the parties.
| Max M. Teitelbaum J.F.C.C. |
Ottawa, Ontario
May 6, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-3029-98 |
| STYLE OF CAUSE: ALFREDO BARAJAS COTA |
v.
| MINISTER |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 30, 1999
REASONS FOR ORDER BY: TEITELBAUM J.
DATED: MAY 6, 1999
APPEARANCES:
| STEWART ISTVANFFY FOR THE APPLICANT |
| SÉBASTIEN DASYLVA FOR THE RESPONDENT |
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF
CANADA
__________________