Date: 20010727
Neutral citation: 2001 FCT 839
Vancouver, British Columbia, Friday, the 27th day of July, 2001
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
RABEND SINGH, ANITA SINGH,
RONIL SINGH and ARTI DEVI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
INTRODUCTION
[1] Rebend Singh, Anita Singh, Ronil Singh and Arti Devi (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated August 23, 2000. In its decision, the Board determined the Applicants not to be Convention refugees.
FACTS
[2] The Applicants are residents of Fiji. They claim Convention refugee status on the basis of race, that is because they are Indo-Fijians. They left Fiji on October 15, 1999 and arrived in Canada on that date. They applied for Convention refugee status on November 2, 1999, alleging fear resulting from increasing violence in Fiji against persons of India descent. On May 19, 2000, a coup occurred in Fiji against the government.
[3] The Board found that although the Applicants had been subject to discrimination and acts of criminality in Fiji, they were not subject to political persecution. The Board concluded that if the Applicants returned to Fiji, they would not suffer due to continuing instability in that country.
ISSUES
[4] The Applicants raise two issues in this application:
(a) Did the Board err in its finding that the Applicants did not have a well-founded fear of persecution due to a Convention ground?
(b) Did the comments made by one of the Board members create an apprehension of bias?
Applicants' Submissions
[5] The Applicants argue that the Board erred in failing to consider whether the cumulative effect of the acts of discrimination and criminality committed against them, constitutes persecution. In this regard, the Applicants say that the Board made a positive finding that they were subject to discrimination on the basis of race. The Board also found that the Applicants had been the victims of criminal acts. However, the Applicants say that the Board had failed to consider whether these types of behaviour could amount to persecution. In support of this argument, the Applicants rely on the decision of the Federal Court of Appeal in Rajudeen v. Canada (Minister of Employment and Immigration) (1985), 55 N.R. 129 (F.C.A.). The Applicants also argue that the Board failed to take into consideration a change in country conditions, specifically, the coup that took place in Fiji after they left the country.
[6] The secondary argument advanced by the Applicants arises from certain comments made by Mr Leonardo Cunanan, a Board member, in the course of the hearing. He said as follows:
What I know about Fiji is mostly what I've read in travel magazines. People go there to have their vacation and holidays. Look to me - looks like a beautiful country to spend your vacation.
[7] The Applicants submit that this remark by a member of the Board, which is a specialized tribunal deemed to possess specialized knowledge, indicates a lack of expertise and lack of understanding of human rights issues and Convention refugee claim. The Applicants, relying on the decision of the Committee for Justice and Liberty at al. v. The National Energy Board et al. [1978] 1 S.C.R. 369, say it is unnecessary for them to show actual bias on the part of the adjudicator if the impugned comments would lead a reasonably well-informed person to lose confidence in the adjudicative process in issue.
Respondent's Submissions
[8] The Respondent argues that the decision of the Board shows that it understood the basis of the Applicants' claim to be the issue of race, notwithstanding its use of the words "political persecution". Furthermore, the Respondent submits that the Board looked at both past instances of discrimination committed against the Applicants and the current situation in Fiji, that is after the May 2000 coup, in concluding that the Applicants had failed to establish a link with a Convention refugee basis for persecution.
[9] Finally, the Respondent submits that the above-referred comments by Board member Cunanan was nothing more than introductory comment to a line of questioning commenced by that member relating to peace and order in Fiji.
ANALYSIS
[10] It is well established that a decision of the Board will receive a high degree of deference from a reviewing Court and will be subject to intervention in limited circumstances. In this regard, see Sivasamboo v. Canada (Minister of Citizenship and Immigration) (1995), 87 F.T.R. 46.
[11] The Applicants rely heavily on the argument that the Board failed to consider whether the cumulative effect of discriminatory and criminal acts committed against them amounted to persecution. They submit that this failure constitutes an error of law. However, in my opinion, this argument cannot succeed.
[12] According to the reasons delivered by the Board, the issue of persecution on the basis of race was considered. The reasons provide as follows:
The panel does not believe that the claimants were politically persecuted. The panel accepts that the claimants have been discriminated against for many years due to their race of being Indo-Fijians. The only specific incidents of violence towards the claimants occurred approximately ten years ago. The panel believes the claimants have been both victims of racial discrimination and criminal acts. The panel does not accept that the claimants have a well-founded fear of persecution due to a Convention ground.
(Tribunal Record, paragraph 9)
[13] The evidence before the Board supports this conclusion. In effect, the Applicants are asking the Court to engage in an independent assessment of the evidence and to reach a different conclusion. This is not permitted in an application for judicial review.
[14] As for the secondary argument advanced by the Applicants, I am not persuaded that the gratuitous comments of one of the Board members tainted the hearing to such a degree that a reasonably informed person would question the integrity of the adjudicative process.
[15] The application for judicial review is dismissed.
[16] Counsel advised that there is no question for certification arising from this application.
ORDER
[17] The application for judicial review is dismissed.
(Sgd.) "Elizabeth Heneghan"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5122-00
STYLE OF CAUSE: Rabend Singh, Anita Singh, Ronil Singh and Arti Devi v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 24, 2001
REASONS FOR ORDER OF THE COURT BY: Heneghan, J.
DATED: July 27, 2001
APPEARANCES:
Mishal Abrahams FOR APPLICANT
Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Kang Abrahams Chahal FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Vancouver, British Columbia