Date: 19990804
Docket: IMM-3522-98
OTTAWA, ONTARIO, AUGUST 4, 1999
PRESENT: MR. JUSTICE TEITELBAUM
BETWEEN:
ALFREDO SANTIAGO CRUZ
Applicant
AND
THE MINISTER
Respondent
O R D E R
For the reasons set out in the Reasons for Order, the application for judicial review is dismissed.
Max M. Teitelbaum
J.F.C.C.
Certified true translation
Peter Douglas
Date: 19990804
Docket: IMM-3522-98
BETWEEN:
ALFREDO SANTIAGO CRUZ
Applicant
AND
THE MINISTER
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (the Panel) dated June 16, 1998, determining that the applicant is not a Convention refugee.
[2] The applicant is asking this Court to set aside the decision and order a rehearing before a new panel. The applicant is also asking this Court to declare that the Panel's proceedings violated section 7 of the Canadian Charter of Rights and Freedoms.
FACTS
[3] The applicant, a citizen of Mexico, claims he has a well-founded fear of persecution for reasons of political opinion imputed to him.
[4] In Mexico, the applicant worked for a transportation company that, among other things, rented buses to the immigration department. The department used the vehicles to deport illegal immigrants mainly from Guatemala.
[5] The applicant says that in response to the immigration department's practices, the local press began criticizing the transportation of illegals under abominable conditions and exposing the human rights violations in transit.
[6] Following these events, the applicant's employer told him to go to the Guatemalan border in a company bus to investigate the situation. On November 20, 1996, the applicant went there and says he witnessed immigration department personnel and police flagrantly abusing illegal immigrants.
[7] After that visit, the applicant says he went to the police to denounce the human rights violations he had witnessed on his visit. According to the applicant, when the officers learned that he was a representative of the company in question and that he had been carrying out an inspection on its behalf, they stripped him of his personal belongings, money and documents. In addition, the applicant says he was bound and beaten. He was subsequently thrown from the bus when it was travelling at full speed.
[8] The applicant says he was found by countryfolk who took him in. Following these events, the applicant informed his employer he would be unable to report for work immediately. That is when he learned he was wanted by the judicial police, whose officers had already been to his home twice. With that news, the applicant hid in a community of Zapatista National Liberation Army sympathizers.
[9] On or about April 15, 1997, the applicant was informed that his aunt was participating in the Institutional Revolutionary Party (PRI) election campaign. On that occasion, the applicant was invited to return home if he participated in an election fraud for the PRI.
[10] On May 29, 1997, the applicant says he was stopped by six people who beat him and told him to stop his political activities and publicly denounce the PRI. They also threatened to expose him for his participation in the election fraud and for his activities in Chiapas. Fearing persecution, the applicant left Mexico for Canada.
DECISION OF PANEL
[11] The Panel decided that the applicant had not established, in a credible and trustworthy manner, a well-founded fear of persecution. Inter alia, the Panel found it implausible that the judicial police-an organ of the PRI-wanted him, when he was working in their interests. In addition, the Panel pointed out a contradiction between the applicant's allegations that he went into hiding in Chiapas in November 1996 and the fact that he had answered in his PIF that he worked for the transportation company until February 1997.
[12] Last, the Panel determined that the applicant did not have a credible basis under subsection 69.1(9.1) of the Immigration Act. As a result of that finding, the applicant is ineligible for the "post-determination refugee claimants in Canada" class.[1]
SUBMISSIONS OF THE PARTIES
Applicant's arguments
[13] The applicant submits that the Panel made erroneous findings of fact, particularly with respect to the timing of his resignation.
[14] The applicant submits that the decision is inconsistent with the evidence submitted because the documentary evidence shows that there are human rights violations in Mexico. In addition, he argues that the Panel did not have regard to all of the documentary evidence submitted.
[15] He also submits that the Panel neglected its duty to have regard to the documentation in assessing the applicant's credibility.
[16] The applicant submits that the Panel left its impartiality in doubt by allowing the refugee hearing officer to begin his cross-examination first and by hearing several claims by Mexican refugees in the same half day.
[17] Furthermore, the applicant submits that the Panel did not respect human rights and Canada's international obligations because its decision will result in returning the applicant to a dangerous situation.
Respondent's arguments
[18] The respondent submits that with respect to the erroneous findings of fact and the inconsistency of the documentary evidence with those findings, the applicant has not shown that the Panel's decision was patently unreasonable.
[19] The respondent also submits that the applicant has not established credible links between the facts supporting his claim and the situation in Mexico.
[20] Furthermore, the respondent submits that under the Immigration Act, the Panel is master of its own proceedings and that under the circumstances, it made no error of law or fact by hearing a number of claims in the same half day or by allowing the refugee hearing officer to begin the claimant's cross-examination first.
[21] With respect to the Charter argument, the respondent submits that the Charter does not apply to matters that take place beyond Canada's borders. In addition, the respondent points out that the application for judicial review is not the right time to raise a Charter issue because the Panel's decision is not a removal.
[22] In conclusion, the respondent submits that since the applicant was considered not credible, subsection 69.1(9.1) of the Immigration Act empowered the Panel to find that there was no credible basis.
ISSUE
[23] This case essentially raises one question:
whether the Panel erred in fact or law in determining that the applicant is not a Convention refugee.
ANALYSIS
Credibility and assessment of the evidence in the record
[24] The decisions of this Court have clearly established that the Panel is in the best position to judge the claimant's credibility. The Court is authorized to intervene in only those cases where the Panel's decision is patently unreasonable.[2]Having regard to the facts in the record, I find that the Panel made no error of law or fact rendering its decision patently unreasonable.
[25] According to the Panel's decision, the Panel based its finding that the applicant was not credible on two points: (a) the implausibility of the fact that he feared persecution by the judicial police-an organ of the PRI-when he was working in the PRI's interests; and (b) the fact that he said he went into hiding in Chiapas in November 1996, when he also claimed to have remained an employee of the transportation company until February 1997.
[26] With respect to the timing of the applicant's resignation, the Panel found that he would have resigned before leaving for Chiapas. However, according to paragraph 22 of his factum, the applicant submits that he never resigned. Yet at paragraph 16 of his affidavit, the applicant says he resigned in February 1997 after going into hiding in Chiapas. At the hearing and in his PIF, the applicant explained that he had arranged with his employer not to return to work immediately, but without referring to the timing of his resignation:
[TRANSLATION]
BY THE RCO (to the claimant)
Q. At question . . . one of the questions on the form, whatever number it is-18 for those who have it-you state that you worked for Poleman (phonetic), the buses. In February '97, was it not, because, if I have got it right, you were in hiding at San Cristobal from November '96 to April '97, right?
A. Well, I gave that date because I assumed that until then I might . . . I might have been in the company's pay system.
Q. But that in fact stopped in November '96, right?
A. Because of the problem I had, yes, but the thing is that the company never dismissed me, or . . .
Q. No, no, but let's say . . . anyway. You . . . you never worked there again after November '96, right?
A. No, I could not work there, but neither can I tell you that I no longer had a job. The company simply told me not to return temporarily, to avoid the persecution of which I was the object.[3]
[27] Thus, the evidence in the record does not confirm the Panel's finding that the applicant contradicted himself on the timing of his resignation. Thus, the Panel's finding on the implausibility of the stated facts can only be based on the applicant's fear of persecution stemming from the actions of the judicial police.
[28] According to the transcript, it appears that when the Panel questioned the applicant on this implausibility, he was unable to answer:
[TRANSLATION]
Q. So how do you explain the fact that you worked for the PRI, when the judicial police wanted you, and the PRI is associated . . . with the judicial police . . . is at the service of . . . and the judicial police is at the service of the PRI? That does not make sense, Sir, according to the documentation we are aware of.
A. I do not know how it is that . . . I do not know how it is that my aunt was able to . . . make it possible for me to return. She told me she had found a way she could help me, as long as I co-operated with them and carried out . . . and carried out a task in order to be able . . . was able to carry out a task in exchange for my safety.[4]
[29] As I mentioned earlier, it is for the Panel to assess the evidence and the claimant's credibility. After reading the transcript and having regard to the evidence as a whole, I find that the Panel's decision is not patently unreasonable.
Well-founded fear of persecution
[30] As the respondent argued, the applicant did not establish a credible link between the situation in Mexico and his claim. The documentary evidence submitted is general evidence about human rights violations. Other than his testimony, there is nothing to suggest that there is a link between this situation and his claim; the Panel apparently dismissed his testimony.
[31] In Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal determined that if the Panel considers the claimant's testimony not credible, and no evidence links the persecution with the claimant, it can reasonably find that there is no credible basis for the claim.
Apprehension of bias
[32] The Panel made no reviewable error by allowing the refugee hearing officer to begin his cross-examination first, or by hearing a number of claims in the same half day. Subsections 68(2) and 68(3) of the Immigration Act clearly state that the Panel is master of its own procedure and is not bound by any legal rules of evidence:
| 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. |
68 (2) Dans la mesure où les circonstances et l'équité le permettent, la section du statut fonctionne sans formalisme et avec célérité.
(3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
[33] In Morante del Moral v. M.C.I. (June 4, 1998), IMM-2062-97 (F.C.T.D.), my colleague Mr. Justice Dubé dealt with the same issue and dismissed the applicant's arguments:
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) et 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:
. . . Correlatively, the right of the individual who apprehends bias on the part of 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, at pages 394-95, de Grandpré J. stated the following at page 395:
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 Reid, Administrative Law and Practice, 1971, at p. 220:
. . . 'tribunals' 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 in another. [Footnotes omitted.]
[34] I am of the same view; the Panel is master of its own procedure. In this case, the applicant has not shown the Panel's bias.
Canadian Charter of Rights and Freedoms
[35] With respect to the Charter issues raised, the decisions of this Court clearly state that the refusal of a refugee claim does not give rise to the application of sections 7 and 12 of the Charter, because it is not a removal.[5]Therefore, it is premature for the applicant to raise Charter issues in his application for judicial review.
[36] Last, the applicant submits that the Panel did not have regard to all of the documentary evidence. As the Federal Court of Appeal said in Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, the Panel is not required to refer to each piece of evidence. In this case, I find no reason to intervene.
CONCLUSION
[37] The application for judicial review is dismissed.
QUESTION FOR CERTIFICATION
[38] Counsel for the applicant submitted the following question for certification:
[TRANSLATION] Does the credible basis test have to meet the criteria of former subsection 46.01(6) of the Immigration Act and the second paragraph of article 3 of the Convention Against Torture?
[39] In Liyanagamage v. MCI (1994), 176 N.R. 4, Mr. Justice Décary stated:
In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (H.C.)), but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
[40] I am satisfied that the above-mentioned question should not be certified. I can do no better than to quote the written submissions in the respondent's letter of June 3, 1999:
[TRANSLATION]
First, the respondent submits that former subsection 46.01(6) of the Act has been repealed and that current subsection 69.1(9.1) of the Act is what applies to this case.
Under subsection 69.1(9.) of the Act, the Refugee Division is required to state that there is no credible basis for a claim when the requirements of that subsection are met.
The respondent submits that those requirements were met in the case at bar, since both Board members unanimously dismissed the applicant's testimony because of the implausibilities and inconsistencies in his narrative.
Max M. Teitelbaum
J.F.C.C.
Ottawa, Ontario
August 4, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3522-98
STYLE OF CAUSE: ALFREDO SANTIAGO CRUZ v. M
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 27, 1999
REASONS FOR ORDER OF TEITELBAUM J.
DATED AUGUST 4, 1999
APPEARANCES:
STEWART ISTVANFFY
FOR THE APPLICANT
THI MY DUNG TRAN
FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY
FOR THE APPLICANT
THI MY DUNG TRAN
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada