Toronto, Ontario, August 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
CARLOS ALFREDO MARTINEZ, FABIAN ALEJANDRO MARTINEZ (A.K.A. FABIAN A MARTINEZ), GUSTAVO ARMANDO MARTINEZ QUIROGA (A.K.A. GUSTAVO ARMANDO MARTINEZ), MIRTA SUSANA QUIROGA DE MARTINEZ, CARLOS ALFREDO MARTINEZJR.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 19, 2004, in which Carlos Alfredo Martinez (the principal applicant), Fabian Alejandro Martinez, Gustavo Armando Martinez Quiroga, Mirta Susana Quiroga De Martinez and Carlos Alfredo Martinez Jr. (collectively the applicants) were determined not to be convention refugees nor persons in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicants are all citizens of Argentina, and claim refugee protection on fear of the executives of the Transport Labour Cooperative of Cuyo (TAC) as well as lack of state protection for them in Argentina.
[3] The principal applicant claims that he was employed by TAC for fifteen years as a mechanic and chauffeur and was also the treasurer of the Social and Reciprocal Action Credit Co-Operative within TAC. In June 1995, he ran unsuccessfully in the internal election of directors for the Board of TAC and alleges that following this, he was locked out of the TAC offices and fired from his job with them. Allegedly, all 12 candidates were fired from TAC for having presented themselves in the election
[4] TAC filed criminal charges against the principal applicant for misuse of public funds while he worked at TAC and the applicant filed his own civil suit for wrongful dismissal. Soon after being let go from TAC, the principal applicant started to receive daily threats. He did not report these threats to State authorities, claiming that he does not believe in any police in Argentina.
[5] Furthermore, the eldest son of the principal applicant claims to have been threatened and beat while attending school. The attackers were supposedly the sons of high ranking members of TAC. Also, another one of the principal applicant's sons was kidnapped and beaten, his captors telling him that his dad should drop the lawsuit against TAC in order for his problems to go away.
[6] The principal applicant also alleges having been assaulted one night by people working for TAC, resulting in a broken rib. Furthermore, they would throw rocks and break the windows of the applicants' home and even tried to set fire to the applicants' home on two occasions.
[7] The applicants went to live with other family members in order to avoid the harassment. However, a week after having moved, the threatening phone calls started again. The applicants therefore decided they would have to leave Argentina to escape the constant persecution.
ISSUES
[8] 1. Did the Board commit a breach of procedural fairness in applying paragraph 19 of Guideline 7 and allowing the Refugee Protection Officer (RPO) to start questioning the applicant?
2. Did the Board commit a patently unreasonable error in its evaluation and interpretation of the evidence provided to it?
3. Did the Board apply an improper test in determining whether state protection was available to the applicants?
ANALYSIS
1. Did the Board commit a breach of procedural fairness in applying paragraph 19 of Guideline 7 and allowing the Refugee Protection Officer (RPO) to start questioning the applicant?
[9] Paragraph 19 of Chairperson's Guideline 7 - Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division (Guideline 7) states that it will be standard practice for the RPO to begin questioning the claimant. That paragraph reads as follows:
In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
[10] Since the filing of the application for judicial review, this Court has dealt with the exact issue being raised by the applicants. In the case of Cortes Silva v. Canada(Minister of Citizenship and Immigration), 2005 FC 738, [2005] F.C.J. No. 920, my colleague Justice Gauthier thoroughly examined whether paragraph 19 of Guideline 7 breached the principles of procedural justice. As I agree with her analysis, I will content myself to quote at length from her decision:
Before examining the second issue, it is useful to note that, because the question is whether the RPD failed in its duty to abide by the rules of natural justice and procedural fairness, this is not a case in which we should apply the pragmatic and functional method to determine what standard of review is applicable (Canada (A.G.) v. Fetherston, [2005] F.C.J. No. 544 at para. 16 (F.C.A.) (QL)). If there was a breach of duty, the decision must be set aside unless it is inevitable that the claim will be rejected (Mobil Oil Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 and Yassine v. Canada (M.E.I.), [1994] F.C.J. No. 949 (F.C.A.) (QL) De-Robbles v. Canada (M.C.I.), [2005] F.C.J. No. 135 (T.D.) (QL) at para. 17).
(...)
In the respondent's submission, the Supreme Court of Canada confirmed in Prassad v. Canada(Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at paragraph 16, that the RPD controls its own procedure. Subsection 162(2) of the Act further provides that it shall deal with proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
In this case, the practice suggested in Guideline 7, entitled Guideline Concerning Preparation and Conduct of a Hearing in the Refugee Division, does not constitute a breach of the audi alteram partem rule, because it is evident that the applicant was fully afforded the right to be heard in order to argue the merits of his claim for refugee protection.
The respondent points out that that practice was also examined by this Court in Del Moral v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 782 (T.D.) (QL) at para. 8; Cota v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 872 (T.D.) (QL) at paras. 24-26; Cruz v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1266 (T.D.) (QL) at paras. 32-34 and Ithibu v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 499 (T.D.) (QL) at paras. 55-58.
In those cases, the Court confirmed that starting with cross-examination by the RPO does not, in itself, constitute a violation of the rules of natural justice.
(...)
As Pelletier J. said in Veres, supra, the RPD is the master of its procedure. "It is entitled to take economy of time into account in devising its procedures. It can equally direct which evidence it wishes to hear from the mouth of the witness and which it waives hearing" (paragraph 28). However, the choices it makes impose duties on it that it would not otherwise have. For example, when it says that it does not need to hear a witness, it cannot then complain that it did not hear the witness. Accordingly, as Pelletier J. said at paragraph 32, "[t] he price of setting the agenda is to accept the responsibility for the items which are missed". The judge then explained that in each particular case, the Court must consider whether the interaction that occurred during the hearing would fairly put the claimant on notice that the absence of further explanation would be prejudicial to his or her cause. Those comments relate to cases where there was no evidence, and not to the question of whether the evidence presented was sufficient.
(...)
The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules. (Refugee Protection Division Rules, s. 44.)
That is in fact how I interpret all the cases cited by the parties in which the Court was required to consider this practice. In Del Moral, supra, Cota, supra, Cruz, supra, and Ithibu, supra, Dubé, Teitelbaum and Blais JJ., respectively, held that this approach was not unfair in the particular circumstances of the cases before them.
[11] Just as in the above cited case, the applicants here had a full opportunity to present all of their evidence in support of their claim before the Board. The applicants have not provided any evidence that the Board's application of Guideline 7 had any such effect on their ability to present their case before the Board. Thus, I do not find that the order of questioning prevented the applicants from presenting their evidence or detracted from the overall fairness of the hearing. This was also clearly stated by the Board when this issue was raised before it:
PRESIDING MEMBER: I think - I mean, the standard response is that the claimants have already made the first representation by the filing of their PIF and that this is a board of inquiry, that the claimants will be questioned. It's not cross-examination necessarily. When you are given an opportunity to question the claimants, Mr. Rowe [counsel for the applicants], you will not be limited to redirect. You will have full and open access to question. But I will hold you to the issues that I have outlines.
(Page 535 of the Tribunal record - Transcript of the hearing dated June 30, 2004)
[12] As for the allegation that the other applicants were also asked to testify on short notice and without being prepared by their counsel, I find that this argument does not raise a serious issue. All of the applicants were served with Notices to Appear; it was therefore not unreasonable to assume that the Board may be calling on them. Nevertheless, they were allowed time to be prepared by their Counsel.
2. Did the Board commit a patently unreasonable error in its evaluation and interpretation of the evidence provided to it?
[13] The applicants claim that the Board based its decision on capricious or perverse findings of fact. Upon reading the transcript of the oral hearing as well as the reasons for decision, I do not find it unreasonable for the Board to have concluded as it did. For example, the principal applicant stated that he did not fear the criminal proceedings brought against him by TAC executives; he also stated that he himself has instituted a civil suit in the Argentinean courts for wrongful dismissal. It was therefore reasonable for the Board to conclude that the principal applicant had faith in the justice system, not fearing a tainted trial, and even utilizing the system himself by filing suit.
[14] Having reviewed the record, I do not consider that the tribunal's assessment can be characterized as perverse or capricious, or made without regard to the evidence before it. Although there may be minor discrepancies between the principal applicant's testimony and the Board's understanding of it, the standard of review of questions of fact being that of patent unreasonableness, I find them to be very minor and inconsequential to the overall decision, seeing as to how there were sufficient other findings and evidence to support the Board's conclusion that adequate state protection was available to the applicants in Argentina.
3. Did the Board apply an improper test in determining whether state protection was available to the applicants?
[15] The applicants claim that the Board erred when it stated that "[there is] a presumption that the state cannot protect its citizens." Although the Board did err in this case, it is simply an innocent mistake and should have read "can" rather than "cannot". Regardless, the Board did apply the proper test as in the paragraph following the above statement, it properly stated that "the claimant (...) has not rebutted the presumption of adequate state protection in Argentina". Furthermore, throughout the rest of its decision, it is clear that the Board properly applied the test in order to determine whether state protection was a possibility for the applicants.
[16] In the Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 case, the Supreme Court of Canada reiterated that absent a situation of complete breakdown a State should be presumed capable of protecting its citizens:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. [my emphasis]
[17] To that, I would add the findings of Justice Denault in the case of Silva v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 1161:
The question is not whether the state would be willing to protect, but whether the applicant is willing to seek the protection of the state. It is the well-foundedness of the applicants' perspective regarding the state's actions which is determinative. [my emphasis]
[18] In the present case, the Board determined that the applicants had not been able to meet the burden of proving that the state was in fact incapable of providing adequate protection. Furthermore, the Board found that on numerous occasions, it was the unwillingness of the applicants themselves to seek state protection which lead to the applicants claiming that the police would not protect them; for example:
- The applicants did not report the threats they were receiving over the telephone, even though they allege to have been receiving them on a daily basis. When asked why he did not report this, the principal claimant stated that he did not believe in any police in Argentina.
- The kidnapping of the principal applicant's son was never reported to the police, even though he claimed to have been taken away, beaten severely, dropped off in an open country road and that he felt as though he was going to die. Although not reported in his PIF, during his oral testimony, the principal applicant claims to have spoken to police about it and made a report, even though he was unable to produce a copy of the declaration.
- Although he was beaten in 1999 and broke a rib, in oral testimony, the principal claimant stated not to have reported this incident to police. When confronted with the fact that in his PIF, he claimed to have reported it to local police, he stated that he had simply forgotten and that he had indeed spoken with police about it,
[19] These three examples are prime examples of cases in which the applicants could and should have filed reports with the police, in order to benefit from state protection. Not having done so, I do not find it patently unreasonable for the Board to have determined that the applicants did not avail themselves of the available state protection and therefore, that they were not able to rebut the presumption that a State is capable of protecting its citizens.
ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed.
2. No question for certification.
"Pierre Blais"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9393-04
STYLE OF CAUSE: CARLOS AFREDO MARTINEZ ET. AL. v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 15, 2005
APPEARANCES:
Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
Roger Rowe
Barrister & Solicitor
North York, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT