Date: 20051104
Docket: IMM-423-05 and IMM-424-05
Citation: 2005 FC 1499
BETWEEN: IMM-423-05
XXXX
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
IMM-424-05
BETWEEN:
YYYY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
GIBSON J.
Introduction
[1] These reasons follow the hearing of two applications for judicial review of decisions of the Refugee Protection Division ("RPD") of the Immigration and Refugee Board wherein the RPD determined the applicant XXXX to be excluded from Convention refugee protection or equivalent protection by virtue of Article 1F(b) of the United Nations Convention Relating to the Status of Refugees and the Protocol to that Convention, as defined in subsection 2(1) of the Immigration and Refugee Protection Act[1], and determined YYYY, while not excluded, not to be a Convention refugee or person otherwise in need of Canada's protection. The decisions under review followed a single series of hearings in respect of both claims that commenced with a pre-hearing conference in September, 2003 and thereafter continued over a five-day period commencing on the 8th of January, 2004 and continuing to the 24th of February, 2004.
[2] The Applicants' claims were heard together at their request. Similarly, the judicial reviews of the RPD's determinations were heard together by virtue of a direction issued by my colleague Justice Campbell dated the 25th of July, 2005. These reasons will apply with respect to the decisions of the Court on both applications for judicial review. Separate orders will issue.
[3] At the close of the hearing before the Court, counsel for the Applicants expressed concern for his clients' safety if they were identified by name in reasons circulated and widely available. In the result, at the invitation of the Court, he moved informally for an Order modifying the style of cause on these reasons to the form, or an equivalent, of that which appears on page 1 of these reasons, with equivalent neutral designations throughout the reasons. Counsel for the Respondent requested an opportunity to consult her client. Following that consultation, the Respondent consented to an Order changing the style of cause and an Order issued accordingly. At the Court's own initiative, these reasons have been written to minimize, to the extent considered reasonable, the risk of identification of the Applicants.
Background
[4] The Applicants are both citizens of Vietnam. They became close friends some time before the 21st of August, 1997. It was only on or after that date that their lives became intertwined leading to a situation where they both fled Vietnam to arrive together, by a rather circuitous route, in Canada where they each claimed Convention refugee status on the 20th of September, 2002. Both Applicants insist that if they are required to return to Vietnam, they will be killed.
a) XXXX's story
[5] XXXX was born in Hang Chieu, Vietnam in May of 1960. In March of 1981, XXXX married. The couple had two (2) children. In 1992 the couple started a hotel business, and later founded a pawn shop and two restaurants. They became quite successful and, at the height of their careers, employed more than seventy (70) employees.
[6] XXXX ran the pawn shop. In 1994 or 1995, XXXX lent a regular client money. Both the client and the client's companion were subsequently convicted of drug trafficking. The companion was later sentenced to death. In 1997, shortly before the execution of the companion, the companion "fingered" XXXX as a person involved in drug trafficking. XXXX learned, on or about the 21st of August, 1997, upon return to Vietnam from a trip abroad, that a police investigation was under way. The couple's home had been sealed and apparently their property had been seized. XXXX did not attempt to return home. On or shortly after the 21st of August, 1997, XXXX prevailed on YYYY to provide refuge in YYYY's home. The arrangement for refuge continued until 2002 with XXXX being virtually a prisoner in the attic of YYYY's home.
[7] On the 11th of October, 1997, the Vietnamese Ministry of Interior issued a warrant for XXXX's arrest. XXXX expresses a belief that the police investigation and the issuance of the arrest warrant were motivated by a desire to extort money from XXXX. XXXX denies all and any involvement in drug trafficking.
[8] On the same day the arrest warrant was issued against XXXX, XXXX's spouse was arrested for drug trafficking. The spouse was tried and convicted, the conviction was upheld on appeal and the spouse was executed in 2001.
[9] Conditions in YYYY's home deteriorated for both XXXX and YYYY. YYYY's companion became violent towards both YYYY and XXXX. XXXX was abused by the companion. When YYYY confronted the companion, the companion told YYYY that the activity of harbouring XXXX would be reported to the police and that YYYY would be charged and would face the death penalty.
[10] Faced with the foregoing "impossible situation", XXXX left Hanoi on the 4th of May, 2002 and arrived in Thailand by bus on the 8th of May, 2002. YYYY joined XXXX a few days later and they stayed in Thailand for some four (4) months, awaiting delivery of false Australian passports. They travelled from Thailand to Myanmar on the 14th of September, 2002 and sojourned there in a hotel for some six (6) days. They left Myanmar for Taipei, and transited there for a flight to Canada.
b) YYYY's Story
[11] YYYY was born in Thuong, Vietnam in August of 1961. YYYY married in 1983. The couple had one (1) child. They divorced. In May of 1991, YYYY entered into a common law relationship. That relationship deteriorated rather dramatically after XXXX took refuge in YYYY's home, as referred to above. YYYY feared death by reason of the companion's violence and the threat that the companion would expose YYYY for having harboured XXXX.
The Hearing Before the RPD and its Reasons
[12] The respondent Minister made known her or his intention to intervene in the hearing of the Applicants' claims to seek their exclusion from protection in Canada. Commencing with the pre-hearing conference held in September of 2003, the presiding member of the RPD took a very pro-active role in the hearing process. At that pre-hearing conference, attended by counsel for the Applicants and counsel for the Minister, counsel for the Minister sought an adjournment of the commencement of the hearing. He stated:
I was hoping that I could confirm or get a confirmation from the RCMP that they have in fact corresponded with the Vietnamese regarding this drug trafficking ring [of which XXXX was suspected of being a member].
The presiding member obviously shared the concern of counsel for the Minister that the Minister did not have a strong case for exclusion. She stated:
Because do we have evidence? Do we have charges outstanding in Vietnam? I mean, we have got a warrant, but do we actually have Canadian evidence? I mean, would the Canadians, on the strength of what we've got right now, remove this [person]. You know what I'm saying? There doesn't seem to be a lot of -- usually you've got, you know, search warrants, how the ring is set up, the evidence that you need. Now, I appreciate that as you say, if it's an ongoing investigation, we're not going to have access to that, but do you have anything in your file or do you hope to get anything that might substantiate the outstanding drug trafficking charges?[2]
The presiding member urged counsel for the Minister:
--you need to be doing a risk assessment in your own mind. Don't do any evidence-gathering on behalf of this claim, on behalf of the board, essentially, without being very careful that you are not creating a sur place claim.[3]
[13] The presiding member granted the requested adjournment and, in the result, the hearing itself did not commence until January of 2004.
[14] Counsel for the Applicants took the Court to a number of similar instances throughout the long transcript that demonstrated the presiding member's interventionist posture, a posture that he urged demonstrated bias, or at least the basis for a reasonable apprehension of bias, against the Applicants.
[15] In her reasons,[4] the presiding member accepted the identities and citizenship of both XXXX and YYYY[5]. She describes the allegations of the Minister in respect of XXXX in the following terms:
It is the theory of the Minister that there are serious reasons for considering that [XXXX] has committed serious non-political crimes in Vietnam. The basis for this theory is the existence of an INTERPOL Warrant from Vietnam that details the crimes [XXXX] is alleged to have committed. The Minister obtained additional details regarding the drug trafficking transactions over the period of several years.
[XXXX] has never denied the existence of the Red Circle Notice [the INTERPOL Warrant]. [XXXX] confirmed its existence the moment [XXXX] arrived in Canada. [XXXX] told an immigration officer that [XXXX] was wanted in Vietnam for drug trafficking, which the Minister submits adds weight to the documents provided by the Vietnamese authorities.
In addition, the Minister submits that the information filed in these proceedings confirms that [XXXX and XXXX's spouse] were drug traffickers and [XXXX's spouse] was executed for this offence, and [XXXX] is wanted for the same offence, and therefore went underground.
The Minister submits that [XXXX] is closely aligned with many of the key players in the infamous drug smuggling ring convicted in 2000. Some were [XXXX's] customers, and some were [XXXX's] family members. In particular, the evidence with respect to [....,] a customer of [XXXX's] (like another customer of [XXXX]), points to [XXXX's] complicity. According to the Vietnamese authorities, [....] was involved in drug smuggling with [XXXX].
Mr. [...., counsel for XXXX's spouse on the spouse's appeal of conviction and a witness before the RPD by telephone connection] stated that [....] was one of 20 individuals involved in a major drug trafficking trial and that he too was executed. [XXXX] confirmed he was a customer of [XXXX] and likely gave a statement to the police implicating [XXXX]. [XXXX] has no evidence of this, and the Minister submits [XXXX] is speculating.
The Minister's counsel submits that there is ample evidence that the [XXXX] is not credible, that [XXXX] has committed the crimes alleged, and that [XXXX] is a wanted international drug trafficker. He submits that [XXXX] should therefore be excluded from refugee protection.[6]
[16] The presiding member rejected XXXX's responding evidence and testimony. She concluded on exclusion in respect of XXXX in the following terms:
There is sufficient evidence before the panel to find there are serious reasons to consider that [XXXX] committed a serious non-political crime. There is the previously mentioned INTERPOL Warrant, detailing why [XXXX] is wanted in Vietnam. In addition, there is[XXXX's spouse's] conviction for trafficking. [XXXX] is considered to be the accomplice of [the spouse]. [...., a Canadian diplomatic official in Vietnam who conducted on-sight interviews] provided more detailed information following [....] discussion with the INTERPOL agents, including information of drug trafficking transactions over the period of many years, or perhaps decades.
In addition, the documents provided by the Minister's counsel make a compelling argument that [XXXX's] routes to international trafficking are tied to [XXXX's] family.
The documents also confirm that where, like here, the person is out of the country when the Warrant is to be executed, a procedure must be followed. An official of the court or police cannot issue an arrest Warrant unless the Prosecutor has signed off its issuance. Second, the Public Prosecutor supervises the action of the court and the police, and third, for those outside of the country, the government of Vietnam asks INTERPOL's assistance to help detain and perhaps to extradite.
...
I have read and prefer the documentary evidence provided by the Minister, which I find is very persuasive and thorough. The evidence suggests that the justice system in Vietnam, while very different from Canada's is not a system that necessarily convicts on fabricated evidence. Evidence of country conditions generally, including the evidence of [....] regarding what took place at [....'s....] trial and appeal, do not provide sufficient doubt about the surrounding circumstances, such that I would question the validity of the INTERPOL Warrant and the evidence upon which it is based. The combination of factors which have not been satisfactorily addressed by [XXXX], is what makes the Minister's case so strong.[7]
[17] In light of her finding regarding exclusion in respect of XXXX, the presiding member did not go on to consider whether XXXX would have been a Convention refugee or a person otherwise in need of protection if XXXX had not been found to be excluded.
[18] In relatively brief reasons, the presiding member found YYYY not to be excluded and not to be a Convention refugee or a person otherwise in need of Canada's protection. With respect to exclusion, she wrote:
There is insufficient evidence that the authorities in Vietnam are interested in [YYYY]. We do not have a Warrant for [YYYY's] arrest, or any information to suggest that [YYYY] is wanted by INTERPOL or the Vietnamese authorities for harbouring XXXX, or for any other reason.
I find that [YYYY] should not be excluded pursuant to Article 1F(b) by virtue of [-] activities for allegedly harbouring [XXXX] for five years as well as [YYYY's] alleged participation in helping [XXXX] escape Vietnam, because I am not persuaded [YYYY's] did in fact harbour [XXXX] or help [XXXX] escape from Vietnam. The story is implausible in my view and this, together with the other credibility concerns, has caused me to conclude the story is concocted.
In addition, there is no evidence of criminal charges in Vietnam. This fact alone suggests there is reason to doubt the fact that [XXXX] was in hiding for several years in [YYYY's] attic.
There is insufficient credible or trustworthy evidence to find [YYYY] excluded. Therefore, there is no serious reason for believing that the associated claimant committed a serious non-political crime.[8]
[19] The presiding member similarly rejected YYYY's claim to be a Convention refugee or a person otherwise in need of protection, based on credibility concerns. In this regard, the presiding member concluded:
The onus of proof is on the claimant to establish a well founded fear of persecution for a Convention reason, or that there are serious reasons for believing [YYYY] is otherwise at risk. [YYYY] has not established on reliable evidence that what [YYYY] fears is persecution, or a risk to life, or of cruel and unusual treatment or punishment, or of torture.[9]
[20] Finally, the presiding member noted that both XXXX and YYYY put forward a sur place claim based upon a publication, in October of 2002, in the Lower Mainland of British Columbia, that allegedly identified them as being present in Canada. The sur place claim is rather summarily rejected.
The Statutory Framework
[21] The relevant provisions of the Immigration and Refugee Protection Act read as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (I) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
...
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: a) soit se trouve hors de tout pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays don't elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée_: a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant_: (I) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
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[22] Section F of Article 1 of the Refugee Convention earlier referred to is reproduced in a Schedule to the Immigration and Refugee Protection Act. In that Schedule, Article 1F and paragraph (b) of that Article are in the following terms:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: ... (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; ...
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F. Les dispositions de cette Convention ne seront pas applicables aux personnes don't on aura des raisons sérieuses de penser_: ... b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; ...
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The Issues
[23] Counsel for the Applicants identified two issues common to both Applicants and a third issue with respect to each Applicant, those issues being unique to the particular Applicant.
[24] The common issues, the Court paraphrases in the following terms:
- the RPD breached principals of fundamental and natural justice in arriving at its conclusions with respect to each of the Applicants by effectively assuming the role of a prosecutor in each case by seeking to establish in the evidence the case for exclusion, engaging in investigation of matters pertaining to the so-called criminality of the Applicants and other members of their families and thereby displayed bias in favour of the Minister in handling the Applicants' claims; and
- the RPD breached principles of fundamental and natural justice in arriving at its conclusions by improperly ignoring or overlooking the evidence of expert witness Professor Ian Townsend-Gault about the wide spread corruption in the Vietnamese justice system, as well as similar evidence led by the Applicants and by others to the same affect, and arriving at the erroneous conclusion that the justice system in Vietnam is fair and does not convict on fabricated evidence.
[25] The unique issue with respect to XXXX is stated in essentially the following terms: did the RPD breach principles of fundamental and natural justice in arriving at its conclusions with respect to XXXX by basing its conclusion that there are serious reasons for considering that XXXX has committed a serious non-political crime on evidence that amounts to nothing more than suspicion and conjecture.
[26] Finally, the unique issue identified with respect to YYYY may be stated in the following terms: did the RPD breach principles of fundamental and natural justice in arriving at the conclusion that YYYY lacked credibility by improperly requiring YYYY to establish a refugee claim without the benefit of corroborative evidence from co-claimant XXXX.
Analysis
a) Standard of Review
[27] Neither counsel before the Court comprehensively addressed the issue of the applicable standards of review.
[28] With respect to procedural fairness, and I am satisfied that that expression comprehends the Applicants' concern regarding a breach of principles of fundamental and natural justice, my colleague Justice Dawson, in Demirovic v. Canada (Minister of Citizenship and Immigration)[10], a decision only released on the 21st of September, 2005, and not surprisingly not cited before me, wrote at paragraph 5 of her reasons:
The content of the duty of fairness is a matter for this Court to decide. No standard of review determined by a pragmatic and functional analysis is applicable.
In support of the foregoing, Justice Dawson cited Ha v. Canada (Minister of Citizenship and Immigration[11].
[29] With respect to the issues of reasonable apprehension of bias, Justices L'Heureux-Dubé and McLachlin, as the latter then was, with the support of three other Justices on the issue, wrote in R v. S (R.D.)[12] at paragraphs 31 and 32:
The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, ... . Though he wrote dissenting reasons, de Grandpré J.'s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: ... de Grandpré J. stated at pp. 394-95:
...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...[T]hat test is "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."
The grounds for this apprehension must, however, be substantial and I...refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
As Cory J. notes at para. 92, the scope and stringency of the duty of fairness articulated by de Grandpré depends largely on the role and function of the tribunal in question. Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions have none the less been granted considerable deference by appellate courts inquiring into the apprehension of bias. ...[citations omitted]
[30] Credibility findings are reviewed on a standard of patent unreasonableness[13].
b) Reasonable Apprehension of Bias
[31] As earlier noted in these reasons, the presiding member of the RPD took an active and interventionist role in the conduct of the hearing before her. Counsel for the Respondent urged that she was entirely justified in doing so and did so in an even-handed manner. As for the justification for doing so, counsel cited subsection 162(2), section 165 and paragraph 170(a) of the Immigration and Refugee Protection Act which, in the first case, requires the RPD to deal with proceedings before it "...as informally and quickly as the circumstances and the considerations of fairness and natural justice permit", in the second case, vests members of the RPD with extensive powers and authority and authorizes them to exercise that authority as it considers "...necessary to provide a full and proper hearing", and, in the third case, authorizes the RPD, in any proceeding before it, to "...inquire into any matter that it considers relevant to establishing whether a claim is well-founded".
[32] Against the foregoing provisions of the Immigration and Refugee Protection Act, and considering the complexity and potential implications of the claims before her, I am satisfied that the presiding member was entirely justified in prodding counsel before her, particularly counsel for the Minister, to bring forward as full and complete evidence as was possible in the circumstances. Further, I am satisfied that the presiding member, against the test for reasonable apprehension of bias previously stated, did not demonstrate a basis for a reasonable apprehension of bias. While she certainly urged counsel for the Minister to bring forward the best evidence that he could on the issue of exclusion, it is clear from a reading of the full transcript that the presiding member was as much interested in protecting the interests of the Applicants through a demonstration that the Minister's counsel could not bring forward evidence demonstrating serious reasons for considering that the Applicants or either of them had committed a serious non-political crime outside Canada, as she was in ensuring that the best evidence was before her that might establish such "serious reasons for considering". In sum, I am satisfied that the presiding member merely sought to ensure "...a full and proper hearing" into whether the Applicants' claims were "well-founded".
[33] In the result, I am satisfied that neither XXXX, to whom this issue might be seen to be more directly relevant, or YYYY, can succeed on this ground.
c) Other Breach of Fairness
[34] Professor Townsend-Gault's evidence, based on his very impressive credentials, spoke almost entirely to the efficacy, impartiality and fairness of the court system and processes in Vietnam rather than to the processes by which crime is investigated and charges are laid in Vietnam and to the effectiveness and integrity of those charged with carrying out the investigative and charging processes. It was the latter processes which spoke, in part, to the foundation of XXXX's concerns about the documentation produced before the RPD on behalf of the Minister. XXXX's concerns regarding the fate faced if required to return to Vietnam to confront prosecution, the concerns to which Professor Townsend-Gault's testimony was almost entirely directed, were simply not relevant to the issues before the presiding member. She concluded in this regard, and I have early quoted the following paragraph in these reasons but repeat it here for ease of reference:
I have read and prefer the documentary evidence provided by the Minister, which I find is very persuasive and thorough. The evidence suggests that the justice system in Vietnam, while very different from Canada's is not a system that necessarily convicts on fabricated evidence. Evidence of country conditions generally, including the evidence of [....] regarding what took place at [....'s] trial and appeal, do not provide sufficient doubt about the surrounding circumstances, such that I would question the validity of the INTERPOL Warrant and the evidence upon which it is based. The combination of factors which have not been satisfactorily addressed by [XXXX], is what makes the Minister's case so strong.[14]
[35] I am satisfied that the presiding member's determination to rely on the Minister's documentary evidence before her was reasonably open to her. That being said, it cannot be questioned that it would have been preferable if the presiding member had explained in her reasons why she chose, in the words of counsel for the Applicants, to "ignore or overlook", I prefer "minimize", Professor Townsend-Gault's evidence.
[36] I am not satisfied that, particularly in the context of weighing the evidence before her on the issue of exclusion with respect to XXXX, the presiding member made any reviewable error in failing to specifically address the testimony of Professor Townsend-Gault. Professor Townsend-Gault's evidence was even less relevant to the claim of YYYY. There was no evidence of any charges against YYYY. YYYY was not found to be excluded. The basis of denial of YYYY's claim to inclusion was not rejection of that claimant's fears of returning to Vietnam but rather a rejection of the credibility of YYYY's evidence.
d) The Issue Unique to XXXX
[37] The issue raised uniquely on behalf of XXXX is based on the characterization of the evidence in support of the allegation that there were serious reasons for considering XXXX had committed a serious non-political crime in Vietnam amounted to nothing more than "suspicion and conjecture". I categorically reject this allegation. I am satisfied that the analysis reflected in the last-quoted paragraph from the presiding member's reasons was reasonably open to her. In essence, the presiding member found XXXX's evidence regarding innocence of any wrong doing in Vietnam to be simply not credible. I cannot conclude that that conclusion on the part of the presiding member was perverse or capricious or made without regard to the totality of the evidence that was before her.
e) The Issue Unique to YYYY
[38] On behalf of YYYY, counsel urged that the presiding member erred in a reviewable manner in disregarding the evidence of XXXX that went to corroboration of YYYY's own testimony. YYYY was found not to be credible. Would XXXX's testimony regarding the bases of YYYY's alleged fears if required to return to Vietnam have buttressed YYYY's own credibility? I think not. XXXX could only have spoken to events giving rise to YYYY's fears that were found not to be credible out of the mouth of YYYY. In the circumstances, corroborating testimony from the mouth of YYYY's co-claimant, speaking to the circumstances and events in YYYY's home while XXXX was allegedly being sheltered there and to the circumstances that allegedly led the claimants to flee Vietnam would not, itself, have been more credible than YYYY's own testimony, particularly in circumstances where the presiding member found XXXX's testimony regarding exclusion, itself, not to be credible. In the result, once again, with regard to this issue, I am satisfied that the presiding member's decision to reject YYYY's claim without considering testimony from XXXX in this regard was open to her.
Conclusion
[39] In the result, each of these applications for judicial review will be dismissed.
Certification of a Question
[40] Counsel for the Applicants proposed certification of the following questions arising out of the foregoing reasons:
1. The claimant was placed at an elevated risk as a result of disclosure by the Minister (through a consular officer based in the Canadian Embassy in Hanoi) to police authorities in Vietnam of the fact that she had left Vietnam illegally, and is now in Canada. The Refugee Protection Division, while critical of the manner in which the disclosure occurred, nevertheless admitted into evidence documents obtained by the Minister as a result, and then relied on them to find that the claimant's claim is excluded. Is the Presiding Member correct in ruling that such evidence should not be excluded, even given the fact that the evidence was obtained contrary to her express prior direction that the Minister not place the claimant at an elevated risk in the course of seeking further information about any criminal charge in Vietnam?
2. In determining whether there were serious reasons for considering that an individual has committed a serious non-political crime outside the country of refuge prior to his or her admission to Canada as a refugee within the meaning of Article 1(F)(b) of the Convention Relating to the Status of Refugees, and whether to exclude the claim, the Refugee Protection Division based its conclusion on evidence that was obtained by the Canadian Embassy in Hanoi after a consular officer with that embassy released personal information about the refugee claimant in order to induce the police authority in that country to release information about a criminal charge pending against the refugee claimant. To what extent can [sic] the Refugee Protection Division entitled to rely on evidence obtained as a direct result of a breach by the Minister of the requirement that no information obtained during a private refugee proceeding must be disclosed to outsiders?
[41] Counsel for the Applicants urged that no question should be certified. I agree with the position taken by counsel for the Respondent. The outcome on each of these applications for judicial review is essentially fact driven. While the questions proposed for certification on behalf of the Applicants are undoubtedly serious questions of potentially great significance to the Applicants themselves, I am not satisfied that they are questions of "general importance". For a questions to be certified it must be a serious question of general importance that would be dispositive on an appeal from the decision in relation to which it is certified.[15] The questions proposed on behalf of the Applicants simply do not meet that test.
[42] In the result, no question will be certified with respect to these applications for judicial review.
"Frederick E. Gibson"
J.F.C.
Ottawa, Ontario
November 4, 2005.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-423-05
STYLE OF CAUSE: XXXX
- and -
The Minister of Citizenship and Immigration
DOCKET: IMM-424-05
STYLE OF CAUSE: YYYY
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver
DATE OF HEARING: September 28, 2005
REASONS FOR ORDER : GIBSON, J.
APPEARANCES:
Mr. Larry Smeets FOR APPLICANT
Ms. Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Smeets Law Offices FOR APPLICANT
(Vancouver)
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
[1]S.C. 2001, c. 27.
[2]Tribunal Record, vol. 4, page 701A17.
[3]Tribunal Record, vol. 4, page 701A18.
[4]Tribunal Record, vol. 1, pages 5-34.
[5]Tribunal Record, vol. 1, pages 12 and 28-29.
[6]Tribunal Record, vol. 1, pages 12 and 13.
[7]Tribunal Record, vol. 1, pages 22 and 25.
[8]Tribunal Record, vol. 1, pages 29 and 30.
[9]Tribunal Record, vol. 1, page 32.
[10]2005 FC 1284.
[11][2004] 3 FC 195 (F.C.A.) at paragraphs 42 to 44.
[12][1997] 3 S.C.R. 484.
[13]Augebor v. Canada (Minister of Employment and Immigration), (1993), 160 N.R. 315 (F.C.A.).
[14]Tribunal Record, vol. 1, page 25.
[15]The Minister of Citizenship and Immigration v. Zazai [2004] FCA 89, March 4, 2004 at paragraph 11.