Date: 19990308
Docket: IMM-1662-98
Between:
MAMADOU YAYA SOW
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a Refugee Division decision that the applicant is not a Convention refugee.
FACTS
[2] The applicant is a citizen of Guinea. He maintains that he has a well-founded fear of persecution in Guinea, Senegal and Mauritania for reasons of political opinion. All his schooling was in Senegal. He asserts that he is a very active member of the Party of Renewal and Progress (PRP)"the opposition party in Guinea"and of the Guinean students" association in Dakar, Senegal. He was arrested twice: first in Guinea during the lead-up to an election campaign in 1993 and then in Mauritania in 1996. He came to Canada on August 30, 1996, and claimed refugee status on September 9, 1996.
[3] The applicant alleges that he lost his passport during his first evening in Canada. When he went to the CIC to ask for help and to declare that he was a refugee (a few days later), he was detained and questioned from September 10 to 13, 1996. He was not advised of his right to counsel during this time. The immigration officers asked him questions and took notes, which were in evidence before the first panel (on January 6, 1998). Counsel for the applicant objected to their use. As a result of the objection, a second panel heard the claim (on March 17, 1998) . However, the applicant maintains that the second panel also had regard to the immigration officers" notes.
[4] The panel rejected the claim for lack of credibility. The applicant seeks judicial review of that decision, disputing the legality of the filing of the immigration officers" notes, which tainted the hearing and interfered with his right to a fair hearing. In the case at bar, the panel admitted the officers" notes but decided to disregard them in making its determination.
[5] Subsection 68(3) of the Immigration Act1 (the Act) provides broad powers of admissibility, as the panel may receive any evidence considered credible and trustworthy and is not bound by any legal rules of evidence. What matters most is to ensure that the procedure followed is fair and observes the rules of natural justice.
[6] The panel properly ruled on the admissibility of the immigration officers" notes. It is important to bear in mind that the panel did not have to rule on the legality of the detention or on the right to counsel, but only on the basis for the claim. In my view, it was prudent for the panel to disregard the notes, given the questionable way they were obtained.
[7] In the case at bar, I cannot find that there was a denial of natural justice, because it is clear from the transcript that the panel"s decision was based on the applicant"s testimony and the information in his Personal Information Form (PIF), not on the immigration officers" notes.
[8] The panel did not have to recuse itself for reading those notes. As my colleague Rothstein J. said in De Leon:2
| The applicants say the panel should have recused itself because it read the letters. However, as pointed out by Reed J. in Johnpillai v. Canada (Secretary of State) (1995), 93 F.T.R. 288 at 292 (F.C.T.D.), judges and tribunals routinely rule on the admissibility of evidence and do not feel the need to recuse themselves. There was no obligation on the panel to recuse itself in this case because it read anonymous letters that were prejudicial to the applicants. |
[9] The panel found that the applicant"s testimony was not credible. The implausibilities in his testimony are indeed sufficiently great to support the finding that it was not credible.
[10] The applicant maintains in his PIF that he fears persecution in Senegal and Mauritania in addition to Guinea. In Senegal, he maintains that after being convicted in absentia, [TRANSLATION] "the Senegalese authorities came to request that he cease his political activities in their country, otherwise he could be extradited to Guinea". In Mauritania, he maintains that the police arrested him on three charges: "illegal stay, using Mauritania as a base from which to disrupt the stability of Guinea and, last, breach of public order".
[11] However, during his school years in Senegal, the applicant spent one month each year in Guinea with his parents, who live on the border between Guinea and Senegal. The ease and frequency with which he crossed the border between the two countries is not consistent with someone who had a well-founded fear of persecution by the state.
[12] The panel noted that he was unable to differentiate ideologically between the PRP and the RPG, two Guinean opposition parties. The transcript shows that he could not answer that question. However, he maintains in his PIF that he was [TRANSLATION] "responsible, along with some friends, for representing the party within the Guinean student diaspora as the person in charge of automatic information processing and communication" and that his [TRANSLATION] "intense political activities were starting to upset the Guinean regime so much that the then-ambassador of Guinea to Senegal . . . did not hesitate to report [him] to the Guinean authorities, labelling [him] a "rebel, troublemaker, agitator and dangerous, subversive element for the stability of the country"".
[13] Despite the fact that his alleged persecution is based on his membership in the PRP, and in spite of his testimony about his "intense political activities", the applicant is unable to describe the PRP and differentiate it from the RPG, and yet this point was central to his claim.
[14] The panel also noted his testimony that he was detained and then released on condition that he stay out of politics and remain in his country, but he has no document to that effect.
[15] In addition, he testified that he received a letter of December 2, 1997, from the PRP, but that letter makes no mention of the fact that he was convicted. As the panel said, surely the party members would have at least mentioned this significant fact.
[16] Last, the panel noted that when he applied for a Canadian visa, he declared that he was married, yet at the hearing he testified that he was single and remains so"another contradiction in his testimony.
[17] As I said above, this evidence came from his PIF and testimony. There is nothing in the reasons for decision to suggest that the Refugee Division based its decision on the officers" notes.
[18] I am therefore of the view that the panel"s conduct does not give rise to a reasonable apprehension of bias.
[19] For these reasons, the application for judicial review is dismissed.
[20] Counsel for the applicant requests that the following question be certified:
| [TRANSLATION] May an administrative tribunal that is not bound by the rules of evidence receive evidence even if that evidence was obtained in contravention of the principles of the Canadian Charter of Human Rights [sic ] and the Canadian Bill: |
| whether it bases a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case, or |
| respects the right to a fair hearing that observes the rules of natural justice? |
| What is the consequence of denying a fair hearing, which does not observe the principles of natural justice? |
[21] The proposed question does not raise a general question, and the facts in the record do not give rise to this question. Accordingly, no question will be certified.
JUDGE
VANCOUVER, BRITISH COLUMBIA
March 8, 1999.
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1662-98
STYLE OF CAUSE: MAMADOU YAYA SOW
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal QC
DATE OF HEARING: March 4, 1999
REASONS FOR ORDER OF THE HONOURABLE TREMBLAY-LAMER J.
DATED: March 8, 1999
APPEARANCES:
Marie-Josée L"Ecuyer for the applicant
Louise-Marie Courtemanche for the respondent
SOLICITORS OF RECORD:
Marie-Josée L"Ecuyer for the applicant
Montréal QC
Morris Rosenberg for the respondent
Deputy Attorney General
of Canada
__________________2 De Leon v. Canada (M.C.I.), (October 23, 1998) IMM-5124-97 (F.C.T.D.).