Ottawa, Ontario, November 30th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Mr. L. Fournier of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") dated 8 October, 2004 in which the applicant was found not to be Convention refugee or person in need of protection, because he lacked credibility and there is adequate state protection for him in El Salvador. The applicant alleges that Mr. Fournier was hostile to the interpreter, counsel and the applicant thereby breaching the rules of natural justice and a fair hearing.
FACTS
[2] The applicant, a 20-year old citizen of El Salvadoron the date of his hearing, claims a well-founded fear of persecution at the hands of the Maras gangs, who would physically harm him by reason of his religious faith as a Pentecostal.
[3] The applicant was a member of the church named "Assemblies of God", for which reason he refused membership in the "Maras" gangs. The Maras gangs persecuted him and his brothers for not joining. Specifically, the applicant claims:
i. on November 2, 2003 the applicant returned home from work to find his brother Joel had been hanged with his hands tied behind his back;
ii. his brother was buried on November 3, 2003; the same day he fled with his other brother to stay with his aunt at the El Salvador - Guatemala border, where he remained in hiding;
iii. he fled El Salvador on November 8, 2003, fearing for his life;
iv. his other brother remains in El Salvador, but in hiding, moving from relative to relative to avoid detection by the Maras; and
v. following his departure, his father has informed him the gangs still inquire as to his whereabouts.
[4] On April 9, 2004 the applicant arrived in Canada via the United States and sought refugee protection.
THE DECISION
[5] The Board rejected the applicant's claim because he lacked a subjective fear of persecution and because there is adequate state protection for him in El Salvador. The panel found the applicant's evidence inconsistent and that he failed to claim refugee protection in the United States when it was open to him to do so, for which reasons he had no subjective fear of persecution.
ISSUES
[6] The following two issues are raised in this application:
1. Did the Board breach the rules of natural justice and the duty of fairness by raising a reasonable apprehension of bias?
2. Did the Board make patently unreasonable credibility findings?
ANALYSIS
Issue No. 1: Did the Board breach the rules of natural justice and the duty of fairness by raising a reasonable apprehension of bias?
[7] The applicant set out an excerpt from the transcript in his memorandum to illustrate the alleged hostility by the Board member toward the interpreter, toward the applicant's counsel and toward the applicant himself. The controversy arose because the applicant testified that he found his brother hanged outside their house with his brother's hands tied behind his back. The applicant submitted a police report, with translation which said his brother was: "apparently strangled by hands", and a Death Certificate, with translation which said the cause of death was: "Suffocation by strangulation". The excerpted transcript was pages 19 to 22 of the official transcript. I agree that the Board member conducting this hearing demonstrated impatience with the interpreter who was trying to explain that the Spanish word for "hanging" and "choking" are the same. I also agree that the Board member cut off the applicant's counsel on pages 21 and 22. From the transcript, it is clear that the Board member was conducting both the examination-in-chief and cross-examination of the applicant and the interpreter. He was not rude or abusive. He was curt and abrupt in seeking clarification of the applicant's evidence in relation to the police report and Death Certificate. I am satisfied that his interventions were to reconcile or clarify conflicting evidence. While the Board member's conduct was aggressive, it did not cross over the line of latitude to be indicative of bias. See Kanagasekarampillai v. Canada(Secretary of State), [1994] F.C.J. No. 599 (CA) per Stone J.A. at paragraph 12.
Issue No. 2: Did the Board make patently unreasonable credibility findings?
[8] The applicant relies on two important credibility findings which are patently unreasonable. They are both at page 9 of the reasons, and are as follows:
It is the claimant's own testimony when asked about the location of his brother, Angel, he still resides with an aunt in La Frontera. The claimant has testified that he could not go to La Frontera and reside safely. When re-examined by counsel, the claimant varied that testimony and stated that the Mara gangs operate in all parts of El Salvador. I prefer the claimant's first statement. It is more consistent with the documentary evidence before me and was believable in that it was spontaneous.
...
and
I have noted what I find to be a serious contradiction in the claimant's own evidence. Whereas the PIF and the statements made at the port-of-entry (POE) are that the claimant's brother had been strangled by hands whereas the PIF narrative, and the POE notes relates to a hanging with a rope. The documentary evidence the claimant has submitted to support that with a declaration from an interpreter, states that the cause of death was strangulation by hand.
Both excerpts are unclear, and make no sense. The Board Member delivered his reasons orally from the bench obviously in a hurried fashion. As I found in Mazouni v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1927 at paragraph 8, rushing may be indicative that the applicant did not have a fair hearing. This may be compounded where the Board Member reads a 13-page decision at the end of the morning of the hearing.
[9] In any event, credibility finding must be based on clear and unmistakeable reasons. The excerpts from the reasons quoted above are not clear and unmistakeable. They are the opposite. These findings are central to the case, and are patently unreasonable.
Conclusion
[10] There is adequate reason in this case to set aside the decision, and refer the matter back to the Board for a new hearing by a differently constituted panel. The applicant's brother was undisputedly killed in a grotesque manner. It does not matter for the purpose of the refugee claim whether the brother was killed by strangulation or by hanging. The issue of the adequacy of state protection may have been affected by the credibility findings, and for that reason it should also be re-determined.
[11] The parties did not propose a question of general importance for certification, and none is certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of Board Member
Mr. L. Fournier is quashed, and the matter is referred back to the Board for re-determination by a different panel member.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7583-04
STYLE OF CAUSE: ELI NEHEMIAS SOLIS MARTINEZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 23, 2005
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| Waikwa Wanyoike Barrister and Solicitor
|
|
| Martin Anderson Department of Justice
|
SOLICITORS OF RECORD:
| Waikwa Wanyoike Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |