Ottawa, Ontario, September 7th, 2005
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), in which the Applicant was found not to be a Convention refugee or a person in need of protection.
BACKGROUND
[2] The Applicant, Salem Chamo, is a citizen of Syria. He arrived in Canada on December 4, 1999. He claims a fear of persecution in Syria because of a legal action that he launched following a bus accident which his father had in Syria.
[3] The Applicant claims that he commenced the legal action against the bus driver and the Syrian government after his father was injured by a bus driver. The injury occurred on May 24, 1999. The legal action is in his father's name. The Applicant claims that he was threatened by the relatives of the bus driver not to start the legal action. He also claims that he was threatened by two men (who were, in the Applicant's opinion, government agents) after the action was commenced. The men told him to stop the legal action. He thereafter stopped going home after having been threatened by these two men.
[4] The Applicant came to Canada on December 4, 1999, and made a claim for Refugee protection on July 12, 2004. The Board issued a negative decision on January 25, 2005, which is the subject of the instant application for judicial review.
DECISION UNDER REVIEW
[5] The Board found that the Applicant was not a credible witness, and drew a negative inference from the time lapsed between the applicant's arrival in Canada and his claim for refugee status.
[6] The Board's credibility finding was based on a number of factors:
a) The Board noted the Applicant contradictory explanations with respect to the misspelling of his name in his passport and in his PIF. Not only did he spell his name correctly in his passport application, but he acknowledged that it would not prevent the Syrian government from knowing about his claim in Canada. Furthermore, the Board did not believe the reason invoked by the Applicant, that the Syrian government is so powerful that it can identify anyone who claims refugee status in Canada;
b) The Board noted that the legal action is in the name of the Applicant's father, and not in the name of the Applicant himself, and concluded that the Applicant's father, and not the Applicant, was behind the legal action;
c) The Board found that the Applicant provided no evidence that the two men who threatened him were government agents, and concluded that it saw no reason why the Syrian government would have an interest in the Applicant;
d) The Board noted that the Applicant's story about the timing of the case, and his inability to provide a copy of the alleged first judgment further impugns his credibility;
e) The Board questioned why people would look for the Applicant when his father is the named party in the action;
f) The Board also noted contradictions between the Applicant's oral testimony and his written statement, with respect to his work and the farm owned by his father, and concluded that the contradictions impugn further the Applicant's credibility;
g) The Board also questioned the Applicant's ability to get a passport in Syria, while the Syrian authorities were looking for him, as alleged, and notes that the Applicant appears to have fabricated his story based on his father's accident.
ISSUES
[7] This case raises the two following issues:
1. Is the Applicant entitled to raise the issue of bias, and if he is, was the Board indeed biased?
2. Were the Board's credibility findings patently unreasonable?
ANALYSIS
[8] The Applicant, representing himself at the hearing, argued forcefully that the conduct of the Board raised a reasonable apprehension of bias. He claimed that the Presiding Member created a very tense atmosphere, to the point that it affected the Applicant's testimony. In the affidavits that he submitted in support of his application, the Applicant makes numerous observations respecting the tribunal's questioning or its tone, the conduct of the hearing, the member's behaviour and his interventions, and the Refugee Protection Officer attitude.
[9] Despite the fact that the Applicant was represented by counsel at that hearing, his affidavits do not establish that he or his lawyer raised that question before the Board. Nor have I found in the transcript any allusion by his lawyer or himself to the issue of bias. Yet, the case law is very clear that an argument of bias must be dismissed if it has not been raised at the first reasonable opportunity, namely at the hearing of the Board. The failure to raise a reasonable apprehension of bias at the earliest possibility forecloses the possibility of raising such an argument subsequently before this Court (Rodriguez et al. v. Canada(M.C.I.), [2005] F.C. 271; Mohinder Paul Singh v. Canada (M.C.I.), [2005] F.C. 35; Ranganathan v. Canada (M.C.I.), [2003] F.C. 1367.
[10] Even if I were prepared to consider the allegation of bias, a close reading of the transcript has not convinced me that the presiding member's questions and comments provide evidence of a closed mind or of a prejudice against the Applicant. The test as to whether a reasonable apprehension of bias exists in a given set of circumstances is well-known and was referred to by the Applicant. The test is an objective one, and was described in Committee for Justice and Liberty v. Canada(National Energy Board), [1978] 1 S.C.R. 369, as "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude?".
[11] This test has been imported into the immigration context (Ahumada v. Canada (M.C.I.), (2001), 199 D.L.R. (4th) 103 (F.C.A.) at 109; Arthur v. Canada (M.E.I.), (1992), 98 D.L.R.(4th) 254 (F.C.A.), at p. 260; Mahendran v. Canada (M.E.I.), (1991), 14 Imm. L.R.(2d) 30 (F.C.A.), [1991] F.C.J. No. 549.
[12] It is not sufficient to look at the words of which the Applicant complains; these words must be set in context, in the overall view of the proceedings (Mihajlovics v. Canada (M.C.I.), [2004] F.C.J. No. 248, at para. 15). It is true that the Presiding member interjected often and asked a number of questions. But energetic questioning by a Board member and frequent interruptions will not necessarily give rise to a reasonable apprehension of bias, especially if the intervention is to clarify a claimant's or witness' testimony (Ithibu v. Canada (M.C.I.), [2001] F.C.J. No. 499; Mahendran v. Canada (M.E.I.), supra; Quiora v. Canada (M.C.I.), [2005] F.C.J. No. 338).
[13] Comments may be made with the object of assisting the Applicant, to clarify points in his testimony, and repetitive questions do not necessarily fall outside the bounds of a proper intervention (Mohammad v. Canada (M.C.I.), [2000] F.C.J. No. 319; Osuji v. Canada (M.C.I.), [1999] F.C.J. No. 539. Similarly, a Board member's expression of some frustration at being unable to fully understand the evidence before him or her does not usually give rise to a reasonable apprehension of bias (Martinez v. Canada (M.C.I.), [2004] F.C. 1043, [2004] F.C.J. No. 1278; Galvez v. Canada (M.C.I.), [2004] F.C.J. No. 2053).
[14] The Applicant did not draw the Court's attention to any particular passage in the transcript evidencing a reasonable apprehension of bias. The Presiding member did ask a number of questions to clarify some issues, but it appears to have been done in a polite and respectful way, with a view to help the Applicant. Except for the brief reference to the "face" that the Presiding member was presumably making when listening to one of counsel's arguments, there is nothing in the transcript that would prompt me to listen to the tapes of the hearing.
[15] For all these reasons, I am of the view that the allegations of bias should be rejected, assuming again that they can even be considered at this stage.
[16] With respect to the credibility findings of the Board, it must be remembered that this is a matter for the Board to decide. As long as the factual conclusions and inferences are reasonably open to the Board, there is no basis for the Court to interfere with the Board's decision. Not only is the Board a specialized tribunal, but it is in a far better position than this Court to assess the credibility of the Applicant and of the witnesses. As a result, the decision of the Board should be left undisturbed unless it is based on an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before it (Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 315 (F.C.A.), [1993] F.C.J. No. 732; RKL v. Canada (M.C.I.), [2003] F.C.T. 116; [2003] F.C.J. No. 162).
[17] After having carefully considered the reasons of the Board, as well as the submissions from the Applicant and the Respondent, I have come to the conclusion that there is nothing in the Board's analysis that constitutes a reviewable error, on a standard of patent unreasonableness. I am of the opinion that the findings of the Board, with respect to the applicant's credibility and subjective fear, are not so unreasonable as to warrant the intervention of this Court. Indeed, it appears to me that what the Applicant has been trying to do is to have the evidence reweighed; unfortunately, this is not the role of this Court when exercising its jurisdiction on judicial review. The fact that I may have come to a different conclusion is not the proper test to be applied. The Board has considered all the evidence before it, and the inferences that it has drawn are not so palpably unreasonable as to warrant this Court's intervention.
[18] The same can be said of the conclusions drawn by the Board from the lengthy delay between the date the Applicant arrived in Canada and the date he claimed refugee status. The Board considered the Applicant's explanation that he waited until all his family was safe in Canada before claiming, and rejected it. This conclusion was open to the Board. This finding of a lack of subjective fear was integrally related to the credibility of the applicant's story, and such a finding deserves a high degree of deference.
[19] Counsel did not suggest any question for certification, and no question is certified.
[20] For all these reasons, I am of the view that this application for judicial review should be dismissed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1157-05
STYLE OF CAUSE: SALEM CHAMO v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: August 30, 2005
APPEARANCES:
Mr. Salem Chamo FOR THE APPLICANT
Me Marie-Louise Courtemanche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Salem Chamo
Pierrefonds, Quebec FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT