Date: 20040910
Docket: IMM-6185-03
Citation: 2004 FC 1233
BETWEEN:
MONICA ARRIVASPLATA HUAYTA
MELANIE MILAGRO PALACIOS ARRIVASPLATA
Applicants
- and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated July 15, 2003, that the applicant and her daughter are not "Convention refugees" or "persons in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Monica Arrivasplata Huayta (the applicant) is also acting as the designated representative of her daughter Melanie Milagro Palacios Arrivasplata. Both of them are citizens of Peru. The applicant alleges that she has a well-founded fear of persecution at the hands of the Peruvian army based on perceived political opinions and, where her daughter is concerned, based on her membership in the social group of the family. The applicant also alleges that she is a person in need of protection, just like her daughter.
[3] The IRB determined that the applicant and her daughter were not "Convention refugees" or "persons in need of protection" because the applicant was not credible because of inconsistencies, implausibilities, additions and contradictions.
[4] It has been held that in matters of credibility, this Court cannot substitute itself for the IRB when, as in this case, the applicant does not manage to establish that the decision of that specialized tribunal is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). In fact, after reviewing the evidence and the transcripts of hearing before the panel, I am persuaded that the inferences drawn by the panel could reasonably be drawn (see Aguebor v. Canada (M.E.I.), 160 N.R. 315 (F.C.A.)). Further, in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal held that the panel's perception that an applicant is not a credible witness can amount to a finding that there is no credible evidence on which the application could be based.
[5] Moreover, the applicant submits that the IRB breached the principles of natural justice by adopting an aggressive attitude toward her, which prevented her from presenting her arguments properly. However, a careful review of the transcript of hearing indicates that the applicant's counsel was able to adequately make her arguments on the merits of the claim and that also the applicant had the opportunity to answer the questions asked by the IRB. In Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369, the Supreme Court of Canada developed the test applicable in matters of reasonable apprehension of bias at page 394 :
. . . 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 . . . that test is "what would a 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."
[6] Further, in Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091 (QL), the Federal Court of Appeal stated as follows:
[8] . . . An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. . . .
[7] The applicant also has the duty to make her apprehension of bias known as soon as that is possible. In this case, she did not file any evidence that identifies conduct by the member that derogates from the standard and she did not make her apprehension of bias known at the hearing. In my opinion, under the circumstances, the allegation of bias is unfounded.
[8] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 10, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6185-03
STYLE OF CAUSE: MONICA ARRIVASPLATA HUAYTA, MELANIE MILAGRO PALACIOS ARRIVASPLATA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 10, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 10, 2004
APPEARANCES:
Brigitte Poirier FOR THE APPLICANTS
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brigitte Poirier FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec