Date: 20000228
Docket: IMM-1321-99
BETWEEN:
JOSE EDUARDO PARAMO-MARTINEZ
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] Jose Eduardo Paramo-Martinez, a citizen of Mexico, seeks judicial review of the negative decision of the Convention Refugee Determination Division. Mr. Paramo claims that the panel members demonstrated a reasonable apprehension of bias through their abusive comportment during the hearing of his refugee claim.
[2] The factual basis for Mr. Paramo"s claim for refugee status is set out in his personal information form.
[3] On November 10, 1997, he witnessed a murder. The four perpetrators of the crime saw him leaving the scene in his employer"s automobile labelled with the company crest and other decals.
[4] On November 15, 1997, again while driving the automobile, Mr. Paramo was stopped by two persons who physically abused him. His assailants knew his name and that of his spouse. They also knew that his wife was pregnant. They warned him not to disclose to anyone the incident he witnessed on November 10, 1997. After identifying themselves as members of the Ejercito Zapatistata de Lieberacion Nacional ("EZLN"), they demanded that he deliver some material for them.
[5] On December 1, 1997, in January 1998 and on February 3, 1998, he was further requested to deliver material on behalf of members of the EZLN. These requests were made by telephone at his place of employment.
[6] On March 2, 1998, he received a phone call telling him to return to his residence. When he reached his home, his wife was crying hysterically as she related receiving threats from four armed men who forced their way into the family residence.
[7] On the following day, Mr. Paramo received another phone call demanding that he deliver packages for the EZLN. This was the last time he carried out instructions for the EZLN and on April 14, 1998, he travelled to Canada where he filed his refugee claim some weeks later.
[8] Prior to the incident of March 2, 1998, Mr. Paramo never advised his wife of having witnessed the murder because she was pregnant at the time. She gave birth to their fourth child on January 16, 1998.
[9] Mr. Paramo never disclosed his witnessing the murder to the Mexican police because, in his words, "[i]t is well known that they are corrupt and are often involved in criminal activities. There was a possibility that the murderers were members of the judicial police. I finally decided that the best thing to do was to do nothing and wait to see what happened." He was warned not to report any of these incidents to the police and added that, in any event, "the police would never believe me".
[10] During the hearing, the applicant stated that he never mentioned his witnessing the murder nor the other incidents to his employment supervisor, whom he trusted.
[11] The tribunal was composed of two panel members. No refugee claim officer participated at the hearing. The applicant was represented by an articling law student.
[12] Counsel for the applicant in this Court relied on the transcript to raise a number of incidents during the hearing which, in his view, established a reasonable apprehension of bias.
[13] Prior to the commencement of the applicant"s examination-in-chief, the presiding member expressed surprise that a person purporting to be Mexican was unaware of a cedula . The interpreter then intervened to explain that a cedula was an identity document used in certain Central American countries, but not in Mexico. The transcript discloses that this exchange could not have lasted more than one or two minutes. Counsel for the applicant refers to this incident as a hostile commencement of the hearing. Even assuming that the panel member was not only in error but also expressed incredulity at Mr. Paramo"s lack of knowledge of a cedula , the record was immediately corrected. The applicant"s identity as a Mexican citizen was never really in issue and the presiding member"s confusion concerning the use of a cedula in Mexico does not warrant this Court"s intervention.
[14] On another occasion, the tribunal interrupted the examination-in-chief and confronted the applicant with his failure to report the murder to the police. His first long answer (pp. 9-10 of the transcript) did not satisfy the panel members. They demanded that Mr. Paramo link his general allegation that "judicial police kill for a price" to his own specific experiences. It was in this context that the presiding member intervened:
| You have a driver"s license. Deal with yourself, not with some other peasant, but you, this is your claim. Because unless you"re going to tell us without a driver"s license the judicial police would shoot you, that would make no sense at al. [Emphasis added.] |
The presiding member understood the applicant was comfortably employed as a travelling salesman with an important company. However, the admonition that the applicant not refer to the experience of "some other peasant" was unnecessary and inappropriate, even if the documentary evidence refers to abuses suffered by certain poor, indigenous and peasant activists in Mexico. However, once again, I am not satisfied that this unfortunate statement, when placed in the context of the entire hearing, properly raises the issue of the panel member"s bias.
[15] Counsel for the applicant also argues that the panel"s aggressive questioning concerning the applicant"s failure to report the murder to the police ignored the documentary evidence of judicial police practices. After reviewing the country reports relied upon by the applicant, I do not agree. Moreover, after carefully reading the transcript (in particular, pp. 9 through 15), I am satisfied that the applicant"s initial rambling answer invited further "energetic" questioning by the panel.
[16] In Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998), Brown and Evans state at pages 11-29 and 11-30:
| Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting such as refugee determination hearings, where there is no one appearing to oppose the claim. Nor will an expression of momentary impatience or loss of equanimity by a tribunal member result in disqualification, particularly where it was merely an attempt to control the manner of proceeding. Similarly, a sarcastic comment when a party refused to give evidence, or an ill-chosen and insensitive phrase, will not, without more, lead to disqualification. [Footnotes omitted.] |
The panel members were sceptical of the applicant"s failure to disclose his witnessing a murder to the police. Nor did he disclose subsequent harassment from the EZLN. In the absence of a refugee hearing officer, it was particularly appropriate for the panel members themselves to confront the applicant with their concern with an important aspect of the facts in support of this claim: Bagdassarian v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 343 (T.D.) at paragraphs 11 and 12; Osuji v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 539 (T.D.) at paragraphs 21-23; and Hernandez v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 680 (QL) (C.A.) at paragraph 1.
[17] The panel members did question the applicant, even during his examination-in-chief. However, I am satisfied that Mr. Paramo"s representative was given a full opportunity to complete his questioning (pp. 19-40 of the transcript), both prior and subsequent to a mid-morning break. Each panel member questioned the applicant extensively after his examination-in-chief. The applicant"s representative was then given the opportunity for re-examination, again both prior and subsequent to the luncheon recess.
[18] Mr. Paramo"s counsel raised two other submissions in support of his position that the panel demonstrated bias. He argued that the hearing was peppered with laughter and sarcasm by the panel members. This is not disclosed in the transcript although it is clear that the questions put to the applicant were extensive and forceful. If there was the kind of laughter and sarcasm alleged by counsel, it would have been preferable to have sought the affidavit evidence of the interpreter, who did intervene on behalf of the applicant at the outset of the hearing, rather than to rely solely on the versions of the applicant and his representative. Another evidentiary option may have been to produce the hearing tape itself. On the basis of the transcript I have read, I am not prepared to intervene on this issue in the absence of any corroborative evidence.
[19] The applicant"s representative was also taken to task by the panel members who suggested it was "an abuse of process" not to have disclosed to the C.R.D.D. prior to the hearing that the applicant"s wife and children had been in Canada for some six weeks prior to the hearing. Again, the Court does not have the benefit of the factual evidence to allow any determination as to who is correct on the issue. Difficult as the incident might have been for the articling student, it cannot be characterized as raising a reasonable apprehension of bias.
[20] In summary, upon my review of the transcript and the personal information form, it was open to the tribunal to disbelieve the applicant. The reasons in support of the tribunal"s negative finding of credibility are stated in clear and unmistakable terms and are not inconsistent with the evidence disclosed in the transcript. Some of the panel"s comments during their questioning of the applicant were not salutary. This was a difficult hearing, without the participation of a refugee claim officer, and with some vigorous exchanges between the panel members and the applicant"s representative. However, in my view, the applicant has failed to establish a reasonable apprehension of bias or that "an informed person, viewing the matter realistically and practically - and having thought the matter through" would so conclude: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394.
[21] For these reasons, this application for judicial review will be dismissed. Neither party has suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
February 28, 2000