Date: 20010316
Docket: IMM-1783-00
Ottawa, Ontario, March 16, 2001
Before: PINARD J.
Between:
Salamatu MUSTAPHA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on February 28, 2000 that the plaintiff is not a Convention refugee is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010316
Docket: IMM-1783-00
Neutral reference: 2001 FCT 188
Between:
Salamatu MUSTAPHA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division ("the RD") on February 28, 2000 that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The plaintiff alleged before the RD that she had been persecuted in Ghana because of her membership in a particular social group (female persons who are victims of abuse) and her alleged political opinions. The plaintiff was born in Ghana and is a member of the Houassa ethnic group.
[3] The RD concluded that the plaintiff's testimony lacked credibility because of her evasive behaviour at the hearing and the excessive contradictions and improbabilities emerging from her story.
[4] The plaintiff alleged that she was not able to testify at the hearing because of her physical and psychological condition and, in the circumstances, the tribunal should have postponed the hearing of its own accord. Such a situation is covered by Rule 13 of the Refugee Division Rules, SOR/93-45, which reads as follows:
| 13. (1) Before the commencement of a hearing, a party may apply in accordance with rule 27 of the Refugee Division to have the hearing postponed. |
13. (1) Une partie peut présenter à la section du statut, conformément à l'article 27, une demande de remise de l'audience avant le début de l'audience. |
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| (2) Before the resumption of a hearing, a party may apply in accordance with rule 27 to the Refugee Division to have the hearing adjourned. |
(2) Une partie peut présenter à la section du statut, conformément à l'article 27, une demande d'ajournement de l'audience avant la reprise de l'audience. |
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| (3) A party whose application for a postponement or adjournment was denied may reapply orally at the commencement or resumption of the hearing. |
(3) La partie dont la demande visée aux paragraphes (1) ou (2) a été rejetée peut, de vive voix, faire une nouvelle demande à cet effet au moment où débute ou reprend l'audience. |
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| (4) The Refugee Division, in determining whether a hearing shall be postponed, or in determining, pursuant to subsection 69(6) of the Act whether an adjournment of a hearing would unreasonably impede the proceedings, may take into consideration, where applicable, . . . . . (g) the efforts made by the parties to make an application for a postponement or adjournment of the hearing at the earliest opportunity . . . |
(4) Pour déterminer si elle fera droit à une demande de remise de l'audience ou pour déterminer, conformément au paragraphe 69(6) de la Loi, si l'ajournement de l'audience causera ou non une entrave sérieuse à la procédure, la section du statut peut prendre en considération, le cas échéant : . . . . . g) les efforts déployés par les parties pour demander à la première occasion la remise ou l'ajournement de l'audience . . . |
|
[5] Two things are clear from reading this provision. First, it is for the applicant to apply for a postponement. The tribunal has no legal duty under the provision. After arriving at the hearing, the plaintiff herself never wished to obtain a postponement. This is made clear at pp. 18 to 21 of the hearing transcript:
BY COUNSEL (to person concerned)
Q. Did you sleep well last year, last night? Last year . . .
A. No.
BY PRESIDING MEMBER (to person concerned)
- Oh, if you need to stop, if you need to have some time during the hearing, let us know, okay. If you need to stop for the baby or for yourself. Okay.
A. Thank you.
Q. You understand that?
A. Yes.
- Okay.
. . . . .
BY REFUGEE CLAIM OFFICER (to counsel)
Q. Does she feel she can proceed this morning without her medication?
A. Without her medication.
BY REFUGEE CLAIM OFFICER (to person concerned)
Q. How are you feeling now?
A. No problem, I can continue.
BY COUNSEL (to person concerned)
Q. You are sure?
A. Yes.
- It is important to be sure, ah. We could understand if there's some problem.
A. I can continue.
And at pp. 61 and 62:
BY PERSON CONCERNED (to presiding member)
- What the lawyer is saying that she has right, but me personally, I prefer to continue and maybe we finish today and I don't know.
A. Very well.
BY PRESIDING MEMBER (to counsel)
- If you want to shorten the period, then you can perhaps you [sic] do your submissions in writing.
BY MEMBER (to person concerned)
Q. You're okay, madam? You're feeling okay?
A. (no verbal reply).
- It is important. Your lawyer is making interventions on your behalf.
A. Yeah, yeah.
- But ultimately, if you're feeling okay and you want to proceed, we will do that.
A. Okay.
BY REFUGEE CLAIM OFFICER (to presiding member)
Q. Okay, so I'll continue?
A. Right, please.
- Okay.
[6] Ma'Ya Kvelashvili (January 4, 2000), IMM-907-99, referred to by the plaintiff, has no bearing on the facts in the case at bar. In that case the Court was concerned with the tribunal's legal duty to obtain the plaintiffs' consent before proceeding before one member, as required in s. 69.1(8) of the Act.
[7] At the hearing in this Court, counsel for the plaintiff said that she withdrew her argument on the quality of the interpretation. Further, counsel made no specific argument regarding the assessment of the facts made by the tribunal. However, in this connection I have read the written submissions of the parties and reviewed the evidence and it is clear that I should not substitute my assessment for that of the tribunal. Not only am I not persuaded that the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, I find that the inferences drawn by this specialized tribunal could reasonably have been drawn and it could therefore reach the conclusion that it did (see s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, and Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315).
[8] For these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 16, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-1783-00
STYLE OF CAUSE: Salamatu Mustapha
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 8, 2001
REASONS FOR ORDER BY: Pinard J.
DATED: March 16, 2001
APPEARANCES:
Eveline Fiset FOR THE PLAINTIFF
Annie Van Der Meerschen FOR THE DEFENDANT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada