Ottawa, Ontario, April 4, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), dated April 26, 2006, finding that Sara Cueva Lopez (Applicant) is neither a Convention refugee, pursuant to section 96 of IRPA, nor a person in need of protection, pursuant to section 97 of IRPA.
I. Facts
[2] The Applicant is a citizen of Peru.
[3] The Applicant seeks refugee protection on the basis that she fears abuse at the hands of her former partner, Juan Carlos Valenzuela, if returned to Peru.
[4] Between September 1998 and May 1999, the Applicant lived with Mr. Valenzuela in Peru.
[5] The Applicant alleges that in May 1999, Mr. Valenzuela returned home from a night of drinking and asked her to have a child with him. When the Applicant explained that she did not want to start a family, Mr. Valenzuela became angry, pushed the Applicant down the stairs and threatened to hurt her and her family. At that point, the Applicant told Mr. Valenzuela that she was leaving him. Mr. Valenzuela then broke a beer bottle and used the jagged glass to cut the Applicant’s arm.
[6] Following the attack, the Applicant sought refuge at her mother’s house.
[7] In August 2000, the Applicant left Peru for Chile. In September 2000, the Applicant left Chile and moved to Argentina. The Applicant remained in Argentina until April 2002.
[8] In April 2002, the Applicant returned to Peru where she remained until August 2002. In August 2002, the Applicant left Peru for Brazil where she remained until September 2002. She then left Brazil and travelled via France to Canada. She arrived in Canada on October 1, 2002 and made a refugee protection claim on October 23, 2002.
II. Issues
(1) Did the RPD violate procedural fairness by applying Guideline 7 in a manner that improperly fettered its discretion?
(2) Did the RPD err in concluding that the Applicant was not credible?
III. Applicable standards of review
[9] The first issue, namely whether procedural fairness was violated by the RPD’s application of Guideline 7, will be reviewed on the correctness standard as the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 at paragraph 46, determined that all questions of procedural fairness are to be reviewed on the correctness standard.
[10] As for the RPD’s finding that the Applicant was not credible, this finding will be reviewed on the patently unreasonable standard. The jurisprudence is clear; the Court will not interfere with findings of the RPD relating to credibility unless they are patently unreasonable. The Court has stated repeatedly that the RPD is in a better position than the Court to make credibility determinations as it is a specialized tribunal and it has the opportunity to observe first hand the testimony given by refugee claimants (Aguebor v. Canada (Minister of Employment and Immigration), (1993), 140 N.R. 315 (FCA); Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.); Tekin v. Canada (Minister of Citizenship and Immigration), 2003 FCT 357).
IV. Analysis
(1) Did the RPD violate procedural fairness by applying Guideline 7 in a manner that improperly fettered its discretion?
[11] The Applicant submits that based on Justice Blanchard’s decision in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, the RPD violated procedural fairness by using the “reverse order of questioning” procedure set out in Guideline 7. In Thamotharem, above, Justice Blanchard determined that Guideline 7 may unlawfully fetter the discretion of the RPD, but does not necessarily do so in all cases. As Justice Blanchard stated at paragraph 112 of Thamotharem, above:
Guideline 7, unlike guidelines that deal with general policy considerations applicable to substantive decisions, deals essentially with procedure in the conduct of the hearing. As I have determined earlier in these reasons, the guideline, as drafted, does not inherently violate the principles of natural justice or procedural fairness. The guideline may nevertheless be unlawful if it can be shown to fetter the discretion of a Board member. Whether Guideline 7 fetters the discretion of Board members, will depend on whether the Chairperson’s standard order of questioning procedure crosses “the Rubicon between a non‑mandatory guideline and a mandatory pronouncement having the same effect as a statutory instrument”.
[Emphasis added]
[12] The finding that Guideline 7 may fetter discretion was further expanded upon by Justice Mosley in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461. In that decision, Justice Mosley found that Guideline 7 was not mandatory and as such Guideline 7 did not fetter the discretion of the RPD. However, Justice Mosley did recognize that there may be situations where a RPD member may apply the guideline without exception, thus ignoring the evidence and the submissions of counsel that there are reasons to vary procedure. In such cases, Justice Mosley stated that applying Guideline 7 may amount to an unlawful fettering of the RPD’s discretion (Benitez, above at paragraph 172).
[13] Moreover, in Fernando v. Canada (Minister of Citizenship and Immigration), 2006 FC 1349, Justice Blais summed up the jurisprudence on Guideline 7 and found that absence evidence indicating that procedural fairness required an examination-in-chief by a refugee claimant’s own counsel, reverse order questioning does not violate procedural fairness. Finally, Justice Mactavish in Mejia v. Canada (Minister of Citizenship and Immigration), 2006 FC 1087, found that where a refugee claimant fails to object to reverse order questioning at their hearing before the RPD, the claimant implicitly accepts its use.
[14] In all the aforementioned cases, the Court determined that Guideline 7 does not inherently violate procedural fairness. Instead, the Court found that Guideline 7 violated procedural fairness where the circumstances of a particular case indicated that an RPD member applied the guideline without exception, and thus considered reverse order questioning as a mandatory procedure.
[15] In the case at hand, counsel for the Applicant objected to the use of reverse order questioning at the hearing. The transcript of the hearing indicates that following this objection the RPD considered whether counsel for the Applicant should be permitted to lead evidence-in-chief, and decided that this was not necessary to guarantee procedural fairness. The relevant portion of the transcript reads as follows:
Presiding Member: Counsel, do you have something else to add?
Counsel: As you’re well aware of the decision Samosaren (phonetic) [Thamotharem], with respect to reverse order questions, I would just like to note my objection on the record to having the member… sorry, to having the refugee protection officer proceeding first with questioning. Of if I could at the alternative make the request to proceed with the questioning.
Presiding Member: Your objection is taken care of, but I will say to that objection the following. Since I am a board member here at Immigration Refugee Board, I have always, this is not just new because the rules and all that, I have always consider that the tribunal is the master of the proceeding and everything which is happening here. And I would like taking in account… I would like taking in account that in the past I have never breached any rule of transparency or natural justice. I would like Mr. RPO will start, and you will have the time you need to do your proof. And I feel that there is no breach of natural justice, and there will not be any breach of transparency. And I want to make sure that everybody here understands that. And one of the fundamental right of the claimant, and I have worked a lot in refugee camp before coming here, and I have realized that one of his fundamental right is that we let the interpreter translate everything properly in order for her to understand everything what is going on here.
[16] The portion of the transcript reproduced above clearly shows that the RPD exercised its discretion when determining to proceed with reverse order questioning. The Presiding Member clearly stated that as master of the proceeding she was choosing to have the Refugee Protection Officer proceed with questioning first. In my opinion, this is clearly demonstrative of the Presiding Member exercising her discretion. Consequently, there is no basis for the claim that the RPD applied Guideline 7 in a manner that improperly fettered its discretion.
[17] It is to be noted that counsel for the Applicant’s submission to the Court that “given the particular vulnerability of the Applicant fearing gender related persecution the Panel ought not to have taken an adversarial role but rather an adjudicative role…” was not raised at the RPD hearing. Counsel for the Applicant claims that this was not raised, as she felt cut off by the Presiding Member at the hearing and thus did not have the opportunity to delineate the special circumstances of the case. Moreover, counsel submits that as the special circumstances of the Applicant could not be raised, the RPD did not exercise their discretion in a fulsome manner. In response to this claim, I must note that whether counsel for the Applicant felt cut off during her initial objection to reverse order questioning, she had the rest of the hearing to once again raise her concerns with reverse order questioning, given what she believed where the Applicant’s special circumstances.
[18] In summary, at the RPD hearing a general opposition to reverse order questioning was raised, and this general objection was dealt with. Moreover, counsel for the Applicant admitted that she had the full opportunity to conduct an examination of the Applicant and to deal with the inconsistencies in her testimony and other issues of concern. I can therefore only say that had counsel for the Applicant wished to lead evidence-in-chief on the basis that the Applicant was vulnerable, as a victim of domestic violence, this argument should have been raised during the hearing or at minimum should have been mentioned at that time.
[19] This being said, the jurisprudence of this Court echoes what the IRB’s Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution establishes, namely that when dealing with gender based claims the RPD must be particularly sensitive to the special circumstances of the claimant (see Garcia v. Canada (Minister of Citizenship and Immigration), 2007 FC 79; Jones v. Canada (Minister of Citizenship and Immigration), 2006 FC 405). I note that neither Guideline 4 nor the jurisprudence of this Court establishes that where a person is claiming refugee protection on the basis of gender related persecution they are entitled to lead evidence in chief. In the case at hand, the RPD was aware that it was dealing with a gender based claim. As such, I can but conclude that the RPD acted in a manner that was in line with Guideline 4 and the jurisprudence of this Court relating to gender based claims.
(2) Did the RPD err in concluding that the Applicant was not credible?
[20] As mentioned above, the RPD is in the best position to assess the truthfulness of the testimony given by a refugee claimant at a RPD hearing. As such, the RPD is entitled to disbelieve the Applicant’s narrative, if it is not patently unreasonable to do so.
[21] In the case at hand, the RPD found the Applicant’s narrative and submissions to be not credible. The RPD took particular issue with the following :
(a) Although the Applicant claimed to have live with Mr. Valenzuela for several months, she did not know the address where they had lived or the names of the members of his family;
(b) The Applicant made contrary statements as to the age of Mr. Valenzuela. At the RPD hearing she stated that Mr. Valenzuela was two years younger than her, whereas in her “Information on Individuals seeking Refugee Protection” form she stated that he was two years older than her;
(c) The Applicant stated at the RPD hearing that her problems began in May 1999, despite having stated in her PIF that they began in December 1998;
(d) The Applicant alleges she fears for her life in Peru, yet she returned there in 2002 for several months before coming to Canada. Moreover, the Applicant made no mention in her PIF that she had experienced problems during the several months she spent in Peru in 2002 or that Mr. Valenzuela had tried to contact her during that period;
(e) The Applicant’s explanation that her testimony contradicted what was written in her PIF and “Information on Individuals seeking Refugee Protection” form because she was nervous upon entry to Canada, due to the fact that she entered the country with false documents.
[22] I have reviewed the Applicant’s submissions. The submissions offer alternate explanations and inferences that the Board could have drawn from the Applicant’s testimony and the discrepancies in the evidence. However, the Applicant’s submissions do not establish that the RPD’s finding, as to the Applicant’s credibility, was patently unreasonable. Moreover, the Applicant presented no evidence to satisfy the Court that the RPD’s assessment of credibility was based on irrelevant considerations or that in arriving at their conclusion the RPD ignored relevant evidence. Consequently, the Court cannot interfere with the RPD’s finding that the Applicant is not credible.
V. Conclusion
[23] For the reasons stated above, this application for judicial review is dismissed.
VI. Certified Questions
[24] The parties were invited to submit a question for certification. Counsel for the Applicant proposed that all the questions that were certified by Justice Mosley in Benitez, above, except for question 7, be certified in the case at hand. The questions certified in Benitez, above, were the following:
1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with the claimant’s right to be heard?
2. Has the implementation of Guideline 7 led to the fettering of Board members’ discretion?
3. Does Guideline 7 violate natural justice by distorting the independent role of Board members?
4. Does Guideline 7 violate the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms?
5. Is Guideline 7 unlawful because it is ultra vires the guideline making authority of the Chairperson under the IRPA?
6. If Guideline 7 and the procedure mandated by it breaches natural or fundamental justice, can a refugee claimant in any way implicitly waive the breach, for example by failing to object to the procedure?
7. Is Guideline 7 ultra vires the IRPA and Regulations thereunder?
8. Does “reverse order questioning” constitute a denial of the principles of fundamental justice and denial of s. 7 of the Charter in:
a) Denying the right to effective and competent counsel?
b) Denying the right to be heard?
9. Does reverse order questioning as mandated by Guideline 7 constitute:
a) A breach of the right to an independent judiciary and constitute a reasonable apprehension of institutional bias contrary to the preamble of the Constitution Act, 1867?
b) A breach of the right to a hearing before a fair and independent tribunal and a reasonable apprehension of institutional bias contrary to s.7 of the Charter?
10. With respect to Guideline 7 and the objection/non‑ objection of the claimant’s counsel at the refugee hearing:
a) Does the respondent confuse the doctrine of waiver with that of the failure to object before the trier of fact as constituting an issue estoppel on judicial review?
b) If no such confusion exists, then what “right” is being purportedly waived by the claimant at the hearing by not registering an objection to Guideline 7?
c) As a matter of fundamental justice, is the exercise of a Board member’s purported discretion pursuant to any Guideline ever in the claimant’s hands to “waive”?
[25] The Federal Court of Appeal in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, established that to qualify for certification, the issues underlying a question must: (a) transcend the interests of the immediate parties to the litigation; (b) be of broad significance or of general application; and (c) must be determinative of the appeal. In the case at hand, the questions proposed for certification would not be determinative of the case as there is no live issue left to be determined as I have concluded that the RPD’s application of Guideline 7 did not fetter its discretion and the RPD’s finding that the Applicant was not credible was not patently unreasonable. Consequently, no questions will be certified.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is dismissed;
- No questions are certified.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3049-06
STYLE OF CAUSE: SARA CUEVA LOPEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, MARCH 26, 2007
REASONS FOR ORDER BY: Noël J.
APPEARANCES BY: Ms. Donna Habsha
For the Applicant
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Ormston, Bellissimo, Rotenberg
Barristers & Solicitors
Toronto, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent