Date: 20040616
Docket: IMM-2884-03
Citation: 2004 FC 869
Toronto, Ontario, June 16th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MOHAMED RAFEEK ABBOOBAKAR
CHRISTINA TAGEWATTIE ABBOOBAKAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. and Ms. Abboobakar seek judicial review of a negative decision of the Refugee Protection Division of the Immigration and Refugee Board. They assert that they were denied a fair hearing because the presiding Board member's interjections and questions prevented them from properly presenting their claims.
Background
[2] Mr. and Ms. Abboobakar are Indo-Guyanese citizens of Guyana. They each claim a well-founded fear of persecution at the hands of Afro-Guyanese individuals. Ms. Abboobakar also claims to fear persecution on account of her gender.
[3] In their testimony, Mr. and Ms. Abboobakar each described the conflict between the Indo-Guyanese and Afro-Guyanese communities in Guyana, and the violent acts which are perpetrated on members of the Indo-Guyanese community by Afro-Guyanese individuals. Insofar as their own experience is concerned, Mr. Abboobakar stated that in December of 2000, he was followed by three Afro-Guyanese when he went by car from his office to a meeting at a hotel. In March of 2001, Mr. Abboobakar was again followed, this time while he was returning from a visit to the bank. In neither case was Mr. Abboobakar confronted directly be the individuals who followed him.
[4] In January of 2001, Mr. Abboobakar was walking down the street when he was pushed into the middle of the road by an Afro-Guyanese person, who told him that "this is our road". Other family members have experienced more serious problems: in particular, in April of 2002, Mr. Abboobakar's uncle was kidnapped, but was able to free himself.
[5] Ms. Abboobakar testified that before she got married, she was touched inappropriately by Afro-Guyanese men when she was riding on the bus. She testified that she was afraid to go out of her home, because Indo-Guyanese women were regularly sexually assaulted by Afro-Guyanese men.
[6] Both Mr. and Ms. Abboobakar stated that they fear that they will eventually be the subjects of attack and possibly serious harm if they were returned to Guyana.
The Board's Decision
[7] The Board accepted that the incidents described by Mr. and Ms. Abboobakar actually took place, but found that even taken cumulatively, these events did not amount to persecution.
[8] The Board noted that Mr. Abboobakar obtained a visa that allowed him to enter the United States in 1996, but made no attempt to flee to the States to escape the situation in Guyana at that time. The couple did travel to the United States in May of 2001. Although this trip took place after all of the frightening incidents involving Mr. and Ms. Abboobakar had occurred, no attempt was made by the couple to seek refugee protection in the United States. Rather, they returned to Guyana in June of 2001. The Board found this conduct to be inconsistent with a subjective fear of persecution on the part of Mr. and Ms. Abboobakar.
[9] Both Mr. and Ms. Abboobakar have lived in Guyana without experiencing serious harm, and the Board found their fear of future persecution to be speculative. While the Board accepted that Mr. Abboobakar's uncle had been kidnapped, the Board also noted that the uncle was in a different position to Mr. and Ms. Abboobakar, in that he was an established business owner. Further, the Board noted, the uncle had himself remained in Guyana.
[10] Finally, the Board found that Mr. and Ms. Abboobakar had not provided clear and convincing proof that state protection would not be available to them in Guyana. Neither Mr. nor Ms. Abboobakar ever sought state protection, nor had they established that it would not be forthcoming if they were to ask for it.
[11] As a consequence, the Board rejected Mr. and Ms. Abboobakar's claims.
The Issue
[12] Although Mr. and Ms. Abboobakar identified a number of alleged errors in their application for judicial review, most of these arguments were abandoned at the hearing. The only issue before the Court is whether the interventions of the presiding member prevented Mr. and Ms. Abboobakar from receiving a fair hearing of their refugee claims.
Analysis
[13] Counsel for Mr. and Ms. Abboobakar identified three areas in which he says the conduct of the presiding member resulted in his clients being denied a fair hearing. Each of these will be considered in turn.
The Allegedly Improper Motivation Behind the Presiding Member's Questions
[14] According to counsel for Mr. and Ms. Abboobakar, in the course of the hearing, the presiding member posed a number of questions to Mr. Abboobakar designed to elicit answers that would confirm the member's theory that Mr. and Ms. Abboobakar were the victims of generalized violence or financially motivated crime, rather than race-based persecution.
[15] I have reviewed the portions of the transcript that counsel says reflect this error, and cannot agree with counsel's characterization of the member's interventions. As a result of the types of questions asked by his representative, much of Mr. Abboobakar's testimony was taken up with a very general description of the racial tensions that exist in Guyana, and the ways in which these tensions manifest themselves. As a result, on several occasions the presiding member asked Mr. Abboobakar not to speak in generalities, but to tell her about his own experiences. There was nothing improper in her doing so.
[16] When Mr. Abboobakar described being followed after leaving the bank, the member asked him whether he could have been followed because he might have been carrying money that he may have withdrawn from the bank. Mr. Abboobakar explained that he had also been followed on a second occasion, when he had not been leaving a bank. The member then asked him to tell her about that incident, which he did.
[17] The transcript discloses that the questions posed by the presiding member were polite, and largely open-ended. I am not persuaded that the member was trying to trap Mr. Abboobakar, as his counsel suggests, or to elicit evidence to support her theory of the case. The member was clearly trying to assist in obtaining the pertinent details of Mr. Abboobakar's story.
The Refusal to Allow Questions Relating to Obstacles to Emigration From Guyana
[18] At one stage in the hearing, Mr. and Ms. Abboobakar's representative attempted to ask Mr. Abboobakar how difficult it was for someone to emigrate from Guyana to one of the other Carribean islands. The presiding member stated that the question was not relevant, indicating that what she was interested in were Mr. and Ms. Abboobakar's refugee claims.
[19] As was previously noted, in considering the well-foundedness of Mr. and Ms. Abboobakar's fear of persecution, the Board observed that even though the uncle had been the victim of a kidnapping, he had not fled Guyana.
[20] Counsel for Mr. and Ms. Abboobakar contends that by refusing to allow Mr. Abboobakar to answer the question relating to potential difficulties leaving Guyana, the Board may have prevented Mr. and Ms. Abboobakar from providing an explanation as to why the uncle had not left Guyana.
[21] There are two difficulties with this argument. The first is that it is entirely speculative. There is simply no evidence before the Court to suggest that Mr. Abboobakar would have testified that his uncle's failure to flee Guyana was attributable to difficulties with the emigration process, had he been permitted to answer the question. Mr. Abboobakar did not provide an affidavit in support of this application. Mr. and Ms. Abboobakar did, however, file a lengthy affidavit from the immigration consultant who represented them before the Immigration and Refugee Board. Although the affidavit discusses the situation of the uncle in some detail, nowhere in the affidavit does the consultant assert that the failure of the uncle to flee Guyana had anything to do with difficulties with the emigration process.
[22] More importantly, in his testimony, Mr. Abboobakar explained why his uncle stayed in Guyana after the kidnapping. That explanation had nothing to do with any problems with the emigration process. Mr. Abboobakar stated that his uncle's business commitments prevented him from leaving Guyana, explaining that his uncle had financial obligations that would have to be resolved before he would be able to leave the country. Mr. Abboobakar went on to describe the security precautions that his uncle had taken in an effort to protect himself. At no point does Mr. Abboobakar suggest that his uncle's decision to stay in Guyana had anything to do with difficulties in the emigration process.
Questions Relating to Mr. Abboobakar's Subjective Fear of Persecution
[23] Finally, counsel says that his clients were denied a fair hearing as the presiding member prevented Mr. and Ms. Abboobakar's representative from asking questions relating to their subjective fear of persecution.
[24] The exchange in issue is recorded over several pages of transcript, and deals with the period between the Abboobakars' return to Guyana from the United States in June of 2001 and their departure for Canada in January of 2002. In essence, the presiding member was attempting to find out what occurred in that time frame that led the couple to leave Guyana. The key exchange is as follows:
Presiding Member: What happens between June and January?
Mr. Abboobakar: Between June and January things started escalating. As I mentioned, more Indian people started to get hurt.
Presiding Member: Okay. So what happens to your thinking?
Mr. Abboobakar: My thinking is if I return back to Guyana something might happen to me.
Presiding Member: But you did return back? You were there?
Mr. Abboobakar: No, you asked me -
Counsel: No, you asked him back in June?
Presiding Member: Yes.
Counsel: You asked him after you came back from New York, between the time in June and January?
Presiding Member: That's what I'm asking.
Counsel: Yes, but you say but you did return. He hasn't returned to Guyana.
Presiding Member: Well, he just said he'd be afraid to return and I said, well you did return?
Counsel: That was earlier than that. I mean, this is not being very fair as counsel. It's almost like you're leading him to say things that -
Presiding Member: Counsel, be careful here. I ask just the questions that try to take him through the process up til the day he claims. What I don't want is, you know, generalities and questions about, you know, how did you feel. I want to know what happened and what he did, okay?
Counsel: But there is a subjective and objective basis of persecution.
Presiding Member: Absolutely and you can certainly make those in submissions without a problem and I have been doing this for a long time and I know, you know - and I've heard a lot of Guyanese claims as well. I know what's going on in the country, so I want to know what your thinking was after you came back from the U.S. in June that made you make the decision be January that you were leaving?
[25] I do not read this exchange to reflect an attempt on the part of the presiding member to lead Mr. Abboobakar to give any particular type of answers. Rather, the member was clearly trying to understand why the couple fled Guyana for Canada just seven months after returning to that country from the United States.
[26] The final comments of the presiding member are somewhat troubling, as they initially seem to suggest that the member was not concerned with the applicants' subjective perceptions, and that the member was indicating that the issue of the subjective fear should only be addressed in argument. These concerns are allayed, however, by the latter half of the final paragraph, where the member makes it clear that what she wants to understand was the couple's thinking - why it was that they decided to leave Guyana in January of 2002.
[27] A review of the next portion of the transcript demonstrates that Mr. Abboobakar was then afforded an ample opportunity to provide the member with an explanation of his perception of the situation and his thought process in deciding to leave Guyana. Indeed, the next few pages of the transcript are taken up with an explanation of the nature of Mr. Abboobakar's concerns with respect to the situation in Guyana, and his reasons for coming to Canada. In the course of this discussion, the basis of his subjective fear of persecution is fully explained.
[28] In these circumstances, it cannot be said that Mr. and Ms. Abboobakar were denied the opportunity to fully present their case.
[29] Counsel for the Abboobakars draws an analogy to the comments of the presiding member in this case, and comments of members in other cases that have been found by this Court to be objectionable (see Mohammad v. Canada (Minister of Employment and Immigration) (2000), 4 Imm. L.R. (3d) 152, Hagi-Mayow v. Canada (Minister of Employment and Immigration) (1994), 74 F.T.R. 120, Sivaguru v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 374). These cases are of limited assistance, however, as in each case, the comments in issue are somewhat different, and each of the comments arises in its own context.
[30] In my view, the comments in question here, while perhaps infelicitous, did not, in the final analysis, result in any limitation on the ability of Mr. and Ms. Abboobakar to present their case.
Conclusion
[31] For these reasons, the application for judicial review is dismissed.
Certification
[32] Neither party proposed a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that
1. For the reasons set out above, this application is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2884-03
STYLE OF CAUSE: MOHAMED RAFEEK ABBOOBAKAR
CHRISTINA TAGEWATTIE ABBOOBAKAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 15, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
APPEARANCES BY:
Mr. M. Max Chaudhary
FOR THE APPLICANTS
Mr. Ian Hicks
FOR THE RESPONDENT
SOLICITORS OF RECORD:
CHAUDHARY LAW OFFICE
North York, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040616
Docket: IMM-2884-03
BETWEEN:
MOHAMED RAFEEK ABBOOBAKAR
CHRISTINA TAGEWATTIE ABBOOBAKAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER