Federal Court Decisions

Decision Information

Decision Content

Date: 20040322

Docket: IMM-1178-03

Citation: 2004 FC 422

Ottawa, Ontario, March 22, 2004

Present:           The Honourable Madam Justice Tremblay-Lamer

BETWEEN:

                                               KARINA MARQUEZ CABELLERO

                                                                                                                                            Applicant

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel) that the applicant and her husband are not persons in need of protection or Convention refugees, on the basis that their story lacked credibility.

[2]                In essence, the applicant and her husband claimed that the applicant's ex-husband, Salvador Islas Barrera (Salvador) caused them problems because he did not want the applicant to leave him and marry her husband.

[3]                The applicant submits that the panel demonstrated bias toward her during the hearing. The panel, she says, was impatient and aggressive with her, spoke in a raised voice several times, made sarcastic remarks and interrupted her during her testimony.

[4]                The applicable test to determine if there is a reasonable apprehension of bias is the following: would a reasonably informed bystander perceive bias on the part of an adjudicator? (Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at page 636).

[5]                It has been well established in the caselaw that the members of the panel have the right to cross-examine the witnesses that they hear. Further, the panel can question a claimant energetically to ensure that the witness is telling the truth (Mahendran v. MEI (1991), 134 N.R. 316 (F.C.A.)).


[6]                After a careful review of the transcript, I am persuaded that this is what the panel did in this case. Although I noted a few impatient remarks, I detected, rather, as in the matter of Mahendran case, a sense of frustration at being unable to get a clear picture of the general purport of the evidence being given.

[7]                Moreover, since the applicant did not submit any recording of the hearing, it is impossible for this Court to appreciate the tone or the volume of the panel's voice. I also observe that the panel never treated the applicant like a liar, contrary to what she alleges in her affidavit, filed in support of this application. I cannot find, in this case, that the panel's conduct justifies a reasonable apprehension of bias.

[8]                As for the panel's finding relative to the lack of credibility, in light of the contradictions noted by the panel, the evidence which reveals that there was at least one voluntary return to Mexico, as well as the fact that the applicant did not lodge a complaint about Salvador until 2002, i.e. until her and her husband had already decided to leave Mexico, I am of the opinion that this finding cannot be described as unreasonable and does not enable this Court to intervene.

[9]                For these reasons, this application for judicial review is dismissed.


                                                                       ORDER

THE COURT ORDERS that the application for judicial review be dismissed.

                                                                                                                   "Danièle Tremblay-Lamer"       

JUDGE

Certified true translation

Kelley A. Harvey, BA, BCL, LLB


                                                             FEDERAL COURT

                                                                             

                                                      SOLICITORS OF RECORD

DOCKET :                                          IMM-1178-03

STYLE OF CAUSE:                           KARINA MARQUEZ CABELLERO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       March 18, 2004

REASONS FOR ORDER

AND ORDER BY:                             The Honourable Madam Justice Tremblay-Lamer

DATE OF REASONS:                       March 22, 2004

APPEARANCES:

Brigitte Poirier                                       FOR THE APPLICANT

Marie-Claude Demers                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Brigitte Poirier

4385 St-Hubert Street

Montréal, Quebec

H2J 2X1                                               FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

Montréal, Quebec                                 FOR THE RESPONDENT

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.