Date: 20010402
Docket: IMM-2745-00
Neutral Citation: 2001 FCT 274
BETWEEN:
LUCIE FRIMPONG
and
SAMUEL FRIMPONG
Applicants
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision rendered on May 2, 2000, wherein the Board determined that the applicant was not a Convention refugee.
[2] The principal applicant, Lucy Frimpong [the "applicant"], is a 35-year-old citizen of Ghana. She came to Canada with the minor applicant in the within application, her 2-year-old son, Samuel Frimpong, who is also a citizen of Ghana.
[3] The applicant claims a well-founded fear of persecution from the Ghanaian Government by reasons of being the wife of a member of a political party and her membership in a non-political women's organization called "Kumasi/Ejuso Concerned Ladies Associations".
[4] The applicant alleged in her PIF that she lost her Israeli passport but omitted to indicate that she had travelled with a Swaziland passport taken by the escort. The Board was of the view that those two omissions undermined the applicant's credibility.
ISSUES
[5] This case raises the following questions:
1. Was the Board biased against the applicant and was the applicant's right to a fair hearing infringed?
2. Did the Board err in its appreciation of the applicant's credibility?
3. Did the Board err by failing to mention relevant and probative evidence relating to the situation prevailing in Ghana?
4. Would the applicant's deportation violate her rights under sections 7 and 12 of the Charter and Canada's obligations in International Law?
ANALYSIS
1. Was the Board biased against the applicant and was the applicant's right to a fair hearing infringed?
[6] The applicant contends that the Board members were biased and that she was not permitted a fair hearing because she was constantly interrupted by the Board members while being examined by her counsel. Furthermore, the interrogation by the Board members was a cross-examination and extremely insensitive.
[7] The test to determine the existence of a reasonable apprehension of bias was explained as follows in Committee for Justice and Liberty v. National Energy Board_, [1987] 1 S.C.R. 369 at p. 394:
... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude."
[8] In R. v. R.D.S., [1997] 3 S.C.R. 484, it was held by Cory J.:
Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14.
[9] After carefully reviewing the transcript, I cannot find that the Board did not permit a fair hearing. The Board members interrupted the main examination when they had problems understanding the applicant's answers or when they wanted to clarify an issue. Although, they did ask many questions at the end of the hearing, the questions were asked to clarify some issues. Furthermore, it has to be noted that there was no RCO in attendance and the Board did not have the chance of having a person other than the applicant's counsel examining the applicant. Therefore, I cannot find that the Board did not permit a fair hearing because they asked questions which helped the Board understand some issues better or helped cover the story more thoroughly.
[10] The applicant also submits that the Board members were intimidating her and showed no respect for either counsel or the applicant and her family. According to the applicant, this attitude of great belligerence is also shown in the decision on page 3 where the Board made comments on so-called "suggestive question".
[11] At page 3 of the decision the Board stated:
During her testimony, she was hesitant and showed a lack of spontaneity. She had no difficulty testifying when her counsel was using suggestive questions.
The tribunal raised the issue of suggestive questions with her counsel, but the latter said it was not forbidden to use suggestive questions during a hearing at the Immigration and Refugee Board.
[12] I do not believe that this comment by the Board in its decision shows the Board members' "great belligerence" toward the applicant. This is part of the Board's assessment of the applicant's credibility which is part of the Board's duties. The Board did ask the applicant's counsel to refrain from using suggestive questions and the comment in the decision is the Board's impressions of the applicant's testimony.
[13] Consequently, I cannot find that the applicant did not receive a fair hearing. I further find that an informed person would conclude that the Board's comment and attitude at the hearing do not raise a reasonable apprehension of bias.
[14] I am also worried by the suggestion made by the applicant's counsel, that the tribunal, and particularly Ms. Beaubien-Duque, has demonstrated a racial bias.
[15] The applicant's counsel never raised this point before the tribunal. When asked by this Court to explain his allegation, he was not able to identify a single element that could bring this Court to conclude that there was a racial bias.
[16] The applicant's counsel based his explanation on decisions rendered by the same board member after the present case.
[17] In my view, counsel for the applicant cannot substantiate in any way this unfounded supposition which has a direct effect on his own credibility and should be avoided.
2. Did the Board err in its appreciation of the applicant's credibility?
[18] In Aguebor v. M.E.I. (1993) 160 N.R. 315 (F.C.A), the Federal Court of Appeal explained the applicable standard when reviewing the Board's conclusions on the issue of credibility:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[19] In Boye v. Canada (M.E.I.) (1994), 83 F.T.R. 1 (F.C.T.D.), Jerome A.C.J. held:
To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanor, frankness, readiness to answer, coherence and consistency in oral testimony before it.
[20] The applicant does not raise a specific issue with the Board's conclusion regarding her credibility. The applicant's argument is general and is to the effect that the Board had no valid reasons to doubt her story.
[21] Deference has to be given to the Board since it had the chance to hear the applicant testify and was in a better position than me to assess the applicant's credibility. The inconsistencies referred to by the Board are major inconsistencies which do undermine the applicant's credibility.
[22] Having carefully reviewed both the transcript and the decision, I find that the Board's conclusions on the applicant's credibility are supported by the evidence before the Board and are not patently unreasonable.
3. Did the Board err by failing to mention relevant and probative evidence relating to the situation prevailing in Ghana?
[23] The applicant submits that a total failure to consider or to mention extremely relevant and probative evidence is equivalent to an error in law which merits the intervention of this Court. According to the applicant, there is no reference by the Board to the voluminous evidence of human rights abuses still occurring today.
[24] It is trite law that the Board does not have to mention every piece of evidence submitted nor does it have to explain why it did not take in consideration certain documentation.
[25] In Florea v. Canada (M.E.I), [1993] F.C.J. No.598 (A-1307-91, June 11, 1993) (F.C.A.), the Federal Court of Appeal stated at paragraph 1:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
[26] In Cepeda-Gutierrez v. Canada (M.C.I) (1998), 157 F.T.R. 35 at paragraph 16:
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (M.E.I) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.). That would be far to onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.
[27] In the case at bar, the Board referred to recent documentation on the situation in Ghana and the fact that it did not refer to all the documentary evidence before it is not an error. I cannot find that the Board failed to consider relevant evidence.
4. Would the applicant's deportation violate her rights under sections 7 and 12 of the Charter and Canada's obligations in International Law?
[28] The applicant contends that the decision of the Board and the consequent deportation of the applicant are in violation of sections 7 and 12 of the Charter and the rights protected by article 3 of the United Nations' Convention Against Torture and Other Forms of Inhuman or Degrading Treatment or Punishment (1984), the Convention Relating to the Status of Refugees (1951, United Nations), article 18 the American Declaration of the Rights and Duties of Man (Organization of American States, 1948) and article 13 of the International Covenant on Civil and Political Rights (United Nations, 1966).
[29] This Court has stated many times that the refusal of a refugee claim does not give rise to the application of sections 7 and 12 of the Charter because it is not a removal: See Cruz v. Canada (M.C.I.), [1999] F.C.J. No. 1266 (T.D.), Cota v. Canada (M.C.I.) [1999] F.C.J. No 872. Since the present case does not deal with the applicant's deportation but with her application for judicial review of the Board's decision that she is not a Convention Refugee, I find that this issue is raised prematurely.
CONCLUSION
[30] This application for judicial review is dismissed.
[31] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
April 2, 2001