Date: 19980604
Docket: IMM-2062-97
OTTAWA, ONTARIO, THE 4th DAY OF JUNE 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
ARTURO MANUEL MORANTE DEL MORAL
MARIA DE LOS ANGELES AGUIRRE CORONA
DIEGO ARTURO MORANTE AGUIRRE
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application is dismissed.
Judge
Certified true translation
M. Iveson
Date: 19980604
Docket: IMM-2062-97
Between:
ARTURO MANUEL MORANTE DEL MORAL
MARIA DE LOS ANGELES AGUIRRE CORONA
DIEGO ARTURO MORANTE AGUIRRE
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] The applicants are citizens of Mexico who allege that they have a fear of persecution for reasons of political opinion and membership in a particular social group. The principal claimant (the husband) was involved in the Party of the Democratic Revolution (PRD). He submits that he and two other PRD militants stole ballot boxes that had been tampered with by the party in power, the Institutional Revolutionary Party (PRI), in order to prove that it had committed electoral fraud. Following these events, one of the militants was murdered on September 15, 1995.
[2] The principal applicant submits that he subsequently received a telephone call informing him that he was next on the list. He inferred from this that he was a wanted man and left Mexico on October 21, 1995 to claim refugee status in Canada.
[3] The panel found that the principal applicant was not credible based on two major contradictions in his evidence. The first contradiction concerns the date of the alleged theft of the ballot boxes. At the hearing, the applicant stated that this event happened seven or eight days before September 1, 1995, but in his reply to question 37 he indicated that the date was August 30, 1995.
[4] The second contradiction found by the panel concerns the location where he allegedly received the threat by telephone after the murder of the first militant. Was it Celaya or Mexico? It was Mexico according to the applicant"s testimony, but Celaya according to his answer to question 37.
[5] Counsel who represented the applicants at the hearing of this application for judicial review challenges the panel"s decision on the ground that it showed bias against these applicants in particular and all applicants from Mexico in general. He pointed out to the Court that the hearing lasted only 30 to 45 minutes, which was a short period of time, and that the panel showed no interest in the explanations the applicants tried to provide about the dangerous situation in Mexico.
[6] Counsel further submits that the panel"s [TRANSLATION] "standard practice" is to deal with the cases of Mexican claimants, who are [TRANSLATION] "presumed to be economic refugees", as quickly as possible. The panel apparently heard three or four other claims by Mexicans that same afternoon. He also questions the panel"s order that the refugee hearing officer begin her examination first, which he considers an unfair procedure intended to arrive at a quick negative response. He submits that the panel based its decision on two insignificant contradictions and completely disregarded the situation in Mexico in general, and the principal applicant"s well-founded fear in particular.
[7] Counsel for the applicants did not however object to the proceedings and did not raise any issue of apprehension of bias on the part of the panel"s members.
| [8] It is well established that a panel is the master of its own procedure and is not bound by the formal rules of a court. The applicants had every opportunity to prove the merits of their case. Moreover, subsections 68(2) et 68(3) of the Immigration Act (the Act) are very clear on this point:68 (2) The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit. |
(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
[9] As can be seen from the transcript of the testimony at the hearing, the presiding member opened the hearing, summarized the facts and started to question the principal applicant. The refugee hearing officer and counsel for the applicants also participated. Toward the end of the hearing, the presiding member granted counsel the right to speak and he presented his arguments.
| [10] The courts have clearly established that a party reasonably apprehensive of bias on the part of a tribunal must allege a violation of natural justice at the earliest practicable opportunity:1. . . Correlatively, the right of the individual who apprehends bias on the part of the Tribunal before which he is brought has always been, again as I understand the jurisprudence, a right to object to being judged by the Tribunal, but a right that exists only until he expressly or impliedly submits to it. It is only because Mr. MacBain raised his objections at the outset that his attack on the proceedings could be successful. |
| . . . |
However, even apart from this express waiver, AECL"s whole course of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity.
[11] Furthermore, the Supreme Court has clearly established that an apprehension of bias must be reasonable. In Comm. for Justice v. National Energy Board,2 at pages 394-95, de Grandpré J. stated the following at page 395:
The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice, 1971, at p. 220:. . . "tribunals" is a basket word embracing many kinds and sorts. It is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias in another.
[12] Concerning the participation of the applicants" first counsel before the panel, there is surely no reason to impose on the panel an obligation to come to the applicant"s aid. In Gholam-Nejad v. Minister of Employment and Immigration ,3 Gibson J. of this Court stated that he found nothing on the face of subsection 18.1(4) of the Federal Court Act that would authorize the intervention of this Court where the problem is due to a failure on the part not of the panel but of counsel for the applicant. Gibson J. referred to a decision by Mahoney J.A., then of the Federal Court of Appeal, in Paterno v. Minister of Employment and Immigration4 that dismissed an application for leave as follows:Notwithstanding the consent of the respondent, this application for leave to appeal is dismissed. The incompetence of counsel chosen by a refugee claimant is not, of itself, a ground upon which it may be reasonably agreed that the refugee division erred.
[13] I am not of course concluding that the first counsel in the instant case was incompetent. I am simply referring to the argument presented by the second counsel. I would also like to add a perfectly apposite comment made by Rothstein J. of this Court in Cam Hoa Huynh:5. . . That the applicant's story was not told or did not come out clearly may have been a fault of counsel or it may have been that the applicant did not properly brief counsel. As I understand the circumstances, counsel was freely chosen by the applicant. If counsel did not adequately represent his client, that is a matter between client and counsel.
[14] Finally, concerning the importance the panel attached to the two contradictions mentioned above and the panel"s conclusion that the applicant merits little credibility, the following paragraph by Pinard J. of this Court in Ali Nejme6 is apposite: The tribunal's decision is based purely and simply on the applicant's lack of credibility because of his conduct, the inconsistency between the personal information form and his testimony and other contradictions. It is true that, taken individually, these inconsistencies and contradictions may seem to be of little importance. However, taken together and considered in the context of the claim to refugee status made by the applicant, they seem to me to have been the subject of an assessment that was adequately arrived at.7 Furthermore, the members of the tribunal had the advantage of seeing and hearing the applicant.
[15] In short, the courts have consistently held in a large number of cases that where credibility is at issue, since it is the panel which met the claimant, observed his reactions and measured his answers to the questions put to him, it is not open to this Court to impose its own assessment unless it is plain and obvious that the panel"s assessment was totally unreasonable. This is not the case here.
[16] Accordingly, this application cannot be allowed.
[17] There is no serious question to certify.
O T T A W A, Ontario
June 4, 1998
Judge
Certified true translation
Margaret Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2062-97
| STYLE OF CAUSE: ARTURO MANUEL MORANTE DEL MORAL ET AL. |
v. MCI
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: MAY 20, 1998
REASONS FOR ORDER BY DUBÉ J.
DATED: JUNE 4, 1998
APPEARANCES:
| STEWART ISTVANFFY FOR THE APPLICANTS |
PATRICIA DESLAURIERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
| STEWART ISTVANFFY FOR THE APPLICANTS |
JACINTHE LANDRY
M. George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103, at pages 110 and 113.
2 [1978] 1 S.C.R. 369.
3 77 F.T.R. 44.
4 A-1770-92, June 23, 1992 (unreported).
5 92-T-1772, June 24, 1993, at pages 5-6.
6 A-1614-92, November 28, 1994, at page 1.
7 Rajaratnam v. Canada (M.E.I) (December 5, 1991), A-824-90 (F.C.A.).