Ottawa, Ontario, April 13th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
Applicant
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board) dated March 16, 2005 which found that the applicant was not a Convention refugee or person in need of protection because he lacked credibility, had no subjective fear of persecution or risk to his life, and because there was adequate state protection in El Salvador.
Facts
[2] The applicant, a 38 year-old citizen of El Salvador, claims fears for his life because of death threats by a criminal gang known as El Tortito, led by Luis Alberto Marquez. Marquez allegedly made extortion demands, committed assaults, and made death threats against the applicant and his family since 1994. The applicant's parents are property and business owners, which businesses were operated in part by the applicant. Specifically, the applicant claims:
1. in 1994, the applicant's father was subject to an extortion demand but did not pay, following which an armed group broke into the family farm, assaulted an employee, and stole farming equipment. The incident was reported to local police, who took a report but did not investigate. The applicant's family conducted its own investigation, located some of the stolen equipment and provided the authorities with information implicating Mr. Marquez and El Tortito gang members in the theft. The latter were arrested, charged with the offence, but were released at trial;
2. Mr. Marquez thereafter made repeated extortion demands for protection money and threatened to kidnap and kill Guillen family members if they refused to pay. Fearing for their lives, the applicant's family paid some of the requested amounts. Repeated death threats continued. Police protection was not sought;
3. in March 1998, the applicant was held up at gunpoint while working at his family's gas station, was assaulted, was robbed of the business' money, and was told he and his family would be killed if they reported the incident to police. Police protection was not sought;
4. in August 1999, the applicant was stopped at gunpoint in his car in front of the family farm. He was taken to a sugar cane plantation, assaulted, and robbed of the payroll to be paid to employees. An assailant fired a bullet near the applicant's head, who was warned not to report the incident to police or the next bullet would kill him. He did not report the incident to police;
5. in December 2001, El Tortito demanded the applicant's family pay 200,000 colones ($23,000 USD). They paid 15,000 colones, after which the balance of the amount was demanded on death threats. They did not report the incident to police;
6. in January 2002, El Tortito robbed the family's gas station. One week later, employees driving merchandise to the station were forced from their vehicle at gunpoint and robbed. An employee reported the incident to police; and
7. in August 2002, a red car with dark windows attempted to stop the applicant in his vehicle on a highway.
Flight to Canada
[3] Mr. Guillen Morales was issued a Canadian visitor's visa on June 13, 2002. On September 5, 2002, the applicant entered Canada via the United States and claimed refugee protection one month later.
The decision under review
[4] The Board concluded that the applicant was not a Convention refugee or person in need of protection because he was not credible, there was adequate state protection in El Salvador, he repeatedly re-availed himself of El Salvador's protection after he began fearing for his life in 1995, he delayed fleeing the country of persecution, he delayed claiming protection for one month after arriving in Canada, his family remains unpersecuted in El Salvador, he would be subject only to a general risk of crime if returned to El Salvador, and he failed to claim refugee protection in the United States, a signatory to the Convention. The Board found that Mr. Guillen Morales was not credible because:
1. at the hearing he asserted and then withdrew a claim based on political opinion;
2. he could not remember the exact days, months, or years that events occurred which were central to his claim;
3. it was implausible that extortionists would issue a receipt, produced by the applicant, for his father's cheque used to pay blackmail;
4. he stated before the Board that he did not know what became of Mr. Marquez, whereas he told Citizenship and Immigration Canada in 2002 that Mr. Marquez was in custody; and
5. he had difficulty answering how many times he had been threatened since the personal threats began in 1995.
Issues
[5] Three issues are raised on this application:
1. Did the Board breach the rules of natural justice and the duty of fairness by raising a reasonable apprehension of bias? ;
2. Did the Board base its decision on patently unreasonable findings of fact? ; and
3. Did the Board err in finding that state protection is available to the applicant in El Salvador?
Analysis
Issue 1: Did the Board breach the rules of natural justice and the duty of fairness by raising a reasonable apprehension of bias?
[6] The applicant submits that the Board's conduct of hearing and oral remarks raise a reasonable apprehension of bias. In the applicant's view, the Board pre-determined the merits of his claim because:
(a) it rendered its decision orally immediately following the hearing;
(b) it interrupted the applicant's answers, depriving him of an opportunity to be heard.
[7] The test for reasonable apprehension of bias was set out by Justice de Grandpré for the Supreme Court of Canada in Committee for Justice and Liberty v. Canada(National Energy Board), [1978] 1 S.C.R. 369:
... 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. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
(a) Rendering decision orally immediately following the hearing
[8] In Mazouni v. Canada(Minister of Citizenship and Immigration)(2003), 127 A.C.W.S. (3d) 1216 (F.C.) I held that the Board's rushing may deprive a refugee claimant of a fair hearing. Further, where the Board renders a complex, lengthy decision orally at the conclusion of a claimant's hearing, it may indicate that the Board made its decision before the claimant had been heard.
[9] While the Board gave its decision orally immediately following submissions from the applicant's counsel, the panel's reasons explicitly addressed counsel's submissions and various aspects of the applicant's oral testimony from the hearing. It cannot be said that the Board probably made its decision before granting the applicant his right to be heard.
(b) Interruption by the Presiding Member of the Applicant's evidence
[10] This hearing was heard by videoconference in Montréal with the applicant, his counsel and the interpreter in Toronto. The presiding member interrupted the applicant's evidence in response to questioning by the refugee claims officer on most of the 44 pages of the transcript. The presiding member intervened to question the applicant on details of his evidence which did not ring true to the presiding member. For example, the presiding member asked him a series of questions to determine the number of threats against the applicant between 1995 and 2002. The evidence of the applicant in response to questioning from the refugee claims officer was that it was difficult to say how many threats there were because there was no specific pattern to the telephone calls. Sometimes they would call once a month. Sometimes they would call three months later. There was no pattern. The presiding member then intervened and said "Well perhaps you can give us a number. Was it 100, 200, 5, 10". The presiding member then said at page 13 of the transcript: "Sir, we are talking of you, o.k. Now, do not tell me that you do not know, not the exact number, but how many threats maybe you received since 1995 and the ... the day you left definitely your country? Are we talking of hundreds or dozens or what?" The member then continued asking questions and the witness finally said that he would say he received about 30 threats.
[11] If there is a valid reason for a presiding member to intervene, the presiding member must be tactful and show some deference in addressing the claimant and formulating the questions. While the presiding member may and should intervene for justice to be done, the presiding member must be careful to do it such a way that justice is seen to be done. As Chief Justice Lamer said on this subject "It is all a question of manner". See Guermache v. Canada(Minister of Citizenship and Immigration) 2004 FCJ No. 1058 per Mr. Justice Martineau at paragraph 6 and R v. Brouillard, [1985] 1 SCR 39 at paragraph 25 per Chief Justice Lamer. In the case at bar, the presiding member often took over the questioning from the refugee claims officer.
[12] The respondent has provided several cases where the presiding member's interventions played an active role in examining the applicant. In Ithibu v. Canada(Minister of Citizenship and Immigration), [2001] FCJ No. 499 Mr. Justice Blais said at paragraph 52, after reviewing the jurisprudence:
Therefore, it seems that an energetic questioning by a Board member and frequent interruptions will not necessarily give rise to a reasonable apprehension of bias, especially if the intervention is to clarify a claimant's testimony.
Justice Blais quoted with approval in paragraph 68 from a text on administrative law in Canada:
... nor will an expression of momentary impatience or loss of equanimity by a tribunal member result in disqualification, particularly where it was merely an attempt to control the manner of proceeding. Similarly, a sarcastic comment when a party refuse to give evidence, or an ill-chosen and insensitive phrase, will not, without more, lead to disqualification.
[13] Like the case before Justice Blais, I am satisfied that the presiding member was intervening to deal with problems that the Board was having with the applicant's testimony. The presiding member was expressing scepticism, but that does not show bias. The presiding member has some latitude in how it conducts the hearing. The key for the applicant is to demonstrate that the applicant was unable to present his case. This is not the case at bar. The presiding member was in all cases asking further questions to have the applicant provide more details.
[14] The active participation of the presiding member in this case demonstrated a good knowledge of the file and an interest in understanding the issues. He is entitled to actively participate in the inquiry process for the purpose of clarifying the facts and the issues. Such involvement does not give rise to an apprehension of bias unless his interventions are not for the purpose of clarifying or amplifying the evidence or his interventions prevent the applicant from properly presenting his evidence.
Issue No. 2: Did the Board base its decision on patently unreasonable findings of fact?
Issue No. 3: Did the Board err in finding that state protection is available to the applicant in El Salvador?
[15] The presiding member reasonably questioned the applicant's credibility on:
1. his original claim for political persecution, which upon questioning by the presiding member the applicant and his counsel immediately dropped;
2. the applicant's multiple trips out of El Salvadorand re-availment during the material time when the applicant says that he was in fear of his life;
3. the failure of the applicant to claim refugee protection in the United States or any of several other countries before claiming refugee status in Canada; and
4. the allegation that the state cannot protect the applicant from the gang leader Marquez, when the applicant presented evidence that Marquez had been charged by police and brought to trial on one occasion, and on a subsequent occasion was actually imprisoned.
[16] The applicant cannot make multiple trips out of El Salvador for business or tourism at the material time, and then come to Canada and claim he fled El Salvador as a Convention refugee or a person in need of protection. This is not credible.
[17] Moreover, the applicant admitted at the outset of his hearing that his political claim for refugee status was ill-founded, and was being withdrawn. This affects his credibility.
[18] The applicant cannot say that the state does not protect the applicant and his family from this gang leader, when the gang leader is arrested, prosecuted and imprisoned by the police in El Salvador.
[19] It is not the Court's function to re-evaluate the Board's findings of fact or credibility unless they are patently unreasonable. For the reasons above, the Court finds that the Board's credibility findings and findings of fact with respect to state protection were reasonable.
[20] Both parties advised the Court that this case does not raise a serious question of general importance which should be certified. The Court agrees.
JUDGMENT
THIS COURT ORDERS that:
This application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1955-05
STYLE OF CAUSE: LUIS RODOLFO GUILLEN MORALES
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 6, 2006
APPEARANCES:
Krassina Kostadinov FOR APPLICANT
Mr. John Pro
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT