Date: 20050207
Docket: IMM-2182-04
Citation: 2005 FC 150
Ottawa, Ontario, February 7, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MOHAMED HOSNI FENANIR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act) of a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel), dated February 12, 2004. In that decision, the panel determined that the applicant was not a "Convention refugee" as defined under section 96 or a person in need of protection as defined under section 97.
ISSUES
[2] The issues are the following:
1. Did the panel make a patently unreasonable error in determining that the applicant was not credible?
2. Did the composition of the panel create a reasonable apprehension of bias?
[3] For the following reasons, I answer the two questions stated above in the negative.
BACKGROUND
[4] The applicant was born in Algeria on September 25, 1978. He alleges that he would be subject to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to his native country.
IMPUGNED DECISION
[5] The panel determined that the applicant was not credible based on several omissions and inconsistencies in his testimony and in the documents provided. His behaviour was determined to be incompatible with the behaviour of a person fearing persecution, especially based on the fact that he resided in France for 15 months before leaving for Canada.
ANALYSIS
1. Did the panel make a patently unreasonable error in determining that the applicant was not credible?
[6] In credibility matters, the Court must not substitute its opinion for that of the panel unless the decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (section 18.1 of the Federal Courts Act). The panel is in the best position to assess the applicant's credibility (Aguebor v. Canada (Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), at pages 316 and 317). The applicant must demonstrate a well-founded fear of persecution in his native country. He must prove not only that he has a subjective fear, but an objective one as well. The examples stated in the decision regarding the applicant's lack of credibility do not warrant the intervention of this Court. For example, the contradictions noted regarding the intrusion of individuals in the reception house where the applicant was working are sufficient to support the panel's reasons.
[7] The panel noted several omissions in the Personal Information Form (PIF) about the fact that the individuals in question were terrorists and that the applicant was obliged to hide at his aunt's house. Further, the decision-maker considered that there was no reasonable risk of persecution for the applicant because nobody was looking for him or trying to find him.
[8] The applicant's explanation that he had lived in France for more than 15 months without being able to obtain a false passport to come to Canada was not accepted by the panel. Relying on its specialized experience, it made negative determinations regarding the applicant's credibility. Considering all of the evidence, the Court could not identify a patently unreasonable error.
2. Did the composition of the panel create a reasonable apprehension of bias?
[9] The applicant, relying primarily on the average number of refugee claim refusals by the member (99 %) compared to an average of 45 % for all of the other members, called for his resignation. This was denied, hence his claim of a reasonable apprehension of bias.
[10] The Supreme Court considered the issue of bias in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at paragraph 59. It stated as follows:
. . . "[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary" (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L'Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.
(Emphasis added.)
[11] De Grandpré J. also stated in Committee for Justice and Liberty v. National Energy Board (1978) 1 S.C.R. 369, at pages 394 and 395 :
. . . 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. . . . that test is "what would a 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."
. . .The grounds for this apprehension must, however, be substantial and I . . . [refuse] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
[12] In Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091 (F.C.A.) (QL), 2001 FCA 223, we read the following at paragraph 8 :
. . . An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. . . .
[13] The panel is master of its procedure. It is not bound by the formal rules of the Court. Subsection 162(2) and paragraphs 170(g) and (h) state it very clearly:
| Procedure
162 (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
Proceedings
170. The Refugee Protection Division, in any proceeding before it,
(g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; |
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Fonctionnement
162 (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et avec célérité.
Fonctionnement
170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés :
g) n'est pas liée par les règles légales ou techniques de présentation de la preuve;
h) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision;
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[14] In the book entitled Judicial Review of Administrative Action in Canada (Brown and Evans, Toronto : Canvasback Publishing, 1998) at pages 11-31 and 11-32, it reads:
Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting, such as refugee determination hearings, where there is no one appearing to oppose the claim. 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 refused to give evidence, or an ill-chosen and insensitive phrase, will not, without more, lead to disqualification. [Footnotes omitted.]
[15] The applicant filed, through his counsel, the decision by my colleague Martineau J. in Guermache v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1058 (F.C.T.D.) (QL), 2004 FC 870, where the same member delivered an unfavourable decision to the refugee claimant. The judge agree with the decision-maker with respect to the applicant's lack of credibility but determined that his conduct at the hearing was such that it raised a reasonable apprehension of bias. In our case, many passages from the stenographer's notes were cited. I read and reread those passages and, comparing them to the stenographer's notes in Guermache, supra, it is impossible for me to arrive at the same result.
[16] I note however that the member cross-examined the applicant at length but did not attempt to "crack" the applicant as he had in Guermache, supra. The questions asked were not aggressive or harassing.
[17] The data filed does not in itself support a finding of bias. It can be explained by a certain number of factors which are unrelated to any bias (Komanov v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 224 (F.C.A.) (QL)).
[18] In my opinion, the applicant did not establish the panel's bias. The panel fully explained to the applicant the manner in which the hearing would proceed. He intervened on some occasions to get clarifications on very specific subjects. This manner of proceeding does not at all compromise the decision-maker's impartiality. It is perfectly normal that questions be asked by the panel so that the claimants have the opportunity to explain situations which at first glance seem dubious. This is meant to prevent the member from inferring negative findings without having heard the applicant's version of the facts. Moreover, in Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (F.C.T.D.), Teitelbaum J. confirmed that the oral testimony of a claimant should go on to explain the information contained in the PIF.
[19] The member's interventions were not only desirable but necessary when in his opinion there were contradictions or implausibilities on the very face of the case. One must however act with a great deal of dignity and respect so as not to undermine the administration of justice. In the case before us, in my opinion a well-informed person viewing the entire record realistically and practically, could not conclude that this decision was unfair.
[20] In my opinion, there is no error justifying the Court's intervention.
[21] There is no question for certification in this case.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2182-04
STYLE OF CAUSE: MOHAMED HOSNI FENANIR v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 30, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: February 7, 2005
APPEARANCES:
Éveline Fiset FOR THE APPLICANT
Simone Truong FOR THE RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec