Ottawa, Ontario, September 13, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Dario Edgardo Rodriguez Mejia is a citizen of Honduras who sought refugee protection in Canada based upon his alleged fear of a gang leader known as “El Fantasma” or “the Ghost”. The Refugee Protection Division of the Immigration and Refugee Board found that Mr. Mejia had failed to provide credible evidence in support of his claim. The Board further found that Mr. Mejia’s failure to seek refugee protection during the time that he lived in the United States was inconsistent with his having a subjective fear of persecution in Honduras.
[2] Mr. Mejia now seeks judicial review of the Board’s decision, asserting that he was denied procedural fairness at his hearing, as a result of the Board member having questioned him first. Mr. Mejia also argues that the Board erred in its assessment of his credibility by making findings of fact that were not supported by the evidence, and by engaging in an unduly microscopic analysis of his evidence in an overly-zealous effort to discredit him.
[3] For the reasons that follow, I am satisfied that this Court should not interfere with the Board’s decision. As a consequence, the application for judicial review will be dismissed.
Standard of Review
[4] The issues relating to the Board’s use of the reverse order of questioning procedure engage questions of procedural fairness. As such, it is unnecessary to engage in a pragmatic and functional analysis in determining the appropriate standard of review to be applied to such matters. Rather, it is for the Court to determine whether the procedure that was followed in a given case was fair or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[5] Insofar as Mr. Mejia’s arguments challenge to the Board’s credibility findings is concerned, in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, the Supreme Court of Canada recently reaffirmed that findings of fact made by the Immigration and Refugee Board may only be set aside if made in a perverse or capricious manner, or without regard to the material before it. Thus the standard of review to be applied with respect to the Board’s credibility findings is that of patent unreasonableness.
Guideline Seven
[6] It is common ground that no objection was taken in advance of Mr. Mejia’s refugee hearing with respect to the order of questioning to be followed at the hearing. Similarly, although Mr. Mejia was represented by counsel at his refugee hearing, no objection was made at the commencement of, or in the course of the hearing regarding the order of questioning. The first time that the issue was raised was in Mr. Mejia’s application for leave in this Court.
[7] Mr. Mejia’s arguments on the reverse order of questioning issue were not well developed, in that he relies almost exclusively on the decision of this Court in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 8, 2006 FC 16, in which Justice Blanchard found that Guideline Seven unlawfully fettered the discretion of members of the Refugee Protection Division.
[8] In addition, there is very little in the way of evidence before the Court to suggest that Mr. Mejia suffers from any particular condition or circumstances that would render him particularly vulnerable, nor is there much in the way of evidence to suggest that he suffered any real prejudice as a result of the Board having proceeded to question him first.
[9] Mr. Mejia does assert in this affidavit that: “Given that I have little schooling, I was very intimidated by the questioning and I believe that it impacted negatively on my capacity to answer questions.” It is noteworthy, however, that Mr. Mejia does not indicate that he would have been any less intimidated, had he been questioned first by his own counsel, or that the reverse order of questioning itself led to him being denied a fair hearing.
[10] There is currently conflicting jurisprudence in this court as to whether the seemingly mandatory wording of Guideline Seven unduly fetters the discretion of members of the Refugee Protection Division to allow claimants’ counsel to question their clients first: see, in particular, Thamotharem, above, and Benitez v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 631, 2006 FC 461.
[11] Mr. Mejia’s case was argued solely on the basis of the jurisprudence. That is, no meaningful evidentiary record has been put before the Court on this application that would allow me to come to my own independent assessment as to whether Guideline Seven results in an inappropriate fettering of members’ discretion or not. The burden is on Mr. Mejia to make out a case of fettering. Having failed to do so, I am thus unable to find that Guideline Seven inappropriately fetters the discretion of members of the Refugee Protection Division.
[12] Moreover, even if I were to simply accept Justice Blanchard’s finding in Thamotharem with respect to the issue of fettering, Mr. Mejia acknowledges that in Benitez, Justice Mosley held that the failure to raise the matter of the order of questioning at a refugee hearing must be taken as an implied waiver of any procedural unfairness. No arguments have been advanced by Mr. Mejia to challenge Justice Mosley’s finding in this regard. Indeed, he seemingly accepts that he has waived any procedural unfairness that might have resulted from the Board’s use of the reverse order of questioning procedure.
Were the Board’s Credibility Findings Patently Unreasonable?
[13] Central to Mr. Mejia’s claim was his assertion that he feared for his life and that of his family, as he had seen three individuals, one of whom was the Ghost, fleeing the scene of a murder. Although he himself had not actually seen who had shot the victim, Mr. Mejia testified before the Board that a security guard and other people in the neighbourhood had witnessed the actual shooting.
[14] Mr. Mejia also stated that he did not approach the police with what he had seen out of fear for his safety, and that he had not testified in Court proceedings against the Ghost for the same reason.
[15] The Board rejected Mr. Mejia’s story, noting that the Ghost had been convicted of the murder, presumably based on the testimony of other individuals. In these circumstances, the Board reasoned that the Ghost would have no reason to want to seek retribution against Mr. Mejia.
[16] Mr. Mejia says that the Board erred in finding that the Ghost had been tried and convicted of the murder, pointing to the fact that the Ghost was allegedly released from jail after only two years. According to the country condition information before the Board, the sentence for murder in Honduras ranges from between 20 and 30 years. As a result, Mr. Mejia says, the Ghost could not have been incarcerated for the murder.
[17] The problem with this argument is that it is contradicted by Mr. Mejia’s own testimony. Mr. Mejia testified, before the Board, that the Ghost had indeed been charged with the murder, had been found guilty, and had spent two years in jail. In these circumstances, it cannot be said that the Board’s finding that Mr. Mejia’s story was not credible was patently unreasonable.
[18] This was the central finding underlying the Board’s negative decision. There were, however, numerous other findings made by the Board in support of its overall conclusion that Mr. Mejia had concocted his story. By way of example, the Board noted that Mr. Mejia had testified that his wife had fled the family home as a result of threats, leaving the children behind with another family. However, in his Personal Information Form (or “PIF”), Mr. Mejia said that his wife had taken the children with her when she fled.
[19] A review of the Board’s reasons reveals that the member turned his mind to the explanation offered by Mr. Mejia for this inconsistency, and that the member did not accept it. I cannot say that the Board’s finding in this regard was patently unreasonable.
[20] The Board also decided not to attribute much weight to an affidavit sworn by a Honduran lawyer, who had ostensibly been consulted by Mr. Mejia with respect to his situation. The affidavit indicates that Mr. Mejia had sought the lawyer’s assistance in obtaining protection from the Ghost and his gang. The reason given by the lawyer as to why Mr. Mejia needed protection was that he had identified the Ghost to the police as a murderer, and had acted as a police witness, resulting in the incarceration of the Ghost.
[21] This description of Mr. Mejia’s role is completely at odds with Mr. Mejia’s own testimony before the Board, where he denied having had any dealings with the police in relation to this matter, or having testified against the Ghost with respect to the murder. In these circumstances, it was entirely reasonable for the Board to have given the affidavit little weight.
[22] Finally, the Board found that Mr. Mejia’s failure to seek refugee protection during the 15 months that he lived illegally in the United States, prior to coming to Canada, was inconsistent with a subjective fear of persecution on his part. In coming to this conclusion, the Board considered and rejected the explanation offered by Mr. Mejia for his failure to claim in the United States, and committed no error in this regard.
[23] I do not intend to review each of the other findings made by the Board that are disputed by Mr. Mejia. Suffice it to say that when the Board’s reasons are read fairly, in their entirety, the Board’s overall conclusion that Mr. Mejia was not credible is a reasonable one, and one that is amply supported by the evidence that was before the Board.
[24] I also do not accept Mr. Mejia’s contention that the Board’s negative credibility findings were based upon a microscopic reading of the evidence, and an over-zealous effort to disbelieve him. While the Board did make negative findings with respect to some peripheral issues, a number of the Board’s negative findings related to central aspects of his claim, and were amply supported by the evidence.
Conclusion
[25] For these reasons, the application for judicial review is dismissed.
Certification
[26] Given that a number of issues relating to the fairness of Guideline Seven and the reverse order of questioning procedure are now before the Federal Court of Appeal, Mr. Mejia has asked that I certify three of the questions that were certified by Justice Mosley in the Benitez case.
[27] The respondent does not seriously argue that the questions proposed by Mr. Mejia should not be certified, and having carefully considered the matter, I am satisfied that certain aspects of the decisions of the Federal Court of Appeal in Benitez and Thamotharem could potentially be dispositive of this case. As a result, it is appropriate to certify these questions.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT this application is dismissed. The following questions will be certified:
1. Has the implementation of Guideline Seven led to the fettering of Board members' discretion?
2. Does Guideline Seven violate natural justice by distorting the independent role of Board members? and
3. If Guideline Seven and the procedure mandated by it breaches natural or fundamental justice, can a refugee claimant in any way implicitly waive the breach, for example by failing to object to the procedure?
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-396-06
STYLE OF CAUSE: DARIO EDGARDO RODRIGUEZ MEJIA v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 11, 2006
APPEARANCES:
Mr. Jacques Despatis FOR THE APPLICANT
Mr. Gregory Tzemenakis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Jacques Despatis FOR THE APPLICANT
Barrister & Solicitor
Ottawa, Ontario
Mr. John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General Canada
Ottawa, Ontario