Date: 20020513
Docket: IMM-554-01
Ottawa, Ontario, May 13, 2002
Before: Pinard J.
Between:
Nina Carol CHUKWUKA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on January 12, 2001 that the plaintiff is not a Convention refugee is dismissed.
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Yvon Pinard
JUDGE |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020513
Docket: IMM-554-01
Neutral citation: 2002 FCT 532
Between:
Nina Carol CHUKWUKA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division on January 12, 2001 that the plaintiff is not a Convention refugee.
[2] The plaintiff is a citizen of Nigeria. She alleged she was persecuted on account of her membership in a particular social group (female abuse victims).
[3] The Refugee Division dismissed the plaintiff's application for reasons relating to her identity and credibility.
[4] Considering first the plaintiff's arguments regarding her credibility, it should be borne in mind that in this regard, as the Court determined in Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, the Refugee Division is in the best position to assess the credibility of an individual claiming refugee status:
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. In this case, the appellant has not discharged this burden.
[5] Here, the Refugee Division mentioned in its decision several examples of significant deficiencies in the plaintiff's testimony. Her testimony was replete with contradictions, inconsistencies and implausibilities which, in my opinion, seriously undermine her credibility. As in my view the tribunal's findings are supported by the evidence, it properly concluded as it did.
[6] The plaintiff further argued that the dismissal of the medical evidence was unjustified. I do not agree. In Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal very succinctly explained that in questions of documentary evidence an unfavourable conclusion on credibility may extend to all relevant evidence which is derived from the testimony.
[7] Further, the comments by Reed J. in Danailov v. Minister of Employment and Immigration (October 6, 1993), T-273-93, at para. 2 of her decision, seem completely applicable:
With respect to the assessment of the doctor's evidence, to find that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
[8] I consider that the Refugee Division's conclusion was reasonable and supported by the evidence. In the case at bar, the Division dealt in its decision with all the reports submitted by the plaintiff before and after the hearing; it also took into account the plaintiff's lack of credibility and the relevance of the reports in the context of documentary evidence. It certainly cannot be said that the dismissal of the medical evidence was arbitrary: quite the contrary.
[9] Finally, the plaintiff alleged that the tribunal acted in an inhuman, sexist and indecent manner, thereby demonstrating an apparent apprehension of bias.
[10] In Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at 394, de Grandpré J. indicated that the test applicable in a case where a reasonable apprehension of bias is raised was the following:
. . . 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 an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude . . ."
[11] Further, in Joseph Nartey v. Canada (M.E.I.), [1994] F.C.J. No. 120 (T.D.) (QL), Denault J. recalled the rule that counsel's failure to raise an appearance of bias during the hearing creates a presumption that he has decided not to rely on the reasonable apprehension of bias.
[12] In the case at bar, the plaintiff alleged, first, that questions about her virginity were sexist. I do not think such a conclusion can be drawn. The tribunal noted an anomaly in her testimony and wished to examine it. I feel that the Refugee Division was not prompted by the fact that the plaintiff was a virgin, but by the fact that her testimony was contradictory in view of the statements contained in her Personal Information Form, namely that she had been continually beaten and raped for 13 years.
[13] Second, the member's comments on the plaintiff's lack of tears does not indicate bias. Throughout the hearing, and in the reasons, the Refugee Division was conscious of the plaintiff's emotional state. During the hearing she was offered a handkerchief and water, it was suggested that she take a deep breath, and she was asked if she could continue.
[14] Further, it is clear from the transcript, at pp. 418-421 of the tribunal's record, that the member was somewhat perplexed when Sister Isaacs touched the plaintiff, but that following the nun's interventions he acquiesced. The member accordingly did not prohibit the intervener from comforting the plaintiff.
[15] After reading the transcript of the hearing before the Refugee Division, it appears to the Court that an informed person, viewing the matter realistically and practically and having thought the matter through, could not conclude that the incidents mentioned by the plaintiff created a reasonable apprehension of bias; further, at no time during the hearing did counsel for the plaintiff raise the question of an apparent bias by the tribunal. Finally, we should mention the relevance of the following comments by Létourneau J.A. in the Federal Court of Appeal's judgment in Arthur v. Canada (Attorney General), 2001 FCA 223, [2001] F.C.A. No. 1091 (F.C.A.) (QL), at para. 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.
[16] In my opinion, in this case the Refugee Division discharged its obligations without making any reviewable error. The application for judicial review is accordingly dismissed.
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Yvon Pinard
JUDGE |
OTTAWA, ONTARIO
May 13, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-554-01
STYLE OF CAUSE: Nina Carol Chukwuka v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 10, 2002
REASONS FOR ORDER BY: Pinard J.
DATED: May 13, 2002
APPEARANCES:
Eveline Fiset FOR THE PLAINTIFF
Daniel Latulippe FOR THE DEFENDANT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario