Date: 20020226
Docket: IMM-573-01
Ottawa, Ontario, the 26th day of February 2002
Present: The Honourable Mr. Justice Pinard
Between:
ABDOULAYE BARRY
Applicant
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated January 10, 2001, by the Convention Refugee Determination Division determining that the applicant is not a Convention refugee is dismissed.
YVON PINARD
JUDGE
Certified true translation
Sophie Debbané, LL.B.
Date: 20020226
Docket: IMM-573-01
Neutral Citation: 2002 FCT 203
Between:
ABDOULAYE BARRY
Applicant
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review of a decision dated January 10, 2001, by the Convention Refugee Determination Division determining that the applicant is not a Convention refugee as defined by subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2.
The applicant is a citizen of Guinea. He alleged that he was persecuted by reason of his actual or imputed political opinion and membership in a particular social group, specifically his family.
The Refugee Division determined that the applicant was not credible for the following reasons:
- the implausibility of the allegation that the applicant had been suspended from his job with the newspaper "Horoya" for publishing an article that he should not have published, while at the same time remaining part of a group of interns completing an internship in Canada in May 2000, without reaction from the Guinean authorities.
- the implausibility of the allegation that the applicant's house was searched the day he left for Canada, in May 2000, whereas the authorities of the newspaper had been informed in February 2000 that the applicant had written an article that tarnished the image of Guinea.
- the lack of details provided by the applicant when he was examined concerning the date on which his mother allegedly informed him that his house had been searched.
- the lack of probative value in the letter the applicant allegedly received from his brother.
With respect to credibility, the applicant simply submitted, in his memorandum, that the conclusions drawn by the Refugee Division [TRANSLATION] "were unreasonable and were not supported by the evidence; at the very most they constituted pure speculation on the part of the panel, which was already ill-disposed towards the applicant." Having reviewed the record before me in its entirety, I was not persuaded by the applicant that the panel based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C., 1985, c. F-7). It is settled law that on the issue of credibility and assessment of the facts, this Court must not intervene with respect to inferences made by the specialized tribunal that the Refugee Division constitutes when, as in this case, the applicant fails to establish that those inferences could not reasonably have been made (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C. A.)).
With respect to the applicant's argument that the reasons of the decision in dispute raise an apprehension of bias, in my opinion, the direct and unequivocal tone of those reasons does not persuade me that an informed person viewing the matter realistically and practically, and having thought the matter through, would conclude that, in all likelihood, the board member could not decide fairly (see Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pages 394 and 395).
Again, in reference to the argument of apprehended bias, in paragraph 11 of his affidavit, the applicant alleges:
[TRANSLATION] The tension that existed between the two men was in fact confirmed the day of my hearing on November 10, 2000, when my counsel apologized to the board member, undoubtedly for fear that his recollection of their recent altercation would affect the smooth conduct of the hearing and, ultimately, the decision of Mr. Choquette;
In the circumstances, any apprehension of bias could and should have been raised at the beginning of the hearing before the Refugee Division, at the earliest practicable opportunity (see Del Moral v. Minister of Citizenship and Immigration (June 4, 1998), IMM-2062-97 (F.C.T.D.) and Hernandez v. Minister of Citizenship and Immigration (April 30, 1999), IMM-3020-98 (F.C.T.D)).
The following comments by the Federal Court of Appeal in Arthur v. Canada (Attorney General) (July 4, 2001), A-333-99, [2001] F.C.A. No. 1091 (QL), convince me still further that deference is required with respect to the allegation of bias made by the applicant in this case:
. . . 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. It is often useful, and even necessary, in doing so, to resort to evidence extrinsic to the case. That is why such evidence is admissible in derogation of the principle that an application for judicial review must bear on the matter as it came before the court or tribunal.
The applicant also criticized the panel for failing to specifically address the concept, in its reasons, of refugee "sur place" that was raised by his counsel in his submissions at the end of the hearing. Given that all of the allegations on which this application was based were found not to be credible, the applicant's argument cannot justify this Court's intervention. Need it be recalled that the panel's perception that a refugee claimant is not credible can also, in circumstances such as these, effectively amount to a finding that there is no credible evidence to substantiate the claim (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at page 244).
For these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
February 26, 2002
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-573-01
STYLE OF CAUSE: ABDOULAYE BARRY
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 24, 2002
REASONS FOR ORDER OF PINARD J.
DATED: FEBRUARY 26, 2002
APPEARANCES:
LUC R. DESMARAIS FOR THE APPLICANT
CAROLINE DOYON FOR THE RESPONDENT
SOLICITORS OF RECORD:
LUC R. DESMARAIS FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA