Ottawa, Ontario, April 3, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), dated January 17, 2006, finding that William Rengifo Pelaez (Applicant) is neither a Convention refugee, pursuant to section 96 of IRPA, nor a person in need of protection, pursuant to section 97 of IRPA.
I. Facts
[2] The Applicant is a citizen of Colombia, who allegedly fears persecution at the hands of the Revolutionary Armed Forces of Colombia (FARC).
[3] In December 1990, the Applicant began receiving approximately three telephone calls a week from Front 40 of FARC. FARC asked the Applicant to contribute money to their organization and to distribute propaganda flyers and pamphlets at his children’s schools.
[4] Around this time, the Applicant also began paying FARC 1,000,000 Colombian pesos per month, as FARC had threatened to kill him, and his family, if he failed to do so.
[5] In October 1996, the Applicant, who operated a meat packing business, was forced to close his business and sell off his business property in order to pay his creditors, including FARC. Even after the liquidation of most of his assets, the Applicant had difficulty paying FARC, and for a time stopped making his monthly payments to the organisation.
[6] In early 1997, the Applicant purchased a new business in Bogota. FARC found out about the business and threatened to kill the Applicant if he did not restart sending monthly payments.
[7] In November 1999, the Applicant decided to sell his business in an attempt to put an end to FARC’s threats and its campaign of extortion against him.
[8] In February 2000, the Applicant obtained a visitor’s visa for the United States. However, his family was unable to obtain such a visa. The Applicant stayed in the United States until January 2005 illegally, without making a claim for asylum.
[9] On January 26, 2005 the Applicant entered Canada. On February 10, 2005, he made a claim for refugee protection.
II. Issues
(1) Did the RPD violate procedural fairness by applying Guideline 7 in a manner that improperly fettered its discretion?
(2) Did the RPD violate procedural fairness by rendering its oral decision in French?
(3) Did the RPD err in concluding that the Applicant was not credible?
III. Applicable standards of review
[10] The first and second issues will be reviewed on the correctness standard. The Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 at paragraph 46, determined that all questions of procedural fairness are to be reviewed on the correctness standard.
[11] As for the RPD’s finding that the Applicant was not credible, this finding will be reviewed on the patently unreasonable standard. The case law of this Court is clear; the Court will not interfere with findings of the RPD relating to credibility unless they are patently unreasonable. The Court has stated repeatedly that the RPD is in a better position than the Court to make credibility determinations as it is a tribunal with specialized jurisdiction and it has the opportunity to observe first hand the testimony given by refugee claimants (Aguebor v. Canada (Minister of Employment and Immigration), (1993), 140 N.R. 315 (FCA); Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.); Tekin v. Canada (Minister of Citizenship and Immigration), 2003 FCT 357).
IV. Analysis
(1) Did the RPD violate procedural fairness by applying Guideline 7 in a manner that improperly fettered its discretion?
[12] It is to be noted that at the hearing, counsel for the Applicant chose not to provide further submissions on the issue of whether Guideline 7 was applied in a manner that improperly fettered the RPD’s discretion. I will therefore deal with this issue solely on the basis of the arguments contained in the parties’ written submissions.
[13] The Applicant submits that based on Justice Blanchard’s decision in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, the RPD violated procedural fairness by using the “reverse order of questioning” procedure set out in Guideline 7. In Thamotharem, above, Justice Blanchard determined that Guideline 7 may unlawfully fetter the discretion of the RPD, but does not necessarily do so in all cases. As Justice Blanchard himself stated at paragraph 112 of Thamotharem, above:
Guideline 7, unlike guidelines that deal with general policy considerations applicable to substantive decisions, deals essentially with procedure in the conduct of the hearing. As I have determined earlier in these reasons, the guideline, as drafted, does not inherently violate the principles of natural justice or procedural fairness. The guideline may nevertheless be unlawful if it can be shown to fetter the discretion of a Board member. Whether Guideline 7 fetters the discretion of Board members, will depend on whether the Chairperson’s standard order of questioning procedure crosses “the Rubicon between a non‑mandatory guideline and a mandatory pronouncement having the same effect as a statutory instrument”.
[Emphasis added]
[14] The finding that Guideline 7 may fetter discretion was further expanded upon by Justice Mosley in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461. In that decision, Justice Mosley found that Guideline 7 was not mandatory and as such Guideline 7 did not fetter the discretion of the RPD. Moreover, in Fernando v. Canada (Minister of Citizenship and Immigration), 2006 FC 1349, Justice Blais summed up the jurisprudence on Guideline 7 and found that absence evidence indicating that procedural fairness required an examination-in-chief by a refugee claimant’s own counsel, reverse order questioning does not violate procedural fairness. Finally, Justice Mactavish in Mejia v. Canada (Minister of Citizenship and Immigration), 2006 FC 1087, found that where a refugee claimant fails to object to reverse order questioning at their hearing before the RPD, the claimant implicitly accepts its use.
[15] In the case at hand, the Applicant at his hearing before the RPD did not object to the use of reverse order questioning. Thus, as per Justice Mactavish’s decision in Mejia, above, the Applicant implicitly consented to the RPD’s use of reverse order of questioning. Moreover, the Applicant in his submissions before the Court has not made any submissions or has not set out any evidence demonstrating that procedural fairness required that he lead evidence-in-chief, as is required as per Justice Blais’ decision in Fernando, above. Consequently, in the case at hand no violation of procedural fairness occurred due to the fact that Guideline 7 was followed.
(2) Did the RPD violate procedural fairness by rendering its oral decision in French?
[16] The Applicant argues that the RPD violated procedural fairness, because it rendered its oral decision in French, even though he indicated on his Personal Information Form (PIF) that he wished the proceedings to be conducted in English.
[17] Having reviewed the transcript of the hearing, I conclude that no violation of procedural fairness occurred due to the RPD rendering its oral decision in French. The Applicant at his hearing was represented by counsel, and it was counsel that agreed to have the RPD render its oral decision in French. The Applicant was provided with two clear options at the end of the hearing: having the decision rendered orally in French, with a summary of the decision and the final conclusion provided in English, and being subsequently sent an English version of the decision; or having the decision sent to the Applicant within a few weeks in English. Given these two options, counsel for the Applicant stated that he spoke French and explicitly agreed to have the decision rendered orally in French. The relevant portions of the transcript are the following (Tribunal Record, Minutes of a hearing in the case of William Rengifo Pelaez, page 62):
PRESIDING MEMBER (P.M.): Okay. I usually render a decision on the bench, and my decision is always rendered in French. And when the interpreter understands French, sometimes she translates it, but I can understand what she has said before that she would not do that because she is not, she does not feel up to it and I can understand that. No problem.
So I give you the following options. I do not render a decision on the bench and you will be receiving a decision in a few weeks. Or I render a decision on the bench in French, but I would give you the final conclusion in English and also a résumé of the decision in English.
APPLICANT’S COUNSEL: Moi je parle parfaitement bien le français.
PM : Ah, OK. Alors on peut le faire en français?
A: Oui, ça va.
PM: Okay. If you allow me five (5) minutes.
A: Je peux pas dire que je parle parfaitement bien, mais je parle bien le français.
PM : Mais je peux voir, d’après ce que vous me dites, que vous êtes assez, vous parlez très bien le français.
A : Merci.
[18] In my opinion it is also important to note that the Official Languages Act, R.S.C. 1985, c. 31, explicitly permits any federal court to render oral decisions in either official language. Section 20 of the Official Languages Act reads as follows:
Although the IRB is a federal tribunal and not a federal court, in my opinion the Official Languages Act is still persuasive in determining the IRB’s obligations in what concerns Canada’s official languages. This being said, as the RPD complied with the Official Languages Act it cannot be said to have erred in law by rendering its decision orally in French with an English decision to follow, even though the Applicant requested his proceeding be conducted in English. In any event, it must be reiterated that, in the case at hand, counsel for the Applicant agreed to have the RPD render its decision orally in French with an English version to follow.
(3) Did the RPD err in concluding that the Applicant was not credible?
[19] As mentioned above, the RPD is in the best position to assess the truthfulness of the testimony given by a refugee claimant at a RPD hearing. As such, the RPD is entitled to disbelieve the Applicant’s narrative, if it is not patently unreasonable to do so.
[20] In the case at hand, the RPD found the Applicant’s narrative and submissions to be not credible. The RPD took particular issue with the following:
(a) FARC was extorting money from the Applicant for years and they were able to trace the Applicant even though he moved around Bogota. Yet, FARC has not made contact with the Applicant’s family, to extort money or otherwise, since the Applicant left Colombia in 2000, due to the fact that the Applicant’s family changed their phone number;
(b) The Applicant was unaware that he could claim asylum in the United States, and thus made no asylum claim during the five years he lived in the United States;
(c) The explanations as to the discrepancies, between his Personal Information Form (PIF) and his testimony, relating to where he lived between 1995-2000 were unconvincing;
(d) The Applicant’s failure to explain why he could not provide a letter, or other written materials from his wife or his family which could help collaborate his narrative.
[21] The Applicant’s submissions to the Court, which provide alternative explanations and inferences for the inconsistencies and the discrepancies in his testimony and his PIF, do not establish that the Board’s finding that the Applicant is not credible is patently unreasonable. In fact, it seems reasonable that the RPD found it implausible that the well-equipped FARC would be unable to contact the Applicant’s family after they changed their phone number. Moreover, the RPD’s finding that, the Applicant’s failure to apply for asylum in the United States impugned his credibility, is consistent with the jurisprudence of this Court. Lastly, there is nothing suggesting that it was patently unreasonable for the RPD to impugn the Applicant’s credibility on the basis that there were inconsistencies in the Applicant’s testimony and his PIF as to where he lived between 1995-2000, or on the basis that he failed to explain why he could not provide a letter or other written materials from his wife and family which could collaborate his narrative.
V. Conclusion
[22] For the reasons stated above, this application for judicial review is dismissed.
[23] The parties were invited to submit a question for certification, but no such question was submitted.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is dismissed;
- No questions are certified.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-310-06
STYLE OF CAUSE: WILLIAM RENGIFO PELAEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MARCH 28, 2007
REASONS FOR ORDER BY: Noël J.
APPEARANCES BY: Mr. Michael Loebach
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Michael Loebach
Barrister & Solicitor
London, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent