Date: 20020820
Docket: IMM-584-01
Neutral Citation: 2002 FCT 894
Between:
CLAUDIA ABRA KOFITSE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated December 22, 2000, in which the Board determined she was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant, Claudia Abra Kofitse, is a citizen of Ghana. She claims to have a well-founded fear of persecution due to her membership in a social group, namely women victims of violence.
The Board determined the claimant not to be a Convention refugee as she lacked credibility and plausibility:
For all these reasons, the panel concludes that the claimant, Ms. Claudia Abra KOFITSE does not have a well-founded fear of persecution, according to Adjei,1 and is not a "Convention refugee", as defined in subsection 2(1) of the Immigration Act.
1 Adjei c. M.E.I. (1989) 2 C.F. (C.A.F.).
The first issue raised in this application is whether the Board erred in finding the applicant not to be credible. Here, the Board clearly and unequivocally determined the applicant not to be credible and offered detailed reasons for its decision, citing inconsistencies and implausibilities in the applicant's oral testimony, her Personal Information Form ("PIF"), and in the documentary evidence. After reviewing the evidence, I am not persuaded that the inferences of the Board, which is a specialized tribunal, could not reasonably have been drawn (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)).
Another issue raised by counsel for the applicant is with respect to the impartiality of the Board. Very recently the Supreme Court of Canada made it clear that there are essentially two components to the duty to act fairly: the right to be heard and the right to an impartial hearing (Therrien (Re), 2001 S.C.C. 35, No. 27004, referred to in Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091 at paragraph 6 (F.C.A.)).
A fair and impartial hearing and especially the right to be heard signifies that the applicant has the opportunity to answer the questions put to him or her and to make submissions on any element likely to affect the decision.
Here, the applicant is of the opinion that the Board failed to act impartially in this case and towards black Africans in general and that it violated her right to a fair hearing. I am not persuaded by this argument. I have found nothing in the transcript that demonstrates inappropriate questioning on the part of any panel member, particularly in view of the inconsistent and contradictory testimony provided by the applicant. As Justice Rothstein of this Court, as he then was, noted in Ambros v. Canada (M.C.I.), [1998] F.C.J. No. 299 (T.D.) (QL): "[a] panel is entitled and well advised to ask questions to ensure that it is understanding, especially when confusing evidence is being given." In addition, the Board here appears to have shown some sensitivity towards the applicant, as evidenced by the transcript at pages 469-470:
Q. Before we leave the room, I want to state that do you know, Miss that... were you in any way feeling embarrassed to tell this Panel your story?
A. I feel very embarrassed, that's why I wasn't even looking straight in your eyes, I was bending because I feel it's a big disgrace to say that my own father had done that to me, but then I had no choice but to tell the Panel.
Q. Would you have been more comfortable with, if instead of two men here, you had two women?
A. It doesn't matter, it's maybe so the same, because I'm shy and I will feel embarrassed with even them. Still I have that (inaudible) hiding in me.
Q. Because I don't know if your lawyer told you but in cases of abuse and rape, it is always possible to ask the Refugee Board to be sitting with a female panel. So I just wanted to be sure that it made no difference to you.
A. Yes, that's fine.
Q. Okay, thank you very much.
Further, the applicant bases her argument on a past decision rendered by Board member Mr. Faure, however, does not provide any concrete examples of incidents or accusations specific to this case. I feel that the enumeration of decisions where there may have been an appearance of bias does not automatically render the decision at bar invalid.
The applicant further argues that the Board did not consider the Gender Guidelines, the current situation in Ghana or the medical and psychiatric evidence. With regards to the Gender Guidelines and the current situation in Ghana, this Court has confirmed on several occasions the fact that some of the documentary evidence is not mentioned in its reasons is not fatal to the Board's decision (see Hassan v. M.E.I. (1992), 147 N.R. 317 at 318 (F.C.A.)).
I stated the following in Djouadou v. Canada (M.C.I.), [1999] F.C.J. No. 1568 (T.D.) (QL) :
With respect to the applicant's argument that the panel did not consider the documentary evidence concerning Algeria, I am of the view that insofar as the applicant's testimony was found not to be credible, such an assessment was not required . . .
I am not persuaded that the Board ignored relevant evidence or that the Board's assessment of the documentary evidence was unreasonable. In fact, the Gender Guidelines are mentioned in the Board's decision. It is therefore my view that they were indeed taken into consideration. In my opinion, the Board's perception that the applicant was not credible in fact amounts to a conclusion that there was not credible evidence to justify her claim to refugee status (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (F.C.A.)).
As for the medical and psychiatric evidence, the Board consulted the medical report written by Mr. David Woodbury located at page 379 of the Tribunal Record. This report corroborated the applicant's claim. However, it became apparent to the Board that the report was primarily based upon the applicant's PIF. The PIF however, as well as the majority of the evidence in the present case, is characterized by numerous discrepancies and inconsistencies. The weight attributed to the medical report by the Board was affected considering the PIF became coloured by discrepancies and inconsistencies in the testimony and that the medical report was based upon the PIF.
In Danailov v. Canada (M.E.I.), [1993] F.C.J. No. 1019 (T.D.) (QL), Madam Justice Reed stated:
With respect to the arguments concerning the panel's findings on credibility, I read both the transcript and the Tribunal's decision before hearing counsels' submissions. I have now had the benefit of those submissions and could not conclude that the Tribunal's finding was other than entirely proper on the basis of the evidence before it. With respect to the assessment of the doctor's evidence, to find that 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.
Therefore, as the applicant was not found credible, I am of the view that it was open to the Board to assess the medical evidence as it did.
Finally, I consider the applicant's argument raised in her written memorandum and based on the Charter of Rights and Freedoms and the various International Conventions premature, as the decision at issue is not the final stage in the applicant's deportation, but is limited to the conclusion that the applicant was not a Convention refugee (Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3 (F.C.A.)). Furthermore, the Board's finding that the applicant is not credible indicates that she would not be persecuted if she was to return to Ghana. As a result, Canada's international human rights obligations would not be breached if she was deported.
For the foregoing reasons, the application for judicial review is dismissed.
Two questions were proposed by counsel for the applicant for the purpose of certification. The first is as follows:
1) The hearing in this case clearly did not respect the Gender Guidelines of the Immigration and Refugee Board and the standard of evidence suggested by these Guidelines was not followed. Allegations of bias based on past misconduct by Mr. Michel Faure were clearly raised at the beginning, based on many instances of abuse in the cases of black African women of which evidence was supplied to this Court. Does the lack of respect for the Gender Guidelines in this refugee hearing in Montreal violate the judicial guarantees of article 7 and article 12 of the Canadian Charter of Rights and Freedoms and the right to equality under article 15 of the Charter? Do the guarantees of the Canadian Charter of Rights and Freedoms and guarantees in international law to due process and a fair hearing apply to the hearings before the Immigration and Refugee Board? Is it appropriate for the Federal Court of Canada to apply these guarantees in its role of surveillance and control over the Immigration and Refugee Board?
Considering the length and the many issues underlying the first proposed question, I feel that it is necessary to do a three part analysis in order to properly conclude if the question merits certification.
(i) Does the lack of respect for the Gender Guidelines in this refugee hearing in Montreal violate the judicial guarantees of article 7 and article 12 of the Canadian Charter of Rights and Freedoms (hereinafter the Charter) and the right to equality under article 15 of the Charter?
I do not feel that this proposed question merits certification. The Federal Court of Appeal in Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3, and the Supreme Court of Canada in Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711, have concluded that a removal of a failed refugee claimant does not infringe sections 7 and 12 of the Charter and that raising such an argument at the refugee hearing was premature.
(ii) Do the guarantees of the Charter and guarantees in international law to due process and a fair hearing apply to the hearings before the Immigration and Refugee Board?
The Supreme Court of Canada in Singh et al. v. M.E.I., [1985] 1 S.C.R. 178, concluded that in the determination of immigration matters, individuals are entitled to assert the protection of section 7 of the Charter which guarantees "everyone . . . the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".
It was also confirmed that the term "everyone" in section 7 includes every person physically present in Canada and by virtue of such presence amenable to Canadian law. The phrase "security of the person" encompasses freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself.
Consequently, it has already been determined that Convention refugees are entitled to fundamental justice in the adjudication of their status.
(iii) Is it appropriate for the Federal Court of Canada to apply these guarantees in its role of surveillance and control over the Immigration and Refugee Board?
In Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4, it was noted that the issue must be one that is determinative of the appeal itself, and the appellate tribunal could only render a decision on the questions that had been certified by the Justice of the Trial Division.
It was also stated that the certification process should not be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided to dispose of a particular case.
I feel that this portion of the question should not be certified as it is not determinative of the case. I am of the view that it would be sufficient for the Court to rely on the principles and remedies of administrative law governing this area of law without having to consider the applicability of the Charter.
The second question suggested by counsel for the applicant is as follows:
2) The following statement was made in another decision about the attorney in the present case and the issue of reasonable apprehension of bias was raised at the beginning of the hearing against the presiding member in this case, the author of these lines:
"The tribunal concludes that the amendment to the given name was in fact a crude attempt by Me Istvanffy to modify a fabricated story and to repair a major implausibility."
Does this indication of actual bias violate the Charter guarantees under articles 7 and 12 as well as the right to equality under article 15 of the Charter? What is the proper test for reasonable apprehension of bias before the Immigration and Refugee Board?
First of all, the first part of the question is clearly dependant on factual issues, that of whether the member's statement created a reasonable apprehension of bias. Based on this, I do not feel that this part of the question would be of general importance (Murugiah v. Minister of Employment and Immigration (May 5, 1993), 92-A-6788 (F.C.T.D.)). Further, as mentioned above, I feel that it would be sufficient for the Court to rely on the principles and remedies of administrative law governing this area of law without having to consider the applicability of the Charter.
As for the second aspect of the question, the Supreme Court of Canada very recently made it clear that there are essentially two components to the duty to act fairly (Therrien (Re), 2001 SCC 35, No. 27004, referred to in Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091 at paragraph 6 (F.C.A.) (QL)): (1) the right to be heard and (2) the right to an impartial hearing.
Further, it was determined that a fair and impartial hearing and most importantly the right to be heard signifies that the applicant has the opportunity to answer the questions put to him or her and to make submissions on any element likely to affect the decision.
For these reasons, I do not believe that this question warrants certification as the test for a reasonable apprehension of bias is well settled in case-law as it has recently been confirmed by the Supreme Court of Canada.
JUDGE
OTTAWA, ONTARIO
August 20, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-584-01
STYLE OF CAUSE: Claudia Abra Kofitse v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 6, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: August 20, 2002
APPEARANCES:
Me Stewart Istvanffy FOR THE APPLICANT
Me Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario