Gonzalez v. Canada (Minister of Employment and Immigration) (F.C.A.)

Gonzalez v Canada (Minister of Employment and Immigration)
(F.C.A.)
Between
Maria Ines Arrechea Gonzalez, Applicant, and The Minister of Employment and Immigration, Respondent Federal Court Judgment: (1991) F. C. J. No. 408 Action No. A-899-90

Federal Court of Appeal Toronto, Ontario Heald, Hugessent and Desjardins JJ. Heard: April 9, 1991 Judgement: May 8, 1991 (3 pp.)

Guidy Mamamm, for the Applicant.

Marie-Louise Wclislo, for the Respondent.

The judgment of the Court delivered by

DESJARDINS J.:--This section 28 application seeks to set aside a decision of an adjudicator and a member of the Immigration and Refugee Board dated August 9, 1990 which concluded that the applicant's refugee claim had no credible basis. The exclusion order pronounced by the adjudicator the same day is also attacked.

The applicant is a twenty-year-old citizen of Uruguay who claims to have a well-founded fear of persecution by reason of her membership in a particular social group namely "the family of Juan Ramon Arrechea".

Juan Ramon Arrechea is the applicant's father. In 1967, he was named the railway union's representative to the National Union of Workers because of his record as an advocate of workers rights. He maintained his activities even after 1973 when Uruguay came under the control of a military dictatorship. He fled his country after the disappearance of a number of his union comrades in 1975, and remained in Argentina for a period of five years without returning to Uruguay. In 1981, he came back to his native land, having heard the situation had improved sufficiently, notwithstanding the fact that the military regime was still in existence. Shortly after his return, he was abducted by the military and held incommunicado for a period of four months. His foot was badly injured during his captivity. He was denied medical treatment and remained permanently disabled on account of those events. He was released in 1982 and stayed at home for a period of two years. In 1984, he left Uruguay for Argentina, but returned periodically to Uruguay to visit his family. The military regime in Uruguay formally ended in 1985. Juan Ramon Arrechea finally left Argentina in 1988 for Canada where he claimed refugee status.

During Mr. Arrechea's absences between 1975 and 1981, and between 1984 and 1988, the family's home was searched by the military and the telephone was believed to be tapped. The family received threatening telephone calls related to Mr. Arrechea's situation. In February 1989, the applicant's brother and husband were abducted for several hours by some military-like men and were beaten and questioned about the father's whereabouts.

Following this event, thbe applicant's family members left Uruguay in various stages and came to Canada to claim refugee status. On May 26, 1989, the applicant's brother, Jose Luis Arrechea, was found to have a credible basis to his refugee claim, which he based on his being a member of a social group associated with his father, namely the Arrechea family. A transcript of the hearing of the applicant's brother was filed in evidence during the applicant's hearing.

The applicant and her father testified at the applicant's inquiry. Documentary evidence was adduced. Before closing his case, at a time however where it was clear that an adjournment would be necessary, counsel for the applicant expressed the thought that besides the documentary evidence which had been adduced, he might be able to present, at the next sitting, a person recently arrived from Uruguay who had been in his office a few days before and who might be able to provide recent information about the condition in Uruguay and to corroborate the evidence already heard. The individual, he said, was also claiming refugee status, but was not known to the claimant and so would have no reason to lie as he would have no interest in the outcome of the inquiry. Counsel for the applicant sought leave from the tribunal to present such witness at the next sitting since that would give him time to satisfy himself that the testimony of that individual would be relevant to the case.

The adjudicator rejected in no uncertain terms the possibility of having the witness heard at the next sitting.

He said:

…there was no submissions presented to show the level of his expertise. We concluded that the fact that he is a refugee claimant would cause anyone to question how he could be an expert witness in this regard.

He would certainly have every reason to be a biased witness as well whether he testified at this inquiry or at his own inquiry, he would have every reason or everything to gain by presenting a one-sided perspective.

Yet if he had direct knowledge or information concerning Uruguay to update the problems in existence then his evidence could be meaningful. But simply the issue or the consideration that he is a refugee claimant discounts any of these possibilities.

The applicant submits that the above comments raise a reasonable apprehension of bias on the part of the tribunal vis-à-vis the evidence of all witnesses who are refugee claimants and upon whose evidence the applicant placed reliance. On account of this, the decision of the tribunal is flawed and tainted by the appearance that the applicant was denied procedural fairness. The tribunal, says the applicant was predisposed to disbelieve the evidence of any refugee claimant who would testify on behalf of another because of its perception that such an individual's testimony would be wholly unreliable because of some vested interest in such a person to provide a "one-sided perspective" of a given situation. In the case at bar, the apprehension of bias was particularly serious in that the applicant's father, whose difficulties in Uruguay are at the very root of the applicant's fear of persecution, is also a refugee claimant and so one might conclude on the basis of the comments by the tribunal that the members were inclined to disbelieve what he had to say by reason only of his status in Canada as a refugee claimant. The same, submits the applicant, can be said about the tribunal's attitude towards the evidence of the applicant, and of the sworn testimony of the applicant's brother as contained in the transcripts of his hearing. The fact that the tribunal chose to disbelieve all of the evidence of the applicant and of her father reinforces the apprehension of bias demonstrated by the tribunal's attitude.

I agree with the applicant's position. A reasonable apprehension of bias, perhaps even evidence of actual bias, can be drawn from the words quoted with the result that they vitiate the decision. A refugee claimant cannot be excluded as a potential witness simply because he is making a claim himself. His testimony is admissible, subject to the assessment of credibility by the competent tribunal.

The applicant submits, as a second argument, that the adjudicator erred in declaring as being "virtually meaningless documents" three pieces of evidence: namely a letter from the Embassy of Finland in Montevideo, dated July 20, 1984, dealing with the father's request for a refugee status, relied upon to corroborate the existence of a need, since 1984, for asylum within the Arrechea family; a psychiatric report from Dr. Donald Payne containing the account by the applicant's mother of the families' difficulties in Uruguay and the stress disorder of a moderately severe degree diagnosed by the specialist as having resulted from the pressure, fear and insecurities which she faced in Uruguay; and the insecurities which she faced in Uruguay; and the transcript of the inquiry for the applicant's brother, Jose Luis Arrechea, before another tribunal, where he gave sworn evidence which tended to corroborate the applicant's account of the relevant events and where his claim was found to have a credible basis. The tribunal's reasons for rejecting those three pieces of evidence were that "none of them directly pertained to the applicant's claim;" The applicant submits that the tribunal made a serious error of law in that all this evidence constituted independent verification of certain key aspects of the applicant's claim and in the context of a refugee claim, evidence of the experience and past persecution of similarly situated third parties has been found to be relevant to the determination of the claimant's case.

Where the applicant makes a refugee claim on the basis of being a member of a particular social group, evidence regarding the experience of other members of that group is material to the applicant's claim. This is true with regard to all three documents, but particularly with regard to the transcript of the brother's inquiry since both the applicant's claim and her brother's were based on the same ground i. e, their membership in the same particular social group. My remarks are directed to the facts contained in the transcript. They should not however be interpreted as implying that the assessment made by the tribunal which heard the brother's claim necessarily binds the tribunal responsible for the applicant's claim.

The applicant has raised other grounds of attack. They need not be considered in view of the conclusion I have reached on the above matters.

For these reasons, I would allow this section 28 application. I would set aside the decision of the adjudicator and the member of the refugee board, dated August 9, 1990, together with the exclusion order pronounced by the adjudicator that same day, and I would refer the matter back for a redetermination by a differently constituted panel.

DESJARDINS J