Reyes Pino v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Shore, J.
• Citation: (2012), 405 F.T.R. 157 (FC),2012 FC 200
• Date: 09 February 2012

Reyes Pino v. Can. (M.C.I.) (2012), 405 F.T.R. 157 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. FE.040

Alberto Abraham Reyes Pino (demandeur) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-5126-11; 2012 CF 200; 2012 FC 200)

Indexed As: Reyes Pino v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

February 10, 2012.

Summary:

The applicant was a citizen of Cuba. He filed a refugee protection claim, alleging a fear of persecution based on his sexual orientation and his imputed political opinion. The Refugee Protection Division of the Immigration and Refugee Board determined that the applicant was not a Convention refugee under s. 96 of the Immigration and Refugee Protection Act nor a person in need of protection under s. 97 of the Act. The applicant applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The applicant was a citizen of Cuba - Pattichis had apparently invited the applicant to his wedding, and, upon his arrival in Canada, made him an offer of employment - However, a conflict and altercations ensued between the applicant and Pattichis, and Pattichis refused to continue with the steps to obtain a work permit for the applicant - The applicant filed a refugee protection claim, alleging a fear of persecution based on his sexual orientation and imputed political opinion - Pattichis testified on the content of his affidavit during the hearing - The Refugee Protection Division (RPD) rejected the applicant's claim - The applicant applied for judicial review, raising an apprehension of bias by the RPD - The applicant claimed that the panel and the tribunal officer prevented his counsel from cross-examining Pattichis, even though unsolicited information had to be tested before it was deemed admissible - The Federal Court dismissed the application - The applicant's counsel had every opportunity to cross-examine Pattichis - The presence of Pattichis at the hearing was required and complied with the conditions of the Policy on the Treatment of Unsolicited Information in the Refugee Protection Division - The tribunal's routine interventions with the parties did not lead to a finding of bias - The presence of a witness in a manner that fully complied with the process put in place by the RPD to test unsolicited information could not be used to support the applicant's apprehension of bias submission - See paragraphs 27 to 40.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The applicant was a citizen of Cuba - Pattichis had apparently invited the applicant to his wedding, and, upon his arrival in Canada, made him an offer of employment - However, a conflict and altercations ensued between the applicant and Pattichis, and Pattichis refused to continue with the steps to obtain a work permit for the applicant - The applicant filed a refugee protection claim, alleging a fear of persecution based on his sexual orientation and imputed political opinion - Pattichis testified on the content of his affidavit during the hearing - The Refugee Protection Division (RPD) rejected the applicant's claim - The applicant applied for judicial review - The applicant submitted that the RPD breached procedural fairness by informing the applicant of Pattichis's presence in 2011, when the RPD had been informed in 2009 - The Federal Court dismissed the application - On February 24, 2011, the RPD sent the applicant a letter informing him of the presence of Pattichis at his hearing - The court stated that "the applicant was given advance notice of the witness's presence at his hearing on April 7, 2011. The RPD also notified the applicant of the content of the unsolicited information received by the witness by mail on March 7, 2011 .... This is consistent with subsection 29(4) of the [Refugee Protection Division] Rules. Furthermore, the applicant admitted at the hearing that he had received a copy of the exhibits and did not object to the fact that this information dating back to 2009 was given to him only in 2011" - See paragraphs 34 to 35.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The applicant was a citizen of Cuba - Pattichis had apparently invited the applicant to his wedding, and, upon his arrival in Canada, made him an offer of employment - However, a conflict and altercations ensued between the applicant and Pattichis, and Pattichis refused to continue with the steps to obtain a work permit for the applicant - The applicant filed a refugee protection claim, alleging a fear of persecution based on his sexual orientation and imputed political opinion - Pattichis testified on the content of his affidavit during the hearing - The Refugee Protection Division (RPD) rejected the applicant's claim - The applicant applied for judicial review - He argued that Pattichis was a supporter of the regime in place in Cuba and was accordingly an accomplice of his agent of persecution - For that reason, the RPD should not have allowed his testimony in the presence of the applicant - Further, the testimony should not have been accepted because the witness was not subject to an obligation of confidentiality and was therefore entitled to discuss the applicant's refugee claim with anyone - The Federal Court dismissed the application - The court stated that "The transcript indicates that counsel asked if the applicant had to be present during the witness's testimony, to which the RPD replied in the affirmative ... This conduct by the RPD is not, in and of itself, problematic as the applicant did not establish that the RPD acted contrary to legislation or that the applicant was bothered by the presence of the witness" - Pattichis was an interested person and his presence in no way breached the principle that claims were conducted in private - There was no breach of the principles of natural justice - See paragraphs 38 to 39.

Aliens - Topic 4071

Practice - Judicial review and appeals - Fresh evidence - The applicant, a citizen of Cuba, made a claim for refugee protection, alleging a fear of persecution based on, inter alia, his sexual orientation - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the claim - The applicant applied for judicial review - He argued that the RPD erred by finding that the applicant had lived in Cuba in a common-law relationship with a partner for eight years - The applicant wished to submit a piece of evidence (not included in the RPD record) that confirmed that he lived with his parents - The Federal Court stated that "The applicant expressly mentioned in his Personal Information Form (PIF) that he lived in a common-law relationship with a partner for close to eight years. The RPD, as it was open to do, rejected the explanation that he was nevertheless living with his parents. The Court cannot substitute its reasoning for that of the RPD on this factual question that arises from the RPD's authority to assess the probative value of the testimony. By this very fact, the Court cannot accept the new evidence submitted by the applicant establishing that he indeed lived with his parents. Judicial review is not a trial de novo, thus caution must be exercised when making a decision on the admission of new evidence. The evidence submitted by the applicant does not comply with the criteria established by this Court to admit evidence that was not submitted to the administrative tribunal" - See paragraphs 45 to 47.

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - [See first Aliens - Topic 1329.3 ].

Aliens - Topic 4502

Evidence - Duty to disclose - [See second Aliens - Topic 1329.3 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Fenanir v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 118; 2005 FC 150, refd to. [para. 28].

Nechiporenko v. Canada (Minister of Citizenship and Immigration) (1997), 135 F.T.R. 75 (T.D.), refd to. [para. 39].

Profète v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 813; 2010 FC 1165, refd to. [para. 42].

Sinan v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 96; 2004 FC 87, refd to. [para. 43].

Florea v. Minister of Employment and Immigration, [1993] F.C.J. No. 598 (F.C.A.), refd to. [para. 44].

McFadyen v. Canada (Attorney General) (2005), 341 N.R. 345; 2005 FCA 360, refd to. [para. 47].

Vennat v. Canada (Attorney General) (2006), 299 F.T.R. 12; 2006 FC 1008, refd to. [para. 47].

Alba et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 745; 2007 FC 1116, refd to. [para. 50].

Perez v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 548; 2010 FC 833, refd to. [para. 51].

Counsel:

Claudia Andrea Molina, for the applicant;

Charles Junior Jean, for the respondent.

Solicitors of Record:

Claudia Andrea Molina, Montreal, Quebec, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard on February 9, 2012, at Montreal, Quebec, before Shore, J., of the Federal Court, who delivered the following decision on February 10, 2012.