YOUSSEF BEN CHEIKH BRAHIM, SONIA GHALI v. SARAH BEN CHEIKH BRAHIM, 2014 FC 734

Date: 20140723 Docket: IMM-7118-13 Citation: 2014 FC 734 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, July 23, 2014 PRESENT: The Honourable Mr. Justice Shore BETWEEN: YOUSSEF BEN CHEIKH BRAHIM, SONIA GHALI AND SARAH BEN CHEIKH BRAHIMApplicants andTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Preliminary remarks [1] The Court notes that the burden of proof to demonstrate apprehension of bias is a heavy one. The grounds regarding theapprehension must be serious.

As this Court recently found in Tippet-Richardson Limited v Lobbe, 2013 FC 1258: [54] An allegation of bias … is a serious allegation. Indeed, it challenges the integrity of the administration of justice as well as thevery integrity of the adjudicator whose decision is in issue. As a consequence, the threshold for establishing bias is high: R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para. 113. II.

Introduction [2] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC2001, c 27 (IRPA), of a decision dated August 1, 2013, of the Refugee Protection Division (RPD) of the Immigration and Refugee Boardrejecting the applicants’ claim for protection as refugees or as persons in need of protection within the meaning of sections 96 and 97 ofthe IRPA. III. Facts [3] The applicants are citizens of Tunisia. They fear persecution in their country because they are Christian.

The principalapplicant converted from Islam to Christianity in 1999 and since that time has reportedly been harassed and questioned by police at hiswork. [4] For her part, his wife, the adult female applicant, allegedly experienced persecution as a teacher. She was purportedlyshunned and subjected to the sanctions of the parents and the school in which she worked for having taught the Christian faith to thestudents. [5] Their minor daughter is also alleged to have suffered at school as a result of her Christian beliefs. She reportedly had tochange schools a number of times.

Her parents indicated that they sent her to Canada in May 2011 for her psychological well-being.They later joined her in Canada in August 2011. [6] The family claimed refugee protection on August 19, 2011. Their claim was rejected on October 1, 2013, for the primaryreason that there was insufficient evidence that they would face a serious possibility of persecution on the basis of their religious beliefsif they were to return to Tunisia.

The RPD concluded that the documentary evidence showed that the current situation in Tunisia wasconsiderably different since the applicants’ departure; Christians now practised their religion largely without restrictions in that country.The RPD noted that although the applicants may have been subject to discrimination in the past, there was little evidence that they wouldbe in the future. IV. Analysis [7] The applicants allege that the RPD made three significant errors in its decision rejecting their refugee protection claim:

a) It violated their right to a hearing in the language of their choice;

b) It failed to meet its obligation to consider the evidence in the record and the applicants’ testimony;

c) It exceeded its jurisdiction in a manner that gives rise to a reasonable apprehension of bias. [8] With respect to the applicants’ first argument, the Court finds that there was no violation of their constitutional right to alegal proceeding in the language of their choice. [9] The applicants submit that their counsel had to make certain submissions in English in order to [translation] “accommodatethe panel” who was not comfortable in French.

They argue that the RPD’s failure to provide an interpreter during that part of the hearingcaused prejudice to the applicants. [10] The Court agrees with the respondent that the applicants’ argumentation contains serious inaccuracies on this point.

It is clearfrom the hearing transcript that it was the applicants’ counsel himself who switched to English of his own volition, preferring to speakEnglish during oral argument because that was the language in which his notes had been written (Certified Tribunal Record at page 712): Perhaps I’ll move straight into the… just a few references in the documentation which is, my notes, in English. [11] The applicants were not in the least deprived of a hearing in French; rather, they waived their right to an interpreter when theyconsented to their counsel making his submissions in English for that part of his oral argument.

The RPD was under no obligation to askthe applicants whether they wanted an interpreter at that time or to elicit from them a specific waiver of their right to an interpreter. ThisCour has made it clear that a party may implicitly waive the language rights provided to it under the Official Languages Act, (RS (1985),c 31 (4th Supp.)) (see Taire v Canada (Minister of Citizenship and Immigration), 2003 FC 877). [12] As for the applicants’ second argument, the Court does not find that the RPD failed to consider relevant evidence or theapplicants’ testimony.

The RPD reasonably concluded that there was insufficient evidence to establish that there was a serious possibilitythat the applicants would be persecuted if they were to return to Tunisia. The RPD clearly allows us to understand the reasons for itsdecision, and to determine whether it is within the range of acceptable outcomes (Newfoundland and Labrador Nurses’ Union vNewfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708). The RPD demonstrated that it was aware of all of theevidence before it, including that adduced by the applicants.

Nonetheless, the member preferred to rely on the objective documentaryevidence in the record to assess the current situation in Tunisia; and it was reasonably open for her to do so. [13] When considered as a whole, the documentary evidence shows that there is now a genuine openness among Tunisianstowards Christians since the applicants’ departure.

For example, the report entitled “Tunisia: International Religious Freedoms Reportfor 2011” (United States Department of State, July 30, 2012), noted that there were no reports of abuses of religious freedom by theTunisian authorities in 2011. [14] Lastly, the Court does not find that the RPD’s actions raise any reasonable apprehension of bias. [15] The Court notes that the burden of proof for establishing bias is heavy. The grounds for the apprehension must be serious. Asthis Court recently found in Tippet-Richardson, above: [54] An allegation of bias … is a serious allegation.

Indeed, it challenges the integrity of the administration of justice as well as thevery integrity of the adjudicator whose decision is in issue. As a consequence, the threshold for establishing bias is high: R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para. 113. [16] In this case, the applicants crafted their allegations of “bias” primarily on the basis of the RPD’s findings. They allege, interalia, that the RPD failed to mention medical evidence regarding the minor female applicant as well as problems she and her motherpurportedly experienced at school.

The Court is of the view that this is not a matter of “bias”, but rather one that is related to thereasonableness of the decision. The same holds true for comments made by the RPD with respect to secularism in Quebec. V. Conclusion [17] For all of the foregoing reasons, the applicants’ application for judicial review is dismissed. JUDGMENT THE COURT ORDERS AND ADJUDGES that the applicants’ application for judicial review be dismissed, with no question ofgeneral importance to be certified. “Michel M.J. Shore” Judge

Certified true translation Sebastian Desbarats, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7118-13 STYLE OF CAUSE: YOUSSEF BEN CHEIKH BRAHIM, SONIA GHALI ET SARAH BEN CHEIKH BRAHIM v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, QuEbec DATE OF HEARING: JULY 17, 2014 JUDGMENT AND REASONS: SHORE J. DATED: JULY 23, 2014 APPEARANCES : Claudia Andrea Molina FOR THE APPLICANTs Mario Blanchard FOR THE RESPONDENT SOLICITORS OF RECORD : Cabinet Molina Inc. Attorneys Montréal, Quebec FOR THE APPLICANTs William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT