Date: 20061212
Docket: IMM-479-06
Citation: 2006 FC 1476
Ottawa, Ontario, December 12, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CARLOS
ROBERTO SANTOS
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated January 4, 2006, which concluded that the applicant
was not a Convention refugee or a person in need of protection.
Background
[2]
The applicant is a 29 year old citizen of El Salvador. In July 1994, at the age of
17, the applicant left El Salvador and illegally entered the United States and requested asylum. The claim was denied because the applicant
failed to appear for interviews and hearings. The applicant obtained a work
permit in the United States, but, upon being informed that it would not be
renewed, he came to Canada and
claimed refugee protection on June 29, 2000.
[3]
The applicant alleged a fear of persecution in El Salvador at the hands of his father,
other male relatives, and a death squad which targeted his father. These allegations
were modified and were ultimately based solely on an allegation of childhood
sexual abuse by relatives. The Board determined that the applicant was not
credible and denied his claim for refugee status and protection.
[4]
The applicant takes issue with the Board’s
credibility finding and assessment of the evidence. The applicant also alleges
that the Board member’s comments at the hearing gave rise to a reasonable
apprehension of bias.
Issues
[5]
This application raises the following issues:
1. Did the Board err in making patently unreasonable
findings of fact?
2. Did the Board breach the duty of procedural fairness by
providing an inadequate record of the hearing?
2. Did the Board member’s
statements give rise to a reasonable apprehension of bias?
Standard of Review
[6]
With respect to the Board’s factual
findings, including its determinations of credibility, the appropriate standard
of review is patent unreasonableness. Only if the Board’s findings are
unsupported by the evidence before it will the decision under review be
patently unreasonable. Otherwise, the Court will not revisit the facts or weigh
the evidence before the Board: Jessani v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127 at paragraph 16.
[7]
With respect to the issue of procedural
fairness and bias, the Supreme Court of Canada has held that questions of
procedural fairness or natural justice are subject to the correctness standard:
Ellis-Don Ltd. V. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221
at para. 65. If a breach of the duty of fairness is found, the decision must be
set aside: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine
v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665.
Relevant Legislation
[8]
The legislation relevant to this application is the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The
relevant provisions governing protection and refugee status are as follows:
|
Convention
refugee
96. A Convention refugee is a person who, by reason of
a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
Person in need of protection
97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
[…]
(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable
or, because of that risk, unwilling to avail themself of the protection of
that country,
(ii) the risk would be
faced by the person in every part of that country and is not faced generally
by other individuals in or from that country, […]
|
Définition
de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et
se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut
ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
[…]
b) soit à une menace à sa vie ou au risque
de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas, […]
|
Analysis
Issue No. 1: Did the
Board err in making patently unreasonable findings of fact?
[9]
The applicant argues that certain of the Board’s findings of fact were
made in a perverse or capricious manner.
[10]
The first impugned finding of fact is the Board’s finding that the applicant’s
fear of the death squad targeting his father was not well-founded. The applicant
maintained in his PIF narrative that his mother informed him that his father
died of poisoning. The English translation of the applicant’s father’s death
certificate states that he died “as a consequence of intoxication without
medical help”. The Board noted this discrepancy and disbelieved the applicant’s
allegation of fear of the death squad.
[11]
The applicant argues that the death certificate was incorrectly
translated. The Spanish word appearing on the certificate is “intoxicacion”,
for which the English translation in the medical context is “poisoning”: Collins
Spanish Dictionary, 6th ed, 2000. The applicant did not
challenge the translation during the hearing or provide the Board with the
reference materials submitted in this application. On the basis of the evidence
before him during the hearing, it was open to the Board to find that the applicant’s
fear of the death squad was not well founded. The Board’s finding was not made
in a perverse or capricious manner, and it is not patently unreasonable. In any
event, the Board’s decision does not turn on this finding.
[12]
The applicant also referred the Court to the Board’s findings in respect
of the applicant’s unwillingness to seek counseling after having been advised
to do so by a psychologist, and the applicant’s decision to reside in Toronto
despite the fact that two of his alleged aggressors also lived in Toronto. It
was open to the Board to weigh the evidence before it and make factual findings
on both of these issues. In my view, the applicant is asking the Court to
re-weigh the evidence before the Board. Since there was evidence on which the
Board could have reached the factual conclusions it did, the Court will not
disturb those findings on judicial review absent patent unreasonableness. I cannot
conclude that the Board’s findings are patently unreasonable.
Issue No. 2: Did the Board breach the duty of procedural
fairness by providing an inadequate record of the hearing?
[13]
The applicant argues that there are portions of the applicant’s
testimony at the Board hearing that have not been transcribed into the tribunal
record and that the transcript is thus incomplete. The hearing took place by
videoconference over three sittings. During the first sitting, at page 195 of
the tribunal record, the transcriber stated: “(Please note: Some part of
question or answer not recorded.”. At page 215, a note appears: “(Please note:
Inaudible – Echo on recording)”. Similar notations appear at pages 232, 246-249
and 253. The applicant argues that the omissions represent significant portions
of the applicant’s testimony which the Board found to be not credible or
trustworthy.
[14]
I agree with the Respondent that the missing portions of the transcript
refer to parts of the hearing that are immaterial to the Board’s final conclusions.
The deficiencies in the transcript relate to the second hearing. The evidence
on which the Board’s decision is premised, namely evidence concerning he applicant’s
allegation of childhood sexual abuse, was presented at the third hearing. Based
on my review of the transcripts, it appears unlikely that there was any
evidence tendered during the missing portions of the second hearing that formed
the determinative basis of the Board’s decision.
[15]
I also note and adopt the analysis of Madam Justice Snider in her Order
dismissing a complaint on similar grounds in Osayamwen v. Canada (Minister
of Citizenship and Immigration), IMM-7120-04 (July 13, 2005):
[…] The transcript is of poor quality in
that it contains gaps of one or more words in a number of places where the
transcriber was unable to understand words on the tapes. Nevertheless, the
transcript is sufficient for me to assess whether the Board could reasonably
come to its conclusions and whether the Applicant had a reasonable opportunity
to put his case forward (Istrate v. Canada (M.C.I.), 2005 FC 372, at
para. 10). The transcript is not so fundamentally deficient as to deny the
Applicant his right to judicial review (C.U.P.E., Local 302 v. Montreal,
[1997] 1 S.C.R. 793, at para. 77). Nor is this a case where entire tapes are
missing as in Agbon v. Canada (M.C.I.), 2004 FC 356. Further, while the
Applicant had the opportunity to adduce evidence in this application that the
gaps contained explanations of the Board’s findings, he did not do so (Aman
v. Canada (M.C.I.), 2004 FC 827, at para. 7).
[Emphasis added]
[16]
For these reasons, the Court cannot conclude that the Board breached the
duty of procedural fairness in providing a deficient transcript.
Issue No. 3: Did the Board member’s statements give rise to
a reasonable apprehension of bias?
[17]
The applicant referred the Court to various comments made by the Board
member in the course of the hearing which, it is argued, give rise to a
reasonable apprehension of bias. The impugned comments concern the applicant’s
sexual orientation and generally reveal a mood of impatience on the part of the
Board member.
[18]
At pages 18-19 of the hearing transcript dated October 12, 2005, the
following exchange is recorded:
Counsel (C): Can I just… I don’t know if you can… Sir, I don’t
know if you can see the claimant’s demeanour, but he’s in tears right now.
Board (B): Well, he’s in tears. He’s in tears.
C: Yeah.
B: You know, I would be in tears also if I could keep my
story straight.
C: Well, but as far as this part of the story is, I don’t
see where he’s said anything other than what he said here. I’ve asked him.
B: Well…
C: What was the real reasons were that he left El Salvador.
B. Well, the thing is counsel, look, let’s play it
straight. He lives [sic] El Salvador because his father is abusing him. His
uncle is abusing him. His three cousins are abusing him.
C: Yes.
B: The first question I think that you should ask is he
a homosexual, okay.
B: And are you, sir, a homosexual?
C: Sir, I don’t see what the relevance of that is.
B: Well, the thing is, is that you know, you can have
relationships. I’m not for or against homosexuality. It doesn’t bother me in
the least. But the thing is, is that if he’s a homosexual he has homosexual
relationships. It’s not persecution, okay. Now, he leaves El Salvador.
C: But, sir, at the age of 10 years is he supposed to have
sexual orientation?
C: Even if he was a homosexual, if he was unwillingly
abused by other men, that’s still abuse. I don’t think that whether [sic] his
sexual orientation right now is relevant.
B: Fine. Okay, have it your way, counsel. Fine, I don’t
mind. Have it your way. I’m just trying to clarify the point. He leaves El
Salvador, goes to the United States. He loses his work permit. Comes to Canada
where his abusers are in the same city.
[Emphasis added]
[19]
Pages 28 to 32 of the transcript recount the
following exchange concerning the applicant’s attempts to seek counselling:
Counsel (C): Have you gotten counseling here in Canada?
Applicant (A): No.
C: And have you tried to get counseling?
A: I went once to a centre that is located close to Jane
and Wilson, but the person that helped me there said they didn’t provide that
type of help.
C: Okay. Well, what type of help did you ask for?
A: Because I wanted to change and to tell something of the
things I was living.
[…]
C: So that centre that you went to what kind of centre is
that?
A: It’s a community centre.
Board (B): A community centre?
A: Yes.
C: Okay. For whom? Community centre for whom?
A: For Spanish speaking.
C: For Spanish speaking people?
A: Yes, people.
C: Okay, so when they said that they did not provide that
type of counseling, what did you do or did you do anything to try and get
counseling somewhere else?
A: No, because it was very difficult for me.
B: Because what please?
A: Because it was very difficulty for me to go on looking,
to look for another centre or a place where they would provide that kind of
help.
C: Why was it difficult for you?
A: Because I didn’t want to go on telling about the things
I was living through.
B: Oh, come on. For God’s sake, please. Look, counsel,
let’s get something going here. He tells me that he’s not working. He stays in
his room. He doesn’t go out.
C: No, he didn’t say he was not working. He is working. He
said he was working.
B: Well, he said earlier that all he does is stay in his
room. He doesn’t have any friends. And he doesn’t want to make friends. And now
he says he doesn’t have time to look after his own health, and therefore I
can’t send him back to El Salvador because he won’t be getting
help in El Salvador, but he’s not taking help here.
C: Well, perhaps, sir, if… I would just refer the member to
the psychological report. And so, you know, I mean, what is… You know, it says
here that this man is suffering from depression. He’s suffering from various
other psychological ailments and so on. I’m just trying to see what efforts he
made and why he didn’t get counseling that the psychologist recommends.
Obviously, given your opinion that you don’t put much weight or much stead in
what this claimant is testifying to with respect to his emotional and
psychological condition, which tells me that you… which way you are thinking in
terms of this claimant.
B: Well, counsel, we’ve been talking now for an hour and a
half, okay, and I’ve let you do what you want to do, and that’s fine with me.
But let’s understand one thing. Is that we’re trying to establish why this
claimant is in Canada. And we’re trying to establish why he can’t return to El
Salvador. Whether or not he’s a refugee. That’s my only concern, okay.
C: Right.
B: He says that he has problems in El Salvador, okay. He
says that he can’t go back because there are people there who aggressed him in
the past are still there.
C: That’s part of what he’s saying. I would add something
else too in submissions.
B: You probably will.
C: Sorry?
B: You probably will. And the thing is, is that he comes
to the only city in North America where there are other aggressors. The only
place. There’s none in the U.S. There was his father but he
passed away. And now the only place where he has aggressors are in Toronto.
He doesn’t go to Montreal. He doesn’t go to Vancouver.
He goes to Toronto. You know, it’s hard for me to understand that
when you want to get away from the people who are aggressing you, you go huge
distances to make your way to where these aggressors are.
C: Well, sir, for one thing, he testified and it’s also in
the psychological report that although a number of those abusers are here in Toronto,
he feels protected by the laws in Canada. These people cannot abuse him here.
He doesn’t have anything to do with them here in Toronto.
B: Okay.
C: And that’s…
B: I’m just telling you what my concerns are, counsel.
C: Okay, well, well, okay. Just, just by the way it’s 2:30
now.
B: Yeah. Well, I’m trying to help you. Believe me I’m
trying to help you.
C: No, I appreciate that you’re trying to help, sir. I’m
just saying you did make the comment “oh, for God’s sake,” when he said I …
explaining why it was difficult for him to find counseling. He said “I don’t
want to go on telling these things to other people.” And clearly this person,
like a psychological report says, he’s got a great deal of shame about this.
B: But, counsel, he hasn’t told anyone. He hasn’t told… he
doesn’t want to go on telling, he hasn’t told anyone. Not one. He’s not trying
to avoid telling somebody else, he hasn’t told anyone. Okay. Because when he
said that he could no… that the psychologist had told him to go to seek help.
He went to seek help and the people there told him look, we don’t deal with
this type of stuff. There’s nothing that says he explained all of his problems
to these people – Nothing.
C: I think what he’s, I would submit that what he’s saying
is that I don’t want to (inaudible) this because he’s got a reluctance, you know,
to reveal this to anybody. He’s demoralized, he’s suffering from depression.
That’s all I’m getting at, you know.
B: Yeah, well, look, I realize that if a psychologist tells
him that he needs psychological help, technical help of any kind, that one would
reasonably believe that he would seek that help. But then when he tells me…
C: Well, perhaps, well, perhaps the reason is that he’s so
psychologically affected by this stuff, as the psych report points out, that he
can’t bring himself to do that. That’s something known as depression, sir. It’s
a disease.
B: Yet he’s been in Canada what since
2004, five years [sic]. He’s been in Canada for five years and
he’s still waiting to find the right way to resolve his problem. And he’s left El
Salvador in 1994. That’s eleven years ago.
C: As the psychologist report points out that these people
that have been sexually abused as children take years before they resolve this
stuff. Anyway, I was going to ask you if we could take a short break and maybe…
B: Granted. Granted.
[…]
[Emphasis
added]
[20]
The respondent properly concedes that the certain
of the Board member’s statements are unfortunate and insensitive. The respondent
argues, however, that, after counsel objected, the member did not pursue the
line of questioning concerning the applicant’s sexual orientation. The respondent
also argues that these statements were immaterial to the conclusions drawn by
the Board in its reasons for decision.
[21]
With respect to the Board member’s comments
concerning the applicant’s attempts at counselling, the Respondent agrees that
the Board member’s language is unfortunate but demonstrates his frustration in
addressing the implausibility of the applicant’s evidence.
[22]
The applicant argues that the Board member’s comments during the hearing
indicate that, despite his statement to the contrary in response to counsel’s
objection, the member had already decided the claim before hearing all the
evidence and before receiving counsel’s submissions.
[23]
The applicant further argues that the Board member’s remark that the applicant’s
alleged childhood sexual abuse would not be “persecution” if he was a
homosexual, and the Board member’s comment that he too would be crying if he
could not keep his story straight, indicate at best an inappropriate insensitivity
at best and, at worst, bias on the part of the Board member.
[24]
The parties do not dispute that the Board member’s comments were
insensitive. The question before this Court is whether the Board member’s
comments gave rise to a reasonable apprehension of bias. In R.
v. R.D.S., [1997] 3 S.C.R. 484 at paragraph 31, Mr. Justice Cory confirmed
the test for reasonable apprehension of bias as set out by Grandpré J. in Committee
for Justice and Liberty v. National Energy Board:
The test for reasonable apprehension of bias is that set
out by de Grandpré J. in Committee for Justice and Liberty v. National
Energy Board, [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de
Grandpré J.'s articulation of the test for bias was adopted by the majority of
the Court, and has been consistently endorsed by this Court in the intervening
two decades: see, for example, Valente v. The Queen, [1985] 2 S.C.R.
673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la
magistrature, [1995] 4 S.C.R. 267. De Grandpré J. stated, at pp. 394-95:
. . . the apprehension of bias must be a reasonable one,
held by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information.... [T]hat test is
"what would an informed person, viewing the matter realistically and
practically -- and having thought the matter through -- conclude. Would he
think that it is more likely than not that [the decision-maker], whether
consciously or unconsciously, would not decide fairly."
The grounds for this apprehension must, however, be
substantial and I ... refus[e] to accept the suggestion that the test be
related to the "very sensitive or scrupulous conscience".
[Emphasis added]
[25]
The Board member’s view--as expressed during the hearing--that children
sexually abused by male relatives do not suffer abuse or persecution if they
are homosexual is gravely prejudicial in the context of a refugee claim based
on such persecution. While the Court acknowledges that the Board member purported
to let the applicant’s counsel “have it [his] way”, considerable doubt remains
as to the Board member’s ability to decide the case fairly in light of his
previously expressed views.
[26]
The Board member also demonstrated insensitivity
towards victims of depression and the challenges they face in seeking
appropriate treatment. The Board member was noticeably impatient and openly
dismissive of the applicant’s account in this regard. While the Board is the
master of its own proceedings, it is understandable that the applicant detected
signs of a “closed mind” in respect of the Board member’s consideration of the applicant’s
allegations and explanations. It is reasonable to expect that the Board
member’s dismissive approach negatively impacted on his determination of the applicant’s
credibility.
[27]
In my view, an informed person viewing the matter realistically and
practically would reasonably conclude that it was more likely than not that the
Board member would not, consciously or unconsciously, decide the case fairly. A
reasonable apprehension of bias having been found, the Court must determine the
appropriate remedy.
[28]
After the hearing of this application, the Court invited the parties to
provide written submissions concerning whether a breach of
natural justice such as bias should be disregarded by the Court because the
applicant’s refugee claim would have been dismissed in any event. Both parties
have provided written submissions. As requested by the Court, the parties
addressed the applicability of the Supreme Court of Canada’s judgment in Mobil
Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1
S.C.R. 202, where at page 228 the Supreme Court quoted with approval the
following views of Professor Wade:
A distinction
might perhaps be made according to the nature of the decision. In the case of a
tribunal which must decide according to law, it may be justifiable to disregard
a breach of natural justice where the demerits of the claim are such that it
would in any case be hopeless.
[29]
The applicant argues that it is not inevitable that his refugee claim
will be dismissed on redetermination. While the Board’s adverse credibility
findings were not patently unreasonable, they were tainted by a reasonable
apprehension of bias. A new Board member on redetermination may make a
different assessment of the applicant’s credibility. The applicant argues that
the only way a result on a re-hearing would be inevitable is if the evidence
against the applicant is so compelling that no other conclusion would be open
to the Board.
[30]
The applicant also argued that the Court should not go beyond the
reasons for the decision provided by the Board to examine other possible
reasons why the claim could be rejected. The applicant relies on the Federal
Court of Appeal’s judgment in Tagari v. Canada (Minister of
Employment and Immigration), [1994] F.C.J.
No. 982, in which the Court stated:
Nor are we prepared to find, as we were invited to do by
respondent's counsel, that there were other implausibilities, not mentioned by
the Board, which moved it to find him not credible: if the reasons given by the
Board for not believing the appellant cannot be rationally supported, it is not
for this Court to find others.
The
applicant also referred to the Federal Court’s judgment in Su. v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 70, in which Justice Reed held that it was not the
Court’s role to supplant alternate grounds on which the Board might have rested
its decision:
I agree with counsel for the respondent that there may very well be
evidence on the record that could have led the Board to conclude that the
applicant's involvement in the pro-democracy movement prior to June 4th was not
of such a nature that it would likely result in repercussions leading to
persecution in the convention refugee sense. But the Board did not base its
decision on that analysis of the evidence, and I am not prepared to
independently go down that path and supplant the Board's decision.
My job is to review the Board's decision on the basis it was given.
It based its decision on a finding that the applicant's story was incredible; it
based its decision on a finding that the applicant was not a credible witness;
it did not base its decision on a finding that even if the story was true, the
facts recounted would not lead to a finding of persecution.
[Emphasis added]
[31]
The respondent argues that a decision should not be sent back for
redetermination if there are other valid grounds for sustaining a decision not
inherently linked to the breach of natural justice. The respondent relies on
the Federal Court of Appeal’s judgment in Lord's
Evangelical Church of Deliverance and Prayer of Toronto v. Canada, 2004
FCA 397. In that case, the Court applied the Mobil Oil exception in
dismissing an appeal of a decision of the Minister of National Revenue revoking
the appellant’s registration as a charitable organization. In my view, the ratio
of this case does not apply to this application because the “other grounds for
revocation” not linked to the breach of natural justice were “squarely raised” by
the Minister in the decision under review: Lords Evangelical Church, above, paragraph 18.
[32]
In this case, the Board rejected the applicant’s claim solely on
the basis of adverse credibility findings. While it may have been open to the
Board to reject the applicant’s claim on other grounds, the only basis for
rejection provided by the Board—and, in turn, the only issue the parties could
properly address on judicial review—was that the applicant was not credible. I
find Justice Reed’s comments in Su, above, both persuasive and relevant
to this application. I must therefore decline to assess the merits of other
grounds on which the Board might have reached a negative decision. I must
accordingly remit this matter to the Board for redetermination.
[33]
Both parties advised the Court that this case does not raise a question
which warrants certification.
Conclusion
[34]
This application for judicial review is allowed.
The Board’s decision dated January 4, 2006 is set aside and remitted for reconsideration
by a differently constituted panel.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that:
1.
this
application for judicial review is allowed; and
2.
the
decision of the Board dated January 4, 2006 is set aside and the refugee claim
is referred to another panel of the Board for redetermination.
“Michael
A. Kelen”
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