Date: 20060228
Docket: IMM-9793-04
Citation: 2006 FC 264
Ottawa, Ontario, February 28, 2006
PRESENT: The Honourable Mr. Justice EdmondP. Blanchard
BETWEEN:
CALVIN KERIMU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is a judicial review of a negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 20, 2004. The Applicant seeks an order setting aside the decision of the Board and referring the matter back to the Board for re-determination by a differently constituted panel.
2. Background Facts
[2] The Applicant, Calvin Kerimu, is a citizen of Liberia and is of the Americo-Liberian ethnic group. He was born on December 25, 1975.
[3] The Applicant, whose parents were prominent business people, claims that on May 4, 1990, he was abducted along with other children while they were on their way home from school by members of Charles Taylor's forces. The Charles Taylor forces were a rebel faction fighting for control over Liberia at that time. The Applicant states that he and the other children were being taken to villages for training and to be administered loyalty oaths. When government forces attacked the transport, resulting in some of the children, including the Applicant, escaping their captors.
[4] On June 6, 1993, the forces of Charles Taylor entered Monrovia, the capital city of Liberia. Rebels came to the Applicant's home and accused his father of supporting an opposing faction. His father denied this, saying that the family was neutral. The father was not believed and the rebels shot and killed both the Applicant's father and mother in front of the Applicant.
[5] From 1993 to 2003, during which time Liberia was in a state of civil war, the Applicant says he existed like other people in Liberia, trying to survive various calamities. He states that many times he was forced to flee his home.
[6] On June 7, 2003, the Liberia United for Reconstruction and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) - two insurgency groups - attacked Monrovia. The Applicant states that he was captured by LURD rebels and was taken to Bong, 100 kilometresnortheast of Monrovia. At the LURD camp, his captors forced the Applicant to take part in an initiation ritual and they beat, insulted and threatened him. He states that he was treated roughly because he is an Americo-Liberian.
[7] After 19 days in captivity, there was an announcement that the United States was sending troops to Liberia. The LURD held a party and the Applicant states that during the celebrations he was able to escape. The Applicant made his way to Monrovia. At the bus station he met a driver who was his neighbour. That man told him that government forces and MODEL were under the impression that the Applicant had joined LURD and that both were looking for him.
[8] The Applicant went into hiding. With the help of his neighbour, the driver, he was able to arrange passage to Ghana, where he made arrangements to travel to Canada. He arrived in Canadaon August 1, 2003, and claimed refugee protection.
[9] The Applicant claims protection on the Convention ground of membership in a particular social group; namely, as an Americo-Liberian. He claims that all factions hate Americo-Liberians and that he will be persecuted if forced to return to Liberia.
[10] The Applicant's refugee hearing was held on August 24, 2004 in Toronto. On October 20, 2004, the Board dismissed his claim, holding that the Applicant failed to prove an objective basis to his alleged well-founded fear.
3. Impugned Decision
[11] The Board found that there had been a change of circumstances in Liberia and that although there are still problems in the country, there was no impediment to the Applicant returning to Monrovia.
[12] As evidence of the change of circumstances, the Board noted that in late 2003, when LURD and MODEL signed a peace accord with the government, more than 15,000 United Nations peacekeeping troops moved into Liberia. The Board cited a newspaper article from August 17, 2004, which states that tens of thousands of refugees have spontaneously begun to return home to Liberia. The Board acknowledged that while the UN Peacekeepers could not police the whole country, there was no evidence that in 2004 persons were being targeted by either the insurgency groups or the government.
[13] The Board stated that, having carefully reviewed the documentary material submitted by the Applicant's counsel as well as that contained in the Board's own information package, it was unable to conclude that Americo-Liberians were being targeted. It found no reference to such targeting.
[14] The Board found it unreasonable to believe that both the government and MODEL would be preoccupied with a single Americo-Liberian being a collaborator with LURD. The Board also found that it was highly unlikely that MODEL or the government would believe that the Applicant would be welcomed as a LURD member, as LURD is predominantly Mandingo and the Applicant contends that all factions hate Americo-Liberian people.
[15] The Board concluded that the Applicant is not a Convention refugee or a person in need of protection.
4. Issues
[16] Three issues are raised in this judicial review:
1) Did the Board breach the principles of natural justice and procedural fairness by failing to give notice to the Applicant that a change of circumstances was a determinative issue in his claim?
2) Did the Board err in finding that the country conditions in Liberia had changed such as to eliminate the Applicant's objective fear?
3) Did the Board err in finding that the Applicant has an internal flight alternative available to him in Monrovia?
5. Standard of Review
[17] Questions concerning violations of the principles of natural justice and procedural fairness are to be reviewed on a standard of correctness; no deference is to be afforded to the administrative agency: Canadian Union of Public Employees v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539. The role of the Court is to examine the specific circumstances of this case and determine whether the Board adhered to the rules of natural justice and procedural fairness. If the Court finds that the conduct of the Applicant's refugee hearing was procedurally unfair, then the Court will set aside the Board's decision.
[18] As will become evident from my reasons below, my finding on the first issue is determinative of this application. It is therefore unnecessary for me to address the other two issues raised. It follows that comment on the standard of review applicable to the other two issues raised is also unnecessary.
6. Analysis
A. Did the Board breach the principles of natural justice and procedural fairness?
[19] The Applicant argues that, by not informing him at the hearing that the Board considered a change in country conditions in Liberia to be an issue, the Applicant was denied the opportunity to know and answer the case to be met, and that this resulted in a breach of natural justice and procedural fairness. In support of his argument, the Applicant contends that the Board, at the outset of the hearing, stated the main issues of the claim to be the Applicant's identity and credibility and that the questions asked of him during the hearing by the Refugee Protection Officer (the RPO) and the Board member focused on the Applicant's personal identity. Further, the Applicant notes that the Board member suspended the hearing, at its conclusion, to allow the Applicant an opportunity to obtain additional proof of his identity.
[20] The Respondent submits that there is no objective evidence that the Board ever told the Applicant to focus on issues of identity and credibility or that the Applicant's objective fear need not be addressed. The Respondent further contends that the Applicant was given notice that a change in country conditions would be an issue. Specifically, the Respondent points to the Refugee Protection Division File Screening Form dated September 9, 2003, and the March 23, 2004, "expedited report" interview - attended by the Applicant and his counsel - in which the Applicant's claim was referred to a full hearing to assess, among other things, change in country conditions. The Respondent contends that fairness does not require the Applicant to be given specific notice, as a change in country conditions is inherent in the definition of a Convention refugee. In any event, the Respondent argues that the Applicant had ample opportunity to address the issue of a change in country conditions at the hearing by adducing oral or documentary evidence and through his counsel's submissions, but that the Applicant did not do so.
[21] In essence, the Respondent contends that the Applicant failed to meet his burden of establishing an objective basis for his fear of persecution. Further, the Respondent contends the Applicant cannot argue that his treatment before the Board breached the principles of procedural fairness because he had notice of the case he had to meet.
[22] In order to determine whether there has been a breach of the principles of natural justice or procedural fairness, it is necessary to consider how the Applicant's refugee hearing was conducted. To this end, I have carefully reviewed the transcript of the hearing.
[23] In setting up the hearing before questioning began, the Board member stated the following:
All right. Well, there is an objective basis for almost anyone could have a well-founded fear of persecution in Liberia, but as I say I need to be satisfied that you are recently from there and I need to be satisfied that the story you've told, that I can rely on it reasonably and I'm going to ask Mr. Bernard [the RPO] to lead off and ask you a few questions, okay?
[24] Throughout the hearing, the RPO focused primarily on the Applicant's identity, asking questions about his identity documents, his relationship with his common-law wife, and his knowledge of Liberia. No questions were asked of the Applicant about the current country conditions in Liberia. Further, in his oral submissions, the RPO limited his observations to the issues of identity and credibility.
[25] For his part, the Applicant's counsel, in oral submissions, also relayed his understanding that the key issue to be determined concerned the Applicant's identity.
So, first of all it seems that the central issue is credibility vis-à-vis [the Applicant's] personal identity or his identity as a citizen of Liberia. There doesn't seem to be any issues raised about the series of events which he described, but of course if you're not satisfied that he's from Liberia then the sequence of events and experiences are undermined. So those - that's that.
[26] The Applicant's counsel made no submissions as to whether the conditions in Liberia had changed such as to negate the Applicant's objective fear of persecution, and the Board member did not direct the Applicant's counsel to do so. In fact, as noted above, during the hearing, the Board member focused on the Applicant's identity and even allowed the Applicant three weeks to submit additional materials to establish his identity.
[27] The right to be heard - that is, the right of the Applicant to know and answer the case against him - is an important component of the principles of natural justice and procedural fairness. The Federal Court has stated that the failure to provide a refugee claimant with the opportunity to know the case to be met is a denial of natural justice. In Velauthar v. Canada(Minister of Citizenship and Immigration), [1992] F.C.J. No. 425 (QL), the Federal Court of Appeal held that for the Board to stipulate that the Applicant's fear of persecution was the only issue but then to proceed to decide the claim on the ground of credibility was a gross denial of natural justice. Further, in Kaldeen v. Canada(Minister of Citizenship and Immigration), [1996] F.C.J. No. 1033 (QL) at paragraph 7, Justice Paul U.C. Rouleau held that it is not open to the Board to give a claimant the impression that only certain issues would be dealt with and then make a ruling on a different issue.
[28] The Federal Court has held that notice must be given of issues that are determinative of a claim. In El-Bahisi v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 2 (QL), Justice Pierre Denault dealt with the issue of changes in country conditions. At paragraph 6 of his reasons, he wrote:
... The issue of change in circumstances is raised in the tribunal's decision without any mention of it made or notice given during the hearing. In my view, this constitutes a reviewable error. In Thirunavukkarasu v. M.E.I. [[1994] 1 F.C. 589], Linden J.A. considered the requirement to provide notice in the context of a finding of an internal flight alternative and made the following comments, which I believe apply to a consideration of a change in circumstances:
A refugee claimant enjoys the benefit of the principles of natural justice in hearings before the Refugee Division. A basic and well-established component of the right to be heard includes notice of the case to be met (see, for example, [1980] 1 S.C.R. 1105">Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1114). The purpose of notice is, in turn, to allow a person to prepare an adequate response to that case. This right to notice of the case against the claimant is acutely important where the claimant may be called upon to provide evidence to show that no valid IFA exists in response to an allegation by the Minister.
[29] Justice Denault's reasons for decision were also adopted by the Court in Islas v. Canada(Minister of Citizenship and Immigration), [1994] F.C.J. No. 1901 (F.C.T.D.) (QL) and Rabbani v. Canada(Minister of Citizenship and Immigration), [1997] F.C.J. No. 47 (QL). At paragraph 2 of Islas, Justice Howard I. Wetston states that:
While I agree that change in country conditions is to be examined in the context of considering the existence of a well-founded fear of persecution, this does not mean that fairness considerations did not require the Board to clearly identify that this was an issue at the commencement of the hearing. This is particularly the case when the matter of a change of circumstances appeared to be of some significance to the Board. In my view, in this case, this constitutes a reviewable error. [My emphasis.]
[30] Here, as reflected in the transcript of the hearing, the Board allowed the hearing to proceed on the basis that the central issues were identity and credibility but then determined the Applicant's refugee claim primarily on his failure to establish his objective fear on the basis of a change in country conditions. Given the clear understanding of the issues in play, expressed at the hearing by both the RPO and counsel for the Applicant, as being the Applicant's identity and credibility, the Board member could not remain silent and not identify other issues which ultimately were determinative of the Applicant's claim. It is no defence to argue that the Applicant had notice of such issues in pre-hearing documents. I note that those documents were prepared not by the Board member or even by the RPO who attended the Applicant's refugee hearing but by other staff members of the Board. In the circumstances, it was reasonable for the Applicant to rely on what transpired at the hearing to infer that the objective basis for his fear based on a change of country conditions was no longer an issue. This is particularly so in these circumstances where the Applicant was not afforded the opportunity to present his case first and give evidence-in-chief.
[31] The Applicant's refugee hearing was conducted in accordance with the Immigration and Refugee Board Chairperson's Guideline 7, under which the RPO questioned the Applicant first, followed by the Board member. In adopting that mode of proceeding, the RPO and Board member were essentially in control of the conduct of the hearing. In Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124, Justice J.D. Denis Pelletier, then of the Trial Division of the Federal Court of Canada, stated that there was a price to pay for implementing procedural measures which deprive a claimant of an examination-in-chief. The learned judge wrote at paragraphs 32 to 34 of his reasons:
[...] Once cross-examination begins, the agenda is dictated by the questioner, not by the witness. The price of setting the agenda is to accept the responsibility for the items which are missed.
The structure imposed by his reasoning is that a gap or omission in the evidence cannot be held against a claimant who has not given evidence in chief. If the CRDD wishes to deal with the issue, it must put the question to the claimant in cross-examination.
[...] If counsel does not object, then counsel cannot raise the absence of examination in chief itself as a ground of judicial review. But the failure to object does not change the fact that the CRDD has set the agenda for the evidence and is bound by the agenda it has set.
[32] In my view the principles set out in Veres find application here. When a claimant is not afforded the opportunity to go first and tell his or her story, the claimant does not control the conduct of the hearing. In such cases, there is an increased burden on the Board to ensure that issues which are determinative of the claim are raised at the hearing.
[33] In the specific circumstances of this case, where both the RPO and counsel for the Applicant had stated credibility and identity to be the two outstanding issues in the claim, the Board erred by remaining silent and not putting the issue of the Applicant's objective fear based on changes in country conditions directly to the Applicant at the hearing. I find that the Applicant was denied the opportunity to answer the case against him. This constitutes a denial of natural justice and procedural fairness, as described in Velauthar, above.
[34] The Supreme Court of Canada has held that once a breach of the principles of natural justice or procedural fairness is established, the decision of the administrative agency is invalid: see Cardinal v. Kent Institution, [1985] 2 S.C.R. 643. As a result of my determination that the Board breached the rules of natural justice and procedural fairness, the Board's decision cannot stand. As a further consequence, it is unnecessary to consider the other issues in this application for judicial review.
7. Conclusion
[35] For the above reasons, the application for judicial review will be allowed. The decision of the Board is quashed and the matter referred back for re-determination before a differently constituted Board in accordance with these reasons.
[36] The parties had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I am satisfied that no question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The decision of the Board is quashed and the matter is referred back for re-determination before a differently constituted Board.
3. No question is certified.
"Edmond P. Blanchard"
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