Date: 20061026
Docket : IMM-7766-05
Citation: 2006 FC 1287
Ottawa, Ontario,
October 26, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
ARASAPATKUNARAS
KATHIRAVELU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), for judicial review
of a decision of the Immigration and Refugee Board (the “Board”), Refugee Protection
Division (the “RPD”), rendered on December 5, 2005, which denied the
applicant’s claim for refugee protection under section 96 and subsection 97(1)
of the Act.
BACKGROUND
[2]
The
applicant is a Sri Lankan Tamil who arrived in Canada on June 18,
2005, seeking protection as a refugee. He has a wife and three children, all of
whom still reside in Sri Lanka.
[3]
In
Sri
Lanka,
the applicant was a farmer who also worked for a number of years for the
Ministry of Health, doing spraying in malaria-infested areas, which required
him to travel between government-controlled and LTTE-controlled areas. The
applicant alleges that during his employment, he was sometimes forced by the Liberation Tigers of Tamil Eelam (the “LTTE”) to spray in areas under
their control. He was also systematically stopped and interrogated at the army
checkpoints.
[4]
The applicant alleges that in 2001, he was arrested,
interrogated and tortured by the army, following a landmine explosion in his
village.
[5]
Frustrated with having to pay extortion taxes and to give
away his land to the LTTE, he decided to sell some of his land to finance
fleeing the country. After the LTTE learned of his plan to sell his land, and
his attempt to evade paying their ‘taxes’ on such a sale, the applicant claims
that they threatened to kill him if he sold the land without their knowledge.
Instead, the applicant transferred the ownership of the land to his brother,
and they borrowed money to pay a smuggler to get him out of Sri Lanka.
[6]
Should he be forced to return to Sri
Lanka, the applicant has also stated that he fears being
detained at the airport and tortured by security forces.
[7]
Prior to the hearing on the merit of the claim, counsel for
the applicant asked the Board to be allowed to question his client in chief, instead
of following the regular procedure of having the panel question the refugee
claimant first.
[8]
His request was denied and the applicant’s claim was heard,
following regular procedure, on October 24, 2005 before Barbara Berger (the
“Board member”).
[9]
The Board member questioned the applicant extensively. The
applicant states that the Board member’s questioning was very upsetting and as
such, following the hearing, his counsel arranged for him to see a
psychologist, whose report was then submitted to the Board along with a request
that the applicant be given another hearing before a different Board member. On
December 2nd, 2005, the Board rejected this request on the basis
that the report had been received a month after the hearing and that the Board
member had already rendered her decision on the claim.
[10]
On December 5th, 2005, the Board member
officially rendered her decision and rejected the applicant’s claim.
ISSUE FOR CONSIDERATION
[11]
The following issue was considered by the Court in this
application:
Whether the Board
member improperly fettered her discretion in her decision relating to the
reverse order questioning.
STANDARD OF REVIEW
[12]
In looking at the question of fettering of discretion by
the Board member, there is no need to proceed with a detailed analysis to
determine the proper standard of review. Rather, this issue must be examined by
the Court in light of the particular circumstances of the case and if a breach
of natural justice or procedural fairness is found by the Court, no deference
will be due to the Board and the application to set aside the decision will be
granted.
ANALYSIS
Fettering of Discretion
[13]
At the heart of this issue lie the directives for
questioning refugee claimants, provided to Board
members by Guideline
7. The relevant portions of Guideline 7 are paragraph 19,
which sets out reverse order questioning as the norm for such procedures, and
paragraph 23, which allows the Board to consider varying the order of
questioning. Paragraph 23 reads:
|
23. The member may vary the order of questioning in exceptional
circumstances. For example, a severely disturbed claimant or a very young
child might feel too intimidated by an unfamiliar examiner to be able to
understand and properly answer questions. In such circumstances, the member could
decide that it would be better for counsel for the claimant to start the
questioning. A party who believes that exceptional circumstances exist must
make an application to change the order of questioning before the hearing.
The application has to be made according to the RPD Rules.
|
23. Le commissaire peut changer l'ordre des interrogatoires
dans des circonstances exceptionnelles. Par exemple, la présence d'un
examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un
très jeune enfant au point qu'il n'est pas en mesure de comprendre les
questions ni d'y répondre convenablement. Dans de telles circonstances, le
commissaire peut décider de permettre au conseil du demandeur de commencer
l'interrogatoire. La partie qui estime que de telles circonstances
exceptionnelles existent doit soumettre une demande en vue de changer l'ordre
des interrogatoires avant l'audience. La demande est faite conformément aux Règles
de la SPR.
|
[14]
In the past year, the fairness of reverse onus questioning
and the possible fettering of discretion stemming from Guideline 7 have been
the subject of litigation before the Federal Court, most notably in the cases
of Thamotharem v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 8, and of Benitez v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 631, which gave rise to contradictory
jurisprudence. In Thamotharen, Chief Justice Edmond P. Blanchard
concluded that Guideline 7 unlawfully fetters the discretion of Board members
in determining whether or not to proceed with reverse order questioning. In Benitez
however, Justice Richard Mosley concluded that the directives in Guideline 7
were not mandatory and thus the Board members were not bound by them. As such,
there was no evidence that Guideline 7 fettered Board members’ discretion to
determine the proper procedures to follow in a refugee hearing. The decision in
Thamotharen is being appealed before the Federal Court of Appeal.
[15]
That being said, both judgments are in agreement that, in general,
reverse order questioning does not violate natural justice, as long as Board
members are free to consider the fairness of reverse order questioning on the
facts of each case and can vary the order of questioning if they feel that it
is appropriate. In order to do so, the Board members should not be fettered in
their discretion on whether an exception should be granted or not.
[16]
The applicant submits that the Board member erred by
holding that Guideline 7 requires a psychological evaluation of the claimant for
the order of questioning to be reversed. Regardless of what the
administration’s intent was in regards to Guideline 7, there is no requirement
for a psychological evaluation in paragraph 23 and as such, the Board member
fettered her discretion by imposing a requirement that does not exist.
[17]
Having read the decision carefully and having reviewed the
relevant portion of the transcript of the hearing, this Court must agree with
the applicant that the Board member did fetter her discretion in this particular
instance.
[18]
The Board member held in her decision at pages 1 and 2:
The Tribunal stated that in her decision
to accept the change in order of questioning, she has always taken into
consideration the particular situation of the claimant. The Tribunal did not
consider that in the case at bar, it was necessary to reverse the order of
questioning set in Guideline 7. The tribunal noted that after nine years as a
member of the RPD, she has a solid experience of questioning people who might
be victims of torture and people with little formal education, who constitute a
large portion of the refugee claimants.
So far, her analysis was reasonable. She
then continues:
In the absence of psychological
evaluation of the claimant, the Board considered that the reasons put forward
by the counsel were insufficient to warrant a change in the order of
questioning, as established in the paragraph 19 of Guideline 7.
[19]
This
reference to a psychological evaluation raises the following question: is it
necessary, in all circumstances, that such an evaluation be made to warrant a
change in the order of questioning? A careful reading of sections 19 and 23 of
Guideline 7 certainly does not disclose such a requirement.
[20]
Nevertheless,
as the decision not to allow the change in the order of questioning was made
before the hearing started, it is interesting to look at the transcript for a
record of what the Board member said at that very moment (pages 769-770 of the
Tribunal Record):
Well, I do not have any psychological
evaluation which would indicate that your client has psychological problems to
the extent, which would suggest that the order of questioning should be
reversed. I understand that the claimant has a fairly low level of education,
but it is nothing unusual for this tribunal to work with the claimants who have
a low level of education. Those from Asia and Africa I mean most of the claims are, I have to
assess their demands, do not have extensive formal education. And I will make
my questioning as simple as possible as I usually do, and without any effort to
intimidate the claimant, on the contrary, to make him at ease. So, I don’t see
that here any, in this case there are exceptional circumstances which would
warrant the reversing order of questioning, which I sometimes agree when I have
sufficient psychological evidence that the claimant, that it’s important for
the claimant. So I am…I will not accept your request. (my emphasis)
[21]
My
understanding of her reasons for not making an exception and varying the order
of questioning is that she would have needed a psychological evaluation, since
in the past “she sometimes agreed when she had sufficient psychological
evidence that it is important for the claimant”.
[22]
In
my view, this constitutes a reviewable error. I agree with the Board member
when she says that a psychological evaluation is a valid piece of evidence to
warrant a change in the order of questioning. However, I do not agree with her
when she says that to allow a change in the order of questioning, you must
have such an evaluation. I base such a conclusion on her assertion that she only
agreed in the past to vary the order of questioning when she had psychological
evidence, as this means that she created a new criterion to assess the
exceptional circumstances provided by section 23 of Guideline 7, and in the
process fettered her discretion.
[23]
Having
decided to grant the application on the ground that the Board member improperly
fettered her discretion, it will not be necessary to address the other
arguments raised by both sides. The whole hearing could have been different had
it not been vitiated by this interlocutory decision based on a wrong criterion.
[24]
To be consistent with other decisions rendered in our Court
regarding Guideline 7, I will certify the following question:
Has
the implementation of Guideline 7 led to fettering of Refugee Protection
Division member’s discretion?
JUDGMENT
- This application is
allowed;
- The Board’s
decision is set aside and the matter is remitted for redetermination by a
panel differently constituted;
- The following
question is certified:
Has
the implementation of Guideline 7 led to fettering of Refugee Protection
Division member’s discretion?
“Pierre Blais”
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