Date: 20060824
Docket: IMM-6226-05
Citation: 2006 FC 1015
Ottawa, Ontario, August 24,
2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
NADEEM CHAUDHRY
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Nadeem Chaudhry, is a Shia Muslim from Pakistan who entered Canada in 2003. He
sought refugee protection here on the basis of allegations of religious-based
persecution at the hands of Sunni Muslims including members of his own family.
According to Mr. Chaudhry, at the root of the family conflict was the conversion
of his father to the Shia faith which apparently split the family along
religious lines. Mr. Chaudhry’s difficulties were also magnified by his
alleged involvement in the conversion of a friend from the Sunni faith to the
Shia faith.
[2]
Mr.
Chaudhry’s protection claim made its way to the Immigration and Refugee Board
(Board) which presided over hearings on June 29, 2004 and November 1, 2004.
The Board decision was rendered more than ten months later and it was
unfavourable to Mr. Chaudhry. The Board concluded that adequate state
protection was available and it also found that Mr. Chaudhry had “fabricated”
evidence concerning his attempts to engage police protection.
[3]
Mr.
Chaudhry has advanced two grounds for setting aside the Board decision. The
first of these concerns is the fairness of the proceeding and, in particular,
allegations of inappropriate conduct by the presiding Member during the
hearing. The second of Mr. Chaudhry’s complaints is that the Board made a
patently unreasonable decision concerning the availability of state protection.
The Fairness of the
Hearing
[4]
A
review of the hearing transcript does disclose several instances of
inappropriate tone and questionable demeanour by the Member. Taken
individually most of these interjections would not be sufficiently troubling to
justify the Court’s intervention, but when considered collectively I have
concluded that Mr. Chaudhry should receive the benefit of a new hearing.
[5]
Very
early into the hearing the Member began to express reservations, and a certain
frustration, with Mr. Chaudhry’s evidence about his father’s conversion from
the Sunni faith to the Shia faith.
[6]
It
is apparent from the recorded exchanges that Mr. Chaudhry was doing his best to
answer rather poorly crafted questions from the Member. In one early exchange,
the Member rather curtly stated:
MEMBER: So when I ask a question like that, you
can just say “yes.”
CLAIMANT: That’s fine.
MEMBER: If I need you to explain it, I will ask
you to explain it.
[7]
Later,
in attempting to elicit evidence about Mr. Chaudhry’s annual income, the Member
expressed unwarranted frustration in stating that Mr. Chaudhry was “not being
very helpful here” and “I told you before I was interested in your income”.
[8]
At
a later point, Mr. Chaudhry asked the Member to repeat a question and was met
with the Member’s response: “What part don’t you understand?”. The tone of
this remark was apparently sufficiently troubling that Mr. Chaudhry’s counsel
interjected:
COUNSEL: I am hoping – if he doesn’t understand
the question, then we will repeat the question. I am going to make sure he
understand what is being asked.
[Quoted from original text]
[9]
The
Member also questioned Mr. Chaudhry extensively about the attitudes of Sunni
and Shia Muslims concerning support for terrorism. At one point, he asked if
“all Sunni support the extremists?”. Counsel properly objected to the line of
questioning which prompted the Member to express doubt about whether it was
reasonable for one of Mr. Chaudhry’s friends to convert. When Mr. Chaudhry
gave the entirely reasonable explanation that his friend had “learned about
Shia religion and he changed his mind”, the Member rudely responded: “that
explains nothing”. Mr. Chaudhry’s counsel again objected and a further testy
exchange took place with the Member. During that exchange, the Member wanted
to know what “magic words” Mr. Chaudhry had used to convert his friend. This
insensitive remark led Mr. Chaudhry to respond: “I haven’t used any magic
words. That’s what his own thinking was.”
[10]
Counsel
again objected and attempted to refer to his notes of Mr. Chaudhry’s actual
evidence. The Member rudely responded: “I don’t need to hear your notes
because they are -- now, you are going to give testimony and I don’t want to
hear your testimony; I want to hear his.” In returning again to the issues of
the religious conversion of Mr. Chaudhry’s friend, the Member asked: “What was
so profoundly interesting in the [Shia] leadership that a Sunni would adopt it?”
Up to this point, Mr. Chaudhry had given a fairly detailed and reasonable
description of the process leading up to the conversion of his friend
culminating in the following exchange:
MEMBER: Other than the leadership
issue, can you tell me one other thing?
CLAIMANT: Beside leadership?
MEMBER: Yes.
CLAIMANT: Beside this, the place of Karbala, take the example of that.
MEMBER: Well, that is a historical
event. I am talking about matters of faith.
CLAIMANT: For religions matter, one or
two things are not enough, but an individual has to get – or educated himself.
MEMBER: Well, that may be true. I am
only asking, however, for you to provide me with one or two examples and I
haven’t heard any yet.
CLAIMANT: One or two examples were not
instrumental, but once he thought about it – once he’s – begins studying about
our faith afterwards, then he quit Sunni religion and entered into Shia
religion.
MEMBER: I don’t know how to – how else
to ask the question, counsel, and I – I am frankly thinking that he is
intentionally refusing to answer and the reason that he doesn’t know the answer
is because it never happened.
CLAIMANT: (inaudible)
COUNSEL: Hold on. Hold on.
INTERPRETER: Sorry.
MEMBER: I am asking counsel.
COUNSEL: Is that a finding you are
making?
MEMBER: I am about to.
[11]
When
counsel properly objected to the relevance and prematurity of the Member’s
credibility “finding”, the Member retreated somewhat but still indicated that
he was “leading” to an unfavourable credibility conclusion. He also excused
the remark by suggesting he had made it for its “shock value”.
[12]
It
is these final remarks by the Member which are the most troubling because they
reflect both intemperance and a predisposition that were entirely unwarranted
given the content of Mr. Chaudhry’s preceding testimony. When this is added to
the Member’s rudeness and obvious religious insensitivity as reflected in his
reference to “magic words” and by linking the conversion issue to the Muslim
terrorist cause, the fairness of the process was sufficiently compromised that
a new hearing is warranted.
[13]
While
I do accept the Respondent’s argument that considerable latitude is owed to the
Board in the manner in which it conducts a hearing including the right to
extensively and energetically question a claimant (see Bankole v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1942; 2005 FC
1581) and that some degree of rudeness, sarcasm or harshness may be legally
excusable (see Kankanagme v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 1757; 2004 FC 1451), fairness does not
permit intrusive, insensitive, intimidating, harassing, unwarranted, or highly
irrelevant interventions by the Member which are capable of giving the
impression that the Member was biased: see Yusuf v. Canada (Minister of
Employment and Immigration), [1992] 1 F.C. 629, [1991] F.C.J. 1049 (F.C.A.)
and Kumar v. Canada (Minister of Employment and Immigration), [1988] 2
F.C. 14, [1987] F.C.J. No. 1015 (F.C.A.). As was stated by Justice Michael
Phelan in Quiroa v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 338; 2005 FC 271, there
is an appropriate tone and demeanour to the adjudicative process necessary to
ensure that the Member may be seen not to have reached a decision prematurely.
I think that the Member’s conduct in this case did cross the line, and I do not
accept the Respondent’s contrary argument.
[14]
To
my mind, any reasonably informed person reviewing this hearing in its totality
would conclude that the Member had lost his objectivity and that the fairness
of the process was irretrievably compromised.
[15]
The
Respondent also argued that any objectionable behaviour by the Member was
implicitly waived by Mr. Chaudhry and his counsel by their failure to raise the
issue of apprehended bias during the hearing.
[16]
It
is clear from the Record that Mr. Chaudhry’s counsel appropriately objected to
the Member’s conduct. It is easy, after the fact, to find fault with counsel’s
efforts to defend his client’s interests in the context of a hearing like this
one. Usually, counsel will attempt to find a balance and to be decorous and
somewhat selective with interventions. That was the case there. But as the
tone of this hearing deteriorated, the gravity of counsel’s objections
increased accordingly. This was certainly not a case where counsel mutely
tolerated the Member’s behaviour. Here, Mr. Chaudhry’s counsel objected to the
Member’s premature adverse credibility “finding” and squarely raised it with
him in a fairly lengthy exchange at the conclusion of the hearing. Although
the Member attempted to excuse his remark, it is clear from the Record that he
was unable to appreciate the full significance of his conduct in the face of
counsel’s objection to it. Given the Member’s reaction, it is highly unlikely
that he would have acquiesced to a motion for recusal in any event.
[17]
While
the principle of waiver is often applied to situations of arguable bias, it is
not universally applied in situations like this one where the issue of bias is
co-mingled with more generalized problems of procedural fairness. This
distinction was recognized by Justice François Lemieux in Mohammad v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 319 where he stated at
paragraph 25:
The case law surrounding the issue at
hand interchangeably calls upon these two distinct legal principles although
there is a tendency to characterize statements, observations or comments made
by panel members about a claimant or the evidence a claimant has given as more
closely related to the principle of impartiality as contrasted to issues of
how, when and in what manner the questioning takes place which is attached to
the concept of the right to a fair and equitable hearing.
[18]
Many
of the frequently cited authorities which discuss the problem of bias arising
from overly intrusive or intimidating conduct by a Member in the course of Board
proceedings do not address the issue of waiver and it seems not to have come
up.
[19]
The
principle of waiver can, of course, be applied to any breach of the rules of
natural justice and is not restricted to the problem of bias. Many of the
authorities which expressly deal with waiver indicate that a failure to make a
timely or fulsome objection to a natural justice deficiency is not necessarily
fatal to raising the issue in the context of a judicial review proceeding.
Some of those authorities suggest the need for flexibility in the application
of the principle of waiver. For instance, in Kankanagme, above, waiver
was not applied in a case similar to this one. In Quiroa, above, failure
to object was held to be “not necessarily fatal” (see paragraph 15).
[20]
In
the text Principles of Administrative Law by Jones and de Villars (4th
Ed.), the authors confirm the desirability of a flexible approach to waiver and
describe quite pointedly at paragraph 414 the problems faced by counsel in
attempting to make the best of a poor situation for a client facing a hostile
adjudicator:
The fact that is often overlooked by
courts is the practical difficulty that many parties face in making allegations
of bias. “Bias” is a dreadfully loaded word. Tribunals frequently treat
allegations of a reasonable apprehension of bias as an allegation of actual
bias. It is hard for some tribunal members not to feel that their honour and
integrity is at stake. Consequently, it is difficult for a party to risk
alienating the tribunal. For all these reasons, it is often better to hope for
the best in the tribunal’s decision than to make allegations of bias. This
choice is not really a choice to sit on one’s rights, but rather a choice to
make the allegation of bias in the forum best equipped to deal with it.
In this case, counsel for Mr. Chaudhry was
faced with a similar dilemma and did his best to confront it. He did not
ignore the Member’s objectionable interventions and, in several instances,
pointedly took issue with him. I do not think that his failure to demand that
the Member recuse himself is a sufficient failing that it ought to be taken to
amount to an implicit waiver of the problem.
[21]
Because
the determinative issue in this case involves a matter of procedural fairness,
a pragmatic and functional analysis is not required. Where a breach of natural
justice or procedural fairness has occurred, no deference is due and the Court
will set aside the impugned decision: see Benitez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 631; 2006 FC 461 at
paragraph 44.
[22]
In
light of my finding with respect to the issue of fairness, it is unnecessary to
deal with Mr. Chaudhry’s second argument concerning the issue of state
protection.
[23]
This
matter will be remitted to a differently constituted Board for redetermination
on the merits.
[24]
At
the conclusion of the hearing in this matter, I allowed either party a period
of seven days following the rendering of the Judgment to propose a certified
question. In the event that either party does propose a certified question, I
will allow the other party a period of three days for a reply.
JUDGMENT
THIS COURT ADJUDGES that this matter
shall be remitted to a differently constituted Board for redetermination on the
merits.
THIS COURT FURTHER ADJUDGES that either party
shall have a period of seven days to propose a certified question followed by a
period of three days for a reply.
"R.
L. Barnes"
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