Date: 20031114
Docket: IMM-4797-02
Citation: 2003 FC 1347
OTTAWA, ONTARIO, NOVEMBER 14, 2003
Present: The Honourable Mr. Justice Martineau
BETWEEN:
MOHAMED ZIAR JAOUADI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of theImmigration and Refugee Protection Act, S.C. 2001, c. C-27 ("the Act") from an interlocutory decision of the Refugee Protection Division of the Immigration and Refugee Board ("the panel") rendered orally by members Michel Jobin and Stéphane Handfield on September 23, 2002, dismissing the motion for recusation made by the applicant.
BACKGROUND
[2] The applicant Mohamed Ziar Jaouadi, a national of Tunisia, claimed refugee status in August 2000 on political and religious grounds. In particular, he alleged he was beaten and tortured by the police in 1999 and 2000 because he was a practising Moslem and he was also suspected of being in contact with armed Islamist groups (such as the GIA). He alleged that the same authorities were still seeking him since he left the country without authorization. The applicant also feared returning to Tunisia because of his political opinions and his political activities in Canada.
[3] The first day of hearing before the panel was on July 20, 2001. During his testimony, the applicant disclosed that he was a sympathizer, though not a member, of the Rebirth Party, El-Nahda, which is prohibited in Tunisia. It sometimes happened that he had to speak of the party at the mosque. As the police suspected him of belonging to this group, they beat him and tortured him. Further, since he has been in Canada, he said he has been in contact with influential members of the group, including its leader, Mr. Rachid Ghanouchi, with whom he has regular telephone conversations. These individuals also helped him economically in settling in Canada, and it was through Mr. Ghanouchi that he was able to obtain work as a copying clerk with the Barreau du Québec. In 2001, he expressed his wish to become a member of the El-Nahda party and so obtained the identifying information on certain members. However, he did not pursue this idea. Based on these new facts, the panel decided to adjourn the hearing to October 17, 2001, to allow the Minister to intervene, if necessary.
[4] In the meantime, the Minister decided to intervene so as to file documents on the El-Nahda party and put certain questions to the applicant, concerning inter alia his alleged connections with members of that organization. In the voluminous documentation filed by the Minister with the panel, it indicates that the movement is regarded as an organization for limited and brutal purposes which has committed atrocities in Tunisia that have been described by several sources as terrorism. Further, in other cases, the participation of claimants in that organization has resulted in their exclusion pursuant to Article 1F(b) and (c) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 ("the Convention"). See inter alia the decision by Mr. Stéphane Handfield and Mr. Aimable Ndejuru on January 27, 2000, in V.C.F. (Re), [2000] C.R.D.P.D. 7 (Immigration and Refugee Board); an application for judicial review was dismissed on September 24, 2001, Zrig v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1043.
[5] Second, third and fourth days of hearing were held on November 9, 2001, September 23, 2002 and January 15, 2003, respectively. The applicant was then asked to complete his testimony and questioned at length by the Minister's representative about ties he might have to the El-Nahda party and certain of its leaders.
[6] These hearings were punctuated by several motions to adjourn. Accordingly, the hearing of October 17, 2001, was postponed to November 9, 2001, at the request of the Minister's representative. The hearing of February 11, 2002, had to be cancelled because the applicant was not present (although his former adviser, Ms. Lydia Ntap, was present). The hearing was then postponed to June 6, 2002. In the meantime, on May 28, 2002, the applicant dismissed his former adviser. The hearing of June 6, 2002, had to be cancelled as the applicant could not find new counsel.
[7] Still without a representative, the applicant on July 17, 2002, made a new application to postpone. The hearing was then set peremptorily for September 23, 2002. At this time, the panel clearly indicated to the applicant that the hearing would proceed on the date set, with or without counsel.
[8] On August 21, 2002, the applicant's new counsel, Ms. Johanne Doyon, informed the panel that she was prepared to represent him but she was not available on September 23, 2002. Accordingly, she asked that the hearing be postponed to a later date. On August 27, 2002, the panel denied the adjournment application.
[9] On September 12, 2002, the applicant informed the panel that he still had no counsel and was renewing his application to postpone. This one was again denied on September 17, 2002.
[10] The same application to postpone was again repeated in writing on September 20, 2002, by Ms. Doyon, and viva voce by Ms Véronique Robert of the same firm on September 23, 2002. At that time, the latter orally repeated the arguments made by Ms. Doyon in her letter of September 20, 2002, in support of the motion for recusation which is now before the panel. Essentially, the applicant objected to the hostile attitude allegedly taken by members toward him and also complained that he had been poorly represented and prepared for the hearings by his former adviser, who falsely represented that she was a lawyer.
[11] On September 23, 2002, the panel dismissed the motion for recusation and the extempore application made by Ms. Robert on the applicant's behalf that the hearing be suspended until this Court could rule on this application for judicial review, which had not yet been filed at the latter date. The presiding member of the panel indicated at that time that the panel would continue to sit unless a stay of proceedings was ordered by the Court.
[12] A review of this case indicates that no application for a stay has been made by the applicant since the instant application for judicial review was filed on October 8, 2002.
[13] The hearing before the panel accordingly went forward on September 23, 2002 and January 15, 2003. On the latter occasion the applicant, still represented by Ms. Doyon, with the panel's leave, altered his Personal Information Form and stunned the panel by announcing that he knew no member of the El-Nahda party, apart from Mr. Mohamed Zrig (see the decision mentioned in paragraph 4), whom he said he knew [translation] "by chance". Accordingly, everything the plaintiff had said up to that point about his ties to members of that organization was untrue.
[14] The applicant maintained that the reason he fabricated this entire story was because of a Palestinian friend who had given him bad advice, apparently at the suggestion of his former adviser. He was also ill and upset. Accordingly, there was one lie after another as the hearings proceeded. However, it is best to allow the applicant to explain:
[translation]
First let me begin by apologizing, because it began in a way I did not intend. First, the story I already mentioned before, it was not I who wrote it, it was a friend I knew here. He was a Palestinian and I told him in general what happened with me and then I was somewhat confused in my affairs and so on. He wrote the story for me and then I realized that it was not really . . . it did not make any sense that I agreed to use this story like that, but I was really - I had no choice because it began like that, and then after that . . .
. . .
On my arrival here I was ill, I was upset. I went through a period of anxiety and then with pressure and everything. I did not understand that it did not make good sense to file such a story anyway and I continued thinking that it could help me and then I would not return to Tunisia, because I was afraid to return.
. . .
Because I presented my story to . . . Ms. Ntap, my adviser, my former adviser before, and he read the story, then he said it was a religious story and here in Canada, everyone who is a refugee has a religious story, they are automatically considered Islamists, and then she said, she told me that according to her experience in the field everyone is considered as a sympathizer of El-Nahda, and in any case I said that no matter what I would be a sympathizer of El-Nahda. Then, she told me to answer yes if they ask me if I know someone. I took this idea and I searched on the Internet, I found in the chat, a chat room on the Internet, a Tunisian political forum, and then I met someone, who gave me the alleged office number of Rachid Ghanouchi, and I used that to fabricate the story by saying that I knew that member of El-Nahda. Nothing more: that is the whole bare truth.
(Transcript of hearing of January 15, 2003, panel's record, pp. 1733, 1735 and 1738-39)
[15] There have already been four days of hearing (apart from the cancelled days). It is expected that another day of hearing will be required before a final decision can be made by the panel.
ANALYSIS
[16] The Court is now being asked by the applicant to stop and cancel the procedure for reviewing the applicant's claim, which was made in the summer of 2001, because there is a reasonable apprehension of bias by the members of the panel and because the applicant was poorly represented and advised by his former adviser.
[17] When an applicant applies to this Court for a discretionary order, as is the case here, his conduct must be beyond reproach (Kouchek v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 323 (T.D.) (QL)). The relevant facts in support of the application for leave and judicial review must be submitted fully and objectively to the Court. In cases where the applicant has dismissed his former counsel, the new counsel must be especially vigilant. This is all the more important when an applicant makes serious charges that not only question the impartiality of panel members but also the professional skills, even the integrity and honesty, of his former representative.
[18] In this regard, in Arthur v. Canada (Attorney General), 2001 FCA 223, at paragraph 8, the Federal Court of Appeal indicated that mere suspicion and impressions by an applicant or his counsel about the actual or apprehended bias of a panel are not sufficient:
An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard.
[19] Clearly, the applicant did not come to Court with clean hands, and for this reason alone it is proper for the Court to dismiss the application for judicial review at bar. The Court is not prepared to accept that a refugee claimant who has fabricated a story on the advice of a former representative can seek a new hearing before a panel of different members simply on the basis that he has been badly advised by that person. The applicant cannot profit here from his own turpitude. It must be borne in mind that the applicant has taken an oath to the tell the complete truth. He must accordingly bear full responsibility for any perjury he may have committed before the panel.
[20] If we are now to believe the applicant, the panel would undoubtedly have no reason to exclude him from the definition of a refugee. In the notice of intervention by the Minister, dated March 20, 2003, Article 1F(a) and (f) of the Convention are now formally raised before the panel. Nevertheless, there is nothing in the evidence to indicate that this is what the panel intended to do. The applicant's credibility and his story of persecution are directly at issue. Accordingly, it is now for the panel to decide on the merits of the applicant's claim, and if necessary, his exclusion from the definition of a refugee, based on the applicant's credibility and all the evidence in the record.
[21] Apart from special circumstances, it is not proper for this Court to intervene before a panel has made a final decision. For justice to be effectively administered, it is important to avoid breaking up proceedings and the delay and needless expense that would otherwise result: Szczecka v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 934 (F.C.A.) (QL). There are no special or exceptional circumstances here to justify intervention by this Court (Air Canada v. Lorenz, [2000] F.C.J. No. 494, at paragraph 50 (T.D.) (QL)).
[22] Having said that, the applicant's allegations clearly cannot be accepted.
[23] On the allegations of bias made by the applicant, in Caza v. Télé-Métropole Inc., 2003 FC 811, Pinard J. noted that the leading case in Canada is still the decision by the Supreme Court in 1978 in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369. As DeGrandpré J. indicated at pages 394-95, the Court must consider what an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude. The grounds for the fear of bias must be substantial and the basic principle is the same: natural justice must be rendered. However, in practice the particular nature of the tribunal must be taken into account.
[24] In the case at bar, I do not see how the fact that the presiding member intervened during the hearing of November 9, 2001, to establish the diplomas and expertise of the Arab interpreter could create any fear of bias. There is also nothing wrong with telling the applicant that if he found a problem with the translation he had a duty to make this known to the panel. The applicant's other objections deal primarily with the comments by members at the hearing of July 17, 2002. Obviously, they were irritated by the fact that the hearing had to be postponed for a third time. Their irritation seems understandable to the Court, when we consider the applicant's belated decision to dismiss his former adviser, whereas she had stated publicly a year earlier that she was [translation] "no longer" a lawyer.
[25] In Ithibu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 499, at paragraph 68 (F.C.T.D.), Blais J. endorsed the following observations by Brown and Evans in Judicial Review of Administrative Action in Canada (Toronto, Canvasback Publishing, 1998), at pp. 11-31 and 11-32:
Nor will an expression of momentary impatience or loss of equanimity by a tribunal member result in disqualification, particularly where it was merely an attempt to control the manner of proceeding. Similarly, a sarcastic comment when a party refused to give evidence, or an ill-chosen and insensitive phrase, will not, without more, lead to disqualification. [Footnotes omitted.]
[26] Although the words and the tone used by the panel members at the hearing of July 17, 2002, may perhaps leave something to be desired, I do not think it can seriously be said that the members thereby lost their detachment. The presiding member cannot reasonably be blamed, once he announced the hearing was ended after a lengthy debate, for characterizing the applicant as [translation] "insolent". It is clear that at the time the applicant was trying to re-argue the merits of the panel's decision to peremptorily set the hearing at September 23, 2002.
[27] In general, the objections made by the applicant are without basis. In short, after reading the transcripts carefully, I have no hesitation in concluding that the facts raised by the applicant are not such as to lead an informed person, viewing the matter realistically and practically, and having thought it through, to have a reasonable apprehension of bias.
[28] The applicant further alleged that the panel failed to rule on the motion for disqualification and a de novo hearing based on the fact that the applicant had been the victim of an adviser who had incorrectly presented herself as a lawyer. At the hearing of July 20, 2001, Ms. Ntap publicly admitted she was no longer a lawyer, because she had ceased to pay her professional dues (transcript, panel's record, p. 1238). Accordingly, if he was dissatisfied with her representation the applicant should have taken steps to remedy the problem at that time.
[29] It is comparatively easy for an applicant to make allegations in an application for judicial review about the status or incompetence of a former representative. However, such allegations inevitably have serious consequences for the person in question and that person's reputation. Accordingly, I am not prepared to accept the allegations made by the applicant here without some form of proceeding. There is also the fact that the applicant took no steps to correct the problem, and according to the evidence in the record the applicant (though he was already employed by the Barreau du Québec) took no specific action with the Barreau.
[30] As a general rule, it is for professional bodies and not the courts to intervene in the event of allegations of incompetence (Nunez v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 147 (T.D.), at paragraph 19). In this connection, the client is deemed to have authorized actions taken by his or her counsel or representative on his or her behalf, conclusions which thereby bind the client (Williams v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 258, at paragraph 20 (F.C.T.D.) (QL); and Huynh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 642 (F.C.T.D.) (QL)). Incompetence by counsel can only be taken into account by the Court in exceptional circumstances (see Sheikh v. Canada (Minister of Employment and Immigration) (1990), 71 D.L.R. (4th) 604 (F.C.A.); Huynh v. Canada (Minister of Employment and Immigration), supra; Shirwa v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 1345 (F.C.T.D.) (QL); Drummond v. Canada (Minister of Citizenship and Immigration) (1996), 112 F.T.R. 33 at paragraphs 4-6 (T.D.)). Such exceptional circumstances are not present here.
[31] Further, the right to the services of counsel relied on by the applicant here is only a complement to the rules of natural justice and fairness. It is recognized that the adviser of a claimant before the panel does not have to be a lawyer. In this connection, whatever the status and professional expertise of the applicant's former representative, it is clear that there was no infringement of the rules of natural justice here. In all respects, the applicant had an opportunity to present evidence and intervene in the argument to present his point of view and correct any inaccuracy in his story. I therefore consider that the applicant has not suffered any irreparable harm.
[32] Consequently, the panel members made no reviewable error when they dismissed the motion for disqualification made by the applicant, and I have come to the conclusion that no special circumstances exist that would justify this Court's intervention.
[33] There is no basis for certifying any question whatever. A certified question must transcend the interests of the parties at issue and deal with matters of great importance, and at the same time be decisive for the appeal at bar (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637). In view of the interlocutory nature of these proceedings, that is quite clearly not the case here.
[34] Furthermore, because of the applicant's conduct, I have decided to dismiss the application at bar with costs.
ORDER
THE COURT ORDERS that the application for judicial review made by the applicant from the panel's decision of September 23, 2002, be dismissed with costs. No question of general importance will be certified.
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"Luc Martineau"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4797-02
STYLE OF CAUSE: MOHAMED ZIAR JAOUADI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 15, 2003
REASONS FOR ORDER AND ORDER: MARTINEAU J.
DATE OF REASONS: NOVEMBER 14, 2003
APPEARANCES:
JOHANNE DOYON FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
DOYON, MORIN FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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