Toledo v. Canada (Minister of Citizenship and Immigration), 2005 FC 1572

Date: 20051121

Docket: IMM-10322-04

Citation: 2005 FC 1572

BETWEEN:

                                                           JOEL LIMA TOLEDO

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

GIBSON J.

[1]                By decision dated the 22^nd of November, 2004, the Refugee Protection Division (the "RPD") determined the Applicant not to be a Convention refugee or a person otherwise in need of equivalent protection in Canada. By this application, the Applicant seeks judicial review of the RPD's decision, essentially on three (3) grounds, those being: first, the impact of "reverse order" questioning on the ability of the Applicant and his counsel to effectively present his case; secondly, whether the presiding member's conduct and demeanor at hearing raise a reasonable apprehension of bias; and thirdly, whether the RPD's credibility findings were open to it.

[2]                At the opening of the hearing of this application for judicial review, counsel for the Applicant noted that, while the hearing before the RPD took place over two sittings, the tribunal record included only the transcript from the first sitting. Apparently no transcript from the second sitting is available. Counsel urged that the absence of a transcript for the second sitting severely prejudiced the Applicant's ability to fully present his case before the Court with regard to both the reasonable apprehension of bias and the credibility concerns. In the result, counsel urged that the decision under review should be set aside and the Applicant's application for Canada's protection should be referred back for rehearing and redetermination, without full consideration of the application for judicial review on its merits.

[3]                Counsel for the Respondent opposed the Applicant's position noting that, apparently, by far the greater part of the Applicant's testimony was put on record at the first sitting Counsel urged that the second sitting was a relatively short session devoted in greater part to a motion brought on behalf of the Applicant to have the presiding member recuse himself and to the oral arguments of the Refugee Protection Officer and counsel for the Applicant. Only a brief portion of the hearing appears to have been devoted to completion of the questioning of the Applicant himself.

[4]                After briefly considering the submissions of counsel, I advised counsel that I would accede to the position advanced on behalf of the Applicant, not only out of a concern to ensure fairness to the Applicant, but also out of a concern to ensure that the presiding member, whose reputation as a fair and unbiased arbiter was being questioned, was also fairly dealt with by this Court.

[5]                The issue of the impact of an incomplete transcript on the interests of an Applicant has often been before this Court in immigration judicial reviews in recent years.^[1] Typical of the reasoning of my colleagues in the cited authorities are the following comments of Justice Layden-Stevenson in the Randhawa matter, to the following effect:

The parties agree that in the absence of a statutory right to a recording (which is the situation here), the court must determine whether the record before it allows it to properly dispose of the application. If it can, the absence of a transcript will not violate the rules of natural justice. The test is whether the applicant would be denied a ground of review by virtue of the absence of the transcript. The standard to be applied is that of serious possibility: ...

...

Despite the capable and articulate arguments and submissions of counsel for the respondent, the applicant has persuaded me that the board's credibility findings with respect to the witnesses in question were fundamental to the decision. I am mindful of the comments of Evans J., as then was, in Hassan v. Canada ... that given the nature of a vacation hearing, an individual is entitled to the clearest assurance that the board has given full and fair consideration to the evidence.                                                                   [citations omitted]

[6]                Although the hearing that is here under review was not a "vacation hearing", I am satisfied that the implications of the Convention refugee hearing here before the Court equally entitle an individual such as the Applicant to the clearest assurance that the RPD has given full and fair consideration to his evidence.

[7]                Further, I am satisfied that an allegation of reasonable apprehension of bias is a serious allegation potentially capable of affecting the reputation and the confidence of a decision-maker, whether he or she be a tribunal member or a judge. In the reasons here before the Court, the presiding member commented with respect to the recusal motion that came before him at the second sitting when, speaking of himself in the third person, he wrote:

The member denied the motion and detailed the reasons for the negative ruling, which are on record. The panel does not wish to restate the entire ruling as was stated on record. It will suffice to state the salient points.

[8]                Unfortunately, the "entire ruling" is not on the record. I am satisfied that, in the absence of the "entire ruling", this Court is substantially disadvantaged in ensuring a full and fair hearing, not only in the interests of the Applicant, but also in the interests of the presiding member himself.

[9]                For the foregoing reasons, and without consideration of the merits of the substantive issues raised on behalf of the Applicant, this application for judicial review will be allowed. The decision under review will be set aside, and the Applicant's application for Convention refugee status or equivalent protection will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.

[10]            When advised of the Court's conclusion at the close of hearing, neither counsel recommended certification of a question. The Court itself is satisfied that no serious question of general importance arises out of this matter. No question will be certified.

                                                                          "Frederick E. Gibson"         

                                                                                                   J.F.C.

Ottawa, Ontario

November 21, 2005.

                                                       FEDERAL COURT

                               Names of Counsel and Solicitors of Record

DOCKET:                                   IMM-10322-04   

STYLE OF CAUSE:                 JOEL LIMA TOLEDO

            Applicant

- and -

MINISTER OF CITIZENSHIP AND IMMIGRATION

            Respondent

PLACE OF HEARING:            TORONTO, ONTARIO

DATE OF HEARING:               NOVEMBER 17, 2005

REASONS FOR ORDER

AND ORDER BY:                     GIBSON, J.

DATED:                                      November 21, 2005

APPEARANCES BY:              

Mr. Rocco Galati                                                                    For the Applicant       

Mr. Lorne McClenaghan                                                        For the Respondent

SOLICITORS OF RECORD:

Galati, Rodrigues, Azevedo & Associates                         For the Applicant

Barristers and Solicitors

Toronto, ON

John H. Sims, Q.C.                                                                For the Respondent

Deputy Attorney General of Canada

Toronto, ON