Begum v. Canada (Minister of Public Safety and Emergency Preparedness), 2005 FC 1182

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2005 FC 1182

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Date: 20050830

Docket: IMM-724-05

Citation: 2005 FC 1182

Ottawa, Ontario, August 30, 2005

PRESENT: MR. JUSTICE SHORE

BETWEEN:

RUME BEGUM

Applicant

and

MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS[1]

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1] Making a reasoned decision based on the evidence as a whole is not sufficient in itself. Justice also requires procedural fairness along the way.

[2] According to the Federal Court of Appeal, per Décary, Létourneau and Pelletier JJ.A., even a proven breach of the principles of natural justice does not automatically give rise to judicial review.[2]

[3]

One of the reasons which may lead a judge not to grant the relief sought even when the decision on review is reviewable is the futility of reconsidering the said decision. In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at page 228, Iacobucci J. for the Court cited with approval this passage from Professor Wade, Administrative Law (6th ed., 1988), at page 535:

A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.

At page 229, Iacobucci J. explained that this factor of hopelessness was "exceptional [in] character". [Emphasis added][3]

NATURE OF THE JUDICIAL PROCEEDING

[4] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act[4] (the Act) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated January 6, 2005. In that decision, the Board vacated the decision of August 28, 1996, granting refugee status to the applicant, Ms. Rume Begum.

FACTS

[5] Here are the alleged facts as described by the Board. Ms. Begum's husband, Mr. Jakir Hossain, and his family persecuted Ms. Begum because she was promoting progressive ideas to Muslim women. Mr. Hossain belonged to a very strict sect of Islam. To punish her, he took a second wife in July 1995. A meeting that Ms. Begum organized at her home with other women earned her death threats from her husband and members of his family, and a public sanction by religious leaders in the region. Fearing for her life and the lives of her children, Ms. Begum left the matrimonial home with her children and took refuge with her parents. When her husband came looking for her the next day, her parents managed to get her out of the country, alone. After spending one week in the United Kingdom, Ms. Begum arrived in Montréal on May 10, 1996, and claimed refugee status. Her two sons, Rasel, now aged 22, and Suman, 18, and her daughter, Junak, now 10, remained in Bangladesh.

IMPUGNED DECISION

[6] Based on the evidence before it, the Board found that Ms. Begum made misrepresentations within the meaning of subsection 109(1) of the Act and that there was no other sufficient evidence to justify refugee protection. According to notes from two interviews with an immigration officer in 2000 and 2001, Ms. Begum met Mr. Rahim not in Bangladesh but in Canada, a few weeks after her arrival. However, DNA tests confirmed that Mr. Rahim was the father of Ms. Begum's third child, Junak, born in Bangladesh. Moreover, the letter from Mr. Rahim's supposed first wife, written after her death, raised a serious question as to the existence of a first marriage. A number of other credibility issues and inconsistencies were noted by the Board. It therefore vacated the decision recognizing Ms. Begum as a refugee.

ISSUES

[7] 1. Did the Board breach the principles of procedural fairness?

2. Is the Board's factual assessment of the case patently unreasonable?

ANALYSIS

[8] The Court wishes to make three preliminary observations. First, the burden of proof is on the Minister in an application to vacate refugee status. Since the Minister is the one requesting that the status be vacated, it is the Minister's responsibility to prove this is justified. Second, of the issues raised by Ms. Begum, only those that are considered problematic will be analyzed in what follows. Third, Ms. Begum's affidavit is not confined to facts within her personal knowledge but also contains numerous arguments, contrary to subsection 81(1) of the Federal Courts Rules[5](the Rules). This affidavit has therefore been disregarded. Furthermore, without prior leave of the Court, counsel for Ms. Begum filed an affidavit of which he is the deponent, which is not allowed under section 82 of the Rules. This affidavit has likewise been disregarded. The outcome of the case did not depend on these two affidavits, however.

1. Did the Board breach the principles of procedural fairness?

[9] It is well established that the standard of review of a decision of an administrative tribunal regarding procedural fairness is correctness: Oberlander v. Canada(Attorney General) (F.C.A).[6]

[10] The first error committed by the Board was not to give Ms. Begum the required notice under section 18 of the Refugee Protection Division Rules[7]before using, in its reasons, its specialized knowledge of the fact that marriage photos are produced in refugee claims from Bangladesh to reject Ms. Begum's argument that she did not produce any photos of her marriage to Mr. Hossain because that was not customary in Bangladesh.

[11] The Board committed another procedural error. Having noticed that Ms. Begum's two sons born in Bangladesh had surnames and first names identical to those of some of Mr. Rahim's sons supposedly born of his first wife in Bangladesh, the Board stated at the hearing that it needed the assistance of an expert to analyze the structure of the children's names, failing which it would not make any finding on that point. No expert testified on the matter. But in its reasons, the Board used the identical structure of the sons' surnames and first names as a basis for finding that Ms. Begum and Mr. Rahim were already married in Bangladesh and that Ms. Begum had never been married to a certain Mr. Hossain, the supposed agent of persecution who had enabled Ms. Begum to get refugee status. The Board would not have erred had it noted that the names were identical and, absent any reasonable explanation, used this in its reasons to draw a negative inference.[8] There is no need for an expert in such a situation. However, the fact that the Board expressed the need for an expert at the hearing and subsequently used the information in question against Ms. Begum without getting an expert opinion creates an expectation which, if unmet, constitutes a breach of procedural fairness.

[12] Irrespective of whether or not these two errors - strictly procedural - have an impact on the final result of this case, each, taken separately, is sufficient to vitiate the Board's decision and require a redetermination of the case, for compliance with the procedural rules leads toward the attainment of justice.[9]

[13] Third, the Board asked, at the hearing, that the imam who had performed the marriage of Ms. Begum and Mr. Rahim in Canada appear at a later hearing date. Between the two hearings, however, it changed its mind and stated that the attendance of the imam would not be necessary after all, as it was not central to the claim. Although that is not a desirable practice, the Court cannot characterize this slip as a fatal error necessitating that the Board's decision be set aside, because the issue of the validity of the marriage of Ms. Begum and Mr. Rahim in Canada was not the crux of the application to vacate (the issue there being whether Ms. Begum was already married to Mr. Rahim in Bangladesh - and not to Mr. Hossain - and whether Ms. Begum had therefore made misrepresentations).

2. Is the Board's factual assessment of the case patently unreasonable?

[14] The standard of review for questions of fact in the context of an application to vacate refugee status under section 109 of the Act is patent unreasonableness of the findings of fact: Kalmykov v. Canada(Minister of Citizenship and Immigration).[10]

[15] The only finding of fact that the Court considers dubious is the negative inference drawn by the Board from the lack of witnesses' signatures in the space reserved for that purpose on the certificate of divorce between Mr. Hossain and Ms. Begum. The divorce certificate in question does not necessarily appear to provide any space for witnesses' signatures, but it does provide space for their names to be listed. Although this is a dubious finding of fact by the Board, it is not necessarily sufficient to offset all of the other sound findings of fact listed in the decision. The Board has not committed any patently unreasonable error in this regard, therefore.

CONCLUSION

[16] The Court answers the first issue in the affirmative and the second in the negative. According to the Federal Court of Appeal, per Décary, Létourneau and Pelletier JJ.A., even a proven breach of the principles of natural justice does not automatically give rise to judicial review. Consequently, the application for judicial review is allowed.[11] The matter is referred back to a differently constituted panel for rehearing.

ORDER

THE COURT ORDERS that this application for judicial review be allowed and that the matter be referred back to a differently constituted panel for rehearing.

"Michel M.J. Shore"

Judge

Certified true translation

Peter Douglas

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: IMM-724-05

STYLE OF CAUSE: RUME BEGUM

MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING: MONTRÉAL, QUEBEC

DATE OF HEARING: AUGUST 24, 2005

REASONS FOR ORDER

AND ORDER: MR. JUSTICE SHORE

DATE OF REASONS

FOR ORDER AND ORDER: AUGUST 30, 2005

APPEARANCES:

Pia Zambelli FOR THE APPLICANT

for Alain Joffe

(solicitor of record)

Ian Demers FOR THE RESONDENT

SOLICITORS OF RECORD:

ALAIN JOFFE FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS, Q.C. FOR THE RESPONDENT

Deputy Attorney General

of Canada

[1] At the respondent's request in the Court room, the style of cause is amended as follows: "Minister of Citizenship and Immigration" is removed and "Minister of Public Safety and Emergency Preparedness" is added.

[2] Cartier v. Canada (Attorney General), [2003] 2 F.C. 317, [2002] F.C.J. No. 1386.

[3] Supra.

[4] S.C. 2001, c. 27.

[5] SOR/98-106.

[6] (2004), 241 D.L.R. (4^th) 146, [2004] F.C.J. No. 920 (QL), at para. 33.

[7] SOR/2002-228.

[8] Anwar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1434; 2002 FCTD 1077.

45 It is accepted that CRDD panel members are generally in the best position to judge the credibility of the claimants who appear before them. This is reflected in such decisions of the Federal Court of Appeal as Leung v. Canada (Minister of Citizenship and Immigration, [1993] F.C.J. No. 685 (F.C.A.) (QL) and Aguebor, supra. As Décary J.A. noted in Aguebor, at paragraph 4:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. [...] [emphasis added]

46 However, this Court retains an overall discretion and duty to oversee the decisions of the CRDD and ensure that they are rendered within the applicable standard. The cases cited above suggest a deferential standard. However, even cases examined in light of this deferential standard are subject to review if the conclusions to which the panel came are not justified by the record that is before the Court.

47 This Court, given the written record, which includes a transcript of what was said at the CRDD hearing, is not at a vast disadvantage with respect to evaluating the conclusions that the panel draws from the evidence received at those hearings. Although the Court does not review the record in order to draw its own conclusions and substitute those conclusions for those at which the panel arrived, the Court nonetheless has a role to play in evaluating the conclusions of the CRDD and the route which the panel took to reach those conclusions. It is with these considerations in mind that the findings of the panel are examined below. [Emphasis added]

[9] Velauthar v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 425.

[10] [2005] F.C.J. No. 1113 (F.C.) (QL), at para. 12; Canada (Minister of Citizenship and Immigration) v. Haji-Dodi, [1996] F.C.J. No. 438, para. 18.

[11] In Cartier v. Canada (Attorney General), [2003] 2 F.C. 317, F.C.J. No. 1386, at paras. 30-35:

30 It is well settled that "the relief which a court may grant by way of judicial review is, in essence, discretionary" (per Lamer C.J., Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at paragraph 30). At paragraph 31, the Chief Justice added:

The use of permissive, as opposed to mandatory, language in s. 18.1(3) [of the Federal Court Act] preserves the traditionally discretionary nature of judicial review. As a result, judges of the Federal Court, Trial Division ... have discretion in determining whether judicial review should be undertaken.

And at paragraph 39:

This discretionary determination should not be taken lightly by reviewing courts. It was Joyal J.'s discretion to exercise, [page333] and unless he considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion, then his decision should be respected. To quote Lord Diplock in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046, an appellate court "must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently".

31 One of the reasons which may lead a judge not to grant the relief sought even when the decision on review is reviewable is the futility of reconsidering the said decision. In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at page 228, Iacobucci J. for the Court cited with approval this passage from Professor Wade, Administrative Law (6th ed., 1988), at page 535:

At page 229, Iacobucci J. explained that this factor of hopelessness was "exceptional [in] character".

32 I readily admit that in Mobil Oil, supra, it was a case of a breach of natural justice and a matter in which the answer to the point of law at issue was "inevitable" (at page 228) even if the party had an opportunity to be heard.

33 Nevertheless, I do not see any reason why the rule developed in Mobil Oil cannot be applied to other types of situation. A judge must of course act with extreme caution to avoid the process of reviewing the legality of a decision becoming a process of reviewing its merits. However, it seems to me that if a judge may ignore a breach of natural justice when the outcome is inevitable he must a fortiori be allowed to overlook an error of law when it is not conclusive or when he is [page334] satisfied that if the Court had applied the right test it would have come to the same conclusion. I note that this Court has applied Mobil Oil at least twice, in Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.), in which Stone J.A. applied the futility rule, explaining that "[t]he limits within which Professor Wade's distinction should operate are yet to be established" (at paragraph 10), and in Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.), in which Evans J.A. dismissed an application for judicial review because "the error made by the visa officer was not material to the outcome of the visa application" (at paragraph 6). Rothstein J.A. also referred to it at paragraph 88 of his dissent in Canadian Magen David Adom for Israel v. M.N.R., 2002 FCA 323; [2002] F.C.J. No. 1260 (C.A.) (QL).

34 Just recently also, in Wihksne v. Canada (Attorney General) (2002), 20 C.C.E.L. (3d) 20, this Court quashed a decision by a member of the Pension Appeals Board which had denied leave to appeal and referred the matter back with a direction to grant leave since in the Court's opinion that conclusion seemed unavoidable. In Rafuse v. Canada (Pension Appeals Board) (2002), 286 N.R. 385 (C.A.), this Court [at paragraph 14] also recognized that it had the power to make such orders "in the clearest of circumstances".

35 The case at bar is a special one. The error regarding the applicable test was made at the second level by the Appeal Division, it was not made at the first level by the Board. Despite this error, the Appeal Division affirmed the Board's decision. If the Court comes to the conclusion that the Board's decision was of impeccable legality, it would be futile to quash the Appeal Division's decision for error of law and refer the case back for redetermination, since the Appeal Division would unavoidably arrive at the same conclusion, although this time for the right reasons. [Emphasis added]

It is, nevertheless, important to note that such orders are issued only in the clearest of circumstances; if the circumstances are not the clearest, the opposite applies.

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