Date: 20050805
Docket: IMM-8374-04
Citation: 2005 FC 1066
Ottawa, Ontario, this 5th day of August, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
EMAD ZAKI
(a.k.a. Emad Zaki Mosaad)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Emad Zaki (a.k.a. Emad Zaki Mosaad), is a citizen of Egypt. He claims a well-founded fear of persecution based on his religion, that of a Coptic Christian. The Applicant alleges that he suffered threats that, should he not convert to the Muslim religion, he would be killed. He left Egypt for the United States in 1993 where he made one asylum claim that was never completed. He remained in the United States until July 2003 when he came to Canada and claimed refugee protection.
[2] A hearing was held before a panel of the Immigration and Refugee Board (Refugee Protection Division) (the "RPD") on June 30, 2004. At the commencement of the hearing, counsel for the Applicant objected to the order of questioning implemented pursuant to guidelines of the RPD. The guidelines provide that the refugee protection officer ("RPO") or the panel commences the questioning, followed by the claimant's counsel. The RPD dismissed the objection and the hearing commenced with questioning by the panel.
[3] In a decision dated August 10, 2004, the RPD denied his claim. The RPD found that the material facts of the Applicant's claim were not credible on the basis of various problems with his testimony and on his willingness to remain illegally in the United States long after he was able to make an asylum claim in that country. The RPD also was not satisfied that the documentary evidence supported the Applicant's claim.
Issues
[4] The Applicant raises the following issues:
1. Did the RPD breach the rules of natural justice by applying paragraph 19 of its Guideline 7 which establishes a standard practice that the RPD conducts its questioning prior to questioning by the Applicant or his counsel?
2. Was the decision of the RPD made in a perverse or capricious manner or without regard to the evidence?
Analysis
Issue #1: Order of Questioning
[5] On June 1, 2004, the RPD implemented a new procedure for the conduct of hearings. The procedure is contained in "Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division" ("Guideline 7"), effective December 1, 2003 and issued by the Chairperson of the Immigration and Refugee Board pursuant to s. 159(1)(h) of the Immigration and Refugee Protection Act. Paragraph 19 of Guideline 7, under the heading "Questioning", provides that:
In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
[6] This order of questioning may be varied. Paragraph 23 states that:
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.
[7] The submissions of the Applicant appear to be two-fold. First he argues that the reverse order of questioning set out in Guideline 7 violates the principles of natural justice by impeding a claimant's right to present his or her case fully and fairly. Second and in the alternative, he submits that the practice, in this case, led to a breach of natural justice.
(a) Unfairness of reverse order of questioning generally
[8] The Applicant agrees that the RPD is the master of its own procedure. Thus, the issuing of guidelines dealing with procedures to be adopted in RPD hearings is within the power of the RPD. The Applicant submits, however, that this particular provision in paragraph 19 of Guideline 7 is in itself procedurally unfair to claimants.
[9] The issue of the fairness of the RPD - first order has been considered numerous times by this Court, including in four cases in 2005 (B.D.L. c. Canada (Ministre de la Citoyennetéet de l'Immigration), 2005 FC 866; Cortes Silva v. Canada (Minister of Citizenship and Immigration), 2005 FC 738 (Silva); Liang v. Canada (Minister of Citizenship and Immigration), 2005 FC 622 and Sy v. Canada (Minister of Citizenship and Immigration), 2005 FC 379). In none of these cases has this Court found that the order of questioning implemented by the RPD is inconsistent with procedural fairness.
[10] The issue was very recently and directly addressed in the case of Silva, where, as here, the applicant argued that "the order established for presenting evidence puts the claimant at a disadvantage and is in itself a breach of procedural fairness". Justice Gauthier, at para. 13, in that case, dismissed this argument finding that the applicant had been fully afforded the right to be heard. She further stated that questions of procedural fairness must not be considered in a hypothetical context (paras. 26-28).
[11] As the Applicant noted, Justice Pelletier in Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.), at para. 35, questioned the validity of the practice of RPD commencing the questioning. However, I concur with Justice Gauthier's reading of Justice Pelletier's comments (Silva, para. 23):
In my view, what Pelletier J. said was that the practice of forgoing the examination-in-chief may well raise questions of fairness apart from the question of gaps in the evidence, but that those questions must be addressed by the Court when they are properly before it, that is, not only that there has been a timely objection, but also that the particular circumstances of the case warrant it. [emphasis added]
[12] Contrary to the assertions of the Applicant, I do not see a divergent view in this Court on Guideline 7. The cases relied on by the Applicant (Herrera v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 1724; Sandor v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2183) do not stand for the general proposition that the practice set out in Guideline 7 is a breach of procedural fairness. In each of those cases, the Court found that the type of cross-examination by the RPD constituted an error; not the practice of the RPD per se.
[13] I conclude, as have numerous of my colleagues, that the implementation of Guideline 7 in RPD hearings is not, in and of itself, a breach of procedural fairness.
(b) Unfairness in this case
[14] Although the Guideline per se is not, in my view, procedurally unfair, it may well be that its implementation in any given case is done in such a way as to lead to a conclusion that a claimant was not afforded an opportunity to make his case. The relevant question is whether the procedure, on the facts of this case, resulted in unfairness to the Applicant. That requires an examination of the record on two aspects: (i) whether the RPD fettered its discretion in its refusal to return to the familiar, counsel-first order; and (ii) whether the order of questioning resulted in the Applicant not being afforded the right to be heard.
(i) Motion to revert to Applicant-first process
[15] In the Applicant's hearing, counsel for the Applicant objected to the implementation of this order of questioning. Although the motion was not submitted in writing as required by the RPD Rules, the RPD heard the objection and rejected it. The exchange in the transcript on this issue is as follows:
Counsel: I strongly, and respectfully of course, object to this new procedure. It is my carefully considered opinion that to follow the new procedure would be a denial of natural justice to the claimant. The case is, and there are cases and I am prepared to quote the cases, the citations, indicate that the person upon whom rests the onus, that person has the right to indicate how he or she wants his or her hearing to proceed. There is clear law on this and my client in this case, as in other cases, wishes to have the old order of questioning, that of - that prevailed before June the 1st, continue.
So it's a denial of natural justice, there is clear law on that. Furthermore the new procedure constitutes blatant procedural unfairness and that is because there is an advantage in counsel leading with examination-in-chief that lays the framework, it puts the claimant at ease because he is familiar with his counsel and not so with the RPO or with the Chair and so it is simply procedurally unfair to the claimant to use the new procedure. The result of all this is, in my respectful submission, that the whole process is impugned to the extent that it is an irreparable breach and would result in having to hear - have the case heard all over.
. . .
PRESIDING MEMBER: Thank you. The Chairperson of the Immigration and Refugee Board has the right; statutory right to establish guidelines and the new guidelines, counsel and other stakeholders have been informed of the new guidelines since December 2003. The position of the Board is that counsel have had ample opportunity to prepare claimants for the new procedure. It's not our opinion that by having the RPO or the panel member proceed first, that there is an unfairness or procedural unfairness or a denial of natural justice. You will be given every opportunity to tell your story.
[16] The Applicant appears to argue that the RPD fettered its discretion by automatically following Guideline 7. However, the record does not support this contention. As the Guideline states, at para. 23, the order of questioning may be changed in exceptional circumstances. Thus, the Guideline itself incorporates a flexible approach to the use of the RPD-first order of questioning; there is no rigid rule that purports to bind the RPD. It is up to each panel to determine, upon application, what order of questioning will be used. Whether a claimant will be granted the right to proceed first will depend on the facts of each case.
[17] The question then becomes whether, in deciding the Applicant's motion to "adhere to the old procedure", the RPD blindly applied Guideline 7 without regard to the submissions of counsel. In his motion to revert to the claimant-first order of questioning, the Applicant alluded generally to "an advantage in counsel leading with examination-in-chief that lays the framework" and that "it puts the claimant at ease". However, he raised no specific arguments as to why he believed he would be prevented from presenting his case. The Applicant's argument at that time, as now, appears to be that there is a general unfairness in the RPD commencing the hearing.
[18] An allegation of lack of procedural fairness cannot be considered in a hypothetical context (Silva, at paras. 26 - 28). Quite simply, the Applicant presented no arguments to the RPD - nothing beyond a "hypothetical context" - that would have supported a change in the RPD procedure. There was no fettering of discretion in this case and the RPD's refusal to change the order of questioning did not, in this case, amount to a breach of natural justice.
(ii) Conduct of the hearing
[19] However, the conclusion that the RPD did not err in ruling against the Applicant in the motion does not end the matter. There may be cases where the way in which the panel conducts its preliminary questioning leads to procedural unfairness by preventing the Applicant from presenting his case. For example, in Herrera, an application for judicial review was allowed where the RPO who went first carried out "badgering"cross-examination. Whether such circumstances exist will depend on the record in each case.
[20] In this case, I have only the transcript and the affidavit of the Applicant upon which I must assess this issue. Looking first at the affidavit, I note that the Applicant does not allege that he experienced any problems in the procedure followed by the RPD; his affidavit is completely devoid of any complaints about the effects of the order of questioning. Further, the transcript does not show any instances where the Applicant was cut off from completing an answer, where the counsel was prevented from interjecting for clarification or where the Applicant experienced difficulties in responding to questions.
[21] The Applicant points to two areas where the RPD posed questions to which his responses were unclear and argues that this demonstrates the unfairness of the procedure. However, in each of the examples, I cannot see how the questions by the RPD and responses by the Applicant would have been any different had the Applicant put in his case prior to the panel's examination.
[22] In summary, there is no evidence to support a conclusion that the order of questioning resulted in an unfair hearing.
Issue #2: Alleged errors in the decision
[23] The RPD found that the Applicant's evidence was generalized and vague. The Applicant asserts that this conclusion was capricious, perverse and made without regard to the evidence. He submits that he responded to the questions posed to him fully. Having reviewed the record, I do not agree. Although the Applicant answered the questions put to him, in response to many of the RPD's lines of questions, those answers did not provide details. For example, he was unable to explain what he had done to insult the Muslim religion. Few details were provided about his assailants. It was not unreasonable for the RPD to consider that the Applicant's inability to provide better testimony on the central elements of his claim undermined his credibility.
[24] The RPD drew a negative inference from the Applicant's failure to mention an incident at his port of entry ("POE") or his first personal information form ("PIF"). Incidents of a car being vandalized and a crucifix snatched off his neck were contained only in an addendum to the PIF. The RPD opined that "the claimant's story appears to expand with each retelling". The Applicant submits that he has a right to amend his PIF and that he should not be penalized. In my view, the RPD was not unreasonable in drawing this inference. While amendments to the PIF are routinely made, an addition that raises an entirely new incident central to the claim may well raise negative inferences when it is not mentioned in any way either in the POE notes or an initial PIF.
[25] Similarly, I can find no error in other findings of the Board in respect of the Applicant's testimony. The RPD's conclusion that the material facts of the claim were not credible is supported by the evidence and is not patently unreasonable.
[26] The RPD reviewed the documentary evidence on the treatment of Coptic Christians in Egypt and concluded that "Coptic Christians in Egypt experience discrimination; however, I am not satisfied that they experience persecution". The Applicant submits that the RPD "did not make a balanced or objective summary and conclusion from the evidence; rather it made a non-objective and biased one". Once again, I do not agree. The RPD acknowledged the difficulties faced by Coptic Christians; it did not ignore any evidence. The Applicant is asking me to re-weigh the evidence to come to a different conclusion. That is not the role of the Court.
[27] In summary on this issue, the RPD found that the Applicant's claim failed on both a subjective and objective basis. In my view, its decision is not unreasonable.
Conclusion
[28] For these reasons, the application will be dismissed. When I asked whether either party wished to propose a question of general importance for certification, the response was negative. It appears to me that the question of whether Guideline 7, in and of itself, breaches the rules of natural justice is now settled. The other issues raised in this application are fact specific. Accordingly, the issues in this application do not warrant the certification of a question of general importance.
ORDER
This Court orders that:
1. The application is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8374-04
STYLE OF CAUSE: EMAD ZAKI (a.k.a. Emad Zaki Mossad) v. the M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 28, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: August 5, 2005
APPEARANCES:
Mr. Randal Montgomery FOR APPLICANT
Mr. David Tyndale FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister and Solicitor FOR APPLICANT
Toronto, Ontario
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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