Date: 20041020
Docket: IMM-1317-04
Citation: 2004 FC 1451
OTTAWA, ONTARIO, OCTOBER 20, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
UPUL KUMADA POTHUMULLA KANKANAGME
Applicant
and
THE MNISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Upul Kumara Pothumulla Kankanagame is a 26-year-old Sinhalese male citizen of Sri Lanka. He claims to be a person in need of protection as a result of having been tortured by the Sri Lankan police. Mr. Upul's claim for protection was rejected by the Immigration and Refugee Boardbecause the Board found him not to be credible. Mr. Upul now seeks to have that decision set aside, asserting that the Board committed numerous serious errors.
[2] I agree that the Board did indeed make several errors and that, as a result, the decision must be set aside.
Findings Not Supported by the Evidence
[3] The Board erred in making certain findings of fact that were completely unsupported by the evidence, and thus patently unreasonable.
[4] For example, the Board seemed to suggest that Janice Nickel, a refugee advocate who assisted Mr. Upul in filing his claim, provided documentary evidence to falsely bolster his claim. There was no evidence before the Board to support this very serious allegation.
[5] Another such example relates to the cause of Mr. Upul's burns. It is common ground that Mr. Upul has suffered serious burns to the lower part of his body. Indeed, this evidence is confirmed by a medical report. Mr. Upul testified that he suffered these injuries when he was intentionally set on fire, while in police custody. The Board did not accept Mr. Upul's testimony in this regard.
[6] Having rejected Mr. Upul's explanation as to how the burns occurred, the Board goes on to observe that Mr. Upul was a welder, and thus had occasion to use acetylene torches and welding equipment in his work. While professing a reluctance to speculate that this might account for Mr. Upul's injuries, the Board seemingly goes on to do precisely that. There was no evidence before the Board to justify such speculation.
[7] These findings are but two of many negative findings made against Mr. Upul in the course of a lengthy and detailed decision. Were these the only errors made by the Board, an argument could well be advanced that these errors were not sufficiently material to warrant the decision being set aside. I do not, however, need to address this concern, as I am satisfied that the Board made other significant errors.
Inappropriate Use of Judicial Notice
[8] In rejecting Mr. Upul's explanation as to the origins of his burn injuries, the Board found that had the injuries occurred as Mr. Upul says they did, he probably would have passed out. The Board observes, however, that Mr. Upul did not claim to have lost consciousness.
[9] In Attakora v. M.E.I. (1989), 99 N.R. 168, Justice Hugessen noted that one cannot simply take judicial notice of the extent to which an injury will interfere with an individual's functioning. As the Court noted, "everything will depend on the nature and extent of the [injury] and upon the circumstances of the injured person."
[10] In a similar vein, the Board rejected Mr. Upul's testimony that he developed a speech impediment as a result of having been subjected to electric shocks while in police custody. In this regard, the Board ruled that it could take notice of the fact that speech impediments tend to be congenital.
[11] As the Supreme Court of Canada noted in R. v. Find, [2001] 1 S.C.R. 863, judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Because facts judicially noted are not taken under oath or subject to cross-examination, the threshold for the admission of facts by judicial notice is strict. To be admissible, the facts must be either "so notorious or generally accepted as to be not the subject of debate among reasonable persons; or ... capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy".
[12] As an administrative tribunal, the Immigration and Refugee Board is not bound by the stringent evidentiary rules applicable in a criminal case. Nevertheless, I am not persuaded that the etiology of speech impediments is something of which the Board could properly take notice. In purporting to take notice of this 'fact', the Board committed a further error.
Reasonable Apprehension of Bias
[13] Mr. Upul submits that the Board's questioning of him in the course of the hearing went beyond an energetic attempt to clear up inconsistencies in the evidence, and amounted to badgering and harassment. Not only were the questions themselves inappropriate, Mr. Upul says, the sarcastic and demeaning tone used by the presiding member gave rise to a reasonable apprehension of bias.
[14] In this regard, Mr. Upul's submissions are supported by affidavits from Mr. Upul himself, as well as from the counsel who represented him before the Board, and from Ms. Nickel, who was also present at the hearing. All describe the conduct and demeanour of the presiding member at the hearing in most unflattering terms.
[15] The respondent submits that the member's questions were entirely appropriate, and amounted to nothing more than an attempt to understand Mr. Upul's convoluted and improbable story. In any event, counsel says, having failed to raise any objection to the conduct of the member in the course of the hearing, Mr. Upul is deemed to have waived any right that he may have had to assert the existence of a reasonable apprehension of bias on the part of the member. In this regard, the respondent relies on the decisions on this Court in cases such as Oh v. Canada (Minister of Citizenship and Immigration), 2003 F.C.T. 161, Abdalrithah v. Canada (Minister of Employment and Immigration), 40 F.T.R. 306, Carmona v. Canada (Minister of Citizenship and Immigration, [1995] F.C.J. No. 564 and Ithibu v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 288.
[16] The test as to whether a reasonable apprehension of bias exists in a given set of circumstances is well-known. In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369, the Supreme Court of Canada described the test as "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude?".
[17] From my review of the transcript of the hearing, it is apparent that the hearing commenced with Mr. Upul being examined in chief by his counsel. Shortly thereafter, with the consent of counsel, the presiding member took over the questioning. What followed was a lengthy and searching cross-examination.
[18] The affidavits of Mr. Upul, his counsel and Ms. Nickel refer to concerns regarding the language and tone used by the presiding member during the course of the hearing, and the fact that the member never appeared to look at Mr. Upul. Obviously, tone of voice and demeanour cannot be verified by reference to the transcript. What is evident from the transcript, however, is that during the course of his aggressive questioning, the presiding member frequently became impatient with Mr. Upul. It is also clear that, on occasion, he was quite sarcastic. This is exemplified by a comment made when the member was dissatisfied with an answer provided by Mr. Upul. The member said, "Sir, sir, sir. Listen, I didn't ask that question at all, did I? What was my question? Can you tell me? I'll repeat it if you wish me to."
[19] While such conduct is not to be encouraged, the law is clear - sarcastic or harsh language is not, by itself sufficient to demonstrate that the member has lost his impartiality: Variach v. Canada (Minister of Employment and Immigration), (1994), 75 F.T.R. 143. On the basis of the record before me, I am not prepared to find bias on the part of the presiding member based solely on his conduct in the course of the hearing.
[20] Regrettably, however, this is not the end of the matter. Whatever concerns may have existed on the part of Mr. Upul and his advocates during the course of the hearing with respect to the conduct of the presiding member, these concerns could only have been exacerbated when the member delivered his decision.
[21] The decision in this case was rendered orally, immediately after the conclusion of the submissions. The decision is both lengthy and detailed. Indeed, the decision apparently took some 90 minutes to deliver. In these circumstances, Mr. Upul submits that there is an inescapable inference that much of the decision had been written before the hearing even began, and that the result was pre-ordained.
[22] I do not accept this submission. A review of the Board's reasons discloses that there were frequent references throughout the decision to Mr. Upul's oral testimony. Further, the decision was delivered in a sufficiently unstructured fashion to suggest that it was indeed being delivered extemporaneously.
[23] However, the decision does not use the dispassionate tone one would ordinarily expect to see in a ruling emanating from a quasi-judicial tribunal such as the Immigration and Refugee Board. Indeed, it reflects a remarkable degree of disdain for Mr. Upul as a person. At one juncture, Mr. Upul is referred to dismissively as "this fellow". Elsewhere in the decision, after making a number of adverse credibility findings, the Board describes Mr. Upul as "the kind of person who lies".
[24] Most troubling is the Board's disrespectful treatment of Mr. Upul's testimony regarding his alleged involvement in political activities. After referring to Mr. Upul's testimony on this point, the Board stated "Frankly, it is a crock and should be treated this way."
[25] The respondent concedes that this sort of language is unprofessional, but submits that it falls short of establishing bias on the part of the presiding member. Taken in isolation, that may be true. However, the comment does not exist in isolation. Rather, it must be viewed in light of the other disparaging comments contained in the Board's reasons. Regard must also be had as well to the level of hostility demonstrated by the Board member towards Mr. Upul in the course of the hearing itself.
[26] When all of these factors are considered together, I am satisfied that an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude that there existed a reasonable apprehension of bias on the part of the presiding member.
[27] This leaves the question of waiver. In this case, the full extent of the member's animus vis à vis Mr. Upul was not entirely evident until such time as the decision was rendered. As a consequence, I am not persuaded that the failure of counsel for Mr. Upul to object to the conduct of the Board member in the course of the hearing should be fatal to his right to argue that there exists a reasonable apprehension of bias on the part of the presiding member.
Conclusion
[28] For these reasons, the application is allowed, and the matter remitted to a differently constituted panel for redetermination.
Certification
[29] Mr. Upul proposes the following questions for certification:
1. Does the duty of fairness require a member of the Refugee Protection Division of the Immigration and Refugee Board to allow counsel for a claimant for refugee protection to question the claimant before the Board member cross-examines him?
2. When a Board member conducts the hearing in a manner that a) creates a reasonable apprehension of bias at the hearing and/or b) violates the duty of fairness, then is that behaviour waivable by the claimant?
3. If the answer to the previous question is yes, then is there waiver if there has been no objection at the hearing or only if the claimant does not seek leave and judicial review to this Court?
None of these questions is determinative of the issues in this case, and accordingly, I decline to certify any of them.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1317-04
STYLE OF CAUSE: UPUL KUMADA POTHUMULLA KANKANAGME v. MINISTER OFCITIZENSHIP AND IMMIGRATION
DATE OF HEARING: OCTOBER 13, 2004
PLACE OF HEARING: WINNIPEG, MANITOBA
REASONS FOR ORDER
AND ORDER: MACTAVISH J.
DATED: OCTOBER 20, 2004
APPEARANCES BY:
Mr. David Matas FOR THE APPLICANT
Ms. Aliyah Rahaman FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Matas
Winnipeg, Manitoba FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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