Date: 20011109
Docket: IMM-156-01
Neutral citation: 2001 FCT 1236
BETWEEN:
FRANCIS ELAWEREMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated December 6, 2000, wherein the Board determined that the applicant was not a Convention Refugee.
[2] The issue is whether the Board breached natural justice by not allowing the applicant an opportunity to present his case because the Board member interrupted the examination-in-chief with questions.
[3] The Board rejected the applicant's refugee claims based on inconsistencies and implausibilities found in his evidence. However, the issue is whether the Board member's intervention precluded the applicant from having the opportunity of making his case. The applicant's counsel made no objection at the Board hearing to the questions of the member. The applicant's counsel concedes there was no indication of bias or improper questions or sarcastic questions. In my view, the fact that the applicant was represented by an immigration consultant, as opposed to a lawyer, makes no difference. As Pelletier J. stated in Cove v. M.C.I., [2001] F.C.J. No. 482:
The applicant is fully entitled to entrust her immigration problems to an immigration consultant rather than to a member of the immigration bar. It may be that, in doing so, she saved some fees, but perhaps not. She is also fully entitled to take her immigration consultant's advice on the steps to be taken in pursuing her claim. But the applicant runs into difficulty when she suggests that she ought to receive a dispensation from the rules because she was not represented by a lawyer and received bad advice.
If the applicant were in these straits because of her lawyer's error, that error would be held against her. Why should the errors of her consultants not be held against her? To accept this argument would create a positive incentive for individuals to use consultants in preference to lawyers so that if things went badly, relief could be obtained by blaming the inadequacy of the consultant. This is not conducive to a rational use of legal and judicial resources.
[4] In Hernandez v. M.E.I., [1993] F.C.J. No. 680 (F.C.A.), the Federal Court of Appeal found that although the numerous interventions by Board members may have been somewhat inadvisable, they did not "evince any bias or reasonable apprehension of bias". The Court found that the "effort by the Board to speed up the proceeding, though perhaps disconcerting, was not unfair and did not go beyond what is permissible. Nor did the extensive questioning by the Board prevent the claimant from telling his story fully".
[5] In my view that last sentence is applicable here. The claimant was still able to tell his story, although perhaps in a more disjointed way than would happen in an ideal situation. Lutfy J. followed Hernandez, supra, in Paramo-Martinez v. M.C.I., [2000] F.C.J. No. 261 (F.C.T.D.). Particularly, he stated at paragraph 16:
In Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998), Brown and Evans state at pages 11-29 and 11-30;
Extensive and "energetic" questioning alone by tribunal members will not in itself give rise to a reasonable apprehension of bias. And particular latitude is likely to be given to tribunals operating in a non-adversarial setting such as refugee determination hearings, where there is no one appearing to oppose the claim. 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. ...
The panel members did question the applicant, even during his examination-in-chief. However, I am satisfied that Mr. Paramo's representative was given a full opportunity to complete his questioning (pp. 19-40 of the transcript), both prior and subsequent to a mid-morning break. Each panel member questioned the applicant extensively after his examination-in-chief. The applicant's representative was then given the opportunity for re-examination, again both prior and subsequent to the luncheon recess.
Unfortunately the panel member here did not delay her questioning until the end of the examination-in-chief. In Osuji v. M.C.I., [1999] F.C.J. No. 539 (F.C.T.D.), paragraph 21, Teitelbaum J. held the following:
... The applicant submits that the Board interrupted her examination by her then Counsel. The transcript shows that the Board members did intervene frequently during Counsel's examination. However, I am not persuaded that the Board's conduct amounts to a breach of natural justice in that the applicant was denied the opportunity to fully present her case or that the Board's questioning raised an apprehension of bias.
[6] I also note that the Board member asked on several occasions whether the applicant has anything else to say. In my view, the applicant was given a reasonable opportunity to present his case.
[7] In my view, the vast majority of questioning was not conducted by the one Board member as submitted by the applicant and most of the Board member's questioning was to focus the applicant's evidence and to clarify answers. This is not a case like Ganji v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1120, August 29, 1997 (F.C.T.D.) where the applicant sought to object herself even though counsel did not object to the questioning. Furthermore, in that case, the Board ordered the daughter to testify notwithstanding the applicant's objection.
[8] I agree with Heald J.A. in Mahenvran v. Minister of Employment and Immigration (1991) 134 N.R. 316 at 317 and 318 where he states:
... I would characterize his questioning as being an energetic exercise in attempting to clear up some inconsistencies in the evidence. It also discloses some frustration at being unable to get a clear picture of the general purport of the evidence being given.
...
Keeping in mind that, pursuant to s. 68(3) of the Immigration Act, this tribunal is not bound by any legal or technical rules of evidence and also remembering that the tribunal is charged with deciding each application on the basis of evidence which it considers credible or trustworthy, one can perhaps have some understanding for tribunal members who, in their enthusiasm to perform their duties in a creditable fashion, may sometimes create a perception of over-aggressiveness and unfairness.
There was no breach of the rules of procedural fairness or natural justice by the Board.
[9] The application for judicial review is dismissed. There is no question of general importance to be certified.
"W. P. McKeown"
JUDGE
TORONTO, ONTARIO
November 9, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-156-01
STYLE OF CAUSE: FRANCIS ELAWEREMI
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, OCTOBER 10, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: FRIDAY, NOVEMBER 9, 2001
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. Greg George
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue E.
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011109
Docket: IMM-156-01
Between:
FRANCIS ELAWEREMI
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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