Date: 20000316
Docket: IMM-2390-99
BETWEEN:
SELIM MOHAMMAD
Applicant
- and -
THE MINISTER OF EMPLOYMENT AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. INTRODUCTION
[1] The sole issue which calls for determination in this judicial review proceeding arising out of a March 2, 1999 decision of the Refugee Division of the Immigration and Refugee Board (the "Refugee Division") delivered orally that day denying the claim of the applicant Selim Mohammad (the "applicant"), a 23-year-old citizen of Bangladesh, is whether the behaviour of the Presiding Member and the second Member of the panel hearing the claim was such as to deny the applicant a full, fair and impartial hearing. The focus of the challenge was principally on the conduct of the Presiding Member.
[2] The applicant says when the Presiding Member's total comportment is reviewed and examined as a whole, namely, the progressive nature of her aggressive questioning, her comments to the applicant after he gave certain answers, the manner and tone of her questioning, the signs she made, drives to one inevitable conclusion " a poisoning of the hearing to such a degree it so deconcentrated the applicant in giving his answers he could not remember certain events and he contradicted himself from what he had previously written in his Personal Information Form ("PIF").
[3] I was invited by both counsel to hear the tape of the hearing and I did so.
B. THE FINDING OF THE REFUGEE DIVISION
[4] The Refugee Division concluded the applicant was not a Convention refugee; it also concluded that his claim lacks any credible basis pursuant to section 69.1(9.1) of the Immigration Act. The panel of the Refugee Division stated it was not able to obtain information from him that, in any way, would corroborate the information in his PIF as to why he feared a return to Bangladesh. The panel told the applicant offered "a new version of events which were different in regards to time-frame and contradictory from what was included in your PIF". The panel noted omissions in his PIF as well as contradictions to the events recited there. The panel, in delivering oral reasons to the applicant, said: "that on several occasions during the hearing you were unable to recall events and approximate dates of events which are contained in your PIF. Questioned many times, you simply answered 'I do not remember'". The panel indicated that relatively early in the hearing, it had noticed those contradictions and omissions in his testimony and expressed its concerns to him and mentioned that these discrepancies affected his general credibility. The panel noted it offered the applicant to take his time in responding to questions which were brought forth by the panel. The panel also noted it offered the applicant the chance to relate the events leading to his departure from Bangladesh but "[U]nfortunately, you were unable to do so".
[5] The panel concluded its decision with these words:
| The panel realizes that all claimants are nervous when questioned by us and accepts some amount of discrepancy in the testimony of claimants for that reason. But the panel cannot accept nervousness as the cause of bringing forth a brand new set of events which were not included in your PIF and that you would forget almost all events related in your PIF. Realizing your difficulty in testifying, the panel even offered you the chance to relate your own story in your own words without being questioned by us. You were unable to do this. |
C. THE CONTEXT
(a) The applicant's claim
[6] The applicant, in his PIF, claims to be a political activist, a member of the Jatiya Juba Sanghati ("JJS") which is the youth organization of the Jatiya Party and a member of the Bar-Mardan Youth Organization ("Bar-Mardan"). He claims his uncle is a local cleric, an Islamic fundamentalist, and the head of the local Salish Committee, a member of the Jamaat-E-Islamic Party ("Jamaat") to which the applicant is opposed. The applicant claims he became a target of Jamaat militants and BNP goons.
[7] In his PIF, the applicant related the following events:
| (a) A December 1992 clash with Jamaat militants who broke up a Bar- Mardan meeting; the applicant was punched and the police refused to intervene; |
| (b) In March 1993, he was beaten by Jamaat militants following a public protest by his uncle to the construction of a school funded by international aid; |
| (c) A December 1994 police attack on a meeting, at which the applicant was present and fled, protesting the existing government; |
| (d) In January 1995, the Jamaat militants burnt down the school the applicant helped to construct; he and others protested and he was threatened; |
| (e) In March 1995, he was elected as President of the local Bar-Mardan and he opposed publicly the Salish Committee of fundamentalists; |
| (f) In April 1995, he was beaten by local Jamaat goons for criticizing the local Mullah; and finally |
| (g) The July 27, 1995 demonstration protesting a false murder charge against a party member which the police broke up and where his brother was severely beaten and arrested. The applicant went into hiding and remained in hiding. The applicant claims the BNP goons continued to attack his father's house. The applicant fled Bangladesh on September 23, 1995, arrived in Canada on October 1, 1995 and sought refuge. |
(b) The hearing's setting
[8] The applicant's claim came on for hearing on March 2, 1999. The applicant was represented by an immigration counsel who was not a lawyer. At the opening of the hearing, although invited by the Presiding Member, his counsellor did not ask the applicant any questions flowing out of his PIF. He did not conduct examination-in-chief.
[9] Moreover, at the hearing, there was no Refugee Claims Officer to assist the Refugee Division. The applicant testified with the assistance of an interpreter. Any probing of the applicant's claim fell upon the shoulders of the panel members themselves.
[10] The applicant's counsellor, throughout the hearing, did not raise any objections on the manner the Presiding Member and the other Member were conducting the hearing. The other Panel Member had also asked several questions.
[11] At the end of the hearing, and before submissions were called for, the Presiding Member asked the applicant's representative if he had any questions of his client to which he answered "no".
[12] The applicant's advisor made the following submissions or closing arguments to the Refugee Division. These are set out at page 410 and 411 of the transcript:
| A. Honourable Board members, the Claimant was asked questions by you about his involvement in politics in Bangladesh. But during his testimony, it was quite evident that the Claimant was absolutely nervous, though the Board members have assured him to take his time and rather helped him with great care to overcome his fear or nervousness. The Claimant however could not recover from his initial bewilderment, and it was apparent from his testimony that he was mixing up things. |
| There might be two things: either the Claimant was genuinely nervous and couldn't remember anything, or whatever he has written or telling was not simply not the truth. |
| Now it is very difficult for the Board members to take a course. However I will just suggest that if the Board members think that the Claimant is not credible, prior to that, Honourable Board members should also consider if the Claimant was really nervous or perplexed. If he was perplexed, then rejecting him will amount to injustice. |
| I will suggest that there is a great possibility that the Claimant was genuinely nervous, frightened, and once he lost track, he had a free fall. So it will depend on the Honourable Board members to make the appropriate decision. |
(c) The conduct of the hearing
[13] The transcript discloses the President, at the opening of the hearing,
| (a) asked the interpreter to make sure the claimant was understanding the interpreter well; |
| (b) asked the claimant if he had signed the PIF, whether the PIF was translated and whether he was satisfied the document was complete and true; and |
| (c) stated to the applicant "[W]e will ask you questions of clarification. If there is anything that you do not understand, please feel free to ask us to repeat the question". |
[14] Counsel for the applicant identified several key instances in the transcript as evidence of unfairness.
| (i) The first example " " Well, you're going to have to do better than that, sir, because that doesn't satisfy me as an answer". |
[15] This statement by the Presiding Member is at page 394 of the transcript. The statement came after a first series of questions by the Presiding Member to the applicant prefaced by a statement by the Presiding Member that there had been a change of government in Bangladesh since the applicant had come to Canada and what was the basis of the applicant's fear in the circumstances to which the applicant had answered "Jamaati goons, BNP goons". The Presiding Member probed further as to why the goons would want to do away with him. Transcript pages 393 and 394 reveal the following exchange:
| Q. Why would the BNP goons, sir, want to do away with you? |
| A. I am not listening properly. The question was what? |
| BY PRESIDING MEMBER (to interpret) |
| Q. Why would the BNP goons want to kill him. |
| - I was a good worker of Jattia (phonetic) Party. That's why they want to kill me. |
| BY PRESIDING MEMBER (to Refugee Claimant) |
| Q. Bur sir, I'm sure the Jattia Party has many good workers. Why would they want to kill you in particular? |
| A. They want to kill me because I was a good worker of Jattia Party, and I also had criticised them in meetings and discussed them in the meetings. That is why. |
| Q. Sir, everybody in the country criticise one another in your country. Every party members criticise the other party. What did you say that made you a target? |
| A. I talked against them, and I had also participated in processions against them. |
| Q. Again sir: when there are meetings and processions and rallies, many people participate. Why would your participation would have made you a target of the BNP? |
| A. Because I was a goons worker of the Jattia Party, that is why. |
| Q. Well, you're going to have to do better than that, sir, because that doesn't satisfy me as an answer. How many workers in the Jattia Party, sir? |
| A. In Guita (phonetic)? 105. |
| Q. 105. You were the only good worker? |
| A. There were others with me. |
| A. I was criticising the activities of the BNP. |
| A. We were trying to establish a school for the women. |
| Q. Where did you try and establish that school? |
| Q. Which village is that? |
| A. Baharmordun (phonetic). |
| Q. Where is this village situated? |
| A. It's in the Molebasar (phonetic) district. |
| Q. And where is the Molebasar district? |
| A. It is close to Silet (phonetic). |
| Q. Why would the BNP object to you opening a school? |
| A. They don't want that our Jattia Party doesn't the good work. |
| Q. Why were you afraid of the Jamati goons? |
| Q. Why would the Jamat goons be after you? |
| A. There is Angio Brack (phonetic)... |
| Q. ... they were trying to help our school... |
(ii) The exchange between the Presiding Member and the Interpreter
[16] After the first exchange between the Presiding Member and the applicant, noted above, the following further exchange took place between the interpreter and the Presiding Member as recorded in the transcript at page 395:
| BY PRESIDING MEMBER (to interpret) |
| - Mrs. Dowa, what is the problem? |
| A. I'm asking him to... because I cannot get his words. It is... |
| Q. You understand what he says, but what is... |
| A. It doesn't make sense... I mean, the sentence... |
| A. ...phrases are not articulated. I cannot find the sentence. |
| BY MEMBER (to Refugee Claimant) |
| - Sir, maybe we can suggest to just take your time. Take a few instance before you answer. We're here to listen to you. |
| BY PRESIDING MEMBER (to Refugee Claimant) |
| - We have the whole afternoon, sir. Take your time. |
(iii) The second example " "Do you think it makes sense".
[17] This statement by the President Member is at page 399 of the transcript and it took place in the following context:
| BY PRESIDING MEMBER (to Refugee Claimant) |
| Q. Why did you feel that they were a threat to you? |
| A. Because some of these people are so dangerous that even if... thought they're not in power, they are very aggressive, that they want to harm us. |
| Q. Again, I'm going to ask you: Why would they want to harm you? You had a demonstration in 1992, in July '92. But that's, sir, seven years ago. Why would they want to harm you today? |
| A. Because I had protesting them earlier. That's why. |
| Q. What do you mean " earlier "? |
| Q. Did you criticise them after '92? |
| Q. You never criticised them after '92? |
| Q. And they kept a grudge from '92 to today? They would keep a grudge? |
| A. Yes, they still have, because they come to our house, my father says. |
| Q. Why would they go to your house if you're not there anymore? |
| A. They look for me because they think that I might come there. |
| Q. After three years now, they're still looking for you? |
| A. Yes, they do. I don't know why, but my father has said that they do come to look for me. |
| Q. You criticise the Jamat Party in 1992, you left your country at the end of '95 and they're still looking for you, sir? |
| Q. Do you think it makes sense? |
| A. Yes, but it is happening. |
| BY MEMBER (to Refugee Claimant) |
| Q. Sir, when did you criticise the Jamat? You mentioned July '92? |
| Q. And on what occasion was that? |
| A. There was another time. |
| Q. Sir, in July 1992, what occasion was it? |
| A. At that time, because we were taking help from a foreign organization, and they said that these foreign people should not help us, that is against Islamic religion. That time. |
| - So it's because you were getting help from a foreign organization. |
| BY PRESIDING MEMBER (to Refugee Claimant) |
| Q. And that's the reason why the Majat want to get even with you? |
| A. And also the village woman, Morjina. That incident. |
(iv) The third example " the other Member's intervention
[18] The following exchange took place between the other Panel Member and the applicant; this is recorded at page 400 of the certified record:
| BY MEMBER (to Refugee Claimant) |
| - Sir, I would like to take it chronologically because I have a problem with the dates. And I'll tell you why: You mentioned an incident of July 1992 which is not even written in your Personal Information Form. You mentioned that in July '92, you criticised... actually, Jamat wanted to beat you because you were obtaining help from a foreign organization. But in your PIF, it's not July, it's March 1993. |
| So perhaps maybe we should backtrack and try and get the dates straight. |
| A. Because I'm very worried, I cannot remember all the dates. |
| - Sir, that is why we asked you from the beginning to take your time and think before you answer. That's why there is set aside an afternoon. |
| Q. Now you mentioned July 1992. What happened in July 1992? Take your time and let's hear it. Take your time and let's hear it. |
| Q. What other incident do you remember? Were there any other incidents in 1992? Let's take it by year, then. Okay? |
| Q Okay. And (inaudible)? Can you take your time and explain what exactly happened? |
| Q. Would you like to go to another year? Perhaps we should check 1993. |
| Q. So what do you remember of 1993? |
(v) The fourth example " The credibility problem statement
[19] At page 406, the transcript records the Presiding Member saying as follows:
| BY PRESIDING MEMBER (to Refugee Claimant) |
| - Obviously, sir, we have a great problem of credibility here. I have a feeling, sir, that you may have a story to tell us. But at this point, you're either very confused or the story that you have to tell us is not the story that is written in your Personal Information Form. |
| When someone decided to leave his country to save his life, something very traumatic has happened. Something, sir, that even somebody that is confused cannot forget. |
[20] This comment by the Presiding Member followed the following exchange between the Member and the applicant:
| BY MEMBER (to Refugee Claimant) |
| Q. You mentioned that in January '95, the BNP goons beat you in front of the school. Now given this statement, there are two possibilities: The first one is that you didn't write it in your Personal Information Form; the other possibility is that there's another incident for January '95, and maybe you made a mistake with this incident, with regards to the BNP. So which one is it? |
| Q. Sir, you write that you're the president of the Barharmardun Youth Organization. Is that correct? |
| Q. That you are the president of the Barharmardun Youth Organization. Is that correct? |
| Q. So when did you become president? |
| - Sir, I... this is also for my colleague: we have a serious problem. All the dates which you mention do not correspond with what's in your Personal Information Form. And the events which are narrated in the Personal Information Form do not seem to correspond with what you say. |
| Now sir, in your Personal Information Form, you mentioned that it was in March of '95 that you became elected president. Now I think that Board can understand if it's a question of a month's difference. But here, we're talking about over a year and a half difference. And in December '96, you were in Canada. |
D. ANALYSIS
[21] The issue of the limits of permitted intervention (when, how, in what manner and for what purpose) by members of a Refugee Division"s panel hearing a refugee claim has been the subject of several decisions of this Court, both at the appeal and trial levels.
[22] The legal foundation for setting aside a Refugee Division"s decision which trespasses the proper demarcation line flows from two sources: first, the decision-makers hearing a refugee claim must be impartial and must provide the appearance of impartiality and second, as a matter of procedural fairness or natural justice, as to the manner in which the hearing is conducted.
[23] The test for impartiality on the basis of reasonable apprehension of bias is enshrined in what De Grandpré J. said in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394-95 as follows:
| ... "what would an informed person, viewing the matter realistically and practically"and having thought the matter through"conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly".... |
| The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". |
[24] In terms of the content of procedural fairness, the Supreme Court of Canada has made many pronouncements with the most recent one being Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817.
[25] The case law surrounding the issue at hand interchangeably calls upon these two distinct legal principles although there is a tendency to characterize statements, observations or comments made by panel members about a claimant or the evidence a claimant has given as more closely related to the principle of impartiality as contrasted to issues of how, when and in what manner the questioning takes place which is attached to the concept of the right to a fair and equitable hearing.
[26] The determination of this question also has a legislative foundation. Subsection 67(2) of the Immigration Act (the "Act") specifies that the Refugee Division and each member thereof has all of the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may, for the purposes of a hearing, (a) administer oaths and examine any person on oath; (b) issue commissions or requests to take evidence in Canada; and (c) do any other thing necessary to provide a full and proper hearing. Also noted are the provisions of section 68 of that Act. Subsection 68(2) provides that the Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit. Moreover, subsection 68(3) provides that the Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
[27] The demarcation of what is permissible or impermissible behaviour, including the scope and manner of questioning, by a Refugee Division member, depends upon the particular facts of each case. The following cases are illustrative of where that line is to be drawn.
[28] The question in Mahendran v. Canada (Minister of Employment and Immigration) (1992), 134 N.R. 316 (F.C.A.), concerned the nature of the questioning by a member of the Refugee Division after the applicant"s counsel had completed the examination of her client as well as after questions had been put by the Refugee Hearing Officer. Heald J.A. for the Court said that if a Board member had problems with the testimony given "he was entitled to conduct his own questioning of the appellant in the proper discharge of his duties as he perceived them" (p. 317, para 5). Heald J.A. concluded, after carefully reviewing the transcript, that he would characterize the member's 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" [emphasis mine ] (pages 317-18).
[29] For the Federal Court of Appeal in Kanagasekarampillai v. Canada (Secretary of State) (1994), 169 N.R. 119, Stone J.A. expressed the principle in Mahendran, supra, in dealing with a member's interventions in these terms at paragraph 12:
| In the absence of a Refugee Hearing Officer, it was reasonable for both members to attempt to clarify or reconcile points of testimony, and for the Presiding Member to intervene as he did to preserve the good order of the hearing, as for example, when counsel attempted to ask a new question without giving the appellant an opportunity to answer the preceding one. This Court has held that a panel hearing a claim for refugee status must be allowed reasonable latitude, consistent with its statutory mandate, in questioning a claimant. |
(See also Bagdassarian v. Canada (M.C.I.), [1999] F.C.J. No. 343.)
[30] There are several instances where comments, questioning or interruptions by a member of the Refugee Division have been found unacceptable by this Court. The case of Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14 (F.C.A.), concerned interventions made by the presiding officer during the examination-in-chief of the refugee claimant by his counsel. Mahoney J.A. cited several extracts of the transcripts relating to these interventions and came to this conclusion:
| I cannot escape the conclusion that the intrusive and intimidating character of the Chairman"s interventions interfered significantly with the applicant"s presentation of his case. [emphasis mine ] |
[31] Also to the same effect is the decision of my colleague Nadon J. in Del Castillo v. M.E.I. (1994), 79 F.T.R. 207.
[32] De Freitas v. Minister of Employment and Immigration (1989), 8 Imm.L.R. (2d) 60 (F.C.A.) dealt with a comment made by the President of the panel who addressed the claimant by saying "personally, I read your file twice... I find this case to be so frivolous that I wonder sometimes how much people do abuse the system". The Refugee Division"s decision was set aside on the grounds that the Chairman"s comments were intemperate and created a reasonable apprehension of bias.
[33] The Federal Court of Appeal"s decision in Yusuf v. Canada (Minister of Employment and Immigration) , [1992] 1 F.C. 629, established these principles:
| (1) Members of the Refugee Division have the right to cross-examine the witnesses they hear but there are limits (page 683); |
| (2) Interruptions during examination-in-chief for purposes of clarifying the answers given are permissible (page 633); |
| (3) The tone and content of questions must be judicious (page 633); |
| (4) Harassing comments to the witness and unfair questions to a witness are not acceptable; this type of cross-examination would not be permitted in an adversary proceeding (page 636). |
[1] In that case, the Refugee Division"s decision was set aside because a member of the Refugee Division made "sexist, unwarranted and highly irrelevant observations... capable of giving the impression that their originator was biased".
[2] Sivaguru v. Canada (M.E.I.), [1992] 2 F.C. 374 (F.C.A.) raised the issue whether the questioning was excessive and improper. The Federal Court of Appeal held the questioning was for an improper purpose. Stone J.A. found the member's questioning was not for the purpose of clarifying or even reconciling inconsistent testimony. The Court held the Act did not entitle a Board member to embark upon a quest for evidence in the manner which was adopted, that is, "secretly initiating a search for evidence which might support an impression he has formed from the evidence already adduced" (page 390). Stone J.A. found the whole object of the member's questioning "was to set a trap" (page 391).
[3] In Chung v. Canada (M.C.I.) (1998), 161 F.T.R. 146, Denault J. of this Court struck down a visa officer's decision where the visa officer showed hostility towards the applicant.
D. APPLICATION TO THIS CASE
[4] After reviewing the transcript and having had the advantage of listening to the audio of the hearing, I conclude this judicial review must fail. In my view, the Presiding member and the other member participating in the questioning, conducted their questioning and made comments which were well within the bounds of proper intervention and with the sole object of assisting and giving a chance to the applicant to tell his whole story, to overcome his nervousness and to clarify points in his testimony which seemed inconsistent or contradictory. On the tape, I heard nothing in the tone of the questioning by each member which was in any manner aggressive, intimidating or hostile. Rather, each question put to the applicant by the members was done so in a calm, precise, and polite way and certainly does not support the contention that the manner of this questioning poisoned the hearing and so deconcentrated the applicant to the point he could not remember the basis of his fear of persecution. It is true that the members of the panel asked the applicant many questions and some of the questions were repetitive. In my judgment, the only purpose for those questions and the repetition of them was because the applicant's answers were vague and imprecise and the members wanted to get at the bottom of his story. It cannot be said that in proceeding in this manner the members became prosecutors or adversaries of the applicant.
[5] The transcript does not reveal any comments of a sarcastic or improper nature which flagged any evidence of partiality or unfairness. The comment "you will have to do better than that because that answer does not satisfy me" was not put in any hostile or intimidating way but in a forthright and straightforward manner conveying neutrally to the applicant the problems the panel was having with the applicant's testimony and providing him an opportunity to recalibrate his answers. The "[D]oes that make sense" comment is viewed by me in the same light as is the statement on his credibility.
DISPOSITION
[6] For all of these reasons, this judicial review application is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MARCH 16, 2000
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