Osuji v. Canada (Minister of Citizenship and Immigration), docket IMM-3680-98

Date: 19990421

Docket: IMM-3680-98

BETWEEN:

BOSISIWE OSUJI

FAVOUR AHUNNA OSUJI

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

     REASONS FOR ORDER

TEITELBAUM J.:

INTRODUCTION

[1]      This is an application for judicial review of the decision of May 8, 1998 of the Immigration and Refugee Board of Canada, Convention Refugee Determination Division, wherein it was determined that the applicant and her daughter are not Convention refugees. The applicants seek an order setting aside the Board"s decision and remitting the matter back for redetermination before a new panel.

FACTS

[2]      The applicant, a 25 year-old mother and her minor daughter, are citizens of South Africa. The applicant fears persecution in South Africa and in Nigeria on the basis of political opinions.

[3]      Upon completion of her studies in Nigeria in 1990, the applicant "traditionally" married a Nigerian journalist who allegedly was known for reporting on wrong doings and corruption in the Nigerian government. In May of 1993, he was allegedly kidnapped by alleged government agents, tortured and detained for a week. Further to his release he allegedly continued his work while in hiding.

[4]      The applicant alleges that in October of 1993 three armed men entered their house and beat them with rifles. They escaped and went to the hospital where the applicant was hospitalized for a few weeks.

[5]      In January 1994, they left for South Africa where the applicant"s husband became a vegetable dealer. On January 5, 1996, the applicant"s husband was abducted by four armed men who attempted to take him back to Nigeria. He escaped and then remained in hiding.

[6]      On March 15, 1996, the applicant was allegedly abducted by some of the same people who then blindfolded her and assaulted her when she could not tell them her husband"s whereabouts. She lost consciousness and woke up in a hospital.

[7]      The applicant and her husband were reunited on August 30, 1996 when they were legally married. She was pregnant. On September 4, 1996, their home was attacked by gunfire while they were out. She then decided to go live with her parents where her child was born. Sometime later she went to the police and told them about her experiences since 1990. A friend of the family who was also a policeman told her that she would not be protected as they would be unable to grant her full time protection. Based on his suggestion, she left for Botswana on December 9, 1996. On March 28, 1996, she returned to South Africa and left for Canada that same day. She claimed refugee status upon arrival in Canada on March 29, 1996.

Decision

[8]      The Board found that the applicant lacked credibility as her testimony contained inconsistencies, implausibilities and contradictions. The Board also found that the applicant failed to show that state protection was unavailable based on the fact that the applicant did not contact the authorities for a long time after the fact and strictly relied on the opinion of a single police officer that she could not be protected on a full time basis. The Board also found that the applicant "throughout her testimony was hesitant and evasive."

ISSUES

[9]      The applicant raises two issues. 1) Whether the Board raised a bias or a reasonable apprehension of bias in conducting the hearing in the absence of the Refugee Claim Officer and in taking complete control of the questioning of the applicant at the hearing; and 2) Whether the Board"s role in conducting the hearing resulted in the Board considering irrelevant evidence, in ignoring evidence, in misapprehending or misstating the evidence.

SUBMISSIONS

Applicant"s Submissions

[10]      The applicant submits that the Board erred in conducting the hearing without the attendance of the Refugee Claim Officer as it is inconsistent with the statutory and regulatory regime and in taking complete control of the questioning of the applicant. In doing so, it is alleged that the Board intimidated the applicant with its aggressive and adversarial questioning and interfered with Counsel"s proper conduct of the examination of the applicant by frequently interrupting Counsel and the applicant and repeatedly asking the same questions from the applicant. Furthermore, the Board erred in basing its inference and finding on misapprehended and irrelevant evidence.

[11]      It is submitted that the Board has misconceived its position and that its actions amount to gross interference in the holding of the hearing which raises a reasonable apprehension of bias.

Respondent"s Submissions

[12]      The respondent filed a notice of appearance but failed to file a Memorandum of Fact and Law. By letter dated April 15, 1999, Counsel for the respondent advised the Court his submissions would not raise arguments other than that raised by the applicant. This, in part, is what took place.

ANALYSIS

[13]      The applicant"s first submission is that the Board erred in proceeding with the hearing without the attendance of the RCO. The applicant contends that it is the role of the RCO, and not that of the panel member, to question the applicant in order to avoid an appearance of bias or an apprehension of bias on the panel member"s part. The applicant relies on excerpts from the Guidelines for Refugee Hearing Officers, Refugee Claims: the Role of Board Members and Hearing Officers in support of its position. [The Guidelines are not in the material submitted to the Court but found in the Applicant's Book of Authorities]. These guidelines are out of date. The Refugee Hearing Officer, per se, does not "exist", the Refugee Hearing Officer being replaced by a Refugee Claims Officer (RCO).

[14]      This submission can be quickly disposed of as the guidelines cited by the applicant are not binding and merely demonstrate an attempt to eliminate possible risks of bias or apprehension of bias. Proceeding in the absence of the RCO does not result per se in an apprehension of bias, with or without the applicant"s consent. Each case must be determined on its facts according to what really transpired at the hearing. It must also be stated that at no time during the Applicant's hearing before the Board did the applicant's Counsel raise any objections as to the manner of the hearing, that is, with no RCO present and being questioned by the Presiding member or by the Commissioner.

[15]      The applicant"s second submission is that the panel"s actions during the hearing amount to a bias or an apprehension of bias. The applicant states that the presiding member was aggressive and adversarial in that he repeatedly asked the same questions of the applicant, interrupted Counsel"s examination of the applicant and the applicant"s answers.

[16]      The applicant relies on a number of cases in support of his position. Namely, he relies on Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14 (F.C.A.) where Justice Mahoney, writing for the Federal Court of Appeal held that intrusive and intimidating interventions interfered significantly with the presentation of the applicant"s case. In this case, the Court quoted the Chairman"s interventions to demonstrate the tone of the hearing, at page 16:

THE CHAIRMAN: Do you have any idea what would happen to you if you returned to the Punjab?

A. I will be murdered there.

THE CHAIRMAN: Really? You"ll be one of the twenty-four people that got killed. (Transcript p. 4, 1.25 to 1.29.)

         ...

THE CHAIRMAN: Thank you. Do you want to ask any questions?

MR. J.D. TAYLOR: Not as many as I respond [sic] generally, but I do have several.

THE CHAIRMAN: Are you sure?

MR. J.D. TAYLOR: Just to cover certain bases for approximately ten minutes maximum.

CHAIRMAN: I don"t know why you want to ask any question. This is one of the most ridiculous cases I have ever heard in my life. (Transcript p. 12, 1.12 to 1.23)

[17]      The applicant also relied on Sivaguru v. Canada (M.E.I.), [1992] 2 F.C. 374 (F.C.A.), on Mahendran v. Canada (M.E.I.) (1991) 14 Imm. L.R. (2d) 30 (F.C.A.), and on Iossifov v. Canada (M.E.I.) (1993), 71 F.T.R. 28 (F.C.T.D.).

[18]      In Iossifov, supra, the Court considered whether the applicant was provided a full opportunity to properly present his case. In concluding that the decision could not stand Justice McKeown remarked at pages 29-30:

The Board continually and repeatedly prevented the applicant from presenting his evidence relevant to persecution prior to 1990 in an organized fashion.

         ...

It is also no answer to say that the Board allowed the applicant to put into evidence all evidence relating to past persecution when it is clear from the transcript that the Board members were not interested, constantly interrupted and prevented counsel from proceeding in an orderly fashion.

[19]      In Sivaguru, supra, the Federal Court of Appeal found that a member of the Board who utilized information obtained by his own means in the examination of the applicant at the hearing gave rise to a reasonable apprehension of bias. The following passage explains the basis for the decision, at pages 390-391:

Also, the tenor of the questions he put to the appellant just before the lunch break on November 16, 1989, strongly suggests that, while he had not read all of this fresh material, he had paid enough attention to the particular article to enable him to utilize it in his examination with devastating effect. As the ground covered by him had already been explored by appellant's counsel and by the Refugee Hearing Officer and the answers in both examinations were consistent, it cannot be said that Board Member Groos was here merely attempting to clarify or even reconcile inconsistent testimony. His whole object, it seems, was to set a trap. The appellant fell into that trap a few moments later when Board Member Groos revealed the contradicting evidence which had resulted from the research he had silently initiated. This procedure, in my opinion, opens the most well-meaning Board member to a charge of bias.

A fair reading of the record before me leads me to the regretful conclusion that Board Member Groos misconceived his position. Other means were available by which he could have satisfied his legitimate concern. One might have been to have openly revealed his misgivings at the hearing where a course of action, known to all concerned, could have been decided upon and initiated. The Board could then have either directed the Refugee Hearing Officer to forward a request to the Documentation Centre or have asked its own Registrar to submit a written request with copies to both parties and to promptly transmit any response received from the Centre to the parties.

In my opinion, a reasonable apprehension of bias existed in this case. It meets the test laid down by de Grandpre J., in [1978] 1 S.C.R. 369">The Committee for Justice and Liberty et al. v. The National Energy Board et al., [1978] 1 S.C.R. 369, at page 394. An informed person, viewing the matter realistically and practically - and having thought the matter through - would so conclude. That being so, the decision under attack cannot stand.

[20]      In Mahendran, supra, another case invoked by the applicant, the Federal Court of Appeal considered that applicant"s allegations that his right to a fair hearing had been violated and that the circumstances raised an apprehension of bias as he was aggressively cross-examined by members of the Board. The Court dismissed the appeal and disposed of the question of natural justice as follows at pages 32-33:

I have no hesitation in expressing my concern at the lengthy nature of the interventions of Board member Groos. I think it would have been preferable for him to have left the main burden of questioning the appellant to the Refugee Hearing Officer. However, having said this, I hasten to add that members of this Tribunal are enabled, pursuant to subsection 67(2) of the Immigration Act, to "administer oaths and examine any person on oath," and: " ... do any other thing necessary to provide a full and proper hearing." If Board member Groos, as seems evident from the transcript, had problems with the appellant's testimony at the conclusion of the examinations conducted by the appellant's counsel and by the Refugee Hearing Officer, he was entitled to conduct his own questioning of the appellant in the proper discharge of his duties as he perceived them. On this basis, it is necessary to assess the nature of this questioning in order to determine whether there is merit in the objections to that questioning by counsel for the appellant, as set forth supra. After carefully reviewing the transcript, I must respectfully disagree with counsel's criticisms of the questioning by Mr. Groos. 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. I am also unable to conclude from this record that Board member Groos has demonstrated a reasonable apprehension of bias.

[21]      In the present case, despite Counsel"s arguments, I must find that the circumstances do not raise a bias or a reasonable apprehension of bias. I read and reread the transcript of the hearing and I note that the Board played an active role in examining the applicant. I have also noted that the Board did ask the same question on a few occasions. 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.

[22]      In my view, the foregoing cases relied upon by the applicant must be distinguished on their facts. For example, the presiding member in the case at bar did not aggressively and significantly intervene as did the member in the case of Kumar; the manner in which the presiding member in the present case questioned the applicant was not an attempt at entrapment as was the case in Sivaguru; and it cannot be said that the presiding member in the present case was "not interested, constantly interrupted and prevented Counsel from proceeding in an orderly fashion" as with Iossifov .

[23]      I am persuaded that the present case is rather similar to the Mahendran case where the Federal Court of Appeal indicated that the questioning was an attempt to clear up inconsistencies in the evidence which disclosed the Board"s frustration at being unable to get a clear picture of the general purport of the evidence. In the present case, the Board appeared to merely attempt to clarify or to reconcile the inconsistent testimony. I do note that in the present case the RCO was not in attendance whereas in Mahendran the RHO, as formerly called, attended and participated in the hearing. However, the presence of the RCO is, in my view, not indicative or determinative of whether the applicant was given a fair opportunity to present her case or whether the Board"s conduct raises an apprehension of bias. Furthermore, the Federal Court of Appeal noted in Mahendran that the Board is empowered by virtue of subsection 67(2) of the Immigration Act to "examine any person under oath." This provision is still in effect.

[24]      While the foregoing cases provide precedents regarding questions of apprehension of bias and fair hearing, the circumstances of this case must be determined in light of the test enunciated in National Energy Board cited in Sivaguru, supra. After reading the transcript, I am of the view that an informed person, viewing the matter realistically and practically and having thought the matter through would not conclude that the Board will make a biased decision.

[25]      The applicant also submitted that the Board"s conduct resulted in the applicant giving erroneous answers in her testimony because she was intimidated which in turn led to a misapprehension of the evidence. In my view, this submission must also be dismissed as it is also based on the assumption that the Board improperly conducted the hearing and the questioning of the applicant.

CONCLUSION

[26]      There is no doubt that a Board, should as much as possible, allow the applicant (claimant) and his or her Counsel to present their best case without excessive interruptions. This does not mean that the Board should not interrupt an applicant's Counsel when the Board members find the testimony confusing, hesitant or evasive, as the Board found in this case.

[27]      The application for judicial review is denied as I am satisfied that the Applicant's then Counsel was not prevented from presenting evidence in an organized fashion or in an ordinary manner.

[28]      I can find no hostility in the questioning of the Applicant by the members of the Board. The questioning, at times I may consider it unnecessary questioning, was directed to clear up confusing testimony.

[29]      No question was submitted for certification.

                         "Max M. Teitelbaum"

                             Judge

TORONTO, ONTARIO

April 21, 1999

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          IMM-3680-98

STYLE OF CAUSE:                      BOSISIWE OSUJI

                             FAVOUR AHUNNA OSUJI

                             and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

DATE OF HEARING:                  TUESDAY, APRIL 20, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER BY:              TEITELBAUM J.

DATED:                          WEDNESDAY, APRIL 21, 1999

APPEARANCES:                      Mr. Michael Brodzky

                            

                                 For the Applicants

                            

                             Mr. Brian Frimeth

                                 For the Respondent

SOLICITORS OF RECORD:              Michael E. Brodzky

                             Barrister & Solicitor

                             69 Elm St.,

                             Toronto, Ontario

                             M5G 1H2

                                 For the Applicants

                             Morris Rosenberg

                             Deputy Attorney General

                             of Canada

                                 For the Respondent

                    

                              FEDERAL COURT OF CANADA

                                 Date: 19990421

                        

         Docket: IMM-3680-98

                             Between:

BOSISIWE OSUJI

                             FAVOUR AHUNNA OSUJI

                            

Applicants

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                        

     Respondent

                    

                            

            

                             REASONS FOR ORDER