Date: 20090206
Docket: IMM-2753-08
Citation: 2009 FC 125
Montréal, Quebec, February
6, 2009
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
Elsie KERANDA
Eunice GATEKA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants commenced an application for judicial review of the decision by the
Refugee Protection Division (the RPD) dated May 26, 2008. Members Hadaya, Forest and Delisle determined
that the applicants were not Convention refugees.
[2]
Counsel
for the applicants did not challenge the substance of the decision; she only
took issue with the legality of the constitution of the panel. For the following
reasons, I cannot accede to her submissions.
FACTS
[3]
The
principal applicant, Eunice Gateka, is 17 years old, and her sister, Elsie
Keranda, is 14. They are both citizens of Burundi and are of
Tutsi origin. Since they are minors, a legal representative was appointed for
them for the RPD proceedings.
[4]
They
claimed that their paternal uncle was killed by young Hutus from the
neighbourhood, who subsequently joined the rebel forces. When these young men
returned to live near the applicants’ family a few years later, their father
decided to report them to the authorities for the murder they had committed.
[5]
Following
this report, the applicants’ father was allegedly harassed, and the applicants
themselves were threatened a number of times by persons associated with the
government in power. Fearing for their lives, the applicants decided to flee
their country with their father’s assistance.
IMPUGNED DECISION
[6]
Essentially,
the panel refused the applicants’ refugee claim on credibility grounds. The
panel identified a
number of major contradictions, omissions or implausibilities in the principal
applicant’s testimony, which her sister Elsie confirmed. Since the arguments of
counsel for the applicants against this decision do not deal with the panel’s reasons
but its constitution, I will summarize the reasons briefly.
[7]
First,
the RPD noted major discrepancies between the applicants’ narrative in their
Personal Information Form (PIF) and their testimony at the hearing. They stated
at the hearing that some soldiers had asked their father to pay a monthly
ransom, failing which the applicants would be kidnapped; yet they said nothing
about this in their response to question 31 of the PIF. Furthermore, the RPD believed
that it was implausible that the ransom demand did not include the applicants’
sister.
[8]
The
applicants’ testimony also deviated from their narrative at question 31 of the PIF
regarding the identity of their uncle’s killers: in her testimony, the
principal applicant stated that they were young men from the neighbourhood but
did not specify that they belonged to a specific group, while in her written
narrative she had described these young men as being of Hutu ethnicity and
members of the party in power. However, the identity of the agents of persecution
was fundamental to their refugee claim.
[9]
The
RPD also noted that the principal applicant knew nothing about the prosecution begun
by her father: she did not know where or when it was initiated or its outcome.
This lack of information, together with the lack of documents that could corroborate
these allegations, seemed suspect to the panel, especially since the applicants
confirmed that they spoke to their father twice a month. Because the applicants
were minors, the RPD allowed them two weeks to submit documents to support
their application. Since no document was produced by the end of this period,
the tribunal officer sent a copy of the uncle’s death certificate that had been
filed in the applicants’ brother’s case. On that basis, the panel said it was
prepared to acknowledge their uncle’s death but did not believe that the
applicants’ father had initiated a prosecution against their uncle’s killers.
[10]
For
all these reasons, the RPD found the applicants’ refugee claim not credible.
The members acknowledged that discrimination, violence and crime are part of
the country’s social and cultural landscape and were sensitive to the
applicants’ wish to not return to Burundi. But they determined
that the objective evidence did not establish that the mere fact of being of
Tutsi ethnicity or of being young female minors in Burundi provides a basis for
a reasonable fear of persecution within the meaning of section 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). Likewise, the RPD was
of the view that the applicants would not be subjected personally to a risk to
their lives or to a risk of cruel or unusual treatment or punishment.
ISSUE
[11]
As
stated previously, the applicants did not challenge the merits of the RPD’s
decision. The only issue raised at the hearing and in the applicants’ written
representations concerned the constitution of the panel. Accordingly, it is the
only issue that will be examined in these reasons.
ANALYSIS
[12]
To
the extent that the applicants’ submissions raise an issue of procedural
fairness, there is no doubt that the appropriate standard of review is correctness:
Hassani v. Canada (Minister of Citizenship and Immigration),
[2007] 3 F.C.R. 501; C.U.P.E. v. Ontario (Minister of
Labour), [2003]
1 S.C.R. 539; Sketchley v. Canada (Attorney General), 2005 FCA 404.
[13]
Under
section 163 of the IRPA, hearings before the RPD are normally conducted before
a single member. However, the Chairperson can decide to constitute a panel of
three members when the situation requires it:
|
Composition of panels
163. Matters before a Division shall be
conducted before a single member unless, except for matters before the
Immigration Division, the Chairperson is of the opinion that a panel of three
members should be constituted.
|
Composition des tribunaux
163. Les affaires sont tenues devant un
seul commissaire sauf si, exception faite de la Section de l’immigration, le
président estime nécessaire de constituer un tribunal de trois commissaires.
|
[14]
The
IRPA does not specify the circumstances in which it would be appropriate
to designate a three-member panel. To learn more about this, we need to turn to
a policy of the Immigration and Refugee Board entitled “Designation of
three-member panels – RPD Approach”, which came into effect on January 23, 2003
(see Supplementary Affidavit of Aimable Ndejeru, Exhibit “A”). The policy
provides that a three-member panel can be designated for “adjudication
strategy” purposes or to provide “training in presiding skills”.
[15]
Specifically
with respect to training, the policy states that designating a three-member
panel enables new members to acquire practical experience in conducting
hearings. Although all members receive intensive and comprehensive training,
some skills cannot be acquired in a purely theoretical manner. In this regard,
the Policy sets out the following:
Presiding
effectively over a quasi-judicial hearing requires a combination of skills that
are best acquired through the actual experience of conducting hearings. By
their nature, presiding skills are not easily acquired through training of
members in the abstract or in a classroom setting. For example, those members
newly appointed to the Division, may have the benefit of sitting with an
experienced member if they are assigned to three member panels. This will
enable them to enhance their presiding skills before beginning to hear cases as
a single member.
(Supplementary Affidavit of Aimable
Ndejeru, Exhibit “A”, p. 13.)
[16]
It
also appears from the supplementary affidavit, filed by Mr. Aimable
Ndejeru in support of the respondent’s position, that newly appointed members
receive complete and comprehensive training. Mr. Ndejeru was a member of
the Immigration and Refugee Board (the IRB) from 1989 to 2001 and is
currently a special advisor in professional development at the IRB. In his
affidavit, he states that new members receive full-time training for three
weeks on a number of subjects, including the substantive and procedural rules
of immigration law. They also attend a number of hearings as observers.
Participating in a three-member panel is thus the last step in an extensive
training process.
[17]
In
this context, can the applicants argue that they were prejudiced because their
claim was heard by a panel composed of three members rather than one? I think
not.
[18]
In
her memorandum, counsel for the applicants took the position that no right of
dissent had been provided, which increased the burden for the claimants who
were heard by three members. This argument is based on an erroneous reading of
subsections 67(1) and (2) of the Refugee Protection Division Rules S.O.R./2002-228,
which only deal with when a final decision takes effect. Furthermore, counsel
for the applicants did not make this argument at the hearing. In any event,
nothing in the IRPA or the Immigration and Refugee Protection Regulations,
S.O.R./2002-227 suggests an intention to deviate from the general principle applied
by judicial and quasi-judicial tribunals that a majority, not unanimity, is
required where a decision is made by a panel consisting of more than one
person. The practice before the RPD confirms, in fact, that this is the practice
that has been adopted by this tribunal.
[19]
Counsel
for the applicants also tried to submit that her clients faced a higher
evidentiary burden because they had to appear before three members. This
argument appears to me to be baseless. Not only was counsel unable to establish
any real prejudice, but even more important, the evidentiary burden does not
change depending on whether the decision is made by one member or three. In all
cases, refugee claimants have the onus of establishing, on a balance of probabilities,
the facts they are relying on. The fact that three people instead of one consider
a claimant’s credibility and the risk of persecution that he or she would face
in his or her country can operate as much in favour of a claimant as against.
[20]
My
colleague Mr. Justice Pinard had to address this same issue in a relatively
recent case (Ramirez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 602). In that case, the applicant
also objected to the fact that two of the three members were on training. After
carefully reviewing the IRPA, the policy mentioned above and the evidence
adduced, he rejected the applicant’s submissions in the following terms:
There is no evidence to indicate that this
policy is contrary to section 163 of the Act that enables the IRB
Chairperson to constitute a three-member panel. Nor is there any evidence that
the applicant suffered real prejudice in the circumstances.
[21]
Counsel
also attempted to submit that section 163 of the IRPA is vague and does
not adequately set out the Chairperson’s power to designate a three-member
panel. It appears to me that this argument also cannot be accepted. First, it
is a veiled attack on the very constitutional validity of this provision, which
counsel for the applicants cannot raise unless notice has been served on the
Attorney General of Canada and the attorneys general of the provinces pursuant
to section 57 of the Federal Courts Act, R.S.C., 1985, c. F-7. But also
the policy adopted by the IRB, which defines the discretionary power of the
Chairperson to designate a three-member panel, must be taken into account.
[22]
Without
questioning the professional qualifications of the two members in training,
counsel for the applicants submitted that it was unfair that individuals who
did not yet have all the requisite expertise determined an issue with such
far-reaching implications as a refugee claim. It must be noted, first, that the
IRPA does not require that members have any particular knowledge prior to their
appointment. At most, subsection 153(4) of the IRPA specifies that at least ten
percent of members must be members of the bar of a province (or members of the Chambre
des notaires du Québec) for at least five years. On the other hand, the
evidence shows that the training for new members is exhaustive and conducted in
a professional manner. It is only at the end of their training that new members
sit with an experienced colleague and only to enable them to acquire, in a
practical way, the necessary tools for managing a proceeding.
[23]
In
any event, in my view, the applicants are estopped from relying on a breach of
the principles of procedural fairness since counsel who represented them before
the RPD did not object at the hearing. It is true that, because of an
administrative error by the IRB, counsel did not receive the notice prior to
the hearing advising him that the panel would consist of three members. It is
nonetheless true that counsel could have objected at the hearing or at least requested
that the hearing be adjourned if he believed that an adjournment was necessary
to better prepare the applicants. Accordingly, failure to raise this issue must
be interpreted as waiving this argument before this Court.
[24]
For
all these reasons, I am therefore of the view that this application for judicial
review must be dismissed. The parties did not submit a question for
certification and none will be certified.
ORDER
THE COURT ORDERS that the
application for judicial review is dismissed.
“Yves
de Montigny”
Certified
true translation
Mary
Jo Egan, LLB
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