Docket: IMM-1727-11
Citation: 2011 FC 1106
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, September 28, 2011
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
|
|
HUBERT KALOMBO KABONGO
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGEMENT AND JUDGEMENT
[1]
This
is a review of the legality of a written decision dated February 18, 2011,
by the Refugee Protection Division of the Immigration and Refugee Board (the
panel), rejecting the applicant’s claim for refugee protection. As explained
later, the allegations of a reasonable apprehension of bias against the member
who heard the matter are founded in this case. Also, the Court has decided to
set aside the decision and to remit the refugee claim to another panel member.
REFUGEE CLAIM
[2]
The
applicant is a citizen of the Democratic Republic of the Congo (DRC),
originally from the province of Kasaï, and a member of the
Luba tribe. As stated in his Personal Information Form (PIF) signed on
September 15, 2008, the primary basis for his refugee claim is his fear of
persecution because of his political convictions and affiliations.
[3]
That
being said, the panel also had to determine whether the applicant qualified as
a refugee “sur place”. When he applied for refugee protection, he had just
completed a period of training in Canada as a public servant in
the Congolese ministry of foreign affairs and international cooperation
(Congolese ministry). He worked in the branch responsible for bilateral
cooperation with Western countries and was a member of the Congolese diplomatic
corps as a first secretary: notwithstanding the credibility issue, could the
applicant’s failure to return have been perceived by the authorities there as a
blunt resignation of his diplomatic position, exposing him to danger today if
he were to return to his country?
[4]
Of
course, the credibility of the persecution story was at the heart of the claim
and, accordingly, of the concerns of the member hearing the refugee claim.
Thus, a brief account of the key facts alleged by the applicant is required.
[5]
A
militant member of the Union for Democracy and Social Progress party (UDPS) since
1991, the applicant stated that he had helped recruit new members and been in
charge of mobilizing and raising awareness of members. In fact, since the UDPS
does not recognize the most recent elections, its members are systematically
targeted and threatened by the authorities in the Kabila regime.
[6]
In
this regard, the applicant stated that he was unexpectedly and without
justification thrown out of his unit in May 2006 and deprived of his salary for
three months. One of his managers subsequently informed him that he was under
surveillance because of his political activities, and he was even invited to
give up the UDPS if he wanted to keep his position in the Congolese ministry.
The applicant also alleged that on two other occasions, in August 2007 and
April 2008, he was prevented from travelling to Belgium as part of his work because
President Kibala’s secret service knew that the UDPS was well established in
that country.
[7]
Turning
now to the events that led the applicant to decide to apply for refugee
protection in the summer of 2008, he said that he was kidnapped on May 10,
2008, by secret service agents, who interrogated him about his political
activities, tortured him and threatened to kill him. Furthermore, he found out
that his name was on a list drawn up by the Agence nationale de renseignement (ANR)
[the national intelligence agency] of people in the Congolese ministry
who were to be eliminated.
[8]
As
evidence of the mistreatment he had endured in the DRC, the applicant filed at
the hearing before the panel a medical certificate of a Montréal specialist, who
examined him on May 20, 2009, and who stated that the scars on the
applicant’s legs and thorax were consistent with marks left by whips and
firearms.
[9]
But,
in fact, how did the applicant manage to leave his country a month later without
any apparent problems?
[10]
The
applicant explained that, in February 2008, he had already asked to take results‑based
management training that was to be given in Montréal, and, moreover, that he
had had the support of his wife’s cousin who was the secretary to the deputy
minister of foreign affairs and international cooperation. This approval apparently
took the secret service agents by surprise. Also, on June 28, 2008, he was
finally able to leave his country despite being questioned and threatened by
secret service agents.
[11]
Shortly
after he arrived in Canada, the applicant learned that secret agents had
searched his house and threatened his family in the meantime. Two colleagues
told him that agents had also searched his office in his absence. The applicant
remained silent throughout the training sessions with his Congolese colleagues
and waited until they left Canada. On July 28, 2008, the applicant
applied for refugee protection under a false identity and gave false
information about his work activities, his date of arrival in Canada and his
travel document. But the immigration authorities quickly discovered what was
going on, and the applicant had to acknowledge that he had lied.
[12]
Irregardless,
in August 2008, at an interview with immigration authorities, the applicant stated
that his name was Gilbert Kalombo Kabongo although his real name is
Hubert Kalombo Kabongo; that he had arrived in Canada on July 26,
2008, whereas he had arrived on June 29, 2008; that he had travelled on a
false French passport when he had travelled on his Congolese diplomatic
passport; and that he worked for a non‑governmental organization (NGO) whereas
he was a public servant in the Congolese government. When he began testifying
before the panel, the applicant apologized for lying and explained that, at
that time, he had been very afraid of being deported to his country immediately
if it were discovered that he was still an employee of the Congolese government
and that he had a diplomatic passport.
[13]
But
is the rest of the applicant’s story true?
[14]
That
is what the panel had to decide, which brings us to examining the decision
under review.
DECISION UNDER REVIEW
[15]
It is common ground that the applicant’s body shows signs of
injury and that he suffers from post‑traumatic stress syndrome. In
addition, since arriving in Canada, he has
been followed by a psychologist and a guidance counsellor. In fact, a previous
panel decision dated November 10, 2010, identified the applicant as a
“vulnerable person”.
[16]
In this case, the refugee claim was heard on February 10, 2011,
by Member Bissonnette who issued the decision under review on February 18,
2011. In passing, the member did not mention in this very detailed 18‑page
decision that he had initially ruled on a request for recusal at the hearing.
We will return to this later.
[17]
Once again, the panel stated that procedural accommodations
required by the applicant’s psychological state were taken at the hearing
(reversing the order of the questioning, breaks, etc.) but that they “[did] not
alter the general analysis of the claim for refugee protection”.
[18]
With respect to the applicant’s general credibility, the member
wrote:
In my opinion, being afraid to be sent back to one’s country does not
justify using a false identity and giving false information, while stating that
the information provided is true, complete and correct, not only when
completing a written form, but also in an interview where it was made clear
that the claimant had to answer the questions he was asked truthfully.
Consequently, the fact that the claimant initially used a false identity and
gave reasons for his fear of being sent back to his country that do not match
what he later alleged in his PIF affects his credibility.
[19]
Additionally,
the member concluded that he could not believe the applicant’s story and highlighted
the following factors in the decision under review:
·
The
applicant failed to establish that his criticisms of the Congolese government
and his political opinions would be considered a threat to the regime in power
in the DRC.
·
The
applicant claimed that he had personally requested the training in Montréal
whereas, according to the documentary evidence, it was the minister of foreign
affairs and international cooperation who chose the five managers in the
Congolese ministry who took part in the seminar.
·
The
applicant did not file or take steps to obtain a medical report corroborating
the fact that he had been treated in a private clinic in the DRC for the
injuries that he claims to have sustained in May 2008.
·
It
is unlikely that the ANR’s secret service agents kidnapped and tortured the
applicant in May 2008 but let him leave the country a month later to travel to
Canada.
·
The
applicant did not provide satisfactory evidence as to the source of his wife’s
testimonial letter and did not take any steps to obtain a document that could
be used to compare his wife’s signature to the signature on the letter in
question.
[20]
Without
returning specifically to the fact that the applicant was still working for the
DRC government and had just completed a period of training in Canada with other
Congolese diplomats when he applied for refugee protection, the member found at
the end of his analysis that, based on all the evidence, he was not satisfied
that there was a personalized risk of danger because the necessary link between
the refugee claimant’s personal situation and the documentary evidence on the
general conditions in the DRC had not been established to his satisfaction.
[21]
For
all these reasons, the panel therefore found that the applicant was not a
“Convention refugee” or a “person in need of protection” under sections 96
and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 7
(the Act).
APPLICANT’S GROUNDS
[22]
The
applicant today is challenging the legality of the panel’s decision and submits
as the first ground for the Court’s intervention that there is a reasonable
apprehension of bias; in the alternative, he argues that the panel’s decision
is otherwise unreasonable for the following reasons: (1) the panel did not
really examine the allegation regarding the applicant’s current fear of
returning to the DRC because he applied for refugee status in Canada while he
was still a Congolese diplomat (refugee “sur place”); (2) the panel ignored the
applicant’s psychological state and his status as a “vulnerable person” in its
credibility analysis; (3) it was unreasonable to require additional evidence to
corroborate the medical evidence already in the record on his physical
mistreatment and (4) the panel’s implausibility finding that the applicant boarded
the plane without any problems is also unreasonable.
REASONABLE APPREHENSION
OF BIAS
[23]
I
will begin with the issue of whether there is a reasonable apprehension of
bias, which is determinative in this case. Here, counsel for the applicant
asked Member Bissonnette
to recuse himself during the hearing after she noticed he was referring to a
document that had the format and look of a panel decision and that he was
occasionally reading passages from it. The following exchange is telling:
[translation]
A. . . . I believe I
noticed that you were reading the facts about my client from a decision that is
already written.
- It is not written. It is not
a decision. It’s my notes. They are my, the summary of the claimant’s
allegations. There is no written decision. There is no written decision.
. . .
- It’s just that I prepare my
cases, and the best way for me to be able to follow a story is to know what are
the summaries of the alleged facts. And based on that, I ask my questions, and
this allows me to write my decisions quickly, something that you’re going to
see. I finish my hearings, my decisions come out quickly. I don’t have a
written decision, but I have points to identify.
A OK. It was just because of
the format, then . . . I saw the first page with the name of all the
parties . . . it looks like it’s a decision.
- It’s not a written decision. In
any event, a decision is written when it’s signed. What I have in, it’s a draft
decision, with the introduction, the summary of the alleged facts and then the
points analyzed. That’s all. What the legal principles are that apply in
all, in all hearings. This allows me to issue an oral decision if necessary
or to write my decision very quickly after the hearing. There is no written
decision. OK? No?
A. . . . but this is the
first time I’ve seen you reading the facts, and I see the first page, and I
even see the sign [sic] . . . I know that
there’s no signature . . .
- No, no. There’s no signature.
A . . . but I see
that your name is ready to be signed.
- Yes, yes.
A That suggests a decision has
been made . . .
- Listen. I’m telling you on my
oath as a member of the Barreau du Québec, it’s a draft decision with the
summary of the alleged facts, the claimant’s name. But look, it isn’t even,
I don’t even have the right name because I took this from a precedent that I
have, the name of the parties, the date of the hearing, introduction, summary
of the alleged facts and the principles to analyze during the analysis. My
decision is not final.
A. . . . However,
everything suggests that it’s a decision. It’s the same first page. It’s the
same last page, and you have information, and you’re referring to it directly,
with the concerns that you’re highlighting that seemed [to be] from the file
. . . I have trouble seeing how a reasonable person here today
would not have the impression that the decision was already written before we
even arrived. [Emphasis added.]
[24]
After
deliberating briefly, the member orally dismissed the request for recusal, essentially
because he was of the view that an informed and reasonable observer would not
believe, on a balance of probabilities, that the proceeding was tainted by bias
because he had in his hands a [translation]
“draft decision” so that, he said, [translation]
“he could ask the questions that he needed to ask at the hearing”. With
respect, taking into consideration the oral exchanges reproduced in the
preceding paragraph and the reasons that follow, I have reached a different
conclusion than the member, and accordingly the Court should intervene in this
case.
[25]
True
to form and to what he had told the parties, the member’s written decision was
issued soon after the hearing; it was negative. This only served to confirm
counsel for the applicant’s fear that she had expressed orally at the hearing
that the member had already decided to reject the refugee claim because a
“draft decision” was already ready for his signature. There is no doubt that
the length of the reasons and the writing quality of the decision under review
demonstrates the member’s excellent preparation in terms of the facts and
reflects the panel’s specialized knowledge of the general conditions in the
country in question. However, the fact that the final product is longer or more
complete in terms of the analysis than the initial draft does not alter the
nature of the allegations of bias.
[26]
In
our view, the requirement for adequate preparation prior to the hearing
does not authorize any panel members to leave in their office or to enter the
hearing room with what appears to be a written decision of the Refugee
Protection Division, ready for their signature. Even though the member in
question stated at the hearing that it was only a “draft decision” and
attempted to rectify the situation by explaining that his decision was not yet
“final”, serious doubts remain as to his impartiality, at least in appearance.
[27]
We
will begin with some preliminary observations.
[28]
First,
and at the risk of repeating myself, the fact that the member arrived at the
hearing with a draft decision, ready for his signature, must not be minimized.
The refugee claimant and his counsel did not have to convince the member at the
hearing that he had to change his mind or abandon his draft to issue an
unfavourable decision. From the perspective of the rules of procedural
fairness, there can be only one decision, and it may be made only after
an oral hearing has taken place before an independent and impartial panel, ever
since the Supreme Court of Canada released its judgment in 1985 in Singh v.
Minister of Employment and Immigration, [1985] 1 S.C.R. 177 [Singh].
[29]
Second, where a breach of a principle of procedural fairness is
alleged, the appropriate standard of review is correctness: Kozak v. Canada (Minister of
Citizenship and Immigration), 2006 FCA
124 at paragraph 44, [2006] 4 F.C.R. 377 [Kozak]; Canada (Minister of Citizenship and Immigration) v.
Khosa, 2009 SCC 12, at paragraph 43, [2009] 1 S.C.R. 339. However, it must be determined
what reasonable and right‑minded persons would conclude, applying themselves to the question and obtaining thereon the required
information, viewing the matter realistically and practically:
Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369,
and R. v. S. (R.D.), [1997]
3 S.C.R. 484
at page 394.
[30]
Third,
actual bias against a party is always a ground for disqualification. However, where
a reasonable apprehension of bias exists, it is irrelevant that there is no
actual bias; the disqualification must be made to safeguard public confidence
in the administration of justice (Canadian Judicial Council, Commentaries on
Judicial Conduct, Cowansville, Yvon Blais, 1991, at pages 62-63). Here, what we are talking
about is, of course, the confidence of the Canadian public and refugee
claimants in our refugee determination system. A system that, it should be
said, is the envy of other countries and that Canadians have a right to be
proud of.
[31]
Fourth,
refugee claimants are not ordinary claimants as in civil matters where private
interests are exclusively at stake. It must be pointed out that being a refugee
is above all a status recognized by the Act, which itself refers to the
definition of Convention refugee. It goes without saying that, in determining
who is or is not a refugee, the Refugee Protection Division is performing not
only important quasi‑judicial functions, but its decisions may have a
direct impact on the life and safety of bona fide refugees who are seeking
Canada’s protection [Singh].
[32]
Some background is therefore required before examining the specific
concerns raised by the applicant in this case.
[33]
At the
outset, in Kozak, above, at paragraphs 54-57,
the Federal Court of Appeal pointed out that the high
standard of impartiality and independence that
applies in this case to the Refugee Protection Division is a directly relevant
factor:
The reasonable person in the
rule against bias is not to be equated with either the losing parties or the
unduly suspicious. However, the high standard of impartiality and
independence applicable to the Board will be reflected in the determination
of whether the appellants have established a reasonable apprehension of bias.
[Emphasis added.]
It is therefore not surprising that emphasis has
consistently been put on the need to preserve the independence and impartiality
of the individual decision‑makers who hear refugee claims. These two
components go hand in hand and ensure that the fairness and integrity of the
Canadian refugee protection system is maintained: Osorio v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1459, [2005] F.C.J. 1792; Sandoval
v. Canada (Minister of Citizenship and Immigration), 2008 FC 211, [2008] F.C.J.
263.
[34]
Maintaining
the appearance of impartiality of the Canadian refugee protection system must
be reflected on a day‑to‑day basis and in how the members
of the Refugee Protection Division prepare, hear and decide cases. As the
Federal Court of Appeal pointed out in Sivaguru v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C.
374 (C.A.) at paragraph 16, [1992] F.C.J. 47
(C.A.) (QL), a Board member must demonstrate the same impartiality
that a judge must have and which Mr. Justice LeDain spoke about in Valente v.
The Queen,
[1985] 2 S.C.R. 673 [Valente].
[35]
At page
685 of Valente, he wrote:
Impartiality refers to a state of mind or
attitude of the tribunal in relation to the issues and the parties in a
particular case. The word “impartial” as Howland C.J.O. noted, connotes absence
of bias, actual or perceived.
Accordingly, it is crucial that members who hear refugee
protection claims ensure that they do not give the impression that their
decision was already made prior to the hearing.
[36]
The
decision to allow or reject a claim for refugee protection is not an accidental
or trivial action; it requires disinterestedness, objectivity, reflection and
analysis of all the relevant factors, including the refugee claimant’s
testimony, on the part of the panel. It is on the quality of the written
reasons that are provided, if any, and thus on the analysis of the facts of the
case, that a court sitting on judicial review will be able to determine whether
the panel’s conclusion constitutes a possible and acceptable outcome in the
circumstances (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190).
[37]
Given
that the fear of persecution contains a subjective component and an objective
component, the panel is required to critically assess the credibility and
conduct of refugee claimants (Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 689). It goes without saying that the panel cannot assess the credibility
of claimants or reject the evidence they have adduced without giving them the
opportunity to be heard and to have their counsel argue their case.
[38]
First,
the panel must ensure that it confronts refugee claimants at the hearing on
every inconsistency, real or apparent, in their account of persecution, without
criticizing, blaming, making disparaging comments or showing unjustified
aggression and impatience, particularly because this is often a refugee
claimant’s only opportunity to be heard in person. See Jaouadi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1347, [2003] F.C.J. 1714; Guermache v. Canada (Minister
of Citizenship and Immigration), 2004 FC 870, [2004] F.C.J. 1058; Hernandez v. Canada (Minister of Citizenship and Immigration), 2010 FC 179 at paragraphs 44-45, [2010] F.C.J. 199.
[39]
Second,
once it has made its decision (whether it is communicated orally or in
writing), the panel must be able to explain why it did not accept the refugee
claimant’s explanations, if applicable. Where the refugee claimant has been identified
as a “vulnerable person”, as is the case here, the panel may face additional
challenges, but it is not necessary to discuss them here. On this subject, see
the Court’s decision in Mubiala v. Canada (Minister of
Citizenship and Immigration) 2011 FC 1105.
[40]
Considering
the fact that appearances are as important as reality, are there serious doubts
that a refugee claimant will have a fair and impartial hearing and that his
testimony will really be taken into consideration if he sees at the hearing
that the member hearing the case already has in hand a draft decision that he
is referring to regularly?
[41]
For many years, the Federal Court of Appeal has recognized that there
is a presumption of truth when a refugee claimant testifies under oath that
what he or she says is true. Thus, an allegation in a refugee claimant’s PIF is
presumed to be true unless there is reason to doubt its truthfulness: Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 at paragraph 5, [1979] F.C.J. 248. It
follows that at the hearing a refugee claimant initially benefits from this
presumption and that it is only after he or she testifies and the panel has
analyzed the claimant’s testimony and the evidence adduced at the hearing, that
the panel will finally be able to determine that a refugee claimant is not
credible and has not discharged his or her burden of proof.
[42]
In
this case, the fact that the member made the effort before the hearing to write
[translation] “notes” in the form
of a draft decision with the objective, it seems, of rendering an oral decision
at the end of the hearing or filing written reasons quickly, can only raise a
serious question about the absence of bias and the degree of open-mindedness that
the member could exhibit towards the refugee claimant and his claim.
[43]
In
fact, under section 169 of the Act, the Refugee Protection Division is required
to provide written reasons for its decision if it decides to reject a claim for
refugee protection. The inverse is not true. Thus, as a general rule, the panel
does not provide written reasons when it allows a refugee claim unless the
Minister asks for them or in the cases set out in the Board’s rules. In this
respect, counsel confirmed at the hearing before the Court that in refugee
claims involving Haiti or Mexico the Minister now requests
written reasons for decisions favourable to claimants. Accordingly, it seems
fair to say that, in refugee claims involving the RPD, the panel need not
prepare written reasons in advance unless it has decided before the hearing to
reject a claimant’s refugee claim.
[44]
The
member and the respondent in this case relied on the Immigration and Refugee
Board’s Policy on Oral Decisions and Oral Reasons (no. 2003-06) (the Policy). The corresponding
excerpts from the Policy read as follows:
Decision‑makers
are expected to direct case preparation and conduct the hearing with a view to
delivering their final decision and supporting reasons orally at the conclusion
of the hearing.
. . .
All
employees of the IRB will actively support the oral
decisions and oral reasons process through effective and timely case
preparation, administrative support, professional development, and other
actions, as necessary.
Further,
in the RPD, Refugee Protection Officers shall support the
oral decisions process by placing the necessary emphasis on the enhanced case
preparation that this policy necessitates. They shall ensure that their
contribution before and during the hearing facilitates the delivery of an oral
decision with supporting reasons at the conclusion of the hearing. [Emphasis added.]
[45]
Again,
let me be clear. Nothing prevents a member from writing beforehand a summary of
the key facts set out in the refugee claimant’s PIF. The member may also
prepare a list of questions that he or she intends to ask the refugee claimant,
and it is preferable that this be done prior to the hearing. At the hearing, the
member may wish to test the allegations in the PIF against other information
already in the record, including the information in the national package of the
country referred to in the claim. All this is in the context of effective
preparation. But that is where the member’s preparation stops. At this stage,
writing a semblance of an analysis of the documentary evidence, the facts
alleged by the refugee claimant and the applicable law seems to us a useless
and premature exercise unless, of course, the member has already formed an
opinion about the refugee claim, which clearly brings the issue of the member’s
impartiality to the fore.
[46]
To
conclude, considering the role, the nature of the decisions and the specific
context of Refugee Protection Division hearings, the requirements of the Act
and the applicable principles, after carefully reading the panel’s record, the
transcripts and the decision at issue, the fact that prior to the hearing the
member had prepared a [translation]
“draft decision”, which appeared to be a decision, would give rise to serious
concerns about the member’s impartiality in the mind of a reasonable, right‑minded
observer who is well informed on the subject.
[47]
All
this is very regrettable. I am certain that the member acted in good faith and that
he takes his work very seriously. I am also aware that members are under
enormous pressure. It is therefore to their credit that they issue decisions
quickly. But we must not lose sight of the fact that all the steps must be
followed and that here appearances are against the member. This fundamental flaw
is sufficient in itself to set aside the decision under review and remit the
matter to a differently constituted panel for redetermination. Also, I will not
deal with the applicant’s other grounds for setting aside the decision.
[48]
In
closing, counsel did not propose any question to be certified and indicated at
the hearing before the Court that this was a case that turns on its own facts,
involving onlu the decision rendered by the panel in this matter. In the
absence of allegations that there is a generalized or systemic problem at the
Refugee Protection Division, there is therefore no need to certify a serious
question of general importance.
JUDGMENT
THE COURT
ALLOWS the application for judicial review and
sets aside the panel’s decision dated February 18, 2011. The matter is
remitted to the Immigration and Refugee Board for a redetermination of the
applicant’s refugee protection claim and a new hearing before a different
member of the Refugee Protection Division. No question is certified.
“Luc
Martineau”
Certified true translation
Mary Jo Egan, LLB
Email this Content