Date: 20111014
Docket: IMM-791-11
Citation: 2011 FC 1150
Ottawa, Ontario, this 14th day of
October 2011
Present: The Honourable Mr. Justice Kelen
BETWEEN:
ROSA MARIA QUIROZ MENDEZ
VIRIDIANA GARCIA QUIROZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated December 20, 2010,
that the applicants are not Convention refugees or persons in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), because the applicants have
adequate state protection in Mexico.
FACTS
Background
[2]
The
applicants are a mother and daughter from Mexico: Rosa Maria
Quiroz Mendez (the principal applicant), and Viridiana Garcia Quiroz (the minor
applicant), who was a minor at the time she made her claim, which was based
upon the principal applicant’s claim. They arrived in Canada on May 21,
2009, and claimed refugee status on June 15, 2009.
[3]
The
principal applicant was sexually abused by her father from ages 4-10. She
married as early as possible to escape her traumatic home life. She married
Alejandro Garcia Lugo (Alejandro) on September 6, 1980.
[4]
The
abuse continued in her new home: she was the victim of physical violence,
forced sexual intercourse, and death threats from her husband over the course
of their 24 years living as husband and wife. During that time, the principal
applicant called the police on many occasions (approximately 50 times) to come
and remove her husband, which the police did. However, each time she did not
make a formal complaint. She states that she was afraid to make a complaint
because her husband’s brother was a federal police officer.
[5]
In
May 2004, after her husband beat her and terrorized her especially severely,
the principal applicant made a formal complaint for the first time. Alejandro
was arrested, but was released on bail less then twelve hours later. The
principal applicant states that she received threats from her husband and his
mother if she did not withdraw her complaint. Her husband’s brother also
offered her money to withdraw the complaint. In July 2004, she complied and
withdrew the complaint.
[6]
The
principal applicant and her husband separated after the incident in May 2004,
but she states that he continued to harass her, call her and threaten her. He
would not sign divorce papers, but she received a divorce automatically after
they were separated for two years, in August 2006.
[7]
In
2009, Alejandro told the principal applicant’s daughter – the minor applicant –
that he was going to kill the principal applicant. They went to the police, but
the principal applicant states that no protection was provided to them. The
applicants left Mexico for Canada on May 21, 2009. They filed their claims
for refugee protection on June 15, 2009.
The first request for
adjournment
[8]
On
October 5, 2010, counsel for the applicants made an “urgent” request for
adjournment of the hearing, scheduled for October 15, 2010. The request stated
that the applicants had only retained counsel that day. It also stated that the
principal applicant was not aware of the contents of her Personal Information
Form (PIF): a community worker had completed the PIF and mistakenly directed
the principal applicant to sign the declaration that she understood English. In
fact, the principal applicant did not understand English, and the PIF was never
translated to her.
[9]
The
request further stated that a lawyer was mistakenly listed as the principal
applicant’s counsel in the PIF, but in fact this lawyer had not worked on the
PIF, but rather had only provided an opinion to Legal Aid on her behalf.
Counsel requested the adjournment to correct errors and make additions to the
applicants’ PIF and narrative, and she provided several possible hearing dates.
[10]
The
request for adjournment was denied, and the hearing proceeded on October 15,
2010.
The hearing
[11]
At
the outset of the hearing, counsel made another request for adjournment. The
Member asked whether the grounds were any different from the previous request,
and counsel responded that there were new grounds.
[12]
Counsel
explained that she had discovered the day before that, through the Board’s
error, the applicants had never received the Board’s disclosure package. The
Board had at first claimed that it sent the disclosure package to the principal
applicant and the lawyer listed as her counsel in the PIF; however, upon
further inquiry, a staff member at the Board admitted that they had in fact not
sent the disclosure package to the applicants.
[13]
Counsel
argued that it violated natural justice to require the applicants to prepare
for and participate in the hearing without having the Board’s disclosure
package.
[14]
The
Member stated that, according to his records, the disclosure package was sent
to the applicants. Counsel repeated that this was what the Board told her
initially as well, but they later confirmed that they did not send the package
to the applicants.
[15]
At
that point in the hearing, the following exchange occurred, the audio recording
of which was played for the Court:
MEMBER: Well, counsel, my … my file
indicates otherwise. So did you manage to get a copy of the disclosure?
COUNSEL: No, I called the lawyer but he …
MEMBER: Okay, well …
COUNSEL: … did not respond.
MEMBER: … I am going to make you a copy
and you can review them at break time …
COUNSEL: Well I …
MEMBER: … and we are proceeding today
counsel, I mean there is nothing more to hear on this matter.
COUNSEL: Could I speak to the legal
department or something, I think it is in violation of …
MEMBER: You can do so after the hearing.
COUNSEL: … natural justice.
MEMBER: You can do so after the hearing.
COUNSEL: I did not know …
MEMBER: [Raised tone of voice, as
evident from the audio recording] Do you want a copy now or at break time?
COUNSEL: I need to review it with my
client and would need some time to sit with her …
MEMBER: [Harsh tone of voice] I am
giving you five minutes and then we are starting, with or without you. Okay,
counsel, five minutes. It is 1:11, at 1:16 we are back in here.
COUNSEL: Okay.
MEMBER: You can take it up with legal
after the hearing.
[16]
Shortly
after the hearing resumed, counsel repeated her objection to the hearing
proceeding that day. Counsel also stated that she had not expected the hearing
to proceed and had not made arrangements with her babysitter, and therefore she
had to leave that day at 4:00 p.m. to pick up her daughter.
[17]
The
Member questioned the principal applicant until 2:30, at which point the
hearing recessed for fifteen minutes. When the hearing resumed, the Member
informed the counsel that she could question the applicants until 3:30 and then
use the final 30 minutes for submissions, or she could question the applicants
until 4:00 and provide written submissions within two weeks.
[18]
At
3:30, the Member interrupted to remind counsel that she could use the remaining
30 minutes either to keep questioning or make her submissions. The
following exchange occurred between the Member and counsel, as recorded in the
hearing transcripts:
COUNSEL: Well, I am going to have to
question the minor claimant too, I want to question her.
MEMBER: Well, that is fine, you are going
to have to fit it in half an hour.
COUNSEL: And suppose I am not done?
MEMBER: Well…
COUNSEL: My client as come all the way
from Mexico to tell her story…
MEMBER: That is fine, you have until
4:00 o’clock to finish questioning; I am telling you now…
COUNSEL: There is no need sir for you to
shout at me and to raise your voice…
MEMBER: …gear your questions, if you
want a few minutes we will take a little break and you can formulate your
questions so that they fit within half an hour. You have to leave at 4:00
o’clock so you fit them in until 4:00.
COUNSEL: Sir, I do not appreciate your
tone of voice.
MEMBER: Okay, we are taking a five
minute break.
COUNSEL: I did not come here to be
shouted at…
MEMBER: I heard you.
COUNSEL: …not to raise your voice at me
in that offensive manner…
MEMBER: We are going to take a five
minute break, when we return you are going to continue questioning; whether it
is the principal claimant, the minor claimant, you decide, you are going to
wrap up the questions at 4:00…
COUNSEL: Sir, I feel very threatened by
you, okay…
MEMBER: …and you are going to…
COUNSEL: …I feel extremely threatened by
you right now, I am leaving; I feel threatened by you.
(Underlining indicates a raised voice and
intemperate tone.)
[19]
At
that point, counsel left the hearing room. The audio recording of this portion
of the hearing was also played for the Court.
[20]
In
her affidavit, counsel for the applicants at the hearing stated that she is
herself a victim of domestic violence, and she felt very afraid and threatened
in the situation. After counsel left the hearing, the Member told the
applicants that he was reserving his decision, and that he would direct their
counsel to provide written submissions, as well as details on any areas of
questioning she felt still needed to be done. He would then decide whether they
needed to reconvene for further testimony.
[21]
After
the hearing, counsel for the applicants made a motion for the Member to recuse himself
due to a reasonable apprehension of bias. As discussed below, the Member denied
the motion for recusal in his reasons for the decision.
Decision under review
[22]
In
a decision dated December 20, 2010, the Board found that the applicants were
neither Convention refugees nor persons in need of protection pursuant to
sections 96 and 97 of the Act. The Board found that the determinative issue in
the claim was the availability of state protection.
Motion for recusal
[23]
Before
analyzing the claims, the Board Member decided whether he must recuse himself
because of a reasonable apprehension of bias. The Board summarized counsel’s
motion for recusal, and recounted the incident described above that occurred
during the hearing.
[24]
The
Board stated the test for reasonable apprehension of bias, as formulated in Committee
for Justice and Liberty et al. v. National Energy Board et al., [1978] 1
S.C.R. 369 at 394:
The proper
test to be applied in a matter of this type was correctly expressed by the
Court of Appeal. As already seen by the quotation above, the apprehension of
bias must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal, that test is “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 [the decision-maker], whether consciously or unconsciously, would
not decide fairly.”
[25]
The
Board stated that the determination of whether there is a reasonable
apprehension of bias must take into account the presumption of impartiality,
and therefore a real likelihood of bias must be demonstrated. The Board also
stated that all members of the Refugee Protection Division take an oath of
office in which they affirm that they will carry out their duties impartially
and comply with the Code of Conduct for Members. This Code of Conduct
also affirms that members will make decisions on the merits of each case and
not be influenced by improper considerations.
[26]
The
Board found that the test for a reasonable apprehension of bias was not met.
The Board relied in the decision in The Minister of Citizenship &
Immigration v. Cetin, [2007] F.C.J. No. 1786, Docket IMM-5621-06. In that
case, the Court found that there was no reasonable apprehension of bias, but
rather that the Minister’s counsel had provoked the Member after the Member
insisted that the hearing be completed within a certain time period. The Court
also found that the Minister’s counsel had been prevented from fully presenting
his case by his own poor decision to leave the hearing.
[27]
The
Board found that this decision recognized the Board’s authority to be “firm and
measured with counsel with respect to the conduct of a hearing.” The Board
found that, as in Cetin, it was counsel’s decision to leave the hearing
prematurely instead of finishing questioning the claimants. The Board also
found that counsel was attempting to provoke the Member, again similar to Cetin,
which justified a “stern” response.
[28]
The
Board also addressed whether the hearing was incomplete because counsel had not
yet questioned the minor applicant. The Board maintained that it had not
prevented counsel from completing her questioning of the claimants as she saw
fit, but also stated that the minor applicant’s claim was based on the
principal applicant’s claim, and that counsel had not presented any persuasive
evidence that the minor applicant’s testimony was critical to determining the
claims. The Board concluded that it was unnecessary to examine the minor
claimant.
[29]
The
Board found no reasonable apprehension of bias, and denied the motion for
recusal.
State protection
[30]
The
Board recited the guiding principles in determining whether there is adequate
state protection. The Board stated that, except in situations of complete state
breakdown, the state is presumed to be capable of protecting its citizens. To
rebut this presumption, the Board stated that the claimants must provide “clear
and convincing” evidence of the state’s inability to protect its citizens: Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689.
[31]
The
Board stated that claimants are required to approach the state for protection
“in situations where state protection might be reasonably forthcoming”: Ward,
above. The Board went on that, in “the absence of a compelling explanation, a
failure to pursue state protection opportunities within the home state will
usually be fatal to a refugee claim, at least where the state is a functioning
democracy with a willingness and the apparatus necessary to provide a measure
of protection to its citizens.” The Board concluded from the evidence before it
that Mexico is a
democracy, and therefore found that the claimants “must show that they have
taken all reasonable steps in the circumstances to seek protection.”
[32]
The
Board then reviewed the principal applicant’s testimony regarding her efforts
to seek state protection. It noted that the principal applicant called the
police on many occasions, and each time she called they came and took her husband
away, sometimes detaining him. On all but one occasion, the principal applicant
did not file a complaint because she feared what her husband would do. On the
one occasion she filed a formal complaint, she eventually withdrew it after her
husband and his family threatened her and offered her money.
[33]
The
Board found that the principal applicant’s failure to file complaints against
her husband was unreasonable. The Board found that if the principal applicant
had pursued a formal complaint, her husband would have been incarcerated. The
Board noted that the principal applicant did not report her husband and his
family’s threats and bribes to the police, and that “no persuasive evidence was
presented to indicate that the police would not take further action if the
threats and bribes were also reported to them.”
[34]
The
Board rejected the argument that the principal applicant was afraid to file a
formal complaint because her husband’s brother was a police officer: the Board
found no persuasive evidence that this brother had any influence over police
decisions, and given that the principal applicant’s husband was aware each time
she called the police, the fact that his brother was a police officer would
have had little effect on the consequences of filing a complaint.
[35]
The
Board acknowledged that the documentary evidence indicated problems with regard
to corruption in Mexico:
[45] I would
be remiss if I did not acknowledge and consider that there is information in
the documentation to indicate that inefficiency, bribery and corruption remain
issues in Mexican security forces at all levels, as well as within the public
service sector. However, weighed against this is persuasive evidence that
indicates that Mexico candidly acknowledges its
past problems and is making serious efforts to rectify the corruption and
impunity that exists.
[36]
The
Board reviewed the United States Department of State Country Report on Human
Rights Practices for 2009 for Mexico (DOS Report), and a
2007 report titled “A Profile of Police Forces in Mexico.” The Board
found that the preponderance of evidence suggested that, despite some problems
with corruption, Mexico was able to protect victims of crime. He
extensively reviewed efforts to combat police corruption, and the creation of
new bodies to address organized crime and drug cartels.
[37]
The
Board then turned to the issue of domestic and gender-based violence in Mexico:
“Mexico has had
problems in the past in dealing with domestic violence and violence against
women. However, there is persuasive evidence that indicates that Mexico candidly
acknowledges its past problems and is making serious efforts to deal with these
issues.”
[38]
The
Board referred to the portion of the DOS Report entitled ‘Women,’ which stated
that Mexico had enacted
legislation prohibiting domestic violence and imposing detention and fines for
violating that legislation. The Board stated there was federal legislation
specifically addressing violence against women, and that many states have laws
prohibiting domestic violence. The Board also noted the presence of women’s
shelters, a hotline for female victims of domestic abuse, and a National
Institute for Women.
[39]
The
Board acknowledged the evidence that victims fail to report abuse for a number
of reasons, including “fear of reprisal by the perpetrator.” The Board noted
that the new legislation was in part focused on making victims more aware of
the remedies available to them.
[40]
The
Board stated that it had considered the documentary evidence submitted by the
applicants regarding state protection. It reviewed a few individual pieces of
documentary evidence, but found that some of it was unsupported and therefore
deserving of little weight.
[41]
The
Board stated at paragraph 63:
. . . Counsel has also included many
articles about domestic abuse and gender violence issues and cases from Mexico and around the world. I
accept that many countries around the world struggle to deal effectively with
these issues, however, many countries, such as Mexico, have enacted laws to combat domestic
violence and violence against women and have put in place measures to ensure
that the laws are enforced.
[42]
The
Board concluded that the applicants had failed to rebut the presumption of
state protection, and that therefore their claims failed.
LEGISLATION
[43]
Section
96 of the Act grants protection to Convention refugees:
|
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
[44]
Section
97 of the Act grants protection to persons whose removal from Canada would
subject them personally to a risk to their life, or of cruel and unusual
punishment, or to a danger of torture:
|
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
|
97. (1) A qualité de personne à protéger
la personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’ar-
ticle premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce
pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
[45]
Subsection
48(4) of the Refugee Protection Division Rules, SOR/2002-228, requires
the Board to consider any relevant factors in deciding whether to grant an
application to change the date or time of a proceeding:
|
48.
(4) In deciding the application, the Division must consider any relevant
factors, including
(a)
in the case of a date and time that was fixed after the Division consulted or
tried to consult the party, any exceptional circumstances for allowing the
application;
(b)
when the party made the application;
(c)
the time the party has had to prepare for the proceeding;
(d)
the efforts made by the party to be ready to start or continue the
proceeding;
(e)
in the case of a party who wants more time to obtain information in support
of the party’s arguments, the ability of the Division to proceed
in
the absence of that information without causing an injustice;
(f)
whether the party has counsel;
(g)
the knowledge and experience of any counsel who represents the party;
(h)
any previous delays and the reasons for them;
(i)
whether the date and time fixed were peremptory;
(j)
whether allowing the application would unreasonably delay the proceedings or
likely cause an injustice; and
(k)
the nature and complexity of the matter to be heard.
|
48.
(4) Pour statuer sur la demande, la Section prend en considération tout
élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la
date et l’heure de la procédure après avoir consulté ou tenté de consulter la
partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a
été faite;
c) le temps dont la partie a
disposé pour se préparer;
d) les efforts qu’elle a faits
pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a
besoin d’un délai supplémentaire pour obtenir des renseignements appuyant ses
arguments, la possibilité d’aller de l’avant en l’absence de ces
renseignements sans causer une injustice;
f) si la partie est représentée;
g) dans le cas où la partie est
représentée, les connaissances et l’expérience de son conseil;
h) tout report antérieur et sa
justification;
i) si la date et l’heure qui
avaient été fixées étaient péremptoires;
j) si le fait d’accueillir la
demande ralentirait l’affaire de manière déraisonnable ou causerait
vraisemblablement une injustice;
k) la nature et la complexité de
l’affaire.
|
[46]
Rule
22 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22, states that costs will only be awarded for special reasons:
|
22.
No costs shall be awarded to or payable by any party in respect of an
application for leave, an application for judicial review or an appeal under
these Rules unless the Court, for special reasons, so orders.
|
22. Sauf ordonnance contraire rendue par
un juge pour des raisons spéciales, la demande d’autorisation, la demande de
contrôle judiciaire ou l’appel introduit en application des présentes règles
ne donnent pas lieu à des dépens.
|
ISSUES
[47]
The
applicants raise the following issues in their submissions:
a. That the
Board erred in its analysis of whether there was a reasonable apprehension of
bias by the Board Member hearing this case;
b. That the
Board denied the applicants procedural fairness:
i.
By
refusing to grant the applicants an adjournment following its failure to
provide the applicants with disclosure;
ii.
By
not allowing the applicants a reasonable opportunity to present their case by
limiting their counsel’s ability to question them;
c. That the
Board selectively used the evidence, ignored the evidence and misconstrued the
evidence resulting in a flawed state protection analysis.
[48]
I
would reframe the issues as follows:
a.
Did
the Board breach the principles of procedural fairness by refusing to grant an
adjournment or by refusing to grant an additional hearing?
b.
Did
the Board’s conduct give rise to a reasonable apprehension of bias?
c.
Was
the Board’s finding regarding state protection unreasonable?
STANDARD OF REVIEW
[49]
In
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already determined
in a satisfactory manner the degree of (deference) to be accorded with regard
to a particular category of question”: see also Canada (M.C.I.) v. Khosa,
[2009] 1 S.C.R. 339, per Justice Binnie at para 53.
[50]
The
question of whether the applicants rebutted the presumption of state protection
is a question of mixed fact and law, to be reviewed on a standard of
reasonableness: see my decisions in Monjaras v. Minister of Citizenship and
Immigration, 2010 FC 771 at para 15; and Perez v. Minister of Citizenship
and Immigration, 2009 FC 1029 at para 25.
[51]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, above, at paragraph 47; Khosa, above,
at para 59.
[52]
Questions
of procedural fairness, including whether the Board’s conduct gives rise to a
reasonable apprehension of bias, are to be reviewed on a standard of
correctness: Dunsmuir, above at paras 55 and 90; and Khosa, above
at paragraph 43.
ANALYSIS
Issue #1: Did the Board
breach the principles of procedural fairness by refusing to grant an
adjournment or by refusing to grant an additional hearing?
The adjournment request
[53]
The
applicants submit that they were denied the ability to review the Board’s
disclosure before the hearing, and therefore they did not know the case to be met
against them. Counsel informed the Board that the disclosure was not sent to
the applicants in error, and the applicants submit that the Board’s refusal of
the adjournment in light of this information breached the principles of
procedural fairness.
[54]
The
respondent submits that the Board’s denial of the adjournment was reasonable,
in light of the ample time the applicants had to retain and instruct counsel.
The respondent further submits that the applicants have not demonstrated that
they were denied a fair hearing as a result of being denied the adjournment,
and therefore there was no breach of procedural fairness.
[55]
The
granting of adjournments or postponements is discretionary in nature and there
is no presumption of entitlement: Sierra v. Minister of Citizenship and
Immigration, 2009 FC 1048 at para 56. However, the Board is required to
consider all relevant factors before reaching its decision. Subsection 48(4) of
the Refugee Protection Division Rules, reproduced above, contains a
non-exhaustive list of relevant factors in this determination.
[56]
As
I stated previously in Modeste v. Minister of Citizenship and Immigration,
2006 FC 1027, the Board must at least indicate that it has turned its mind to
these factors before issuing a negative decision on a request for adjournment.
As Madam Justice Carolyn Layden-Stevenson stated in Ramadani v. Minister of
Citizenship and Immigration, 2005 FC 211 at paragraph 11:
In my view,
the RPD must, at a minimum, indicate that it has had regard to the relevant
factors enumerated in Siloch, supra, before arriving at a
negative decision. Its failure to do so constitutes a reviewable error. I note
that my colleagues Madam Justice Heneghan and Mr. Justice O’Keefe arrived at a
similar conclusion in Dias v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 125, 2003 FC 84 and Sandy v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1770, 2004 FC
1468.
[57]
Relying
upon the hearing transcripts, the Court finds that the Board failed to consider
the relevant factors before denying the adjournment. The Board stated that its
records indicated that the applicants had in fact received disclosure. When
counsel responded that she had received confirmation that the disclosure was
never sent, the following exchange occurred:
MEMBER: Well, counsel, my … my file
indicates otherwise. So did you manage to get a copy of the disclosure?
COUNSEL: No, I called the lawyer but he …
MEMBER: Okay, well …
COUNSEL: … did not respond.
MEMBER: … I am going to make you a copy
and you can review them at break time …
COUNSEL: Well I …
MEMBER: … and we are proceeding today
counsel, I mean there is nothing more to hear on this matter.
[58]
The
Board gave no indication that it had considered any of the factors set out in subsection 48(4)
of the Refugee Protection Division Rules. The Court finds that, had the
Board considered those factors, at least some of the factors may have weighed
in favour of granting the adjournment.
[59]
The
failure of the Board to send the disclosure package to the applicants would
likely constitute “exceptional circumstances” for allowing an adjournment. The
lack of disclosure also impacted the amount of time the applicants had to
prepare for the hearing. Counsel emphasized that she had made efforts to obtain
the Board’s disclosure and prepare for the hearing, by contacting the Board and
the lawyer mistakenly listed as counsel on the principal applicant’s PIF.
[60]
Thus,
the denial of the application for adjournment in this case, without any
analysis of the relevant factors, constitutes a reviewable error by the Board.
On its face, the denial constitutes a breach of the rules of natural justice
and the right to a fair hearing. It is not a fair hearing if counsel for the
applicants was not able to properly prepare for the hearing, as stated by
Justice Sean Harrington in Anand v. Minister of Citizenship and Immigration,
2004 FC 302 at paras 1 and 4:
[1] Fundamental
rights can never be sacrificed at the altar of administrative efficiency. . . .
[4] Shortly
before the scheduled hearing of his application his lawyer wrote to say he
could no longer act. Mr. Anand appointed a new lawyer who asked for a
postponement at the hearing as she was not fully prepared not only because of
the freshness of the appointment but also because she was only able to obtain
some of the documentation from his former lawyer a few days earlier. The Board
refused to grant an adjournment
[61]
The
application for judicial review must therefore be granted, and the applicants’
claims remitted to the Board for re-determination by a different panel.
Request for additional
hearing
[62]
While
it is not necessary to address this issue in light of the Court’s finding
regarding the adjournment request, the Court finds that the refusal to grant
additional hearing time did not constitute a breach of procedural fairness.
[63]
When
the hearing ended before counsel had completed her questioning of the
applicants, the Board instructed counsel to make detailed written submissions
on any remaining areas of questioning of the principal applicant, and proposed
areas of questioning of the minor applicant, to allow the Board to determine
whether to reconvene for additional testimony.
[64]
Counsel’s
written submissions did not provide details on the relevant areas of questioning
remaining, but simply stated the need for further questioning on the “core
issues of state protection and IFA.” The submissions also asserted that counsel
“wishes to question the minor claimant, as well.” However, no further details
of the proposed questioning were provided.
[65]
Thus,
the Court finds that the Board afforded the applicants the opportunity to
rectify any potential unfairness that may have resulted from insufficient time
during the hearing. Based on the submissions provided by counsel, it was open
to the Board to decide that no additional hearing time was necessary to ensure
procedural fairness. The Court therefore finds no breach of procedural fairness
in this aspect of the Board’s decision.
Issue #2: Did the
Board’s conduct give rise to a reasonable apprehension of bias?
[66]
The
applicants submit that the Board’s conduct gave rise to a reasonable
apprehension of bias. While the applicants have framed their submissions in
terms of the reasonableness of the Board’s decision regarding reasonable apprehension
of bias, the Court finds that the Board is entitled to no deference in its
decision on this issue.
[67]
The
test for a reasonable apprehension of bias is not in dispute. The oft-cited
articulation of the test comes from the dissenting opinion of Justice de
Grandpré at page 394 of Committee for Justice and Liberty et al., supra:
The proper
test to be applied in a matter of this type was correctly expressed by the
Court of Appeal. As already seen by the quotation above, the apprehension of
bias must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal, that test is “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 [the decision-maker], whether consciously or unconsciously, would not
decide fairly.”
[68]
Bias
is a serious allegation, and therefore it cannot be based on conjecture,
speculation or mere impression: Arrachch v. Minister of Citizenship and
Immigration, 2006 FC 999; Arthur v. Attorney General, 2001 FCA 223,
(2001), 283 N.R. 346. Given the presumption of impartiality on the part of the
decision-maker, a real likelihood of bias must be demonstrated by the
applicants: Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R.
851 at paragraph 2.
[69]
The
applicants submit that denying the request for adjournment raised a reasonable
apprehension of bias. They argue that the Member disregarded counsel’s
explanations regarding the lack of disclosure, and cut counsel off in her
arguments for the adjournment. This conduct, the applicants submit,
demonstrated that the Member had a closed mind to the applicants and their
counsel.
[70]
The
applicants also submit that the Board’s refusal to grant an additional hearing
day gives rise to a reasonable apprehension of bias. Given that counsel had
questioned the principal applicant for less than one hour, and given that there
were two claimants in the case, the applicants submit that the Board’s
insistence on concluding the hearing that day demonstrated that it was not open
to persuasion.
[71]
The
applicants further submit that the Member’s conduct was intemperate during the
hearing, which caused counsel to fear for her safety and leave the hearing
room. The applicants submit that the Member shouted at counsel, and they direct
the Court to the hearing transcript, and to the audio recording of the hearing.
The applicants also rely on a sworn affidavit from their counsel at the
hearing, which states that the Member shouted at her and acted aggressively
towards her.
[72]
The
applicants point out that the Member left his chair during this incident. They
submit that the Board’s decision misconstrues this by stating that the hearing
was about to recess, and that is why the Member had left his chair. The
applicants submit that the hearing had not recessed.
[73]
The
applicants submit that when the totality of the circumstances are considered,
an informed person, viewing the matter realistically and practically – and
having thought the matter through, would think that the Member would more
likely than not, not decide the claims fairly.
[74]
The
respondent submits that when viewed in context, the Member’s reaction was not
so out of proportion to counsel’s behaviour as to raise a reasonable
apprehension of bias. The respondent acknowledges that the Member raised his
voice and spoke sternly, but submits it was in response to counsel’s refusal to
accept his rulings. The respondent further submits that the Board was entitled
to rely on a Statement of Service stating the applicants received disclosure,
and therefore the decision to deny the adjournment did not give rise to a
reasonable apprehension of bias.
[75]
The
Court does not agree with all of the applicants’ characterizations of what
occurred during the hearing. It is clear that there was a disagreement between
the Member and counsel regarding (a) whether to adjourn the hearing; and (b)
whether to grant an additional hearing day for further questioning. Counsel for
the applicants is partly to blame for this conflict: she did not expect the
hearing to proceed, and therefore had not made arrangements to stay as long as
necessary to complete the hearing. It was counsel’s responsibility to be
prepared to proceed if the request for adjournment was denied. Her failure to
be prepared precipitated the incident at the end of the hearing.
[76]
Furthermore,
the hearing transcripts indicate that the Member had tried to initiate a recess
when the applicants allege that he left his chair. He stated: “Okay, we are
taking a five minute break.” Thus, the Member’s explanation that he was out of
his chair because the hearing was about to recess is plausible.
[77]
However,
considering the totality of the circumstances, and even in light of the
presumption of impartiality of the Board, the Court finds that there was a
reasonable apprehension of bias in this case.
[78]
In
Guermache v. Minister of Citizenship and Immigration, 2004 FC 870,
Justice Luc Martineau described the importance for a Board member to
conduct the hearing in a proper manner:
[4] Members
have a difficult but essential role to play. . . .
[5] With
that in mind, the scale of the members’ tasks must not cause them to lose sight
of the fact that the rules of natural justice must be observed and that their
conduct during hearings and applications for protection must, at all times, be
irreproachable and objective. It goes without saying that the most basic courtesy
and politeness are de rigueur. There is no place for intimidation,
contempt, and offensive innuendo, nor for harshness or inappropriate language.
As the Right Honourable Mr. Justice Fauteux wrote in the Livre du magistrat
["a book for judges"], “[TRANSLATION] The judge will ensure the
climate necessary for the operation of justice by his moderation, his
discipline and his courtesy in his relations with counsel, the parties and the
witnesses.” (The Right Honourable Gérald Fauteux, Le livre du magistrat,
Minister of Supply and Services Canada, 1980, at page 49).
[79]
Thus,
the presiding Member must conduct the hearing in an objective, moderate,
irreproachable manner, with politeness and basic courtesy. The Court knows, as
Justice Harrington said in Anand, above, at paragraph 13, that the Board
has “a heavy workload and tight scheduling.” Board members are under stress. In
the case at bar, counsel for the applicants before the Board refused to accept
the Board Member’s procedural ruling that she complete her questioning by 4:00
p.m., which was the time she said she had to leave to pick up her child from
the babysitter.
[80]
The
Board Member then raised his voice in an intemperate manner at the applicants’
counsel. Counsel for the respondent before the Court described the Board Member
as “shouting” at the applicants’ counsel. The Board Member was very frustrated
by her refusal to finish her questioning by 4:00 p.m., which was the deadline
she imposed upon herself.
[81]
Upon
listening three times to the relevant excerpts of the audio recording, the
Court can only conclude that the presiding Member lost control of his
demeanour, raised his voice by shouting in an angry tone, which reflected that
he lost his temper with the applicants’ counsel. A reasonable observer in the hearing
room would likely think that the presiding Member was angry at the applicants’
counsel, and in a state of mind against the applicants. If a judge is angry and
shouting at a lawyer, a reasonable person would have a reasonable apprehension
that the judge was biased against that lawyer’s case.
[82]
Thus,
the Court finds that a reasonable person informed of all these circumstances
would conclude that the Board would more likely than not, not decide the matter
fairly.
Issue #3: Was the
Board’s finding regarding state protection unreasonable?
[83]
The
Court will not need to decide this issue to determine the application for
judicial review. However, the Court must note that the Board Member gave “very
little weight” to the declaration of Dr. Alicia Elena Pérez Duarte y Norona,
which stated that Mexican officials responsible for enforcing the laws against
domestic and gender-based violence are negligent. In two judgments of this
Court, decided subsequent to the Board’s decision in this case, Justices Roger
T. Hughes and Donald J. Rennie recognized Dr. Pérez Duarte y Norona as a
credible expert and gave her evidence great weight: see I.M.P.P. v. Minister
of Citizenship and Immigration, 2011 FC 712 at paras 9-11; and Rodriguez
v. Minister of Citizenship and Immigration, 2011 FC 1017 at para 12.
COSTS
[84]
The
applicants submit that the “egregious conduct by the Board Member” justifies
the awarding of costs on a solicitor and client basis. I stated the following
regarding granting costs in immigration cases in Yadav v. Minister of
Citizenship and Immigration, 2010 FC 140, at paragraph 39:
In terms of
costs, the threshold for “special reasons” within the meaning of Rule 22 is
high. In other words, in immigration litigation there is a “no costs” regime.
Special reasons may exist where the Minister’s conduct is “unfair, oppressive,
improper or actuated by bad faith.” See: Uppal v. Canada (MCI), [2005] F.C.J. No. 1390 (QL)
at paragraph 8 (QL). There was no malicious intent on the part of respondent or
on the part of the applicant in bringing this motion. . . .
[85]
I
do not find the Board’s conduct in this case so egregious as to justify the
granting of costs. The Board Member was provoked by counsel at the hearing.
CONCLUSION
[86]
The
Court finds that the Board’s decision must be set aside because of the Board’s
failure to consider all the relevant factors in deciding whether to grant an
adjournment, and because the Member’s conduct gave rise to a reasonable
apprehension of bias. Therefore, the judicial review is granted, and the applicants’
claims will be sent back to the Board for re-determination by a different
panel.
[87]
No
question is certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial review is granted, and the
applicants’ claims are referred back to the Immigration and Refugee Board for
reconsideration by a different panel.
“Michael
A. Kelen”
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