Date: 20111214
Docket: IMM-797-11
Citation: 2011 FC 1419
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, December
14, 2011
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Pritchard
Ernst JEROME
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
the Refugee Protection Division (RPD) of the Immigration and Refugee Board (panel),
submitted in accordance with subsection 72(1) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (Act) by Pritchard Ernst Jerome (applicant). The panel found that the
applicant was not a refugee or a person in need of protection and therefore
rejected his refugee claim.
[2]
The
applicant is a citizen of Haiti. He arrived in Canada on October 23, 2007, with
his uncle; they made their refugee claim under sections 96 and 97 of the Act on
the ground that they feared for their lives. Their claim was heard on October
27, 2010, and the applicant was 15 years old at the time. Because the panel was
unable to establish their identity, it rejected the claim orally, finding that
the applicant and his uncle were not “Convention refugees” or “persons in need
of protection” under the Act.
* * * * * * *
*
[3]
The panel specified in
its decision that, according to the Refugee
Protection Division Rules,
SOR/2002-228 (Rules),
it is required to consider the refugee claim based on the documents available
the day of the hearing. Given that birth certificates are documents
insufficient in themselves to establish the identity of a person, it stated
that it was dissatisfied with the identity of the persons before it and
rejected their claim without ruling on their fear of returning to Haiti.
[4]
After
this decision, the applicant submitted this application for judicial review on
February 8, 2011, on the ground that, according to him, there were
clearly problems during the hearing between his counsel and the Board member: the
hearing was brief, the reasons were given orally and steps were taken by his
counsel to ensure that she would no longer be required to appear before the
Board member in the case, Youssoupha Diop, because she had filed two
complaints against him.
* * * * * * *
*
[5]
The applicant
and his uncle have separate records because the applicant now resides with his
aunt. This application for judicial review therefore deals only with Pritchard Ernst
Jerome’s refugee
claim and
raises the following issues:
1.
Did the panel err in law and did it base its decision on erroneous
findings of fact made in a perverse or capricious manner or without regard for
the material before it?
2.
Does the panel’s conduct during the hearing raise a reasonable
apprehension of bias?
[6]
The
standard of review applicable to the panel’s findings of fact is reasonableness:
a high degree of deference is owed to the panel because it is specialized and
in the best position to assess the credibility of the applicant and thus assess
the evidence (see, for example, Kante v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 525 (T.D.) at paragraph 2; Sinnathamby v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 742
(T.D.) at paragraph 14; Encinas v. The Minister of Citizenship and
Immigration, 2006 FC 61 at paragraph 17).
[7]
Reasonableness
is assessed with respect to justification, transparency and intelligibility
within the decision-making process (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 at paragraph 47 (Dunsmuir)).
[8]
The
standard of review applicable to the panel’s weighing of the applicant’s proof
of identity is therefore reasonableness: the question of whether the applicant
provided sufficient documents to establish his identity is a question of fact (Jin
v. The Minister of Citizenship and Immigration, 2006 FC 126 at paragraph
16 (Jin); Saleem v. The Minister of Citizenship and Immigration,
2008 FC 389 at paragraph 13 (Saleem)). The panel’s decision to
reject the applicant’s refugee claim on the basis of insufficient evidence to
establish his identity is related to its assessment of his credibility (Jin at
paragraph 14 and Saleem at paragraph 14). This Court must therefore exercise
great deference and should intervene only if the panel’s decision was made
based on erroneous findings of fact or without regard for the evidence in the
record (Singh v. The Minister of Citizenship and Immigration, 2007 FC 62
at paragraph 11; Jin at paragraph 14).
[9]
Conversely,
the standard of review applicable to any question of law, procedural fairness or
breach of the principles of natural justice is correctness (Dunsmuir).
* * * * * * *
*
1. Did
the panel err in law and did it base its decision on erroneous findings of fact
made in a perverse or capricious manner or without regard for the material
before it?
[10] Even though
it is true that there is a presumption of truthfulness for allegations made in the
course of testimony (Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 at paragraph 5), the panel, in my opinion, did
not err by deciding that there was insufficient evidence to establish the
applicant’s identity. Its finding was reasonable given the record before it. The following errors
emphasized by the applicant do not render the panel’s decision unreasonable and
do not warrant the intervention of this Court:
a. first, even if the
panel’s finding that the applicant was never asked to appear at the consulate
in Haiti is erroneous, this error is not determinative;
b. second, the error made by
the panel in saying that it had to render its decision based on the evidence available
the day of the hearing, in disregard of the existence of the additional time available
under section 37 of the Rules, is inconsequential because the applicant was never
denied additional time.
[11] Therefore, despite these
two errors, the decision nevertheless remains justified, transparent and
intelligible (Dunsmuir at paragraph 47). In fact, the weighing of proof
of identity is up to the panel and constitutes a determinative preliminary
issue. The
applicant simply failed to establish his identity with his testimony and the filing
of a birth certificate (section 106 of the Act; Jin at paragraphs 13 and
15). It was reasonable for the panel to doubt the applicant’s credibility
considering that he had been in Canada since 2007 with his uncle and that they
had taken no steps to obtain additional proof of identity. The panel gave the
applicant the opportunity to explain why no steps had been taken over so many
years.
However, he
failed to demonstrate valid justification. Furthermore, a document in the National
Documentation Package on Haiti underlines the existence of fraud with
respect to identity in Haiti, which also influenced the panel.
[12] It is also important to
emphasize that, before the hearing and in accordance with Guideline 7 (concerning
the preparation and conduct of a hearing in the RPD), the RPD’s preliminary
assessment of the record was communicated to the applicant (in February 2008) and
identity was mentioned as an issue in it. The applicant therefore had to know
that the proof with respect to his identity was problematic.
[13] Therefore, the panel, contrary
to the applicant’s allegations, did not simply disregard his testimony without
valid reasons: it doubted the truthfulness of the evidence submitted for the
reasons contained in its decision, including his lack of credibility. In fact, pursuant
to section 106 of the Act, the panel was entitled to take into account the lack
of identification documents in assessing the credibility of the applicant (Saleem
at paragraph 27). For all of these reasons, I find the panel’s decision
reasonable on this issue and there is no error of law that warrants the
intervention of this Court.
2. Does
the panel’s conduct during the hearing raise a reasonable apprehension of bias?
[14] Relying on
the notion of bias as defined in Wewaykum Indian Band v. Canada, [2003]
2 S.C.R. 259 (Wewaykum) and Committee for Justice and Liberty et al. v.
National Energy Board et al., [1978] 1 S.C.R. 369 (National Energy
Board), the applicant also raises a reasonable apprehension of bias based
on the manner in which the panel conducted its hearing on October 27, 2010.
The applicant alleges, in particular:
-
that there was
obvious tension between his counsel and the panel because his counsel had
previously filed two complaints against the panel;
-
that the panel had seemed
to want to get rid of his claim quickly because the hearing had lasted only 30
minutes and the refugee claim itself was never considered;
-
that, when the uncle
had tried to answer the panel’s questions, the panel cut him off; and
-
that the panel gave
its reasons orally after refusing to let the applicant and his uncle be
questioned in turn.
[15] The
respondent, even though in agreement with the definition and test applicable to
assessing the reasonable apprehension of bias, relies on the principle that the
applicant was required to raise his apprehension of bias at the hearing before
the panel, if not earlier, given the complaints already filed by his counsel
against the panel (Zaroud v. Canada (Secretary of State), [1995] F.C.J. No. 1326
(T.D.); Chamo v. The Minister of Citizenship and Immigration, 2005 FC
1219 (Chamo)). Furthermore, the respondent maintains that the panel was
entitled to interrupt the applicant on the ground that energetic questioning is
not prohibited (Chamo at paragraph 12; Ithibu v. The Minister of
Citizenship and Immigration, 2001 FCT 288 (Ithibu); Sanchez et al.
v. The Minister of Citizenship and Immigration, 2011 FC 68). The respondent
also argues that the short duration of the hearing does not establish bias by
the panel (Blanco v. The Minister of Citizenship and Immigration, 2010 FC
280). Finally, the respondent submits that, despite the prior problems between
counsel for the applicant and the panel, the applicant failed to establish that
the panel had breached its duty of impartiality.
[16] It is up to the
applicant to submit concrete evidence demonstrating that “an informed person,
viewing the matter realistically and practically — and having thought the
matter through” would think that “it is more likely than not that [the panel],
whether consciously or unconsciously, would not decide fairly” (Wewaykum
at paragraph 60 and Ithibu at paragraph 41).
[17] In this case,
I consider the fact that counsel for the applicant, the one who represented him
before the panel and prepared the Applicant’s Record before this Court,
did not raise the issue of reasonable apprehension of bias before the panel, or
even earlier, to be determinative. Counsel who replaced the previous counsel
for the hearing before me admitted honestly that he could not explain why this
was not done, referring instead to the other arguments.
[18] In Chamo, the
Court is clear: “an argument of bias must be dismissed if it has not been
raised at the first reasonable opportunity, namely at the hearing . . . . The
failure to raise a reasonable apprehension of bias at the earliest possibility
forecloses the possibility [for the applicant] of raising such an argument
subsequently before this Court” (at paragraph 9). The applicant’s argument regarding
a reasonable apprehension of bias therefore has no merit.
* * * * * * *
*
[19] For the
above-mentioned reasons, the application for judicial review is dismissed.
[20] I agree with counsel for
the parties that no question for certification arises.
JUDGMENT
The
application for judicial review is dismissed.
“Yvon
Pinard”
Certified
true translation
Janine
Anderson, Translator
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