Date: 20071030
Docket: IMM-5455-06
Citation: 2007 FC 1121
Ottawa, Ontario, October 30,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NORMA MUHWATI
MILKA DAISY MUHWATI
EDMORE
ZVIKOMBORERO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicants, a mother (Norma), her daughter (Daisy) and her son-in-law (Edmore),
were denied refugee status by the Refugee Protection Division (RPD) of the
Immigration and Refugee Board. In view of the Court’s conclusion on this case,
it would not be helpful to outline in detail the facts of this case. This is a
case of credibility findings which must be sent back to the RPD.
II. FACTUAL
BACKGROUND
[2]
The
Applicants made their claim for refugee protection due to a fear of returning
to Zimbabwe. The mother
claimed to be afraid of her husband; the married couple feared harm from the
wife’s jealous ex-lover.
[3]
The
RPD Member denied the claim on the basis that none of the Applicants’ stories were
credible. It is apparent from a reading of the transcript of the hearing that
the Member was, from the outset, dubious about not just the believability of
the stories but also the overall truthfulness of each of the Applicants.
[4]
The
Applicants have raised the errors in factual findings and alleged that the
Member had exhibited bias against them.
[5]
Counsel
for the Respondent, quite properly and consistent with the high standards of
counsel for the Crown, acknowledges that there were problems with some of the
factual conclusions reached by the Member. Despite the concessions, counsel
argued that there were a number of findings which were sustainable on the
standard of patent unreasonableness mandated by Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
III. ANALYSIS
A. Errors
[6]
In
my view, the Member erred in his credibility findings because he misappreciated
critical facts, as the Respondent’s counsel acknowledged. Two examples are
sufficient. In one instance, the Member drew an adverse credibility finding
from an answer that a doctor did not perform any tests. It was apparent that
the witness thought of tests as something like blood tests – the Member thought
asking 31 questions constituted a test. In another instance, the Member did not
accept Norma’s evidence as to the existence of a woman’s shelter whereas the
U.S. DOS report referred to the very same shelter and support group for
battered women.
[7]
There
are other instances of the Member drawing adverse credibility conclusions from
an incorrect understanding of facts.
[8]
These
errors tainted the whole process against each Applicant even though the finding
may have been directed against one or more Applicants. These errors are
sufficient to justify a new hearing.
B. Bias
[9]
The
Applicants made a serious allegation against the Member. The basis of the
allegation is the manner in which the Member conducted the hearing.
[10]
The
case law establishes that antagonism during the hearing, which includes
unreasonably aggressive questioning or comments about testimony, gives rise to
a reasonable apprehension of bias. (Gooliah v. Canada (Minister of
Citizenship and Immigration) (1967), 63 D.L.R. (2d) 224 (Man. C.A.); Golomb
v. Ontario (College of
Physicians and Surgeons) (1976), 68 D.L.R. (3d) 25 (Div. Ct.))
[11]
In
Quiroa v. Canada (Minister of Citizenship and Immigration), 2005 FC 271,
I indicated that there is an appropriate tone and demeanour to the adjudicative
process necessary to ensure that a member hearing a case is not seen to have reached
a conclusion prematurely.
[12]
In
the Federal Court of Appeal’s reasons in Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 198, the reverse order
questioning was upheld in part because the tone and style of questioning was
more important than the order of questioning.
[13]
In
the present case, there was no RPD officer to question the Applicants;
therefore the Member had to take a more active role than is usual. However, the
Applicants were represented by counsel who made no objection to the nature,
tone or manner of the Member’s questioning. It cannot be said that there was no
opportunity to address issues of over-zealous questioning. However, even if
there is no objection, if fairness is compromised, the process cannot stand.
[14]
Given
my earlier finding, I need not reach a final conclusion whether this allegation
justifies overturning the decision. It should be sufficient to say that there
is a way for a member to question an applicant, probe the credibility of the
story, without demeaning or attacking the witness or insulting them. The Member
did not avail himself of these techniques of probing but respectful questioning
perhaps due to the frustrating and confusing evidence of the Applicants.
IV. CONCLUSION
[15]
Therefore,
this application for judicial review will be granted, the decision set aside
and the matter remitted back to the RPD for a new hearing before a different
member.
[16]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be granted, the decision set aside and the
matter remitted back to the RPD for a new hearing before a different member.
“Michael
L. Phelan”
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