Date: 20080624
Docket: IMM-3-08
Citation:
2008 FC 791
Ottawa, Ontario, June 24,
2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
JONATHAN
REYES TOLOSA
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
respondent’s motion dated June 19, 2008, acknowledges the situation created by
the decision‑maker at first instance, and therefore the respondent
requests that the decision at first instance be set aside. The motion was
brought less than two working days before the hearing, which had been scheduled
for April 9, 2008, and, given that the applicants do not accept the
respondent’s offer contained in that motion, the Court must automatically
intervene between the parties. This is a situation where the decision‑maker
at first instance committed a flagrant breach of procedural fairness or natural
justice. A situation where the decision-maker at first instance acts contrary
to public order transcends the interests of the immediate parties. Public
order, which by the very fact of the respondent’s motion is acknowledged by the
respondent, demands that the Court intervene on behalf of the well-being and
integrity of the justice system itself. For all of these reasons, without interfering
with the merits of the substantive matter of the case as the respondent
requested, the Court will render a decision not on the merits of the case,
which is reserved for the specialized tribunal at first instance as the trier
of fact, but on behalf of the integrity of the justice system and public order.
Otherwise, its silence would condemn it as an accomplice to the breach of
natural justice and procedural fairness committed by the decision-maker at
first instance.
II. Introduction
[2]
“Would you
please, please, please, please, please, please, please stop talking”. Ernest
Hemingway’s seven “pleases” in Hills Like White Elephants may be
excessive, but the repetition makes it plain that it is time to stop talking
and to start listening. The decision-maker at first instance, as the trier of
fact, must listen in order to decide on what has been testified and
demonstrated. The hearing transcript points to the contrary.
[3]
In
addition to not listening, the trier of fact had rendered its decision at the
hearing before the case was closed, even before he received the written
submissions of one of the parties that he himself had requested.
III. Judicial procedure
[5]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of an oral decision of
the Immigration and Refugee Board (the Board) dated November 5, 2007,
rendered at the hearing (see paragraph 29 below). The Board ruled that the
applicant was not a “refugee” as defined in section 96 of the IRPA or a
“person in need of protection” as defined in section 97 of the IRPA, and
consequently rejected his refugee protection claim.
IV. Facts
[6]
This
Court’s judgment follows the decision in Dea Lorena Tolosa
Carranco and Karen Lorena Reyes Tolosa v. the Minister of Citizenship and
Immigration (docket IMM-4-08), after the files were separated by the
member at first instance.
[7]
The
applicant, Jonathan Reyes Tolosa, arrived in Canada on August 15, 2006,
accompanied by his mother, Dea Lorena Tolosa Carranco, and his sister, Karen
Lorena Reyes Tolosa. All are citizens of Mexico.
[8]
Since the
applicant is a minor child, his story was explained in his mother’s narrative.
He is alleging that he fears a teacher named José Martinez Mejia, who had
allegedly threatened him and his family with death and abduction.
[9]
In
addition, the applicant has alleged in support of his refugee claim the failure
of the Mexican education system to provide specialized education that would
meet his special needs caused by epilepsy and hyperactivity.
[10]
In August
2001, Jonathan started his first year of elementary school at the Miguel
Hidalgo school in Metepec, State of Mexico.
Jonathan was mistreated despite the fact that Ms. Tolosa had informed the
principal and Jonathan’s teacher of his problems caused by epileptic seizures
that he suffered in his sleep, as well as of his problems with hyperactivity,
difficulty concentrating and distraction. Jonathan’s teacher often pulled his
ears and was rude to him because he was inattentive. At the end of the school
year, in June 2002, Ms. Tolosa was informed that Jonathan could not
continue attending that school. This happened every year after that until
2005.
[11]
In
September 2005, Jonathan started grade five at the public school Alfonso
Gomez de Orozco Suarez in Toluca, State of Mexico. As she had done before, Ms. Tolosa
explained Jonathan’s problems to the principal and Jonathan’s teacher, José
Martinez Mejia. The principal assured her that Jonathan would be in very good
hands, but also that she should know that there would be 35 to 40 students in
every class.
[12]
At the
start of October 2005, Ms. Tolosa started noticing changes in her
son, Jonathan. He did not sleep well at night, woke up very often, had
nightmares, cried out and mumbled incoherently a great deal in his sleep. In
addition, at the beginning of October 2005, Ms. Tolosa had an accident.
She broke her right ankle and was almost unable to go out for six weeks.
[13]
Ms. Tolosa
consulted a neurologist, who prescribed a tranquillizer for Jonathan in
addition to the medication he was already taking for epilepsy (carbomazepin).
[14]
In
November, Ms. Tolosa had an opportunity to talk to one of Jonathan’s
classmates. That young man told her that the teacher, José Martinez Mejia, was
very hard on them: he hit them on the head with books, he called Jonathan [Translation] “an idiot”, he ridiculed
him in front of the other children, and he did not want him to participate in
class activities. The teacher sent him to sit alone at the back of the classroom;
he was not allowed to go for recess or to eat because, according to the
teacher, Jonathan did not do his homework and was lazy.
[15]
On
December 15, 2005, Ms. Tolosa confronted the teacher, José Martinez
Mejia, about the way he treated her son, Jonathan. The teacher told her that
Jonathan deserved it and that he had nothing to discuss with her. Ms. Tolosa
went to see the principal, but the principal told her that she had no time to
discuss the matter.
[16]
Ms. Tolosa
went to the State of Mexico’s Human Rights Commission to
file a complaint against the teacher, José Martinez Mejia, concerning the abuse
suffered by her son.
[17]
On
December 30, 2005, having obtained the information requested, Ms.
Tolosa returned to the Human Rights Commission to file a complaint against the
teacher, José Martinez Mejia. The complaint was filed under number 5234/2005-1.
Lawyer Sergio Jimenez told Ms. Tolosa that, if her complaint were admissible,
she would receive a letter in January.
[18]
On
January 5, 2006, Ms. Tolosa received a letter stating that her
complaint was admissible.
V. Issues
[19]
Although
the applicant is raising several issues, the only issues to determine in this
matter are the following:
(1)
Did the Board err in separating the files of the
three applicants?
(2)
Did the Board err in rendering a decision that
breached a principle of natural justice or procedural fairness?
VI. Analysis
[20]
As a
preliminary observation, the applicant submits that the Board raised no
questions of credibility or truthfulness of the facts alleged against his
claim.
(1) Did the Board err in separating the files of the three applicants?
[21]
The mother
and her two children filed their refugee protection claims jointly in
accordance with subrule 49(1) of the Refugee Protection Division Rules,
SOR/2002-228 (the Rules), which states that “the Division must join the
claim of a claimant to a claim made by the claimant's spouse or common-law
partner, child, parent, brother, sister, grandchild or grandparent”.
[22]
Notwithstanding
rule 49 of the Rules and counsel’s submissions that the three files are
connected (Tribunal Record at page 409), at the hearing, the member
decided to separate the applicant’s file from that of his mother and sister and
rendered two decisions: one for Dea Lorena Tolosa Carranco and her daughter
Karen Lorena Reyes Tolosa (Tribunal Record at pages 3–14) and another for the
applicant, Jonathan Reyes Tolosa (Tribunal Record at pages 15–34).
[23]
In this
case, the subject matter of the three claims is the same because the agent of
persecution is pursuing mother, daughter and son for the same reasons. The
children based their claims on that of their mother in the sense that, in their
Personal Information Forms (PIFs), they refer to the narrative of their mother,
who had been appointed as representative for her son, a minor child, and her
daughter, who had been a minor when she arrived in Canada, but has since
reached the age of 18. This fact makes it clear that separating the files would
not be helpful in analyzing the issues raised by the three claimants (Tribunal
Record at page 435).
(2)
Did the Board err in rendering a decision
that breached a principle of natural justice or procedural fairness?
[24]
At the end
of the hearing, the member rendered his decision orally. At the beginning of
the decision he stated the following:
This is my decision in the claims for refugee protection filed by Dea Lorena TOLOSA CARRANOE
and her daughter, Karen Lorena REYES TOLOSA.
As for the
claimant’s son, Jonathan REYES TOLOSA, the panel asked counsel
to make written submissions because counsel had raised important points
regarding the operation of section 97 and also section 96 of the Act.
(Reasons, Tribunal Record at
page 17.)
[25]
In fact,
the member rendered the decision concerning the applicant orally without waiting
for the written submissions that he had himself requested at the end of the
hearing (according to the transcript at the hearing itself). This is clear from
reading the decision.
[27]
The
applicant points out that the standard of review applicable to matters of
procedural fairness and natural justice is correctness. (Morales v. Canada (Minister of Citizenship and
Immigration),
2007 FC 1220, 163 A.C.W.S. (3d) 820 at para. 7.)
[28]
As the
Supreme Court of Canada reminded us, procedural fairness requires that “decisions be made free from a reasonable apprehension of bias by an
impartial decision-maker” (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R.
(4th) 193 at para. 45). In
the case under study, the member had not received the submissions of the
applicant’s counsel, but he had already rejected the applicant’s claim, a fact
that becomes clear on reading the decision:
CONCLUSION
For all the
reasons given in the foregoing analysis, the panel has no choice but to dismiss
the claims for refugee protection.
In light of the foregoing, the following
is in response to counsel’s written submissions . . . (Emphasis added.)
(Reasons, Tribunal Record at
page 25.)
[29]
It is also
relevant to note that the decision concerning the child Jonathan was rendered
orally at the hearing despite the fact that his counsel made his written
submissions only after the oral decision had already been rendered by the
member at first instance. It does not matter when the member signed the written
decision, since we know that he had already rendered it orally at the hearing
(Tribunal Record at pages 15 and 317).
[30]
The
applicant submits that the Board’s written decision is nine pages longer
than the oral decision. However, some elements of Jonathan’s claim
had already been analyzed and rejected in the oral decision dated
November 5, 2007, which was already rendered at the hearing, and
therefore an established fact.
[31]
It is
important to also remember that, at the time of the oral decision, the member
addressed issues of state protection and the existence of an internal flight
alternative. Because he did this, at the time of the written decision, he had
already decided the outcome of Jonathan’s claim – well before analyzing the
arguments pertaining to sections 96 and 97 of the IRPA, which also
include the examination of issues that concern state protection and the
existence of an internal flight alternative.
[32]
Thus, a
reasonably well informed bystander could perceive bias, as the Federal Court
has reminded us many times.
[33]
The test
for reasonable apprehension of bias, which has long been endorsed by the
Supreme Court of Canada, was set out by Mr. Justice Louis-Philippe de Grandpré
in Committee for Justice and Liberty v. Canada (National Energy Board),
[1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716:
“whether or not an informed person, viewing the matter
realistically and practically and having thought the matter through, would
think it more likely than not that the decision-maker would consciously or
unconsciously decide an issue fairly”. (Chung v. Canada (Minister of Citizenship and
Immigration),
[1998] 161 F.T.R. 146, 46 Imm. L.R. (2d) 220 at para. 8.)
[34]
Having
determined that the decision-maker at first instance had erred in separating
the files and because the member apparently rendered his decision in the case
of the mother and daughter orally, in light of the circumstances, this Court is
led to believe that there is a reasonable apprehension of bias warranting this
Court’s intervention.
VII. Conclusion
[35]
The applicant, Jonathan Reyes Tolosa, has the
right to a fair hearing during which all of the evidence required could be
considered and taken into account by the decision-maker. Since I found that the
applicant’s case is closely linked to that of his mother and sister, the oral
decision rendered by the member at the hearing was binding on the applicant
before the decision-maker at first instance had been able to take advantage of
the written submissions he himself had requested from the applicant’s counsel.
[36]
For all of these reasons, the Board’s decision
is set aside, and the matter is referred to a differently constituted panel for
rehearing and redetermination by a decision-maker at first instance other than
the one who rendered the decision that is set aside.
JUDGMENT
THE COURT,
Considering that the respondent presented a
motion for judgment;
Sets aside the decision of the Refugee
Protection Division, which found that the applicant is not a “Convention
refugee” or “person in need of protection”;
Refers the matter back to the Refugee Protection
Division so that the applicant’s refugee protection claim can be reheard and
redetermined by a member other than the one whose decision is set aside;
Without costs.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert,
Reviser
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