Date:
20130117
Docket:
IMM-6038-12
Citation:
2013 FC 42
Ottawa, Ontario,
January 17, 2013
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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ZHANG, HAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of a negative refugee determination rendered by
the Refugee Protection Division of the Immigration and Refugee Board (“the
Board”) on May 17, 2012.
[2]
For
the reasons that follow, the application for judicial review is allowed.
I. Background
[3]
The
Applicant is a Chinese citizen who came to Canada in June 2010 on a study
permit. He submitted his claim for refugee protection in October 2010 on the
basis of his fear of persecution for his Christian beliefs and participation in
an underground church in his home province of Fujian.
[4]
The
Applicant first attended his underground church in China in March 2009, and was
baptized a few months later. When he arrived in Canada for his studies, the
Applicant joined a church and informed two of his fellow members of the
underground church about his Canadian church activities. In September 2010,
the Applicant’s parents informed him that the Public Security Bureau (PSB) had
raided a service of his underground church, and had caught some of the
members. The PSB subsequently paid the Applicant’s parents five visits,
purportedly demanding the return of the Applicant to China, informing his
parents that he had been involved in an illegal underground church, recruited a
new member, and sent Canadian church information to the Chinese church.
[5]
The
Board accepted that the Applicant was a practising Christian, and that he had
been a member of both an underground church in China and a church in Canada. It identified the determinative issue as one of credibility with respect to the
Applicant’s fear of persecution, and determined that the Applicant was not a
credible witness in this regard. Specifically, the Board drew a negative
credibility inference from the absence of a summons in the Applicant’s case.
It further determined, based on the documentary evidence, that the PSB had not
raided the Applicant’s church, that no members of the church were arrested or
detained, and that the Applicant was not sought for arrest. As such, the Board
found that the Applicant would not face a serious possibility of persecution
should he return to practise at an underground Christian church in Fujian.
II. Issues
[6]
The
issues raised by the Applicant can be articulated as follows:
A. Whether
the hearing was conducted in accordance with the principles of procedural
fairness; and
B. Whether
the Board erred in its credibility assessment.
III. Standard of Review
[7]
Questions
of procedural fairness, such as our first issue here, are to be assessed on the
standard of correctness (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No 12 at para 43).
[8]
Questions
of credibility are worthy of significant deference to the Board, and are to be
reviewed on the standard of reasonableness (A.M. v Canada (Minister of Citizenship and Immigration), 2011 FC 964, [2011] FCJ No 1187 at
para 20). Reasonableness is concerned both with the existence of
justification, transparency, and intelligibility in the decision-making process
and with whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47).
IV. Analysis
A. Procedural
Fairness
[9]
Section
170 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)
sets out the rules that the Board must follow in refugee cases:
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Proceedings
170. The Refugee
Protection Division, in any proceeding before it,
(a)
may inquire into any matter that it considers relevant to establishing
whether a claim is well-founded;
(b)
must hold a hearing;
(c)
must notify the person who is the subject of the proceeding and the Minister
of the hearing;
[…]
(e)
must give the person and the Minister a reasonable opportunity to present
evidence, question witnesses and make representations;
[…]
(g)
is not bound by any legal or technical rules of evidence;
[…]
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Fonctionnement
170. Dans toute affaire
dont elle est saisie, la Section de la protection des réfugiés :
a) procède à tous les
actes qu’elle juge utiles à la manifestation du bien-fondé de la demande;
b) dispose de
celle-ci par la tenue d’une audience;
c) convoque la
personne en cause et le ministre;
[…]
e) donne à la
personne en cause et au ministre la possibilité de produire des éléments de
preuve, d’interroger des témoins et de présenter des observations;
[…]
g) n’est pas liée par
les règles légales ou techniques de présentation de la preuve;
[…]
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[10]
As
the Supreme Court noted in Baker v Canada (Minister of Citizenship and
Immigration), [1999] SCJ No 39:
[28] […] The values underlying the duty of
procedural fairness relate to the principle that the individual or individuals
affected should have the opportunity to present their case fully and fairly,
and have decisions affecting their rights, interests, or privileges made using
a fair, impartial, and open process, appropriate to the statutory,
institutional, and social context of the decision.
[11]
Similarly,
the Federal Court of Appeal described that, in the context of a hearing
conducted by the Refugee Protection Division, fairness “requires that claimants
be given an adequate opportunity to tell their story in full, to adduce
evidence in support of their claim, and to make submissions relevant to it” (Thamotharem
v Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2007]
FCJ No 734 at para 39).
[12]
The
Respondent is correct in underlining that the Board is “master in its house”
and has the authority to adopt the procedures it sees fit, within the
limitations of procedural fairness (Prassad v Canada (Minister of Employment
and Immigration), [1989] 1 S.C.R. 560 at para 16). In addition, a Board
member is entitled to narrow the scope of questions that he or she asks in the
hearing - to focus on areas of concern in the application. Indeed, in Zhong
v Canada (Minister of Citizenship and Immigration), 2011 FC 279, [2011] FCJ
No 323, I concluded that the Board was entitled to considerable latitude
in how it conducts its hearings (see para 20). In that case, there was no
evidence that the Member’s direction on how to proceed interfered with
counsel’s ability to adduce relevant evidence. I note as a side bar that
counsel in that case was also Ms. Crawford. However, the Board’s latitude to
determine the procedure in hearings before it must be weighed against the
Applicant’s right to have an adequate opportunity to tell his story in full,
and I believe that Zhong, above, is easily distinguished from this case
on the facts.
[13]
I
am not satisfied, on the facts of this case, that the Applicant’s opportunity
to present his case fully was respected. While the Board Member could limit
his questions to what he perceived to be a weakness in the Applicant’s
application, he prevented the Applicant from telling his story in full. The
Board drew a negative credibility inference from the want of a summons in the
record, but never once asked the Applicant to explain this absence.
Additionally, the Board determined that the Applicant was not a credible
witness with respect to his pursuit by authorities in China, but, apart from a few yes or no questions about the basis of his claim, did not
allow the Applicant to speak to this issue. In so doing, the Board breached
its duty of procedural fairness.
[14]
In
the end, the result may be the same, but after carefully reviewing the
transcript and the facts surrounding the apparent haste with which this matter
was handled, I am of the view that the Applicant is entitled to a more fulsome
hearing. Further, the hearing transcript is not sufficiently detailed for me
to conclude that there is no merit in sending the matter back for
redetermination, had I been inclined to exercise the discretion of the Court in
this regard.
[15]
Given
my findings on this issue, it is unnecessary to address the second. The
Applicant’s refugee claim will be sent back for redetermination by a different
Board Member.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
allowed and the matter is remitted to a newly constituted panel of the Board
for redetermination.
“ D. G. Near ”
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