Date:
20130529
Docket:
IMM-10524-12
Citation:
2013 FC 574
Vancouver, British Columbia,
May 29, 2013
PRESENT: The
Honourable Mr. Justice Richard Mosley
BETWEEN:
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F. A. M.
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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]
This
is an
application for judicial review pursuant to s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision by the Refugee
Protection Division of the Immigration and Refugee Board that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant is a citizen of Pakistan who arrived in Canada on December 22, 2010. He filed
a refugee claim on January 26, 2011, based on a fear of persecution from known
and unknown individuals related to his treatment by his family and former university
schoolmates and work colleagues.
[3]
On
April 16, 2012, the Refugee Protection Division (RPD) received an application
for procedural accommodation of the applicant as a vulnerable person from his
counsel. Counsel had previously advised the RPD that it was apparent that his
client was suffering from a mental illness and that he might not be able to
take instructions from the claimant. Arrangements were made to obtain a
psychological assessment. That assessment, dated March 19, 2012, was filed with
the RPD. The psychologist concluded that the applicant presented with symptoms
consistent with a diagnosis of schizophrenia (paranoid type) noted by bizarre
delusions and disordered thinking. He indicated that it would be inappropriate
to ask the applicant to give verbal testimony because the severity of his
symptoms made it impossible for him to give meaningful responses. Accordingly,
the application for accommodation requested that the right to give testimony
before the RPD be waived.
[4]
On
April 20, 2012, the RPD assistant deputy chairperson considered the information
submitted and concluded that the applicant was a vulnerable person as his
ability to present his case was severely impaired. The decision letter states:
It does not appear that any pre-hearing
accommodation is required, other than priority scheduling, which we will
provide. At the hearing itself, it will be open to the Presiding Member to
forego questioning of the claimant, other than with respect to his identity and
the truth of the information in the PIF. If counsel feels claimant cannot
answer even those questions, please request a prehearing conference. It is
clear from the expert report that no Des Rep is required; however, nothing
requires the claimant to answer questions if he prefers to rely solely on the
written record, namely, the PIF and disclosure filed.
[5]
At
the outset of the RPD hearing at Calgary on July 10, 2012, the Presiding Member
indicated that she was aware of the psychologist’s report and wished to ask the
applicant questions regarding the several issues arising from his claim. The
hearing then proceeded without any apparent further consideration, as disclosed
by the transcript, of whether the applicant was capable of giving evidence. Initially,
he was coherent but as the questioning continued he began speaking very rapidly
causing the Member difficulty in following his testimony and his answers became
increasingly bizarre and delusional.
[6]
One
example will suffice to illustrate the delusional nature of the testimony:
Hearing transcript, page 57 –
Presiding
Member: - so why did you say there was black magic involved?
Claimant:
Because how else would you describe this light at my head, burning and killing
me from inside on my head? And I was in distress for like 15 to 30
minutes. I was yelling, screaming in the airplane. If you ask, interrogate the
air staff, I emailed British Airways about this incident. I – my email is
blocked by Microsoft because –
Presiding
Member: Okay. So what is black magic?
Claimant:
Black magic –
Presiding
Member: How did black magic become involved?
Claimant:
Yeah. This is something, the Power of Genies (phonetic) (indiscernible) at a
previous hearing. The Power of Genie is when people who have control over
Genies, use them to do this. And black magic and the Power of Genies has been
existing since the time started. So it has been in the – in the scriptures,
too.
Presiding Member: Okay. Let’s not go there. [. . .]
[7]
When
questioned by his counsel, the applicant acknowledged not having taken his
medication, a problem that had been identified by the psychologist in her
report. There is no indication in the transcript whether this was considered
before the hearing began.
[8]
The
reasons for decision dated September 12, 2012 indicate at the outset that the Chairperson’s
Guidelines and Procedures with Respect to Vulnerable Persons Appearing before
the IRB were taken into consideration in making the determination. However,
there is no further reference to the guidelines in the decision or to the
applicant’s bizarre ideation at the hearing. The Member’s analysis
discusses the issues of credibility and subjective fear, re-availment, failure
to claim in the US, delay in claiming in Canada, and the applicant’s
explanations without at any time acknowledging that his explanations at the
hearing were often patently delusional.
[9]
The
application of the Chairperson’s Guidelines in this instance raises an
issue of procedural fairness which is reviewable on the standard of
correctness: Sharma v Canada (MCI), 2008 FC 908 [Sharma], at paras 13-16; Gilles v Canada (MCI), 2011 FC 7 [Gilles],
at para 11. The application of the guidelines in the determination of the
other issues raised by the claim, including credibility, is subject to the
standard of reasonableness: Hernandez v Canada (MCI), 2009 FC 106 at paragraph 13.
[10]
In another
quite recent case, Hillary v Canada (MCI), 2010 FC 638, aff’d 2011 FCA 51, leave to appeal to SCC refused [2011] SCCA No 165 (QL) [Hillary], the
claimant had asked to reopen his file two years after a first hearing, stating
that he had been suffering from schizophrenia and had been unable to
participate meaningfully in the proceedings. The Immigration Appeal Division (IAD)
refused and he requested judicial review of that refusal. Justice Russell noted
that:
40 It was open to the IAD to determine that
the Applicant's schizophrenia was not in and of itself an adequate reason for
the appointment of a designated representative. Indeed, there is no indication
that the Applicant did not understand the proceedings. Furthermore, not all
persons suffering from schizophrenia are incapable of understanding proceedings
and participating in them. Each case must be considered on its own merits.
[. . .]
53 In my view, the plain reading of section
167(2) read in context says that a Division need only designate a
representative for someone who is not a minor if it forms an opinion that the
person in question is unable to appreciate the nature of the proceedings. In my
view, then, what is required to achieve procedural fairness will depend upon
the full context of each case. In this case, the Panel knew that the Applicant
had schizophrenia, but there was nothing to indicate that his schizophrenia
prevented him from understanding the nature of the proceedings. In fact, the
Applicant has a long history of appearing in legal proceedings and there is no
evidence to suggest that his schizophrenia has prevented him from understanding
what has taken place. There may well be situations where a Division is obliged
to advise an applicant and undertake a formal inquiry into his understanding of
the proceedings, but I do not think that such a procedure was required in the
full context of this case.
[11]
Justice
Russell further commented on the situation of vulnerable claimants who were not
children that “The jurisprudence in this area of the law is not fully
developed” (para 66), although he noted two relevant decisions: Sharma,
cited above in these reasons, which involved a psychologically vulnerable
bereaved couple who had reported police detention and abuse, and Abdousafi v Canada (MCI), 2001
FCT 1372, which involved a claimant who alleged that mental deficiency had prevented
him from understanding the proceedings.
[12]
I
note in addition Gilles, cited above,
decided the year after Hillary, in which the applicant was illiterate
and claimed that he had been mentally troubled at the time of his hearing. In Gilles,
the Court concluded that “It is apparent from the
panel's reasons that it was sensitive to the applicant's limitations at the
hearing and that it tried to take his difficulties into consideration [. . .]. The
panel apparently did not notice anything abnormal about the applicant's mental
state, and so the burden was on counsel to refer to the Guideline, which he did
not do. In my opinion, there was no error in the case at bar and the panel
acted correctly” (para 17). The application was dismissed.
[13]
In
Hillary, Justice Russell certified a question as to the extent of a
Board’s responsibility when faced with a claimant suffering from a mental
illness. The Federal Court of Appeal reviewed the issue in 2011. It observed
that in this particular case:
15 In its
reasons for dismissing the motion to reopen, the IAD noted that: Mr Hillary had
been represented by counsel, who raised no concern over Mr Hillary's ability to
instruct him; no request was made for a designated representative; Mr Hillary
was familiar with IAD proceedings as a result of his successful appeal against
the first deportation order; he testified and produced evidence designed to
establish humanitarian and compassionate grounds for a stay of the second
deportation order; nothing in Mr Hillary's behaviour or demeanour at the
hearing indicated that he needed a designated representative; and two years had
elapsed between the dismissal of the appeal by the IAD and the request to
reopen.
[14]
The Federal
Court of Appeal also commented in its analysis that:
38 Nor
is it said that, on the basis of the documentary evidence before it, and of Mr
Hillary's behaviour at the hearing, including his responses to the questions
put to him by counsel, it should have been obvious to the IAD that he did not
understand the nature of the proceedings and therefore required the appointment
of a designated representative.
39 One
can say no more than this: Mr Hillary's schizophrenia may possibly have
impaired his ability to appreciate the nature of the proceedings to such an
extent that representation by counsel alone was insufficient to enable him to
protect his interests and to participate meaningfully in the process.
However, this is not enough to establish that the IAD's dismissal of Mr
Hillary's appeal was vitiated by a breach of a principle of natural justice.
40 It
is always within the discretion of the IAD to raise the issue itself and to
inquire into the appellant's capacity. However, if the IAD makes no such
inquiry, the Court should intervene only if satisfied on the basis of an examination
of the entire context that the Board's inaction was unreasonable and fairness
required the IAD to be proactive.
[. . .]
49 I would add only this. If procedural
fairness had required the IAD to inquire on its own initiative whether Mr
Hillary appreciated the nature of the proceedings, I agree with Judge's view
that the failure to inquire would have constituted a breach of a principle of natural
justice, unless the appointment of a designated representative could, not would, have made no
difference to the outcome of the appeal. See also Stumf
v Canada (Minister of Citizenship and Immigration), 2002 FCA 148 at para 5; Duale v Canada (Minister of Citizenship and Immigration), 2004 FC 150 at paras 20-21.
[15]
The Federal
Court of Appeal concluded in answer to the certified question that: “Whether the
principles of natural justice require the IAD to initiate inquiries to enable
it to form an opinion on whether an appellant who is suffering from a mental
illness appreciates the nature of the proceedings depends on an examination of
all the circumstances of the case. Since no such duty arose in the present
case, it is not necessary to address the hypothetical question of the
procedural steps that would have been necessary to discharge the duty” (para
50).
[16]
In the
present case, unlike in Hillary and Gilles, it is obvious from
the transcript that the claimant was not rational throughout the course of the
hearing. In my view, the applicant was denied procedural fairness when it
became apparent that he was unable to give coherent testimony about the issues
raised by his claim for refugee status and protection. The Presiding Member
should have stopped the hearing at that point and considered alternative
procedures to determine the claim. I am also satisfied that the Member did not
demonstrate in her analysis that the applicant’s mental state was taken into
consideration in determining the merits of the claim and, in particular, of his
explanations.
[17]
Accordingly,
this matter must be remitted for reconsideration by a different RPD panel.
In doing so, the panel must consider again how best to accommodate the
applicant’s vulnerability, including the unreliable nature of the written
materials in the record which he authored and the unreliable nature of
statements which he made while not following prescribed courses of treatment.
His testimony at the hearing on July 10, 2012 shall not be taken into
consideration in the panel’s determination.
[18]
In view of
the applicant’s vulnerability, I will also order that the style of cause be
amended to replace the applicant’s name with initials.
[19]
No questions
for certification were proposed.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The
application
is granted and the matter is remitted for reconsideration by a differently
constituted panel of the Refugee Protection Division in accordance with the
Reasons for Judgment provided;
2. The style
of cause in this matter is amended to substitute the initials F.A.M. for the
name of the applicant; and
3. No question
is certified.
“Richard G. Mosley”
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