Docket: IMM-7863-14
Citation:
2015 FC 1115
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 25, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ASSITAN KEITA
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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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JUDGMENT AND REASONS
I.
Preliminary Remarks
[1]
Tribunals benefit from a presumption of
impartiality and, as such, any allegation of bias must be supported by concrete
evidence and cannot be raised lightly (Panov v Canada (Minister of Citizenship
and Immigration), 2015 FC 716 at para 20 [Panov]; Arthur v Canada
(Attorney General), 2001 FCA 223, [2001] FCJ 1091 at para 8 [Arthur]).
It was in Committee for Justice and Liberty v Canada (National Energy Board),
[1978] 1 S.C.R. 369 [Committee for Justice and Liberty], that the Supreme
Court defined the applicable test for determining apprehension of bias:
[40] [T]he apprehension of bias must be
a reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. [T]hat
test is “what would an informed person, viewing the matter realistically and
practically—and having thought the matter through—conclude.
Committee for Justice and Liberty, above, at para 40.
[2]
The identity of a refugee claimant is vital to
any refugee protection claim and if a claimant fails to establish his identity
to the satisfaction of the Refugee Protection Division [RPD], the RPD may draw
a negative conclusion as to his credibility (Matingou-Testie v Canada (Minister
of Citizenship and Immigration), 2012 FC 389 at para 2 [Matingou-Testie];
section 106 of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA]).
II.
Introduction
[3]
This is an application for leave and for
judicial review under subsection 72(1) of the IRPA from a decision of the RPD
of the Immigration and Refugee Board [IRB], dated May 15, 2014,
finding that the applicant was neither a refugee nor a person in need of
protection within the meaning of sections 96 and 97 of the IRPA.
III.
Facts
[4]
The, Assitan Keita, is a 21-year old citizen of
Mali from the village of Sinzani. Her family is Malinké, a caste group of the
Masseren dynasty.
[5]
According to the applicant, her father has a
great deal of control over his daughters. When the applicant was only seven
years old, her father promised her in marriage to an older man who already had
two women as wives.
[6]
When she was 13 years old, the applicant fell in
love with a boy who was Griot, which is a lower caste than Malinké. When her
father was apprised of this relationship, he purportedly beat the applicant
several times.
[7]
In order to facilitate the marriage of the
applicant to the older man, the applicant and her father went to the police
station in Batala to obtain a national identity card for the applicant.
[8]
The applicant’s mother, who wished to help her
daughter flee Mali, applied for a visa in the applicant’s name by filing false
documents (airplane tickets, passport and attendance certificate application). The
applicant fled Mali with false documents on April 2, 2012, and arrived in
Canada on April 3, 2012. A claim for refugee protection was filed on June 3,
2012.
IV.
Decision
[9]
The decision that is subject to judicial review
is that of the RPD, dated May 15, 2014, in which the RPD refused to recognize the
applicant as a refugee or person in need of protection within the meaning of
sections 96 and 97 of the IRPA, following the RPD’s determination that it was
not satisfied as to the identity of the applicant.
[10]
At the hearing, the applicant acknowledged that
the visa she had obtained as well as the airline tickets she had presented when
she made her claim for refugee protection were false; however, she testified
under oath that her national identity card and passport – which had been seized
by immigration services when she claimed refugee protection in Canada
(Applicant’s Memorandum, para 17) – were genuine. Only her national identity
card was presented at the hearing to confirm her identity.
[11]
During the hearing, the RPD raised a number of
irregularities with regard to her national identity card: the date of issuance
had been corrected by hand; the applicant’s fingerprints were missing; and the
applicant had been described as being “the son of”.
The RPD was not satisfied with the explanations given by the applicant at the hearing
to the effect that fingerprints were not required of minors and errors were a
common occurrence in Mali. Unsatisfied as to the applicant’s identity, the RPD
did not examine the remaining parts of the applicant’s claim for refugee
protection.
V.
Issues
[12]
The Court considers that the application raises
the following issues:
1)
Was the RPD’s decision that the applicant had
failed to establish her identity, on a balance of probabilities, reasonable?
2)
Did the RPD member breach his duty of
impartiality?
VI.
Statutory provisions
[13]
The following statutory provisions of the IRPA
and Refugee Protection Division Rules, SOR/2012-256 [Rules] apply:
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Convention refugee
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Définition de « réfugié »
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du
pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Credibility
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Crédibilité
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106.
The Refugee Protection Division must take into account, with respect to the
credibility of a claimant, whether the claimant possesses acceptable
documentation establishing identity, and if not, whether they have provided a
reasonable explanation for the lack of documentation or have taken reasonable
steps to obtain the documentation.
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106. La Section de la protection des
réfugiés prend en compte, s’agissant de crédibilité, le fait que, n’étant pas
muni de papiers d’identité acceptables, le demandeur ne peut raisonnablement
en justifier la raison et n’a pas pris les mesures voulues pour s’en
procurer.
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Documents
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Documents
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11. The
claimant must provide acceptable documents establishing their identity and
other elements of the claim. A claimant who does not provide acceptable
documents must explain why they did not provide the documents and what steps
they took to obtain them.
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11. Le demandeur d’asile transmet des
documents acceptables qui permettent d’établir son identité et les autres
éléments de sa demande d’asile. S’il ne peut le faire, il en donne la raison
et indique quelles mesures il a prises pour se procurer de tels documents.
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VII.
Parties’ positions
[14]
First, the applicant argues that the member’s decision
that she had failed to establish her identity was unreasonable, unfounded and
arbitrary. In particular, the applicant submits that during her testimony
before the RPD she had provided explanations with regard to irregularities
raised by the RPD about her national identity card. Furthermore, she had
declared under oath that the national identity card was genuine; and, she had
described the circumstances under which she had obtained the national identity
card. The applicant further argues that the RPD disregarded other documents
provided at the hearing and failed to consider other evidence raised during her
testimony.
[15]
Subsidiarily, the applicant contends that the RPD
member cast doubt on his impartiality by asking that the applicant’s counsel
clearly state her “objection” if she wanted to
make an objection. The member dismissed all of her objections; and issued his
decision immediately after counsel for the applicant had made her submissions. The
applicant submits that members must, at all times, be above reproach and
objective, and they must show the most basic courtesy and politeness (Hernandez
v Canada (Minister of Citizenship and Immigration), 2010 FC 179 at para 44
[Hernandez]; Guemarche v Canada (Minister of Citizenship and
Immigration), 2004 FC 870). According to the applicant, the member had been
the subject of a judicial review in a previous decision, Saint-Eustache v Canada
(Minister of Citizenship and Immigration), 2012 FC 511 [Saint-Eustache].
Although the case law recognizes that allegations of bias must be raised at the
earliest opportunity, the applicant argues that in Munoz v Canada (Minister
of Citizenship and Immigration), 2012 FC 227, the Court nonetheless allowed
that application for judicial review on grounds of bias.
[16]
For its part, the respondent maintains that the
issue of identity is a fundamental element in a refugee claim and that, where
the RPD is not satisfied, on a balance of probabilities, as to the identity of an
applicant, it is fatal to the success of a refugee claim (Bhuiyan v Canada (Minister
of Citizenship and Immigration), 2003 FCPI 290 at para 10; Najam v
Canada (Minister of Citizenship and Immigration), 2004 FC 425 at para 16). The
respondent submits that the RPD has wide discretionary latitude with respect to
assessing the probative value of evidence of the identity of a claimant (Yogeswaran
v Canada (Minister of Citizenship and Immigration), 2001 FCT 48; Yogorajah
v Canada (Minister of Citizenship and Immigration), 2002 FCT 1318). The
respondent asserts that given the material insufficiencies that cast doubt on
the probative value of the national identity card, and the fact that no other
trustworthy piece of identification was submitted by the applicant, the
member’s decision was reasonable.
[17]
As to the issue of bias, the respondent argues
that such allegations must be supported by serious and substantial evidence (Arthur,
above at pp 349-350). Thus, the respondent maintains that the applicant’s
allegations are not supported by the evidence, but rather, consist of mere
impressions, and that the member had only commented to counsel for the
applicant with regard to the conduct and smooth functioning of the hearing. The
case law of this Court clearly affirms that the RPD may render its decision
from the bench if additional deliberations are not necessary (Eslami v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No. 1007 (FC),
upheld on appeal [2001] FCJ No. 117 (FCA); Stapleton v Canada (Minister of
Citizenship and Immigration), 2006 FC 1320 at para 30 [Stapleton]).
VIII.
Standard of review
[18]
Issues of identity and of credibility are
questions of fact that are reviewable on a reasonableness standard (Selvarasu
v Canada (Citizenship and Immigration), 2015 FC 849; Diallo v Canada (Minister
of Citizenship and Immigration), 2014 FC 471; Aguebor v Canada (Minister
of Employment and Immigration), (1993), 160 NR 315 (FCA)). The RPD’s
decision is reasonable if it is justifiable, transparent and intelligible, and
if it 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] 1 S.C.R. 190 at para 47).
[19]
Otherwise, the case law has consistently held
that allegations of bias on the part of a member raise issues of procedural
fairness that are reviewable on a correctness standard (Panov, above; Saint-Eustache,
above).
IX.
Analysis
[20]
This is a judicial review of a decision made by
the same member.
A.
Identity of Ms. Keita
[21]
A refugee claimant bears the onus of
establishing their identity, on a balance of probabilities, by providing
acceptable documents confirming their identity (Rule 11 of the Rules; Su v
Canada (Minister of Citizenship and Immigration), 2012 FC 743; Malambu v
Canada (Minister of Citizenship and Immigration), 2015 FC 763). A
claimant’s identity is vital to any claim for refugee protection and a failure
to establish identity on the part of a claimant to the RPD’s satisfaction may
lead it to draw a negative conclusion as to his credibility (Matingou-Testie,
above, at para 2; section 106 of the IRPA). When making identity findings, the RPD
must take into account the totality of the evidence relevant to the identity of
the refugee claimant before it (Yang v Canada (Minister of Citizenship and
Immigration), 2009 FC 681 at para 6). It is important to recall that the
issue of identity is at the very core of the RPD’s expertise and that this Court
should be circumspect with respect to identity findings made by it (Toure v
Canada (Minister of Citizenship and Immigration), 2014 FC 1189 at paras
31-32; Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC
319 at para 48).
[22]
At the hearing, the applicant admitted that only
the national identity card was genuine and that all of the other documentation
in the record was false.
[23]
From the start of the hearing, the member
expressed doubts about the national identity card and clearly set out the
reasons why he believed the national identity card had been falsified:
[translation]
And the original of your identity card, here
we can see that the date of issuance of the national identity card has been
altered, written over, for starters. In addition, we notice that your real
identification photo on it has been stapled to (inaudible). And lastly, this
identity card is issued, signed by the commander – commander of a search
brigade. It describes you as being the son of, rather than the daughter of; it
stated that you were N-É [born] instead of N-É-E [born—but with the appropriate
feminine “e” ending].
(Hearing Report, Assitan Keita, MB2-03291,
May 15, 2014 at p 6)
[24]
Later on, the member questioned the applicant
about each irregularity in order to allow her the opportunity to fully explain
herself. The member asked the applicant whether she had other documents that
could establish her identity, as he was still unsatisfied. The applicant was
unable to provide further documentation, admitting that only the national
identity card was genuine. The RPD did not take the applicant’s passport into
consideration in light of the fact that the national identity card had been
used to obtain that passport.
[25]
The RPD’s decision that the applicant had failed
to establish her identity to its satisfaction was therefore reasonable, given
that the RPD considered the totality of the evidence adduced at the hearing, the
applicant’s testimony, and the explanations provided by her.
B.
Member’s bias
[26]
Tribunals benefit from a presumption of
impartiality, thus, any allegation of bias must be supported by concrete
evidence and cannot be raised lightly (Panov, above, at para 20; Arthur,
above, at para 8). It was in Committee for Justice and Liberty, above at
para 40, that the Supreme Court set out the applicable test to determine whether
there is a reasonable apprehension of bias:
[40] [T]he apprehension of bias must be
a reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information.
[T]hat test is “what would an informed person, viewing the matter realistically
and practically—and having thought the matter through—conclude.
[27]
It should be noted that a person alleging an
apprehension of bias needs only to demonstrate, on a balance of probabilities,
the existence of an appearance of bias (Panov, above, at para 19; Cipak
v Canada (Minister of Citizenship and Immigration), 2014 FC 453 at para
33). However, when a person alleges an appearance of bias on the part of a
member, they must raise that apprehension at the earliest opportunity in order
to allow the decision maker to recuse themselves, if necessary. The failure to
meet that test generally amounts to an implied waiver of the right to invoke
bias in subsequent proceedings (Andrade v Canada (Minister of Public Safety
and Emergency Preparedness), 2015 FC 1007 at para 25; Jerome v Canada (Minister
of Citizenship and Immigration), 2011 FC 1419 at para 18 [Jerome].
[28]
A case very similar to the matter in issue here,
wherein the applicant alleged an appearance of bias, was dismissed owing to the
fact that the applicant had failed to raise the argument of bias at the
earliest opportunity (see Jerome, above, at para 18). Nevertheless, the
Court shall still proceed with the analysis of bias.
[29]
RPD members play an essential role in Canada’s
refugee system. Given this essential role, “members
must, at all times, be above reproach and objective, especially because, in
practice, this is often a claimant’s only opportunity to be heard in person” (Hernandez,
above at para 44).
[30]
At the hearing before the RPD, counsel for the
applicant and the member had exchanges that were not always harmonious (see, in
particular, pp 19-22, 31-32, 51-53 and 55-56 of the Hearing Report). In his
decision, the member made comments specifically about the conduct of the
applicant.
[7] The panel asked counsel for the
claimant to make her submissions at the end of the hearing. Rather than
focusing on objective factors drawn from an analysis of the case, all her
submissions consisted of reminding the member that he was not qualified to
analyze documents, that he did not have legal expertise and that he was nothing
but a mere member.
(RPD decision, dated May 15, 2014, at para
7)
[31]
In light of the circumstances and the facts that
arise from the case, the member’s conduct was appropriate and showed
objectivity towards the applicant. His behaviour towards the applicant was
acceptable. Upon reading the Hearing Report, the member began by asking counsel
to raise her objections in accordance with her professional code of conduct, to
which counsel twice replied that [translation]
“this is the first time a member has asked me to do
that” (Hearing Report, p 21). Furthermore, counsel interrupted the
member a number of times. Next, when the member twice rejected objections made
by the applicant’s counsel, she laughed at the member’s decision, stating [translation] “What
a surprise” (Hearing Report, p 32). Later, counsel for the applicant
reminded the member at the hearing that he [translation]
“had no legal expertise” (Hearing Report,
p 52). Lastly, when the member issued his decision and pointed out that counsel
for the applicant had made comments that showed “what
little consideration she held for the IRB”, she responded “It’s not the IRB. It’s you.” (Hearing Report, p 55).
[32]
The conduct of the RPD member does not amount to
an apprehension of bias. This Court acknowledges that although the conduct of
members is not always ideal in certain circumstances, this does not mean that
it was biased:
[19] I acknowledge that the transcript
shows that there were some sharp exchanges between the Applicant’s counsel and
the Member. However, these particular exchanges were not between the Member and
the Applicant and did not take place until well into the hearing. At no time
did the Member ask an inappropriate question or address a negative remark to
the Applicant. In the presence of the exchanges between counsel and the Member,
I do not doubt that everyone in the room felt uncomfortable. However, the fact
that the Applicant may have felt uncomfortable – or even intimidated – does not
amount to bias.
[22] In addition, a well-informed
person would likely appreciate that counsel for the Applicant must bear some
responsibility for the difficulties that arose during the hearing. On at least
two occasions prior to the mid-hearing conference, the Member asked counsel to
be more respectful: First, after counsel refused the Member’s request that he
stop repeating questions, and again after counsel interrupted the Member when
she sought to clarify an aspect of the Applicant’s evidence (see CTR at
330-331, 346-347). While the Member clearly allowed her frustration with
counsel to show in her body language, her tone of voice and certain of her
remarks to counsel, her conduct, although possibly intemperate and regrettable,
does not amount to a reasonable apprehension of bias. [Emphasis added.]
(Ramirez v Canada (Minister of
Citizenship and Immigration), 2012 FC 809)
[33]
As for the applicant’s argument that the
decision maker was biased even before hearing the case, it is without basis. To
the extent that the member considered the allegations and the evidence in the
record, “the brevity of a decision maker’s
deliberations [does not] establish per se that the decision maker was
biased prior to [considering] the evidence and arguments of either party.” (Blanco v Canada (Minister of
Citizenship and Immigration), 2010 FC 280 at para 11; Stapleton,
above, at para 30).
X.
Conclusion
[34]
The Court finds the RPD’s decision to be
reasonable. Accordingly, the application for judicial review is dismissed.
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