Guideline 7 issued by the Chairperson of the Immigration and Refugee Board. Guideline 7 had been considered in Thamotharem v. Minister of Citizenship and Immigration, 2006 FC 16, and the cases which came within scope of Justice Snider's order brought forward issues related to Guideline 7 but not raised in Thamotharem.
[3] Justice Snider's Order of February 20, 2006, also provided that the remaining issues in each of the "consolidated cases" which were unrelated to Guideline 7 were to be determined in separate hearings presided over by one or more different judges.
[4] On March 7 and 8, 2006, Justice Richard Mosley heard the outstanding Guideline 7 issues in each of the consolidated cases from Toronto and, where necessary, with video conferencing.
[5] On March 14, 2006, the hearing in court files IMM-9220-04 and IMM-3994-05 concerning the non-Guideline 7 issues proceeded before me in Halifax, Nova Scotia. These reasons for order shall be placed in each file.
IMM-9220-04
[6] The applicant, Sirisena Kuruvita Arachchige, challenges the Refugee Protection Division determination of October 8, 2004 that he is neither a Convention refugee nor a person in need of protection.
[7] In October 2002, Mr. Arachchige, a citizen of Sri Lanka, claimed refugee protection in Canada shortly after participating here in the Canada World Youth Exchange Program.
[8] Mr. Arachchige identified three individuals and three organizations as agents of persecution whom he fears. His particular social group was described as including persons with knowledge of criminal activities by persons holding public office.
[9] The refugee hearing began in the early afternoon of September 29, 2004. No refugee protection officer participated in the hearing. The applicant was represented by counsel who has deposed that this was his first refugee hearing in which he acted for a claimant.
[10] When counsel asked for direction concerning the order of questioning, the member stated that he would "go first". Counsel responded: "Very good".
[11] The member questioned the applicant with respect to each of the six agents of persecution. In each instance, the applicant was asked why he feared the particular agent of persecution. The member also briefly questioned the applicant concerning state protection and internal flight alternative.
[12] In his decision, the member concluded that the claimant's testimony was speculative and untrustworthy. In the absence of sufficient reliable testimony that the applicant would be personally in danger or at risk, the claim was rejected.
[13] This application for judicial review characterizes the panel member's conduct of the hearing as both constituting a breach of natural justice and procedural fairness and resulting in a reasonable apprehension of bias. The member's findings of negative credibility are not challenged in this proceeding. Counsel for the applicant in this Court did not represent him at the refugee hearing.
[14] The principal statements made by the member which are relied upon by the applicant to establish "his aggressive and antagonistic questioning" and the apprehension of bias include the following opening remarks:
· "I think it's important to do the hearings, complete them on time, give them a fair hearing in accordance with natural justice and proceeding through the material should be secondly."
· "I don't want us to be tied down with procedural matters with result that we have to postpone the hearing ... Now, this would be especially the case here because we are starting late, because the morning hearing went unnecessarily long."
· "...you will get about 20 minutes for your submissions."
· "I should tell you that the Chairperson is very keen that the hearings be not only respectful of natural justice but also efficient, dealing with the heart of the matter and I also believe quite deeply in this. And the advantage, one that approaches that the hearings complete on time and you don't have the claimant waiting for many more months because the case has been adjourned."
· "So my questions will be dealt with ...will be dealing with the heart of the claim. After that, you will be welcome to question but I would not [want] questions which have already been answered or which really have no bearings on the claim because I am not here to write a book on the claimant's life. I am simply to decide whether he faces persecution and needs protection. Okay. So if your questions go off track, I'll respectfully but quite clearly make it clear to you."
[Emphasis added.]
[15] One might argue that some of the comments, the ones underlined, were unnecessary and repetitive introductory remarks. The applicant suggests that the statements would have a "chilling effect" on counsel. I do not agree, particularly when the comments are read against the transcript in its entirety. Not all members of the Refugee Protection Division might see the need to assert their authority in such a precise fashion at the commencement of a hearing. That this member did so, again in the context of the full hearing, does not constitute a reviewable error.
[16] The member's questioning of the applicant lasted some three hours. Part of this time was spent canvassing information, proffered by the applicant, which had not been set out in his personal information form.
[17] The member's questioning ended late in the afternoon when counsel expressed concern with the time constraints and some conflicting personal commitments:
· BY PRESIDING MEMBER (to person concerned)
"This has been quite extensive."
BY PRESIDING MEMBER (to counsel)
"So [counsel], do you have any questions where you think I have not covered the area?"
BY COUNSEL (to presiding member)
"I'm a little bit concerned because it's three minutes to five. I have some personal things I was going to take care of. If I can make a phone call, I might be able to arrange pickup for my son from daycare and we can continue. I'm open to the Board Member's suggestion in that regard. I didn't understand how late the Board intended to go."
BY PRESIDING MEMBER (to counsel)
"You are certainly free to make the telephone call to your ... to find out about your son and my own feeling is that I have asked him all the questions and the questioning is basically done."
BY COUNSEL (to presiding member)
"Let me ask one question. Do you have any issue with regard to delay in making the application for refugee status because..."
BY PRESIDING MEMBER (to counsel)
"No ... This is one area where we got much more information than we expected and his narrative was also very exhaustive. So feel free to make the call to find out about your son and then if we both agree, then you could make the submission."
The hearing was then recessed for a short time to allow counsel to attend to his personal commitments by telephone.
[18] The hearing resumed to address the applicant's late filing of documents. The issue was resolved without much contention, even though the applicant suggests that the member should have disposed of the matter earlier in the hearing. On my review of the transcript, I do not understand how the hearing was detrimentally affected by the timing of the member's agreement to the late filing of documents relevant to the applicant's oral submissions.
[19] Counsel then reiterated his concern that he might not have sufficient time to complete his oral submissions. This caused the member to respond as follows:
"I give you credit that you did not ask silly and useless questions which some counsel do simply to justify their presence and I think that is professionalism on your part but I don't think that you are being short-changed when it comes to submissions. I have said that I'm guided by common sense and reasonableness and I would also like to remind you that the IRB's mandate is to maintain the integrity of the system and even when claimants do not have legal representation, they get the same fair hearing that they do when they have counsel and many of them are found to be Convention refugees or persons in need of protection if they meet the requirements of the law. So I don't think you should feel any pressure. Your submissions should be to the point and relevant and I'm happy to stay beyond five o'clock for this because I feel that the claimants have been waiting for several years away from their relatives".
[Emphasis added.]
Here, counsel argues that the member was demeaning to lawyers in suggesting that unrepresented refugee claimants also receive fair hearings. At most, I view the comment as unnecessary and irrelevant.
[20] Earlier, the member had noted:
"So I think you have to present to us your submissions in a reasonable manner and a reasonable time, but if you become like Fidel Castro and speak for hours, I am not going to of course allow that."
[Emphasis added.]
In my view, this underlined statement was speculative and unnecessary.
[21] While some of the member's comments may be characterized as superfluous, I am not satisfied that they establish an apprehension of bias. Nor could they have caused, in my view, a "chilling effect" for the applicant's refugee hearing counsel, whose affidavit evidence before this Court highlighted his perception of the shortcomings of the member's conduct without referring to any such effect.
[22] From the outset, the member demonstrated that he was determined to conduct the hearing expeditiously yet fairly. His questioning was thorough and orderly. The questions were consistent in dealing with each of the applicant's allegations: why do you fear this particular agent of persecution? Counsel did not object to the member's questions. When afforded the opportunity to question the applicant, after the member's self-characterized "extensive" questioning, counsel raised one issue. In his affidavit, the applicant's counsel before the Refugee Protection Division deposed: "I had to make a tactical decision on how best to advance my client's case and determined I would not examine the claimant and present only my summation..." I do not accept that the decision not to question further the applicant was the result of any alleged "chilling effect" from the member's opening comments.
[23] In my view, the member's language and comportment do not rise to the level of apprehension of bias. A review of the applicant's responses and of the member's reasons for decision leads to a consistent conclusion that his substantive determination was one which was open to him.
[24] The applicant has not shown how the member's conduct of the hearing interfered with his presentation of evidence. There is no material before me indicating what evidence the applicant was prevented from introducing. The applicant, as I noted earlier, has not challenged the negative credibility finding, either how it was wrong or otherwise not explained in "clear and unmistakable" terms in the written reasons.
[25] In summary, a reasonably informed and right-minded person, viewing the matter realistically and practically, would not conclude that the member did not have an open mind with respect to the applicant's refugee claim because of his determination to proceed with the hearing efficiently: [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board et al., [1978] 1 S.C.R. 369 at 394. In any event, any doubt in this regard is dissipated by a review of the methodical and measured examination of the applicant on all aspects of his claim. Whether viewed individually or cumulatively, the member's impugned comments fall short of supporting an allegation of apprehension of bias.
[26] The applicant also suggests three instances where the member's interruption of answers to questions compromised a fair hearing:
(a) BY PRESIDING MEMBER (to person concerned)
"Now, when you mentioned that your family members were killed by JVP, are your referring to the rebellion by the JVP when they killed thousands of people and thousands of their people were killed?"
BY PERSON CONCERNED (to presiding member)
"During that time, my uncle Ajissan (phonetic) and my uncle's son's wife (inaudible)."
BY PRESIDING MEMBER (to person concerned)
"I only asked you whether you were referring to that period. I didn't ask you for a list because you have already provided that information in the narrative."
(b) BY PRESIDING MEMBER (to person concerned)
"This is in 1997 when ... just a moment, please. Don't interrupt me."
BY PERSON CONCERNED (to presiding member)
"Sorry about that."
(c) BY PRESIDING MEMBER (to person concerned)
"And when did you go in hiding and where?"
BY PERSON CONCERNED (to presiding member)
"It was after the killing of my cousin. I was staying in a boarding home at Wiyapola (phonetic). No one visited that house. It was a very safe place and (inaudible) that I was living there. I was very (inaudible) when I was living there and (inaudible) for a number of days, I was staying at a house close to the university (inaudible). To most of the people I know I have given the address at (inaudible) it was also a house of (inaudible) of mine. That is the address I am still using."
BY PRESIDING MEMBER (to person concerned)
"My question was, did you ever to in hiding? Could you please answer that question?
BY PERSON CONCERNED (to presiding member)
"Yes, I was."
[27] Again, whether viewed individually or cumulatively, these comments do not support the applicant's submission that he was not afforded a fair hearing. The principles of natural justice and procedural fairness require a fair hearing, not necessarily a perfect hearing: Ruby v. Canada(Solicitor General), 2002 SCC 75">2002 SCC 75 at paragraph 46.
[28] The audio tapes demonstrate that the member's tone was firm and calm - almost monotonous. Neither the member, the applicant, his counsel nor the interpreter raised their voice during the hearing. Each participant sounded polite throughout. I am satisfied that the member's determination to move forward with the hearing as he did, did not result in it being unfair or incomplete.
[29] For these reasons, the issues raised for determination in this application for judicial review which were considered by me will be dismissed. Neither party suggested the certification of a serious question and none will be certified.
IMM-3994-05
[30] As noted earlier, the applicant's refugee claim was heard in the afternoon of September 29, 2004. The same member who presided over the applicant's case ("the first member") heard another claim - the Mudiyanselage claim - earlier that day. Again, the first member heard a third claim - the Patabendige claim - during the forenoon of the next day, September 30. The three claims were made by Sri Lankan citizens. The first member rejected each of the claims in separate decisions, each issued on October 20, 2004. No refugee protection officer participated in any of the three cases.
[31] The three claimants sought to have their claims for refugee protection reopened pursuant to Rule 55 of the Refugee Protection Division Rules, SOR/2002-228. Rule 55(4) provides that the Refugee Protection Division must allow the application for the reopening of a claim "if it is established that there was a failure to observe a principle of natural justice".
[32] The three applications to reopen were considered by the same member of the Refugee Protection Division ("the reviewing member") who was, of course, a member other than the first member who issued the three negative decisions.
[33] The applications were made in writing with no oral submissions.
[34] On June 8, 2005, the reviewing member issued three separate decisions. He denied the application for the reopening of the claim of the applicant in this proceeding, Sirisena Kuruvita Arachchige. However, he allowed the applications in the Mudiyanselage claim and the Patabendige claim, ordering new hearings by differently constituted panels.
[35] It is now a matter of public record that the Mudiyanselage claim was denied again at the second hearing. His application for judicial review of this decision was dismissed in this Court on March 1, 2006 in file IMM-7461-05.
[36] Counsel for both parties informed the Court that as the result of his new hearing, Mr. Patabendige was determined to be a Convention refugee.
[37] This proceeding, IMM-3994-05, is the application for judicial review of the reviewing member's refusal to grant the applicant Arachchige the reopening of his claim for refugee protection.
[38] Counsel for Mr. Arachchige acknowledged that if the original negative determination by the Refugee Protection Division was set aside, the application for judicial review challenging the refusal to reopen his refugee claim would be moot. However, counsel was not prepared to make what I viewed to be a corollary concession: that the application for judicial review concerning the refusal to reopen would also be moot if, as is the case, the application for judicial review in the first proceeding were dismissed. Counsel for the respondent did not object to the applicant's position.
[39] I have serious doubts whether, conceptually, the outcome in these two proceedings can differ. However, as I heard both matters together, I will dispose of the second application on the issues raised by the parties.
[40] Where natural justice is in issue, it is not necessary to identify the appropriate standard of review. Here, the Court is as well-positioned as the reviewing member concerning questions of procedural fairness. Where there has been a breach of natural justice, the Court can intervene: 2003 SCC 29">Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29 at paragraph 100; Canada(Attorney General) v. Fetherston, 2005 FCA 111 at paragraph 16.
[41] In the view of the applicant's counsel, these three Sri Lankan refugee claims heard in Halifax on September 29-30, 2004 by the same member must be viewed as one continuum. It is wrong in principle and in law, she asserts, for the reviewing member to have intervened on the grounds of natural justice in the Mudiyanselage claim and in the Patabendige claim and not to have done so in the Arachchige claim. Accordingly, in her view, for this reason alone I must set aside the reviewing member's refusal to reopen the claim of Mr. Arachchige. I do not agree.
[42] First, there was no application for judicial review of the reviewing member's decision in the other two files. I cannot conclude in law whether the reviewing member made any reviewable error in his other two decisions.
[43] Second, it is conceptually coherent for the reviewing member to have found a breach of natural justice in two of the claims and not in the third.
[44] Third, and in any event, the record in this proceeding is limited with respect to the two other claims. The three decisions of the reviewing member, an affidavit of each of the three claimants and certain other persons and the joint written submissions filed with the reviewing member have been filed in this proceeding. The three decisions of the reviewing member do include limited extracts from the transcripts of the refugee hearings in the three original claims. However, neither the complete transcripts nor the audio tapes, which were considered by the reviewing member in the Mudiyanselage and Patabendige claims, were made available to this Court.
[45] The applicant raises two other issues. In his view, the reviewing member erred in not concluding that there existed a reasonable apprehension of bias as a result of the original member's conduct. The reviewing member found a reasonable apprehension of bias in the Mudiyanselage and Patabendige claims but not in the applicant's claim. One can surmise that he distinguished between the errors he identified in those two claims and the record he examined in the Arachchige file. In my view, it was open to him to do so and, on the record before me, I would not intervene in this proceeding on the applicant's argument for apprehension of bias for the same reasons set out above under court file IMM-9220-04.
[46] The applicant also relies on the original member's expressed concern that he may have been confusing the facts in the three cases. He made comments to this effect during his hearing of the Patabendige claim on September 30, 2004. This was the last of the three cases. In counsel's view, if confusion concerning the facts was expressed in the third claim the member heard, confusion must necessarily impact all three hearings.
[47] Again, I cannot agree with the applicant's submission. In the Patabendige claim, the reviewing member ordered the reopening of the claim, in part because of the first member's "repeated expressions of concerns over being 'mixed up'". In the view of the reviewing member, this put into question Mr. Patabendige's right to be heard. Put simply, there is nothing in the record of Mr. Arachchige's claim to suggest any confusion with the facts among any of the cases. Again, it was open to the reviewing member to conclude that the first member's confusion with the facts on September 30 did not taint the hearing or Mr. Arachchige's claim on September 29.
[48] Here, it is useful to set out the concluding paragraphs of the reviewing member's decision in the Patabendige claim:
31. In the present case the Member had the right and the duty to run a focused hearing, and in doing so, had the right to raise the issue of focus or relevancy during the hearing should problems in these areas have arisen. This does not excuse a 3-page pre-hearing admonition that raises the issues of irrelevant questions and lawyers who put on a show for their clients before the Applicant's counsel even asked a single question of the Applicant. The tone is intimidating and could reasonably have had a chilling effect on the production of evidence.
32. Beyond this, the Member's sarcastic insistence on precision for the Applicant when a precise answer had already been given, only to be followed by a comment dismissing the importance of the information, could naturally have been both confusing and chilling.
33. In addition, the Member's dismissive attitude towards counsel's offers of original documents, especially in view of his subsequent rejection of the authenticity of these documents, suggests he may have made up his mind about the claim before he had heard all the evidence and had considered submissions.
34. Finally, the Member's repeated expressions of concern over being "mixed up" suggests that he may have been, in fact, confused with all the cases he had from the same country over a short time span. This raises concern in connection with the Applicant's right to be heard.
[Emphasis added.]
[49] The original member's three-page "pre-hearing admonition" in the Patabendige claim is a far lengthier intervention than that in Mr. Arachchige's claim. The "sarcastic insistence on precision", the "dismissive attitude" and "the repeated expressions of concern over being 'mixed-up' " do not appear in the transcript of Mr. Arachchige's refugee hearing. Nor are they reflected in the audio tapes.
[50] Again, keeping in mind the problematic exercise of comparing one of the reviewing member's three decisions with another, an examination of his reasons in the Patabendige application distinguishes that matter from Mr. Arachchige's case.
[51] Similarly, it is not possible to undertake a substantive review of the reviewing member's decision in the Mudiyanselage claim without the benefit of the transcript and audio tapes. However, one need only refer to the following paragraph of the reviewing member's reasons for decision to understand that the demeanour of the original member during the Mudiyanselage hearing may well have differed from his comportment in the Arachchige claim:
"In this long exchange counsel tries to question the Applicant on matters going to the issues of fear of return and state protection but the Member appears to have made up his mind on these matters based on his own questions. The entire last nine pages of the transcript before counsel begins submissions are occupied by an intense if not aggressive exchange between the Member and counsel. The Member admonishes counsel on a number of occasions in harsh terms and the Member also forestalls questioning on a particular issue - the possibility of LTTE recruitment of the Applicant - apparently on the basis of a conclusion the Member has already reached. When counsel challenges the inherent assumption in the Member's comment, the Member directs counsel to save this for submissions, and directs that submissions commence right away."
[52] In summary, even having undertaken the questionable task of comparing the reviewing member's decision in this claim as against his decisions in the other two, I conclude that the reviewing member was not wrong in dismissing the application of the applicant Arachchige to reopen his refugee claim.
[53] For these reasons, the issues raised for determination by me in court file IMM-3994-05 will be dismissed. Again, I agree with both counsel that the issues determined in these reasons do not lend themselves to the certification of a serious question.
"Allan Lutfy"
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