Date: 20061124
Docket: IMM-7765-05
Citation: 2006 FC 1406
Halifax, Nova Scotia, November 24, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SUNDARARAJAN
SRIKRISHNARAJAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated December 5, 2005, which determined that the applicant
was neither a Convention refugee nor a person in need of protection.
[2]
The
applicant seeks an order setting aside the decision and remitting the matter
for re-determination by a differently constituted panel of the Board.
Background
[3]
The
applicant, Sundararajan Srikrishnarajah, is a Tamil citizen of Sri Lanka. He alleged a fear of
persecution at the hands of:
1. the
Liberation Tigers of Tamil Eelam (LTTE); because they consider him an army
informant and he refused to donate to LTTE charities while abroad;
2. the People’s
Liberation Organization of Tamil Eelam (PLOTE); because he chose not to join
their organization and became a Youth Council member; and,
3. the Sri
Lankan authorities; because they suspect him of belonging to the LTTE.
[4]
The
applicant and his family moved to the Jaffna district of Sri Lanka during the 1980s. The
applicant claimed that while living there, he was beaten by members of the
Indian Peace Keeping Force (IPKF) and questioned about whether he had links to
the LTTE. The applicant stated that he tried to appear cooperative with the
IPKF without giving them specific information. The IPKF withdrew from Sri Lanka in 1990, and the LTTE
took control of Jaffna. The applicant stated
that he fled to India in 1990 because he
feared being killed by the LTTE, for they considered him an army informant. The
applicant lived in a refugee camp for two years and was deported to Sri Lanka in 1992, after being
caught at the Chenai airport with a forged passport. Upon his return to Sri
Lanka, the applicant was warned not to remain in Colombo and settled in Vavuniya, a
government-controlled city.
[5]
PLOTE
was a pro-government Tamil militia which recruited Tamil youths. The applicant
was pressured to join PLOTE because he could attract young voters, but he
joined the government-sponsored Youth Council instead and eventually became its
president. The applicant stated that in April 1995, he was abducted and beaten
by PLOTE for refusing to join them. A Youth Council member found out about the
abduction and requested his release. Since PLOTE was a government-supported
organization, they were forced to release the applicant as he was a Youth Council
member and government employee.
[6]
In
April 1995, the applicant decided to flee Sri Lanka and join his family in Canada. The applicant first
went to Colombo, where he was detained
by police in August 1995. The applicant stated that he was beaten and
questioned by the police about his move to Colombo because he was suspected of supporting the
LTTE. The applicant told the police that he was a Youth Council member seeking
employment and was released once his explanation was confirmed by the Youth Council.
[7]
The
applicant fled Sri Lanka in August 1995 and was smuggled to England in September 1995. He
was denied asylum in England and was smuggled to Canada on February 14, 2005. The
applicant sought refugee protection two days later. The applicant’s claim was
scheduled to proceed by expedited interview in Toronto, but his case was later
transferred to a full hearing in Montreal. His request for an expedited interview was
denied.
[8]
The
applicant’s claim was heard on October 24, 2005. Applicant’s counsel filed an
objection with the Board seeking to prevent the application of Guideline 7
(reverse order questioning), stating that the policy violated natural justice. A
motion was also made objecting to Guideline 7 at the commencement of the
hearing. It was submitted that the applicant was under stress and should be
questioned by counsel first in order to facilitate his testimony. The Board
rejected the motion and stated in its decision that in the absence of a
psychological evaluation of the applicant, the reasons put forward by counsel
were insufficient to warrant a change in the order of questioning. The Board
noted that according to Canadian jurisprudence, Guideline 7 does not deny the
claimant an opportunity to present his case and does not breach the principles
of natural justice.
[9]
The
Board questioned the applicant first, followed by applicant’s counsel. Counsel
objected to the Board’s manner of questioning, stating that it was akin to
hostile cross-examination. Counsel’s motion that the Board member recuse
herself for bias was also refused. By decision dated December 5, 2005, the
Board refused the applicant’s refugee claim. This is the judicial review of the
Board’s decision.
Reasons for the Board’s Decision
[10]
The
Board first noted its rejection of the motion objecting to Guideline 7. No
mention was made of the motion for recusal on the basis of bias.
[11]
The
Board then dealt with the applicant’s claim that he feared persecution by the
LTTE because he was suspected of collaboration with the IPKF. The Board noted
that no evidence was adduced to show why the LTTE suspected the applicant of
collaboration with the IPKF or whether others living under IPKF control were
persecuted by the LTTE for being traitors. The Board then dealt with the
applicant’s fear of persecution based upon his Youth Council membership. The
Board found it implausible that the applicant, who did not have problems with
the LTTE when he was an active member, would have problems with them ten years
later. No evidence was adduced showing that the LTTE was targeting Youth Council
members or that those involved with the group a decade ago were currently in
danger of the LTTE.
[12]
The
Board went on to consider the applicant’s fear of persecution by PLOTE on the
basis that he refused to join them in the early 1990s. The Board found it
implausible that the applicant would be endangered by PLOTE because he refused
to join them ten years ago and instead worked for Youth Council. It was noted
that PLOTE and Youth Council were both government-sponsored. The Board found
that even if PLOTE sought to harm the applicant, he could rely upon state
protection, as he did when abducted by PLOTE in 1995.
[13]
The
Board then addressed the applicant’s fear of the army and police. The Board
noted that the applicant did not have problems with these groups while in
Vavuniya, and was released by the police following his arrest in Colombo once his story was
confirmed. No evidence was led to show that the applicant faced a reasonable
possibility of persecution by the army or police in any region of Sri Lanka.
[14]
The
Board went on to consider the applicant’s fears that: (1) the police would
detain and torture him because he left Sri Lanka with false documents, and that
he is therefore a “refugee sur place”; (2) the government and the LTTE
would persecute him for being a wealthy Tamil who had lived abroad; and, (3)
the LTTE would persecute him for failing to contribute to Tamil charities while
abroad.
[15]
The
Board considered the claimant’s testimony and all other documentary evidence,
including country reports, reports by human rights agencies, press articles, internet
sources and affidavits. The Board acknowledged the difficulty of evaluating the
situation in Sri
Lanka
today due to the existence of conflicting reports and noted its reliance upon
reliable sources. The Board analysed the evidence and found that serious
problems persist in Sri
Lanka,
especially in areas controlled by the LTTE. The Board found that since the
signing of the 2002 Ceasefire Agreement, the situation in Sri Lanka had improved. However,
the Board pointed out that peace talks ended in 2003.
[16]
The
Board noted that the recent elections in Sri Lanka were mostly fair, and that all elements of
society were represented in Parliament. Based upon the documentary evidence,
the Board found that the population’s risk of persecution from the government
and the LTTE (except in areas in LTTE control) had decreased significantly. However,
politically motivated violence, including the murder of informants by the LTTE,
was found to be increasing. No evidence indicated that war was imminent in Sri Lanka.
[17]
The
Board found that although the government is taking serious measures to stop
abuse by security forces, torture is still used with impunity. Evidence was
cited stating that there were no reports of security forces committing
politically-motivated killings in 2004. However, the Board noted that the LTTE
still commits human rights abuses in its territory. It was found that the
ceasefire helped reduce human rights abuses and that government persecution on
the basis of suspected LTTE membership was unlikely.
[18]
The
Board found that the applicant was never involved in politics outside of Youth
Council, and was neither an LTTE member nor a high-profile rebel. It was noted
that the applicant was not personally targeted by the LTTE or security forces
and had lived outside Sri
Lanka for
ten years. The Board found that based upon the documentary evidence, similarly
situated Tamils did not face a reasonable risk of persecution by the LTTE,
PLOTE or the authorities, nor would they face torture or a risk to life or
cruel and unusual punishment upon return to Sri Lanka. The Board found that there were no
reliable reports of failed asylum seekers facing persecution or torture upon
returning to Sri
Lanka. Evidence
indicated that failed asylum seekers entered Sri Lanka without delay, following routine
procedures and identity checks. In response to the applicant’s concern that he
had travelled with a false passport, the Board stated that the applicant could
apply for new travel documents.
[19]
The
Board found no evidence that people living in government-controlled areas were
at risk from the LTTE for failing to contribute to its charities while abroad.
Two articles mentioned the existence of a tracking system used to identify
Tamils who contributed to LTTE charities, but there was no corroborating
evidence of its existence. The Board concluded that the applicant could avoid
tracking by living in a government-controlled area and found that the applicant
had not established a risk of persecution upon this basis.
[20]
The
Board held that the applicant had not established a well-founded fear of
persecution in Sri
Lanka and
was not a Convention refugee. Also, the Board found that no credible evidence
was submitted to show that the applicant was a person in need of
protection.
Issues
[21]
The
applicant submitted the following issues for consideration:
1. Should the
Board’s decision be set aside, based upon the Federal Court’s decision in Thamotharem,
and what are the appropriate means of addressing any potential rulings on
appeals in Thamotharem?
2. Did the Board’s
questioning of the applicant gave rise to a reasonable apprehension of bias,
and did the Board’s administration unfairly disadvantage the applicant by
failing to provide his lawyer with a recording of the hearing? (I have not
addressed this issue as leave was granted and there is a transcript on file).
3. Was the
Board’s decision patently unreasonable, perverse and capricious, or made
without regard to the evidence on record?
4. Did the Board’s
administration act arbitrarily and in violation of a reasonable expectation in
transferring the applicant’s case from Toronto to Montreal and refusing to grant him an expedited
interview?
[22]
I
would rephrase the issues as follows:
1. Did the Board
err in finding that the applicant was neither a Convention refugee nor a person
in need of protection?
2. Did the Board fetter its
discretion by treating Guideline 7 as binding?
3. Did the Board’s
questioning lead to a reasonable apprehension of bias?
4. Was there a violation of
the applicant’s legitimate expectation that an expedited interview would be
held?
[23]
I
will summarize the parties’ submissions under the following headings:
A. Standard of Review
B. Substantive Decision
C. Interpretation of Thamotharem
D. Bias
E. Legitimate
Expectations
Applicant’s Submissions
A. Standard of Review
[24]
The
applicant submitted that the standard of review applicable to errors of law is
correctness and that the Board’s findings of fact are reviewable if made in a
perverse or capricious manner, or made without regard to the material.
B. Substantive Decision
[25]
The
applicant submitted that the Board’s analysis of the evidence was patently
unreasonable. It was submitted that the finding that conditions in Sri Lanka were improving in
December 2005 did not reflect the evidence on record. The applicant submitted
that upon consideration of the types of sources accepted by the Board (such as
reports by human rights organizations); its decision was patently untenable. Documentary
evidence reported that since the ceasefire, the LTTE has engaged in extortion,
murder and abductions throughout Sri Lanka, and that security forces routinely torture
Tamils. Reference was made to the murder of a Tamil visitor to Colombo who refused to donate
to the LTTE while living abroad. The applicant submitted that Colombo was therefore not an
internal flight alternative for a person subject to LTTE demands.
[26]
The
applicant submitted that in October 2005, the former head of international
peace monitors for Sri
Lanka
declared that the country was in a subversive war. The applicant submitted that
in November 2005, the situation in Sri Lanka worsened and acts of war were committed.
However, the Board only cited country reports from 2004 and ignored evidence
from 2005. The applicant submitted that the Board has not weighed and
considered evidence if it fails to address evidence which specifically
contradicts its assumptions. The applicant submitted that the Board’s finding
that war was not imminent in Sri Lanka was patently unreasonable, since recent
documentary evidence indicated that Sri Lanka was in a state of undeclared war.
[27]
The
applicant submitted that the Board’s finding that there was no risk of abuse by
the LTTE outside areas in its control was patently unreasonable. The applicant
stated that the LTTE controls only Vanni, in Northern Sri Lanka, and that if the Board
believed that areas outside Vanni are dangerous, then it accepted that the LTTE
is killing people in government-controlled areas. The Board stated that Tamils were
only at risk of extortion by the LTTE for failure to donate while abroad if
they live in the North and East of Sri Lanka. The applicant submitted that this
conclusion was unreasonable, since most of the North and East is now
government-run and evidence shows that the LTTE targets Tamils for extortion in
Colombo and has infiltrated
government-controlled areas to kill Tamils.
[28]
The
applicant submitted that the finding that there was no evidence that the LTTE
considered him an informant contradicted his undisputed testimony to this
effect. The applicant testified that the LTTE searched for him because he had acted
cooperatively with the IPKF and that he fled as a result. The applicant
submitted that the finding that there was no evidence of the LTTE targeting
those perceived as informants was unreasonable since the documentary evidence
showed that the LTTE is eliminating traitors within its community. It was
submitted that the conclusion that there should be evidence of current murders
of Youth Council members ignored the applicant’s uncontradicted testimony that
all Youth Council members from Vavuniya fled Sri Lanka.
[29]
The
applicant submitted that the Board’s view that he was given state protection
when PLOTE abducted him, and that he could therefore receive it now was
perverse. The applicant is no longer a Youth Council member, and the evidence
shows that LTTE is killing government collaborators and that they are not
receiving state protection. Finally, the applicant submitted that the Board’s
view that there was no evidence of Sri Lankan authorities persecuting Tamils
was an overstatement, since there was evidence that the army and police
harassed and murdered Tamils extra-judicially.
C. Interpretation of Thamotharem
[30]
The
applicant submitted that the Federal Court has held that Guideline 7 is invalid
as it unduly fetters the discretion of the Board (see Thamotharem v. Canada (Minister of
Citizenship and Immigration), [2006] 3 F.C.R. 168 (F.C.), from which
questions were certified). The applicant submitted that the Board fettered its
discretion by rejecting a motion to dispense with reverse-onus questioning on
the basis that without a psychological evaluation of the applicant, there were
insufficient reasons to permit a change in the order of questioning. It was
submitted that the Board’s decision should therefore be set aside (see Jin
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 57).
[31]
The
applicant submitted that the Board’s reasoning was capricious. The Board stated
that the particular situation of the claimant is always considered when making
a determination concerning reverse order questioning, but concluded that a
psychological evaluation was required to meet the Guideline 7 standard. The
Board was aware of the stress that the applicant had experienced while subject
to reverse order questioning in England. It was acknowledged that Guideline 7 does not
generally violate natural justice (see Thamotharem, above). However, it
was submitted that the Board’s adversarial conduct in this case, in addition to
its use of reverse order questioning, violated the applicant’s right to natural
justice.
D. Bias
[32]
The
applicant submitted the Board aggressively cross-examined the applicant for
hours and made sarcastic comments. Although the Board is given wide latitude in
questioning refugee claimants, it was submitted that the Board should not
appear to act as an advocate against them. It was submitted that when
applicant’s counsel was able to elicit helpful information from his client, the
Board resumed questioning in order to undermine his answers. It was submitted
that the Board made sarcastic references to testimony given during a Tamil
refugee hearing held earlier that day.
[33]
The
applicant submitted that the Board displayed its lack of impartiality by first
questioning the applicant in an attacking manner and later asking questions in
rebuttal. The applicant stated that the Board’s questioning made him feel like
a criminal defending himself against a prosecutor. The applicant submitted that
Board members should conduct themselves with patience, respect and restraint
(see Toth v. Canada (Minister of
Citizenship and Immigration) (2001), 202 F.T.R. 13 at paragraph 22). The
applicant submitted that counsel’s allegation of bias was not taken seriously,
as the Board responded by reading from a prepared statement.
E. Legitimate Expectations
[34]
The
applicant was promised an expedited interview in Toronto. However, his case was transferred to a
full hearing in Montreal. The applicant stated
that country conditions are presumed to be clear in an expedited interview and
that since his testimony was not considered incredible, it was predictable that
his claim would have been approved had the interview taken place. It was
submitted that the denial of an expedited interview was not justified by any
change in country conditions and the fact that a promise was broken constituted
a breach of his legitimate expectations (see Bendahmane v. Canada
(Minister of Employment and Immigration), [1989] 3 F.C. 16 (F.C.A.)). It
was also submitted that administrative convenience should not trump reasonable
expectations or procedural fairness.
Respondent’s Submissions
B. Substantive Decision
[35]
The
respondent submitted that the Board conducted a fair review of the documentary
evidence on country conditions, both favourable and unfavourable to the
applicant’s claim. The respondent submitted that upon review of country
conditions and the applicant’s personal circumstances, history and profile; the
Board was not persuaded that he faced a serious possibility of persecution in Colombo or Vavuniya.
[36]
The
respondent submitted that disagreement with the weight attributed to
documentary evidence on country conditions is not a basis for judicial
intervention by this Court (see Hussain v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1186). The respondent submitted that
the Board is presumed to have weighed and considered all of the evidence unless
there is clear evidence to the contrary. It was submitted that the Board may
rely upon certain documents and not others if there is conflicting documentary
evidence. It was submitted that ample evidence supported the Board’s conclusion
that the applicant’s fear was not objectively well-founded.
C. Interpretation of Thamotharem
[37]
The
respondent submitted that the Board did not fetter its discretion, but gave
serious consideration to the applicant’s circumstances in determining whether
there were grounds to justify deviating from Guideline 7. The absence of a
psychological report was only one factor considered by the Board in concluding
that a change in the order of questioning was not warranted. The respondent
cited several cases which conclude that the policy is flexible and not
mandatory in nature (see Zaki v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1066 at paragraph 16).
[38]
Since
questions were certified for consideration by the Federal Court of Appeal in Thamotharem,
the respondent submitted that reverse order questioning does not offend the
principles of fairness and natural justice. It was submitted that a
determination about procedural fairness must be based upon the particular facts
of the case (see Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1121). The
respondent submitted that the onus was on the claimant to demonstrate his need
to be questioned by counsel in order to fully present his case (see Cruz
v. Canada (Minister of
Citizenship and Immigration) (1999), 174 F.T.R. 191). It was submitted that
the Board is the master of its own procedure and that Guideline 7 accommodates
both the interests of procedural efficiency and natural justice (see Pillai
v. Canada (Minister of
Citizenship and Immigration), [2002] 3 F.C. 481 (F.C.)).
D. Bias
[39]
The
respondent submitted that none of the excerpts of the hearing referred to by
the applicant indicated that the Board lacked impartiality. The applicant cited
Bankole v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1581 at paragraph 23, which stated
that extensive and energetic questioning alone will not give rise to a
reasonable apprehension of bias in claims for refugee status. The respondent
submitted that the fact that the Board asked questions first does not
automatically give rise to a reasonable apprehension of bias (see Ithibu
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 288).
[40]
The
applicant submitted that the test for a reasonable apprehension of bias is
whether an informed person viewing the matter realistically and practically,
and having given thought to the matter, would think that it is more likely than
not that the decision-maker consciously or unconsciously would not decide the
matter fairly (see Committee for Justice and Liberty v. Canada
(National Energy Board), [1978] 1 S.C.R. 369 at page 395). The respondent
submitted that the applicant failed to meet the test and that the evidence
demonstrated that he had a meaningful opportunity to present his case.
E. Legitimate Expectations
[41]
The
respondent submitted that the fact that the applicant was initially granted an
expedited interview cannot be construed as a promise by the Board that his
claim would be dealt with by way of an interview. It was submitted that the
Board must determine in which manner to best address a case and that there was
no established practice mandating that the claims of all male Tamils would
proceed by way of an expedited interview. The respondent submitted that even if
this Court were to find that the Board committed a breach of natural justice,
the resulting decision should stand since other elements of the claim support
the original finding and a re-determination would result in the same decision
(see Cartier v. Canada (Attorney General), [2003] 2 F.C. 317
(F.C.A.) at paragraph 31).
Analysis and Decision
Standard of Review
[42]
Issues
relating to procedural fairness are subject to judicial review on a standard of
correctness, therefore a breach of procedural fairness would automatically
vitiate the Board’s decision (see Begum v. Canada (Minister of Public
Safety and Emergency Preparedness) (2005), 279 F.T.R. 157 at paragraph 9).
[43]
I
would adopt Justice Tremblay-Lamer’s analysis in Singh v. Canada
(Minister of Citizenship and Immigration) (1999), 173 F.T.R 280 at
paragraph 15 (T.D.), wherein the pragmatic and functional approach was applied
to conclude that the Board’s determinations regarding findings of fact,
including whether the applicant would face more than a mere possibility of
persecution if returned to his home country, are subject to the standard of
review of patent unreasonableness.
[44]
Issue
1
Did the Board err in finding
that the applicant was neither a Convention refugee nor a person in need of
protection?
The Board
denied the applicant’s claim on the basis that he had not established a
well-founded fear of persecution in Sri Lanka and that there was no
credible evidence demonstrating that he was a person in need of protection. The
Board stated the following in its reasons:
From the global analysis of the
documentary evidence, it appears that a risk of persecution for the population,
in general, and for the Tamils, in particular, from the government and from the
LTTE (except for the areas under the LTTE control) has considerably decreased.
However, there seems to be an increase of politically motivated violence. There
are reports of killings in various parts of Sri Lanka, including Colombo, of the politicians,
policemen and other high profile political activists, as well as the LTTE
political rivals and people considered by the Tigers as informants.
…
Based on the documentary evidence, I do
not consider that, in the present situation, people with the claimant’s profile
face a reasonable risk of persecution by the LTTE, by the Sri Lankan army, by
the Tamil groups controlled by the government, like PLOTE, or by the police
because of their Tamil nationality. I do not consider that it is more likely
than not that people with the claimant’s profile would personally be subjected
to a danger of torture or face a risk to life or a risk of cruel and unusual
punishment, upon return to his country.
(Emphasis
added)
[45]
The
Board had the applicant’s testimony before it when reaching its decision on
this part of the case. Since the Board did not make a finding regarding the
applicant’s credibility, the Board is presumed to have accepted the applicant’s
testimony as credible. The applicant testified as follows (tribunal record
pages 674 to 675):
BY PRESIDING MEMBER (to person concerned)
Q: So you are telling me that you
will be persecuted in Sri Lanka because during your ten year stay in England you didn’t give donations to
LTTE?
A: Yes, that is one of the
reasons why I would be persecuted by the LTTE. And there are other reasons too.
Q: What are other reasons?
. . .
BY INTERPRETER (to presiding member)
. . .
(Because when I was in Sri Lanka they suspected that I was
helping the Indian Army that was present in Sri Lanka at that time.
BY PRESIDING MEMBER (to the person concerned)
Q: Why were you suspected of that?
A: Because my house was close to
the Indian camp. So we used to speak to the Indian soldiers because we wanted
to avoid stirring their suspicion.
Yes.
A: So that’s why they suspected
me, and because of that problem I left the country.
[46]
The
Board stated in its decision (tribunal record, pages 6 and 7) that:
. . . No evidence whatsoever was
presented to the Tribunal as to why the claimant should be suspected by the
LTTE of collaborating with the IPKF during that time. Moreover, no evidence was
produced to the Tribunal that people who, like the claimant, lived in the
eighties in the areas under the IPKF control, are considered as traitors and
persecuted by the LTTE.
[47]
In
my view, in light of the Board’s own statement, the sworn testimony of the
applicant and his PIF, the Board’s reasoning with respect to the risk of
persecution faced by the applicant is problematic. The applicant has stated
that he fears persecution by the LTTE due to his cooperation with the IPKF and the
resulting perception by the LTTE as an army informant. Contrary to the Board’s
statement, there is evidence as to why the applicant would be suspected of
collaborating with the IPKF. As noted earlier, the Board itself said there were
reports of killings in various parts of Sri Lanka, including Colombo, of people
considered by the Tigers as being informants. The evidence shows that the
applicant was suspected of being an informant.
[48]
I
am of the view that the Board committed a patently unreasonable error in
failing to consider the applicant’s testimony and finding that there was no
evidence to suggest that the applicant might face persecution from the LTTE if
returned to Sri
Lanka.
[49]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for re-determination.
[50]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[51]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for re-determination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 are as follows:
|
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,
(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
(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.
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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(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.
159. (1) The
Chairperson is, by virtue of holding that office, a member of each Division
of the Board and is the chief executive officer of the Board. In that
capacity, the Chairperson
. . .
(h) may issue
guidelines in writing to members of the Board and identify decisions of the
Board as jurisprudential guides, after consulting with the Deputy
Chairpersons and the Director General of the Immigration Division, to assist
members in carrying out their duties; and
. . .
162. (1) Each
Division of the Board has, in respect of proceedings brought before it under
this Act, sole and exclusive jurisdiction to hear and determine all questions
of law and fact, including questions of jurisdiction.
(2) Each
Division shall deal with all proceedings before it as informally and quickly
as the circumstances and the considerations of fairness and natural justice
permit.
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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:
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;
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.
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:
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;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(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.
159.
(1) Le président est le premier dirigeant de la Commission ainsi que membre
d’office des quatre sections; à ce titre:
. .
.
h) après
consultation des vice-présidents et du directeur général de la Section de
l’immigration et en vue d’aider les commissaires dans l’exécution de leurs
fonctions, il donne des directives écrites aux commissaires et précise les
décisions de la Commission qui serviront de guide jurisprudentiel;
. . .
162. (1)
Chacune des sections a compétence exclusive pour connaître des questions de
droit et de fait — y compris en matière de compétence — dans le cadre des
affaires dont elle est saisie.
(2)
Chacune des sections fonctionne, dans la mesure où les circonstances et les
considérations d’équité et de justice naturelle le permettent, sans
formalisme et avec célérité.
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Chairperson’s Guideline
7 (Concerning
Preparation and Conduct of Hearing in the Refugee Protection Division) sets out
the framework for reverse order questioning:
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19. In a
claim for refugee protection, the standard practice will be for the RPO to
start questioning the claimant. If there is no RPO participating in the
hearing, the member will begin, followed by counsel for the claimant.
Beginning the hearing in this way allows the claimant to quickly understand
what evidence the member needs from the claimant in order for the claimant to
prove his or her case.
23. The
member may vary the order of questioning in exceptional circumstances. For
example, a severely disturbed claimant or a very young child might feel too
intimidated by an unfamiliar examiner to be able to understand and properly
answer questions. In such circumstances, the member could decide that it
would be better for counsel for the claimant to start the questioning. A
party who believes that exceptional circumstances exist must make an
application to change the order of questioning before the hearing. The
application has to be made according to the RPD Rules.
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19.
Dans toute demande d'asile, c'est généralement l'APR qui commence à
interroger le demandeur d'asile. En
l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et
est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet
ainsi au demandeur d'asile de connaître rapidement les éléments de preuve
qu'il doit présenter au commissaire pour établir le bien-fondé de son cas.
23.
Le commissaire peut changer l'ordre des interrogatoires dans des
circonstances exceptionnelles. Par
exemple, la présence d'un examinateur inconnu peut intimider un demandeur
d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en
mesure de comprendre les questions ni d'y répondre convenablement. Dans de
telles circonstances, le commissaire peut décider de permettre au conseil du
demandeur de commencer l'interrogatoire. La partie qui estime que de telles
circonstances exceptionnelles existent doit soumettre une demande en vue de
changer l'ordre des interrogatoires avant l'audience. La demande est faite
conformément aux Règles de la SPR.
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