Date: 20040727
Docket: IMM-491-99
Citation: 2004 FC 1163
Vancouver, British Columbia, Tuesday, the 27th day of July 2004
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
IMM-488-99
KOZAK GEZA, CSEPREGI ATTILA
KOZAK GEZA (minor) and CSEPREGI SZILVIA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AND
IMM-491-99
SMAJDA SANDOR, SMAJDA ZSOLT
GYULAVICS TIMEA, SMAJDA CLAUDIA and
SMAJDA JOZEF
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDERS AND ORDERS
[1] In 1998, the Immigration and Refugee Board (the "IRB") decided to produce a precedent, coined a "lead case", out of concern for growing numbers of Roma refugee claimants from Hungary. The stated purpose of the exercise was to establish a base line of legal and factual issues to promote consistency in subsequent claim decisions. While the Applicants in the present Applications agreed to participate in the test case process on the advice of their counsel, after having their claims rejected, they challenge the jurisdiction of the Board to conduct such an exercise. They also allege that a perception of bias existed on the part of the Board when the lead case idea was conceived and conducted; they allege that the motive was to increase the rejection rate of claims by Hungarian Roma by creating a well reasoned and well documented rejection precedent which would be promoted to be followed by other panels of the IRB.
[2] For the reasons which follow, I find that the challenge fails.
I. Overview
A. The Applicants
[3] The Applicants, all citizens of Hungary, claim refugee status on the basis of a well-founded fear of persecution either because of their Roma ethnicity or because of their mixed Hungarian and Roma background. Several claimants also base their claims on the additional ground of membership in a particular social group, namely that of family. Their claims include allegations that they suffered mistreatment in school, employment and the military, that they were the victims of continued threats and physical attacks by racist groups, and that the police refused to protect them. The Applicants say they fear returning to Hungary as they would be subject to a continuation of the maltreatment which they suffered before they left the country.
B. The nature of the lead case initiative
[4] As the Applicants' arguments relate to the "lead case" format, it is useful to briefly describe what that entailed. The lead case initiative was the IRB's response to increasing numbers of refugee claims by Roma from Hungary in 1998, claims which were relatively new to the IRB at that time. The IRB decided to select a representative sample of similar claims, and place as much evidence as possible, including expert evidence, before one panel of the IRB to facilitate the writing of comprehensive reasons on all of the key legal and evidentiary points in typical cases involving Roma from Hungary.
[5] The rationale for producing the lead cases was published by the IRB in a March 1999 "Lead Case Backgrounder" which reads as follows:
The mission of the Immigration and Refugee Board (IRB), on behalf of Canadians, is to make well-reasoned decisions on immigration and refugee matters efficiently, fairly, and in accordance with the law.
The IRB is an expert tribunal. Knowledge on country conditions is part of the expertise of the tribunal. The IRB is constantly seeking innovative ways to enhance its specialized knowledge of country conditions and to promote consistency in decision making. This is particularly important given the high volume of claims received each year by the IRB. The Board is therefore continually developing tools, such as the Chairperson's Guidelines and commentaries on legal and procedural issues, that foster consistency and assist decision makers.
A variable and unpredictable caseload is another characteristic of the immigration and refugee environment. Social and political changes in source countries can generate sudden shifts in the number of claims referred to the Board. Refugee claims from the same country often raise issues that recur in many cases. To facilitate the efficient, in-depth examination of these recurring issues, the IRB may decide to select a representative sample of similar claims to be dealt with as "lead cases".
A lead case has two objectives. It permits the IRB to establish a baseline of up-to-date and expert information on country conditions in respect of a country from which there is a sudden shift in the volume or type of refugee claim. A lead case also gives focus to the principal legal issues that arise from those facts. This is consistent with the role of the Board's Refugee Division, which acts as an expert tribunal having specialised knowledge of human rights conditions in countries from whose nationals the Board received claims.
The decision to use this concept in dealing with the current influx of Hungarian Roma claimants arose from recent IRB experiences with large influxes of refugee claims from the Czech Republic (also Roma) and Chile.
The use of lead cases does not infringe on the independence of Board decision - makers.
Neither the evidence presented in lead cases, nor the decisions reached in those cases, are binding on subsequent panels. It is the role of the panel in a subsequent case to assess the evidence presented and examined in a relevant lead case, as well as the reasoning used to arrive at that decision. Given the expertise of the witnesses called by the parties and the quality of the documentary materials introduced in evidence in lead cases, it is expected that the evidence will be given the appropriate weight by subsequent panels. It is also expected that subsequent panels will carefully consider the reasoning applied by the panel in arriving at its decision.
A lead case is not, in itself, determinative of other cases. It is the right of counsel in subsequent cases to call further or better evidence, or to bring to light relevant distinctions to be made between the facts of a lead case and those before the subsequent panel. Nothing in the concept of the lead case limits the rights of any party to call evidence or conduct their case in a manner appropriate to the requirements of that case.
As a leading-edge administrative tribunal dedicated to excellence in all its practices and procedures, the IRB will continue to seek innovative ways to enhance its specialized knowledge of country conditions and promote consistency in decision making.
(IRB Lead Cases Backgrounder, March 1999, Affidavit of Lisa Cirillo dated March 12, 2004 ("Affidavit of Lisa Cirillo"), p. 1232.)
C. The production of the two cases under consideration
[6] In the spring of 1998, the IRB decided to consolidate its resources behind the Hungarian Roma lead case initiative. A Refugee Claims Officer was selected and the Minister of Citizenship and Immigration (the "Minister") was invited to participate in the hearings. The Applicants' counsel at that time, Mr. Peter Wuebolt, was asked to participate in the lead cases on the basis that he was the lawyer with the largest inventory of pending Hungarian claims before the IRB. On the evidence in the record of the present Applications, there is no doubt that, from that point forward, Mr. Wuebolt became a most willing and active participant. Mr. Wuebolt assisted the IRB in reviewing his inventory of files with a view to determining which claims would be adjudicated as lead cases, such review including the Applicants. The final selection of the Applicants' cases was made by the Operations Service Manager for the Europe team of the IRB. Counsel spoke to the Applicants to explain the lead case format and obtained the Applicants' consent to participate.
[7] The panel hearing the lead cases consisted of Ms. Barbara Berger and Mr. Vladimir Bubrin. The panel members were selected based on their familiarity with the relevant country conditions in Hungary and, in an attempt to ensure that a broader national perspective was brought to bear in the claims, the fact that they came from different regions in Canada. Another member of the IRB, Mr. Berzoor Popatia, had initially been selected to sit as the second member on the hearing panel; however, he was subsequently unable to do so. Consequently, Mr. Bubrin, a member of the IRB Europe team who had been involved in case managing the issues related to the Hungarian Roma cases, was selected to sit as the second panel member.
D. The hearing of the two cases under consideration
[8] From October to November 1998, a cumulative total of fourteen hearing days were held in which testimony was heard from the two sets of Applicants as well as six witnesses called to give expert evidence on the situation of Roma in Hungary; four testified for the Respondent and two for the Applicants. For convenience, the expert evidence was heard jointly and applied to both refugee claims. However, the unique allegations of persecution made by each set of claimants were heard by the IRB at separate sittings before the panel.
E. The result
[9] On January 20, 1999, in two lengthy written decisions, the IRB determined that the Applicants were not Convention refugees. The IRB gave little weight to the testimony of the individual Applicants as it was found to be lacking in credibility and based on an exaggeration of the severity of the Applicants' past problems in Hungary, including attacks by racist groups. The IRB preferred the documentary evidence and expert witness testimony, particularly the testimony of the four expert witnesses called by the Minister, as their evidence was current and emanated from on-the-ground experience. In each case, the IRB found that, although the Applicants may face discrimination if they return to Hungary, such discrimination does not amount to persecution. Moreover, the IRB found that there was adequate state protection for Roma in Hungary. At pages 37 and 38 of the decision involving the principal Applicant Geza Kozak and his family (IMM-488-99), the panel made the following critical findings:
Notwithstanding the regrettable situation of the Roma in Hungary, the purpose of Canada's refugee determination process is not to right another country's historical wrongs, nor to provide better employment and educational opportunities and a higher standard of living: all those are Hungary's responsibility. Our role is to determine the need for protection for those individuals who have a well-founded fear of persecution. That is not to say that there are no instances in Hungary today in which the levels of discrimination against Roma would not amount to persecution. In our opinion, however, these would be rare and exceptional. We find that it is certainly not the case in the circumstances of the claimants before us.
Even if we had found that the fear of discrimination which the claimants fear on returning to Hungary was serious, that is, even if we had found that the claimants feared "actions which deny human dignity in any key way" and that they were being "denied core human rights in a sustained or systematic way",... we would still find that their fear of persecution is not well-founded. This is because, in our opinion, they have not rebutted the presumption that the Hungary [sic] is able to afford them protection. Nor have they provided a reasonable explanation as to why they are unwilling to seek Hungary's protection and that if they were to seek it that such protection would not be reasonably forthcoming. The principal claimant's statement at the end of the hearing on behalf of all four claimants that they cannot expect assistance from the Hungarian government or the police, was in our opinion, an insufficient explanation to meet the evidentiary test postulated in Ward: "clear and convincing confirmation of a state's inability to protect."
From the documentary evidence before us, we have ascertained that the Hungarian government is making a concerted effort to improve the situation of its Roma minority. In terms of the issue of protection, which is of particular importance for an analysis, we find that what the evidence reflects is that the government is making a "serious effort to protect its citizens" as contemplated in Villafranca....
[10] Similarly, at pages 14, 32-33 and 40 of the decision related to the principal claimant Sandor Smajda and his family (IMM-491-99), the panel found as follows:
Based on the existing legal framework, on the panel's appreciation of the claimants' written and oral testimony, we find that the acts of discrimination, which the claimants did undeniably suffer in Hungary, do not amount to persecution, individually nor cumulatively, and therefore they do not justify a well-founded fear of persecution.
...
In depth analysis of the claimants' and witnesses' testimony as well as all the documentary evidence leads us to conclude, that anti-Roma prejudice still exists in Hungary. There are well-documented cases of segregation and different treatment in education, prejudice in housing, including incidents of forced evictions, discrimination in employment, cases of police indifference and even brutality, instances of an unequal treatment by the justice system, incidents of violence, insults and exclusion of Roma in everyday life. Nevertheless we have also concluded that the government introduced into law and into practice a large array of measures directed towards the Roma. While imperfect and maybe insufficient to reverse in a short period all historically accumulated injustices, those measures, in our view, can be considered in general as appropriate in order to address the situation of the Roma in Hungary. When acts of discrimination do occur, the State is willing to hold the perpetrators legally responsible, through established mechanisms available to the national and ethnic minorities, including the Roma.
...
For the above reasons, we conclude that the claimants did not discharge the burden of proof in order to establish that they face a reasonable chance or serious possibility of persecution on the grounds of their Roma nationality or their membership in a particular social group should they go back to Hungary.
F. The present Applications
[11] In the present two separate Applications under consideration, the Applicants seek to set aside the January 20, 1999 IRB decisions rejecting their refugee claims. While the Applications are not joined, by agreement, they were heard together and, consequently, these reasons apply to both Applications.
[12] It is important to note that, while in each case the IRB made negative credibility findings, these are uncontested; and while in each case the IRB made a finding that the suffering experienced by the Applicants was merely a result of discrimination and not persecution, this is also uncontested.
[13] The attack on each decision is limited to three generic prongs: an allegation of bias against the IRB in producing the lead cases; an attack on the uniform procedure adopted in the actual hearing process for each case as a breach of due process; and an attack on the finding of state protection in each case.
II. The Allegation of Bias
[14] For clarity, in this section of the reasons, since the allegation of bias is the same in each Application, and since the record in each Application is the same with respect to this issue, the analysis which follows will refer only to a single "lead case". The conclusion reached applies equally to each of the Applications.
[15] The Applicants do not allege actual bias on the part of the IRB members who participated in the production of, and the hearing of, the lead case. Rather, they argue that the whole course of the IRB's conduct raises an apprehension of bias.
A. The test for apprehension of bias
[16] In [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at page 394, de Grandpré J. enunciated the test for reasonable apprehension of bias as follows:
[...] the 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. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?
The test recognizes the importance of impartiality which, at common law "refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" ...connotes absence of bias, actual or perceived" (Le Dain J. in Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, cited in Bell Canada v. Canadian Telephone Employees Assn., [2003] 1 S.C.R. 884 at para. 18). Impartiality and the appearance of impartiality are fundamental not only to the capacity to do justice in a particular case, but also to individual and public confidence in the administration of justice (Valente at p. 689).
[17] The Applicants do not challenge the test for a reasonable apprehension of bias; however, they contest the level of proof required to reach a finding that the test has been met. The Applicants argue that to succeed on their bias argument, they need only demonstrate reasonable grounds for an apprehension of bias. I do not accept this argument.
[18] The case law is clear that the grounds for the apprehension must be substantial (see Committee for Justice and Liberty at pp. 394-395; R. v. R.D.S., [1997] 3 S.C.R. 484 at paras. 31 and 112). As Cory J. noted in R.D.S. at para. 112, the jurisprudence supports the contention that a real likelihood or probability of bias must be demonstrated, and that a mere suspicion is not sufficient (see also Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884 at paras. 17, 18, and 50).
[19] A two-part test was articulated in R. v. Lippe, [1991] 2 S.C.R. 114 at paras. 60 and 61 to assess whether there exists a reasonable apprehension of bias on an institutional level, as opposed to bias that arises from the personal views or interests of a tribunal member. This test was modified in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at para. 67 for application in the administrative context as follows:
Step One: Having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?
Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis.
B. The content of the record under consideration
[20] As the allegation of apprehension of bias arises from the record respecting the development of the lead case and its execution, an understanding of its content is important.
[21] The record includes, as the tribunal record, that which might be found in any refugee claim being the Applicants' port of entry statements, personal information forms, a transcript of the hearings, and the Applicants' affidavits in support of the present Applications. However, the record also includes some unique affidavit evidence discussed just below.
1. The disclosure
[22] On October 22, 2002, being the first day of the hearing of the Applications, the issue of the completeness of the tribunal record was raised by Mr. Rocco Galati, counsel acting for the Applicants at that time. Ultimately, in compliance with an Access to Information Act request, the IRB disclosed, in their entirety, approximately 425 pages of internal correspondence, and, partially, 50 pages of internal correspondence. Approximately 550 pages were withheld with exemptions being claimed under the following provisions of the Access to Information Act: s.13(1)(b) (information obtained in confidence from an international organization of states); s.15(1) (information injurious to the conduct of international affairs and the defence of Canada or allied state); s.19(1) (personal information); s.21(1) (a) (advice or recommendations developed by or for a government institution or a minister of the Crown); s.21(1)(b) (an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown); s.23 (solicitor-client privilege); and s.69 (confidences of the Queen's Privy Council for Canada). A further some 500 pages were not disclosed on the basis that they were considered not to be relevant.
[23] It is important to note that Ms. Amina Shirazee, who succeeded Mr. Galati as counsel for the Applicants and who made final argument in the Applications, did not contest the disclosure made by the IRB.
2. The unique affidavit evidence
[24] The Applicants rely on an affidavit of Mr. Paul St. Clair, dated December 2, 2002, who has a PhD. in sociology from the University of Toronto, attesting to a statistical drop in the IRB acceptance rates for Hungarian Roma claims subsequent to the lead case decision in January 1999, as well as two affidavits from members of the immigration bar, and three from members of Roma advocate organizations expressing concerns about the impact of the lead case.
[25] The Respondent submitted affidavits, most notably an affidavit of Mr. Robert Orr, the Director General of the Refugees Branch of Citizenship and Immigration Canada ("CIC), dated May 28, 2004, describing the ongoing relationship between CIC and the IRB. The exhibits to this affidavit show that this relationship has been regularized in a series of agreements, including the Administrative Framework Agreement dated December 13, 1996, which set out the goal of information sharing and cooperation on administrative measures with full recognition of the need to preserve the institutional independence of the IRB. The agreements clarify the relationship between CIC and IRB headquarters, which concerns high level policy and administrative matters that do not touch upon specific cases before the IRB. Areas of communication and consultation with the IRB include statistical trends that may impact on the IRB's actual or projected workloads, changes in identified resource requirements, and major legislative and regulatory proposals or new administrative procedures that will have a meaningful impact upon either CIC or the IRB. The IRB decision makers and Refugee Protection Officers are not present at meetings between CIC and the IRB.
[26] The Respondent also relied on the Affidavit of Ms. Joan Steegstra, the Operations Service Manager for the Europe case management team, dated May 28, 2004, which outlines the way in which the lead case participants - including the claimants, Refugee Claims Officer, counsel, interpreter, and panel members - were selected, and explains the involvement of the Applicants' former counsel, Mr. Wuebolt, in selecting the Applicants' claims to be heard as lead cases.
C. The arguments on apprehension of bias and conclusions reached
1. Jurisdiction to conduct a lead case
a. the Applicants' argument
[27] The Applicants submit that the IRB lacked the jurisdiction to conduct a Hungarian Roma lead case, and that its actions in so doing demonstrate a predisposition and institutional bias against Hungarian Roma making refugee claims in Canada.
[28] The Applicants take the position that the IRB lacked the jurisdiction to initiate and conduct a lead case, and then use it as a precedent for subsequent decision-makers, on the ground that there was no explicit statutory provision empowering the IRB to conduct such a case. In support of this position, the Applicants argue that while s.159(h) of the current Immigration and Refugee Protection Act explicitly gives the Chairperson of the IRB the authority to issue jurisprudential guidelines, the former Immigration Act, R.S.C. 1985, c.I-2 (the Immigration Act), being the statute that was applied in the lead case, provided no such statutory authority; they submit that this demonstrates that Parliament did not intend to empower the Chairperson with the authority to issue jurisprudential guidelines to assist decision makers under the Immigration Act.
[29] The essential point being made in this argument is that the lead case was designed to assume the status of a jurisprudential guideline to be used to the detriment of Hungarian Roma. The issue of jurisdiction to conduct the lead case is discrete from its intended purpose; jurisdiction is addressed here, and the purpose is addressed in the analysis of the evidence immediately following.
b. the Respondent's argument
[30] The Respondent submits that the IRB had the jurisdiction to formulate and execute the lead case at common law, and by necessary implication, by the provisions of the Immigration Act. The Respondent argues that, at common law, administrative tribunals have jurisdiction over their own procedures, that the lead case format is a matter of procedure, and that, therefore, the IRB has, and did have in 1998, the jurisdiction to conduct such a case. As stated by the majority in Prassad v. M.E.I., [1989] 1 S.C.R. 560 (S.C.C.) at para. 16, "In the absence of specific rules laid down by statute or regulation, ... [administrative tribunals] control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice." More recently, in Faghihi v. Canada (M.C.I.) (1999), 173 F.T.R. 193 (T.D.) at para. 11, aff'd [2001] F.C.J. No. 841 (F.C.A.), the Court cited Prassad with approval and confirmed that the IRB has implicit jurisdiction over the process by which it discharges its statutory duties (see also Rezaei v. Canada (M.C.I.) (2002), 225 F.T.R. 260 (T.D.) at para. 48).
[31] The Respondent argues that the IRB's jurisdiction over its own procedures also arose by necessary implication by statute as a result of the wide discretion granted to the tribunal under the Immigration Act. In particular, the Respondent points to s.65(3) of the Immigration Act which granted the Chairperson the power to issue guidelines to assist members in carrying out their duties, s.67(1) which gave the Refugee Division sole and exclusive jurisdiction to determine all questions of law and fact, and s.67(2)(d) which empowered the Refugee Division with the authority to do anything necessary to provide a full and proper hearing. To further support this contention, the Respondent points to s.68 which provided for informal, expeditious proceedings before the Refugee Division in which the strict rules of evidence did not apply, the fact that the Refugee Division could take judicial notice of any facts, information or opinion that was within the specialized knowledge of the tribunal, and that the Refugee Division could take notice of any other facts about which the person who was the subject of the proceedings had a reasonable opportunity to make representations.
[32] In response to the Applicants' argument that, under the Immigration Act, the Chairperson did not have the authority to issue jurisprudential guidelines, the Respondent submits that jurisprudential guidelines and "lead cases" are actually two different mechanisms that may be employed by the Board as a means of achieving consistency in decision making. The Respondent further argues that the fact that the Immigration and Refugee Protection Act now includes explicit mention of the power to issue jurisprudential guides is simply a clarification of the state of the law and does not add or take away from the jurisdiction of the IRB to conduct a lead case under the Immigration Act.
c. conclusion
[33] I cannot agree with the Applicants' argument that, under the Immigration Act, the IRB lacked jurisdiction to conduct a lead case. I accept the Respondent's arguments, and find that a lead case conducted to promote consistency in decision making is a matter of procedure that was clearly within the jurisdiction of the IRB on the basis of the common law and, by necessary implication, by virtue of the Immigration Act.
2. Evidence of apprehension of bias
a. the Applicants' argument
[34] The Applicants allege that a perception of bias exists as a result of the actions of the IRB when the lead case was conceived and conducted. As stated, they suggest that the IRB's motive was to increase the rejection rate of claims by Hungarian Roma through the creation of a well reasoned and well documented rejection precedent that would be followed by other panels of the IRB. The Applicants rely on a number of pieces of internal correspondence provided by the IRB in response to the Applicants' Access to Information Act request as evidence demonstrating that the IRB was predisposed to reject their refugee claims.
[35] To ground the motive argument, counsel for the Applicants splices together segments of internal e-mail correspondence between IRB members which show concern about the growing number of Hungarian Roma claiming refugee status in Canada, including the following statements: "growing intake of Hungarians...there are 15,000 (yes, fifteen thousand) Hungarian Roma on the way to Canada"; "these stats do not look so good"; "HQ [IRB Headquarters] is now interested in the ever-growing intake of Hungarian cases"; "public scrutiny will rise"; "there is a perception (which we may have to address) that our system is not credible"; and "the IRB is going to consolidate its resources in support of a precedential case..." (Affidavit of Lisa Cirillo, respectively, p.1036-7, 1049, 461, 1216, 450, and 455).
[36] Given that the Applicants interpret the evidence to argue that the lead case initiative arose from the IRB's concern with the high number of positive refugee claims by Hungarian Roma, and that the motive was to ensure that a rejection precedent would reduce the percentage of successful claims, they submit that the decision in the lead case was the cause of the significant decline in the acceptance rate for Hungarian Roma claimants in subsequent claims. As a result, they take the position that there arises a reasonable apprehension of bias in the production of the lead case and in the disposition of subsequent claims made by Hungarian Roma.
[37] The Applicants also argue that there is correspondence showing the IRB took the initiative to liaise with CIC with respect to the lead cases and this, in and of itself, raises a reasonable apprehension of bias on the part of the IRB. The Applicants submit that the IRB should not have liaised with the Minister off the record and to the exclusion of the Applicants because the Minister was a party adverse to the Applicants in the proceedings before the IRB.
[38] Finally, the Applicants submit that the correspondence demonstrates that an apprehension of bias arises on the part of Mr. Bubrin, the case manager of the IRB Europe team who was selected to sit as a panel member in the hearings. They argue that Mr. Bubrin's role in assisting with the coordination of the lead cases prior to the commencement of the hearings gives rise to the perception that he was partial to rejecting the Applicants' claims. As the basis for this argument, the Applicants allege that Mr. Bubrin: selected the lawyer who would represent the Applicants; based on "gaps" in the information which he identified, instructed staff to provide documents that would negative ineffective state protection; and inappropriately requested written reasons from panel members making positive decisions.
b. the Respondent's argument
[39] The Respondent argues that the excerpts of the IRB correspondence cited by the Applicants must not be taken out of context, and submits that the references to the increasing volume of Hungarian Roma claims merely illustrates that the IRB was keeping abreast of its intake and planning how to operationally meet the demands in the most fair and informed manner, as it is entitled, and required, to do. The Respondent argues that the non-binding precedent in the lead case does not, in and of itself, substantiate an apprehension of bias, so long as subsequent panels engage in an independent analysis of the evidence in the cases before them. Indeed, as pointed out, it has been acknowledged by this Court that a lead case is not, in itself, determinative of other cases and does not limit the right of Applicant's counsel to comment on the appropriate weight to be given to the evidence, and to submit his or her own evidence and arguments (see Horvath v. Canada (M.C.I.) 2001 FCT 583 (T.D.) at para. 7).
[40] The Respondent further argues that acceptance rates for any country do not remain uniform over time, and that the declining acceptance rates for Hungarian Roma after the lead case may be attributable to several factors, perhaps including better information on country conditions before the Refugee Division, and improving country conditions in Hungary.
[41] In response to the Applicants' submission that CIC and the IRB inappropriately liaised with one another on the lead case initiative, the Respondent points to the Affidavit of Robert Orr dated May 28, 2004, referred to above, which demonstrates that, while CIC and the IRB do liaise with one another, the relationship involves high level policy and administrative matters that are not case-specific. The Respondent submits that this relationship in no way raises a reasonable apprehension of bias on the part of the IRB regarding the Applicants' claims.
[42] With respect to Mr. Bubrin's involvement in the Applicants' claim, the Respondent submits that Mr. Bubrin's role, as coordinating team member responsible for the operational and case management issues that arose with respect to the IRB's Europe team, meant that he would naturally expect to be involved in the planning stages of the Hungarian Roma lead cases in a purely administrative capacity.
[43] The Respondent argues that there is nothing in the evidence that demonstrates objectionable behaviour on the part of Mr. Bubrin or any negative pre-disposition on the Hungarian Roma lead cases. The Respondent argues that: the Applicants' allegation that Mr. Bubrin sought documents that would "negative ineffective state protection" is not born out by the evidence, but rather the evidence shows that, following discussions by the Europe team, Mr. Bubrin merely requested further information as the evidence before the IRB regarding state protection was contradictory and evidence regarding state protection was required from more objective sources; Mr. Bubrin's request for reasons in positive decisions, whereas reasons are only required by the Immigration Act for all negative decisions, is hardly indicative of a reasonable apprehension of bias as nothing in the Immigration Act precludes such a request; and Mr. Bubrin's appointment to sit as the second panel member on the lead cases in no way raises a reasonable apprehension of bias because he merely filled a vacancy left when, very close to the date of the hearings, Mr. Popatia, one of the two initially selected panel members, withdrew.
c. conclusion
[44] In my opinion, the Applicants simply have insufficient evidence to substantiate their argument of apprehension of bias. I find that the Respondent's interpretation of the evidence that exists on the record is entirely fair.
[45] Thus, I find that, when read in its entirety, the evidence on the record does not support any of the allegations made by the Applicants that a reasonable apprehension of bias arises concerning the actions of the IRB in respect of the initiation and conduct of the Applicants' refugee claims in the lead case format. In my opinion, the Applicants' allegation that the IRB's motive in conducting the lead case was to provide a precedential case to increase the rejection rate of Hungarian Roma is pure speculation which is not supported by the evidence; I find that there is no evidence of such a motive.
[46] In my opinion, the evidence does not prove that the perceived decline in acceptance rates for Hungarian Roma was a direct result of the lead case. However, even if this direct result can be established, it does not act to support the allegation of apprehension of bias. If IRB members appropriately cite the evidence and findings in the lead case in deciding on the merits of a particular refugee claim, there can be no complaint. However, if IRB members choose to apply the lead case without doing the hard work to reach an independent analysis of the evidence and the law in a particular claim in an appropriate way, this does not contribute to a finding of apprehension of bias; it is erroneous decision making which is subject to correction on judicial review.
[47] In my opinion, the evidence does not support the Applicants' contention that Mr. Bubrin's involvement in an administrative capacity prior to the commencement of the hearings in any way raised a reasonable apprehension of bias. There is no evidence to show that there was any pre-judgment with respect to the Applicants' claim, whether positive or negative, and his involvement in the operational and case-management aspects of the claims does not preclude him from sitting as a panel member. Moreover, the evidence establishes that the formal relationship between CIC and the IRB is designed to address policy and administrative matters at the senior level, and does not deal with substantive cases. There is no evidence of any substantive discussion at the senior level about specific refugee claims, including the Applicants'. Therefore, I find no perception of bias is raised with respect to the Applicants' claims as a result of this relationship.
[48] Indeed, the evidence on the record only goes to substantiate the IRB's stated rational for producing the lead case as cited in the Overview first provided above. The essential point made for conducting the lead case was to promote consistency. The case law acknowledges the legitimacy of adopting procedural measures to ensure consistency between decisions of different adjudicators or panels within an administrative body so long as those measures do not become so formalized that they become binding on decision makers, and, therefore, compromising their independence (see Consolidated Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282 (S.C.C.)).
3. The Applicants' consent
[49] The consent of the Applicants to participate in the lead case is intertwined with the apprehension of bias allegation and the conduct of the Applicants' counsel.
[50] The single most important fact in play in considering the consent issue, and the Applicants' due process complaints addressed below, is that their counsel before the IRB, Mr. Wuebolt, was integrally involved in the planning for, and execution of, the lead case.
a. the Applicants' argument
[51] The Applicants submit that, although they consented to participate in the lead case through Mr. Wuebolt, their consent is vitiated because they were not fully informed of the nature and effects of the lead case format, and the IRB failed to fulfill its obligation to ensure that their personal consent to the process was explicitly put on the record of the proceedings.
[52] In the final argument on the Applications, counsel for the Applicants cited Weerasinge v. Canada (M.E.I.) (1999) 161 N.R. 200 (F.C.A.) as support for the vitiation argument. In Weerasinge it was held that where a claimant consents to waive his or her statutory right to a two-member panel, it must be clearly put on the record. Based on Weerasinge, the Applicants argue that there is a general common law requirement that their consent to have their claims heard as a lead case must be clearly stated on the record of the proceedings. I do not accept that Weerasinge is support for this argument.
[53] Weerasinge involves a statutory right to a two member panel, except where a claimant consents. In the present case, however, the Applicants have no similar statutory right to ground their vitiation argument. As a result, I find Weerasinge does not apply.
[54] The Applicants also cite Singh v. M.E.I., [1985] 1 S.C.R. 177 (S.C.C.) at para. 47 to argue that, given the high standard of procedural fairness required for refugee claim hearings, the consent of counsel is not sufficient, and the Applicants must personally consent to their participation in a lead case. In addition, the Applicants rely on R. v. Tran, [1994] 2 S.C.R. 951 at para. 77, wherein it was held that, where the accused waives his or her constitutional right to an interpreter, the Crown must show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, and that it was made personally by the accused or with defence counsel's assurance that the right, and the effect on that right of waiving it, were explained to the accused in language in which the accused is fully conversant. The Applicants also refer to the criminal case of R. v. Chambers, [1990] 2 S.C.R. 1293 at para. 58 in which the trial judge neglected to instruct the jury to ignore evidence bearing on the accused's silence and defence counsel failed to object to the omission; the Supreme Court concluded that defence counsel's failure to object was not a bar to directing a new trial where a significant injustice had occurred. The Applicants rely on Chambers to argue that the failure to object to the conduct of the lead case is not fatal to the vitiation argument made in the present Applications.
b. the Respondent's argument
[55] The Respondent argues that the Applicants have waived their right on judicial review to complain that a reasonable apprehension of bias existed on the part of the panel. There are two features to this argument: neither the Applicants nor their counsel objected to the composition of the panel, nor did they, at any stage in the process, raise any of the other allegations of bias they now argue; and the Applicants' post-decision objections cannot be accepted, given the consent communicated by Mr. Wuebolt.
[56] In support of the first feature, the Respondent relies on the decision in Mohammadian v. M.C.I., [2001] 4 F.C. 85 (F.C.A.) which specifically distinguishes Tran in the immigration context and at para. 14 adopts the reasoning in Human Rights Tribunal v. Atomic Energy of Canada Limited wherein MacGuigan J. stated:
However, even apart from this express waiver, AECL's whole course of conduct before the Tribunal constituted an...implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it participated fully in the hearing, and must therefore be taken impliedly to have waived its right to object.
c. conclusion
[57] I accept the Respondent's waiver argument.
[58] In my opinion, the Applicants' consent on the record argument only makes sense if it is based on an expectation that Mr. Wuebolt, or someone else, should have advised the Applicants that the lead case was designed to work against them and other Hungarian Roma, and further that somehow the panel had the duty to ensure that they were, nevertheless, willing to proceed. There is no evidence that would cause this expectation or the consequent duty to arise.
[59] It is undisputed that the Applicants, on the advice of their counsel, agreed to participate in the lead case. However, the Applicants point to the April 8, 1999 affidavits of Mr. Geza Kozak and Mr. Smajda Sandor, the principal Applicants in each Application under review, to argue that they agreed to participate in the lead case because their counsel had told them that if they did not agree, they would have had even less of a chance of winning because the IRB would think they were trying to hide something by not agreeing.
[60] The essential point is that, whatever advice Mr. Wuebolt gave the Applicants, they apparently accepted it without objection. I find that no weight can be placed on the Applicants' post-decision statements of lack of consent, given their pre-decision consent communicated through Mr. Wuebolt.
[61] Specifically with respect to Mr. Bubrin, if Mr. Wuebot had any objection to his presiding over the hearing based on a perception of bias, he was required to raise it at the earliest opportunity, which would be at the latest, the opening of hearing itself. While counsel in the present Applications argues that the former counsel may not have known what he was consenting to with respect to the conduct of the lead case, I find it was incumbent on her to produce the evidence substantiating this assertion. This was not done, and, therefore, I find this argument has no weight.
[62] Finally, I do not accept the Applicants' unsubstantiated suggestion that Mr. Wuebolt may have been incompetent, and that the panel had an obligation to go past him to obtain the personal consent of the Applicants on the record.
[63] There is absolutely no evidence of incompetence on the record, and, therefore, no reason for the panel to be concerned about consent.
[64] With respect to making incompetence an issue in the present Applications, as indicated in Nunez v. Canada (M.C.I.) (2000), 189 F.T.R. 147 (T.D.) at para. 19, allegations of a solicitor's professional misconduct cannot be found without allowing the solicitor an opportunity to explain the conduct in question or providing evidence that the matter has been referred to the Law Society for investigation (see also Bader v. Canada (M.C.I.), 2002 FCT 304 (T.D.) at para. 8). In the present case, there was ample opportunity for the Applicants to take one of these measures. This was not done, and, therefore, I find the incompetence argument has no weight.
III. Due Process Concerns
A. The interpretation
[65] In their April 8, 1999 affidavits, the principal Applicants, Mr. Geza Kozak and Mr. Smajda Sandor, allege that: Dr. Holtzl, one of the Respondent's expert witnesses, testified in English and the interpreter was sequestered with the Applicants in an adjoining hearing room; the interpreter informed the tribunal that he was having difficulty hearing the witness from the television monitor and could not accurately translate the witness' words; the interpreter was told by the panel to continue translating despite the problems; and at one point the interpreter stopped translating altogether for a period of time. The Applicants submit that this conduct constitutes a denial of their right to a competent interpreter and is, therefore, a breach of procedural fairness.
[66] The Respondent submits that the statements made by the Applicants in their affidavits are clearly misleading and directly contradict the tribunal record.
[67] I find that the Applicants' statements of what occurred are simply wrong according to the transcripts in the tribunal record; Dr. Holtzl testified almost entirely in Hungarian and the interpreter was in the main hearing room translating Dr. Holtzl's testimony to the panel and counsel (Smajda Tribunal Record, Proceedings of November 17, 1998, p. 1680-1681). Because of the conflict between the Applicants' affidavit evidence and the transcript of the hearing, I can give no weight to the Applicants' affidavit evidence on this issue.
B. Being sequestered
[68] The Applicants submit that they were sequestered in another room away from the decision maker and that their right to be present at their own hearing was violated. The Respondent argues that this resulted from a legitimate attempt to protect the Applicants' identities while representatives of the Hungarian government were testifying in the main hearing room.
[69] There is nothing in the tribunal record indicating that Applicants' counsel raised any objection to this arrangement and, indeed, he apparently agreed to this procedure to protect the identity of his clients from the Hungarian officials who testified. Therefore, this argument is dismissed.
IV. The Finding of State Protection
[70] The Applicants argue that the IRB erred in ignoring evidence with respect to state protection, including evidence of the inability of the state to protect Hungarian Roma from attacks by racist groups and disadvantages in employment and education.
[71] An analysis of the adequacy of state protection is a finding of fact, and the standard of review for a finding of fact made by a specialized administrative tribunal such as the IRB is patent unreasonableness (Conkova v. M.C.I. [2000] F.C.J. No. 300 (T.D.) at para. 5). In weighing the evidence, the fact that some of the evidence is not mentioned is not necessarily fatal to the decision nor does it mean that such evidence was ignored (Hassan v. M.E.I. (1992), 147 N.R. (F.C.A.) at p. 318).
[72] While the evidence on state protection was the same with respect to both of the claims before the IRB, and while the decision makers were the same, the content of the decisions are somewhat different. I find that a fair approach to answering the question of whether evidence of the adequacy of state protection was ignored is to read the two decisions together. When the two decisions are read together, it is clear that the panel was alive to both the positive and negative evidence with respect to state protection. In the result, I find that the conclusion reached in each of the decisions with respect to state protection was reasonably open to the panel to reach. Therefore, the Applicants' argument on state protection is dismissed.
V. Costs
[73] The Applicants argue that there are special circumstances which entitle them to costs whether or not they are successful in the present Applications. The Applicants submit that their cases are unique in that they deal with allegations of institutional bias on the part of the IRB in the conduct of a lead case, the first lead cases ever conducted by the IRB. The Applicants also point to the disclosed internal documents of the IRB to establish that, at the inception of the idea of producing a lead case, there was some awareness on the part of employees of the IRB that the concept of a lead case could potentially be the subject of litigation.
[74] In this regard, the Applicants point to the following e-mail statement which they say demonstrates that members of the IRB knew that a lead case would be contentious: "a test case could ensure that the law and the process established to support it have been properly followed, which would benefit pending cases; on the contrary, a test case may unnecessarily attract limelight and provoke a debate and/or judicial challenge; these are only examples of possible pros and cons"(Affidavit of Lisa Cirillo, p.451).
[75] Given this fact, the Applicants argue that they should be awarded costs in any event of the result, because the present litigation was contemplated at the time the decision was made to conduct the lead case.
[76] The Respondent submits that issues of bias arise regularly in this Court on judicial review and, therefore, do not constitute special circumstances in the absence of bad faith being demonstrated. The Respondent argues that costs should be awarded in favour of the Crown. The Respondent relies on Kabir v. Canada (M.C.I.), [2002] 2 F.C. 564 (T.D.) at para. 35 wherein the Court awarded costs against the applicant because the applicant had not been truthful and, as such, special reasons arose. The Respondent submits that the misstatements of fact found in the Applicants' Affidavits filed in support of leave give rise to special circumstances such that general costs should be awarded to the Crown.
[77] I agree with the Applicants' submission that, given the novel and recognized contentious nature of the lead case at the time it was brought, the Applicants should not be responsible to finance a judicial review testing the lead case concept, even if they are unsuccessful in the exercise.
[78] I am unable to find that the Applicants were not being forthright when they swore to their due process concerns regarding interpretation. It is quite possible that they understood the facts to be as stated in the affidavits, about which they were not examined as part of the present judicial review Applications. As a result, I find that this feature of the case is irrelevant on a determination of the issue of costs.
[79] As a result, in my opinion, the Applicants are entitled to an order for costs which will, in large measure, meet their expenses in bringing the Applications.
VI. Certified Question
[80] Following the exchange of written submissions respecting potential questions to be certified for consideration by the Federal Court of Appeal, I find that the only question suggested which transcends the interests of the immediate parties to the present litigation and contemplates issues of broad significance and general application, and about which I have made a determination, is as follows:
Did the IRB have jurisdiction to conduct a "lead case" under the Immigration Act?
ORDER
IMM-491-99
For the reasons provided:
1. The Application is dismissed.
2. I award costs to the Applicants according to Tariff B, Column 5.
3. I certify the following question for consideration by the Federal Court of Appeal:
Did the IRB have jurisdiction to conduct a "lead case" under the Immigration Act?
(Sgd.) "Douglas R. Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-488-99
STYLE OF CAUSE: KOZAK GEZA ET AL v. MCI
DOCKET: IMM-491-99
STYLE OF CAUSE: SMAJDA SANDOR ET AL v. MCI
DATE OF HEARING: June 23, 24 and 25, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER AND ORDER: CAMPBELL J.
DATED: July 27, 2004
APPEARANCES BY: Ms. Amina Sherazee
For the Applicants
Mr. John Loncar
Ms Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Downtown Legal Services
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
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