Date : 20040616
Docket: IMM-9067-03
Citation: 2004 FC 870
OTTAWA, ONTARIO, THE 16th DAY OF JUNE 2004
Present : THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
GUERMACHE, ABDEL-SALAM
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Laurier Thibault (the member) of the Immigration and Refugee Board, Refugee Protection Division (the Board), determined that the applicant, Abdel-Salam Guermache, a citizen of Algeria, is not a "Convention refugee" nor a "person in need of protection". The applicant has made an application for judicial review to this Court in accordance with subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] The Board dismissed the applicant's refugee claim on the basis that he was not credible. After reviewing the impugned decision and considering the evidence in the record, the applicant has not persuaded me that the decision was based on an error of law or that the adverse finding of credibility was patently unreasonable. Accepting the respondent's arguments, I do not find any basis for the Court's intervention in this respect.
[3] However, the applicant also alleges that the member's conduct at the hearing was such that it raises a reasonable apprehension of bias for an informed person, viewing the matter realistically and practically, and having thought the matter through ([1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 (S.C.C.); (1976), 68 D.L.R. (3d) 716 (S.C.C.)). The applicant alleges, inter alia, that the member created a very tense atmosphere during the hearing, to the point that it affected his testimony.
[4] Members have a difficult but essential role to play. Because of their workload, the stress is enormous. Nevertheless, even if they may have heard the same "story" hundreds of times, the individuals are different, so that each application for protection deserves the same degree of care. We must bear in mind that Canada offers protection to those who have well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group, as well as those in danger of torture or risk of cruel and unusual treatment or punishment. At the same time, in refugee matters, the objectives of the Act are, inter alia, to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution, and to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings (paragraphs 3(2)(c) and (e) of the Act). The members are therefore the first and, at this time, the last decision-making link (the provisions of the Act on the Refugee Appeal Division are not yet in force) to whom claimants can address their application for protection and be heard in Canada in the formal framework of an oral hearing before a quasi-judicial tribunal.
[5] With that in mind, the scale of the members' tasks must not cause them to lose sight of the fact that the rules of natural justice must be observed and that their conduct during hearings and applications for protection must, at all times, be irreproachable and objective. It goes without saying that the most basic courtesy and politeness are de rigueur. There is no place for intimidation, contempt, and offensive innuendo, nor for harshness or inappropriate language. As the Right Honourable Mr. Justice Fauteux wrote in the Livre du magistrat ["a book for judges"], "[TRANSLATION] The judge will ensure the climate necessary for the operation of justice by his moderation, his discipline and his courtesy in his relations with counsel, the parties and the witnesses." (The Right Honourable Gérald Fauteux, Le livre du magistrat, Minister of Supply and Services Canada, 1980, at page 49).
[6] Even though the member and the refugee claim officer can and should ask questions to clarify a claimant's statements, it is clear that there have to be certain limits. Without imposing a canon or an absolute rule, if "cross-examination" is allowed, it should normally take place after the claimant's "testimony". The neutral attitude that we expect from the member hearing the case strongly suggests that the member adhere to his or her own responsibilities as much as possible, and let the claimant's counsellor, the refugee claim officer and, if applicable, the Minister's representative, play their respective roles. In this respect, we should generally expect that the questions asked by these parties will enlighten the panel on the key aspects of the claimant's testimony, including the most flagrant shortcomings or contradictions in his testimony. On the other hand, his or her responsibility for conducting the hearing might oblige the member to ask questions that must be asked that were not because of a lapse by counsel. Again, I am not saying here that these are the only cases when the member can ask questions. Nevertheless, whatever the valid reason for which the member chooses to intervene, he or she must be tactful and show some deference in addressing the claimant and in formulating the questions that he or she would like to ask the claimant. As Lamer J. (as he then was) stated in R. v. Brouillard, [1985] 1 S.C.R. 39 at paragraph 25 (S.C.C.); (1985), 16 D.L.R. (4th) 447 (S.C.C.), ". . . although the judge may and must intervene for justice to be done, he must nonetheless do so in such a way that justice is seen to be done. It is all a question of manner."
[7] It must therefore be determined whether the member's "cross-examination" and his interference during the hearing creates an appearance of bias. The Federal Court of Appeal in Sivaguru v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 374 (C.A.), [1992] F.C.J. No. 47 (C.A.) (QL), wrote at paragraphs 16 and 17:
An essential requirement for such a hearing, in my view, is that the Board act with impartiality. The impartiality required of judges, as it was explained by LeDain J. in Valente v. The Queen et al., [1985] 2 S.C.R. 673, extends, it seems to me, to a Board member. At page 685, his Lordship stated:
Impartiality 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" as Howland C.J.O. noted, connotes absence of bias, actual or perceived.
In three recent cases before this Court, decisions of the Board were challenged on the ground, inter alia, that the manner in which a member of the Board intervened in examining the claimant at the hearing was excessive and improper. I refer to Mahendran v. Canada (Minister of Employment & Immigration) (1991), 14 Imm. L.R. (2d) 30 (F.C.A.); Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.); Rajaratnam v. Canada (Minister of Employment and Immigration) (Court File No. A-824-90, Stone J.A., judgment dated December 5, 1991 (not yet reported)). The challenge in two of these cases was rejected. In the third, Yusuf, at pages 637-638, Hugessen J.A. found:
In my opinion, these sexist, unwarranted and highly irrelevant observations by a member of the Refugee Division are capable of giving the impression that their originator was biased. The day is past when women who dared to penetrate the male sanctum of the courts of justice were all too often met with condescension, a tone of inherent superiority and insulting "compliments". A judge who indulges in that now loses his cloak of impartiality. The decision cannot stand.
This illustrates, I think, the sort of case in which the questioning may reveal bias, actual or perceived. The questioning by the Board member there indicated, as LeDain J. put it in Valente, "a state of mind or attitude of the tribunal in relation to the issues and the parties".
[17] For a "hearing" to be worthy of the description, the Board must at all times be willing to give the evidence adduced the dispassionate and impartial consideration it requires in order to arrive at the truth.
[Emphasis added.]
[8] At paragraphs 18, 19 and 20 in the decision De Leon v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 852 (F.C.T.D.) (QL), IMM-6251-98, Pelletier J. (as he then was) pointed out:
[18] It is true that it is not the function of the tribunal or the officer to favour a claimant's testimony. The burden of proof is always on a claimant. Contradictions and discrepancies are important indications that a story is untrue. As it is not in a good position to check contradictions and inconsistencies the tribunal must rely entirely on the claimant in order to determine the truth about his situation. If a claimant does not seem trustworthy in certain details, the Refugee Division is justified in finding that he is not trustworthy in other aspects of his claim: but all this assumes that the Refugee Division respects the claimant and his testimony.
[19] It is also true that the refugee claims officer and the tribunal are entitled to cross-examine the plaintiff and, if circumstances require, that cross-examination may be hostile: but a search for the truth should not be confused with harassing the plaintiff. In the case at bar the tribunal found contradictions where none existed and, to arrive at those contradictions, did not have regard to the material before it within the meaning of s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7. The decision must accordingly be set aside and the case referred back for re-hearing by a tribunal of different members.
[20] In view of the allegations which formed part of the application for judicial review it is very likely that the plaintiff left the hearing room feeling that his case was lost from the outset. In addition to being accused of contradictions where none existed, he also had to tolerate remarks which may have seemed insulting to him. The Refugee Division has a central part to play in carrying out Canada's refugee obligations. Persons who are designated to act as members or as refugee claims officers represent Canada to claimants. They must therefore behave in such a way as to preclude any suggestion that Canada is not willing to accept refugees, even though it reserves the right to make sure that they are acting in good faith. It is a task that calls for exemplary probity and integrity. The fact that there are shortcomings in the conduct of a hearing from time to time only emphasizes the importance of impartiality and openness of mind by those to whom this task is entrusted.
[Emphasis added.]
[9] Having reviewed the entire record with the foregoing principles in mind, I find that the rules of natural justice were not observed in this case. It is also my opinion that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that the member's conduct would create a reasonable apprehension of bias ([1978] 1 S.C.R. 369">Committee for Justice and Liberty, supra).
[10] It is clear in this case, from the outset, that the member was not at all interested in hearing the applicant's testimony. The procedure selected by the member was such that the applicant did not have the opportunity to present his "case" before an impartial decision-maker. In that respect, the hearing of May 15, 2003, was more like a police interrogation than a hearing before a tribunal, specialized though it may have been. From the beginning to the end of the hearing, the member questioned the applicant relentlessly on countless details, evidently with the goal of making him "crack". Not only did the applicant have to answer the questions asked by the refugee claim officer but, systematically, at the same time the applicant also had to answer to the best of his abilities the multitude of questions asked by the member himself. Obviously, he was looking for every pretext possible to make the applicant contradict himself. There is basis for me to find that it was a case of the applicant clearly trying to avoid or evade the questions asked. Quite to the contrary, the member was visibly impatient as soon as the applicant tried to complete his answers.
[11] We have the overall impression in this case that the refugee claim officer was nothing more than a "stand-by". The starring role of "grand inquisitor" was played by the member himself. As for the applicant's counsellor, she was relegated to the small and limited part that the member indeed wanted her to have. Undoubtedly for the sake of appearances, the member invited her or allowed her to ask a few questions from time to time, here and there. I say that because after the "all out" cross-examination by the member, which must have seemed interminable, and long tirades by member on peripheral aspects having no real relevance (except that they eloquently demonstrated the member's prejudices and biases), we might ask what more the applicant's counsellor could have done. It is clear here that no matter what the applicant's counsellor may have said or added, the applicant's "case" had been decided in advance by the member.
[12] In short, the gratuitous and uncalled for comments as well as the member's tone, impatience and aggressiveness at the hearing were unjustified. I have no basis to find that the member's numerous interventions were directly related to any evasive answer by the applicant or his failure to cooperate. They appear rather to be the result of the opinion that the member appeared to have of Algerian citizens who make refugee claims in Canada. For example, here are a few excerpts from the hearing transcript. To illustrate, the member's interventions or questions are underlined in the following text:
[TRANSLATION]
BY THE CHAIRPERSON (addressing the claimant)
. . .
- . . . Sir, the panel will not ask you to repeat everything that is in your Personal Information Form, assuming that you would repeat everything contained therein if you were to testify on the merits.
. . . I don't put anybody in jail, I don't condemn anyone to death, so rest assured, that's already settled.
. . .
Q. . . . You see, I speak quite loudly - not in an attempt to intimidate you, Sir, but so that you understand me . . .
. . .
BY THE RCO (addressing the claimant)
. . .
Q. Okay. And what happened?
R. I came out to go take the bus, on my way, the distance . . . between the police station . . . the bus stop was . . . is a little bit far from . . . the police station. I was walking on my way and suddenly a car stopped, four people got out from . . . the vehicle, they came toward me, they insulted me, they hit me on the head, they told me that I was . . . what do you call it, a informant for the police.
Q. And these people, did you know them?
A. No.
Q. Had you seen them before?
A. No.
Q. Did they say anything to you other than that you were a police informant?
A. They said to me "You must stop doing this work."
Q. Did they . . .
A. "And don't think that we'll . . .we'll leave you in peace, we'll get you."
BY THE CHAIRPERSON (addressing the claimant)
Q. Why did . . . why didn't they kill you right away, Sir?
A. I don't know, maybe I was . . . I was lucky.
. . .
BY THE COUNSELLOR (addressing the Chairperson)
Q. And can I ask a question?
A. Yes, yes, yes.
BY THE COUNSELLOR (addressing the claimant)
Q. Why did you stay home?
BY THE CHAIRPERSON (addressing the counsellor)
- Excellent question.
. . .
BY THE CHAIRPERSON (addressing the claimant)
. . .
Q. So, Sir, if you gave your passport to your brother on February 7, 8 or 10, 2002, to get a visa, can you explain to me how your brother gave this to someone, then, at some point, the visa was issued on January 28, 2002. So, if it's a genuine visa, then, there's like a problem, Sir. How can you give a passport to your brother without a visa on February 7, 8 or 10 and have a visa in your passport dated January 28, 2002?
. . .
BY THE CHAIRPERSON (addressing the claimant)
- Listen, Sir, it's because every time we confront you, now, every time we confront you, Sir, you adjust your testimony, there. Now: "I made a mistake" Why Sir? I have repeated it I don't know how many times, like this you . . . I have repeated it at least four times, Sir, you gave your passport to your brother on the 6th, 7th, 8th, I . . . I did it intentionally, Sir, I repeated it intentionally so that if there was a problem, you would react.
Not even, it's when I confront you that you tell me: "No, there is a mistake, I think that I gave it to my brother on the 20th."
. . .
BY THE CHAIRPERSON (addressing the claimant)
Q. Sir, does . . . "internal asylum" ring a bell?
A. It means asking for protection.
BY THE COUNSELLOR (addressing the claimant)
- Not internal asylum.
BY THE CHAIRPERSON (addressing the claimant)
- That's right. Because you see, Sir, for the . . . for the Algerians, specifically the French government . . . also provided . . . to the application for . . . refugee status, under the Convention, it allowed people to ask for internal asylum in France at the prefecture level.
. . .
BY THE CHAIRPERSON (addressing the claimant)
. . .
- . . . Sir, because I am beginning to learn where passports are purchased. So, there is the Quick, the Salem, then there is . . . there are two others, there, but you, you don't know where?
A. I don't know France very well, it was the first time that I . . . I had been over there, but I know it was in a café in Barbès.
Q. Yes, but that's it, but you do not know, now . . . outdoors, is it . . . the roof was red, was it, outside?
. . .
BY THE COUNSELLOR (addressing the chairperson)
- What I am trying to explain to the panel is that it was beyond his . . . his control, he had to wait for the documents to be sent to him . . .
. . .
A. Of course, but listen, now, that's not a State secret, that, photocopies can be made of the forms, now . . .
- We are not allowed, Sir, not at all, not on your life. Since the . . .
. . .
[Emphasis added.]
[13] In conclusion, there was a miscarriage of justice. After carefully reviewing the exchanges during the hearing, I am persuaded not only that the chairperson crossed the line from his role as an impartial adjudicator, but also that his constant interference prevented the applicant from presenting his case (Farkas v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 356 at paragraph 8 (F.C.T.D.) (QL), 2001 FCT 190 (F.C.T.D.); Del Castillo v. Canada (Minister of Employment and Immigration) (1994), 79 F.T.R. 207 at paragraph 24 (F.C.T.D.), [1994] F.C.J. No. 538 (F.C.T.D.) (QL)). Accordingly, notwithstanding the adverse credibility findings with regard to the applicant, this Court must intervene in order to allow the applicant to present his refugee claim once again before an impartial adjudicator.
[14] No question of general importance was raised by counsel and none will be certified in this case.
ORDER
THE COURT ORDERS that the application for judicial review of the decision by the Immigration and Refugee Board dated October 29, 2003, be allowed and that the matter be referred before a differently constituted panel for rehearing.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9067-03
STYLE OF CAUSE: GUERMACHE, ABDEL-SALAM v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 18, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: JUNE 16, 2004
APPEARANCES:
RACHEL BENAROCH FOR THE APPLICANT
DIANE LEMERY FOR THE RESPONDENT
SOLICITORS OF RECORD:
RACHEL BENAROCH FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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