Date: 20000407
Docket: IMM-1719-99
BETWEEN:
HANINA KHALOF AND SOZAN AKEL
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
Background
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning assigned to that phrase by subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 6th of March, 1999 and represents the second negative determination by the CRDD with regard to these applicants, the first, dated the 17th of March, 1997, having been set aside and referred back for rehearing by a decision of Madame Justice Reed of this Court dated the 13th of March, 1998.
The Applicants
[2] The Applicants are citizens of Syria. Hanina Khalof (the "principal applicant") is the mother of Sozan Akel. They base their claims to Convention refugee status on an alleged well-founded fear of persecution if required to return to Syria by reason of their membership in a particular social group, namely, the family of the principal applicant"s late husband. They alleged that the principal applicant"s late husband was perceived by Syrian intelligence officials to be active in the Phalange Party, a Christian militia group, that was at all relevant times opposed to Syrian presence in Lebanon.
[3] After the death of the principal applicant"s husband, the principal applicant"s three sons, each older than the applicant Sozan Akel, experienced harassment at the hands of Syrian intelligence officials. Each, in turn, fled Syria. Two remain in the Middle-East. The third is in Canada and appeared as a witness on behalf of the applicants at their latest hearing before the CRDD.
[4] The applicants fled Syria in 1993 and claimed Convention refugee status on arrival in Canada. In December of 1993, the applicants returned to Syria, for family reasons, and abandoned their Convention refugee claims.
[5] The applicants returned to Canada in September of 1995 and filed fresh Convention refugee claims. It is the second decision of the CRDD with respect to those claims that is here under review.
The Issues
[6] The issues before the Court can be briefly summarized as follows:
| - first, whether the CRDD breached the rules of natural justice and fairness in admitting into evidence, over the objection of applicants" counsel, the transcript of the principal applicant"s testimony at the applicants" first hearing before the CRDD after the first decision with respect to the applicants" Convention refugee claims was set aside by this Court and referred back "... for re-hearing"; |
| - second, whether the CRDD erred in its determination that the applicants do not have good grounds for fearing persecution by reason of any Convention ground should they return to Syria; and |
| - third, whether the manner in which the hearing before the CRDD was conducted gave rise to a reasonable apprehension of bias on the part of the panel members. |
The decision of the CRDD
[7] The CRDD determined that the issues before it were credibility and the well-foundedness of the applicants" alleged fear of persecution.
[8] The CRDD, as earlier noted, relied on the transcript of the testimony of the principal applicant at the first hearing into the applicants" claims. The principal applicant did not testify at the second hearing. The CRDD heard the testimony of the principal applicant"s son who is here in Canada and of Sozan Akel.
[9] The CRDD briefly summarized the testimony of the principal applicant as reflected in the transcript from the applicants" first hearing. Importantly, it made no adverse finding regarding the credibility of her testimony.
[10] The CRDD reflected in its reasons that it had significant difficulty with the credibility of the testimony of the principal applicant"s son. It found Sozan Akel"s testimony not to be credible or trustworthy. It concluded that there was "insufficient credible evidence" before it to indicate that the principal applicant"s son faced any serious problems before he left Syria in 1995. It found no persuasive , as contrasted with no credible, evidence before it that the applicants encountered any serious problems during the period of almost two years when they returned to Syria from Canada. The CRDD concluded that "...there is less than a mere possibility that the claimants would face any serious problems should they return to Syria, either because of their religion or the suspected involvement of their family members in the Phalange Party." This was the first mention of religion as a possible ground for the applicants" claims.
Analysis
[11] Counsel for the applicants first learned that the CRDD intended to rely on the transcript of the principal applicant"s testimony at the first hearing before the CRDD during the pre-hearing conference that immediately preceded the second hearing before the CRDD. The following exchange is recorded in the early pages of the transcript of the hearing:
| Presiding member: Okay. Now, counsel, also, during the pre-hearing conference you indicated you had.... you wanted to object to the entering of the transcript of the previous hearing... or had some comments regarding that. |
| Counsel: Well, yes. Since it"s a hearing de novo , it would be... I would take objection to the transcript going in. Certainly I have not reviewed it with the claimant in terms of ... for the purposes of any cross-examination or anything along that line. It"s my view, with a hearing de novo we don"t go back into the old hearing with that evidence. So I would take formal objection to the entry of that. |
| Presiding member: Mr. Johnston? |
| RCO [Refugee Claims Officer]: Well, it"s been a common practice here for a long time to enter the documents, and since they have been sworn evidence. A de novo hearing means a review. It also means doing it over again because of some problem in the past. As long as we don"t repeat that problem from the past, I see no objection to entering the record. And the problem as noted was one of... more of an interpretation or lack of direction, that is, toward the... a confusion between the Lebanese Forces and the Ph[a]lange party was the major problem. But... |
| RCO: It"s [the second hearing] not a review. The review has already been done [by the Federal Court] when it had to be retried. But "de novo" means that we can use some of the evidence from the previous hearing, if required. We can use it for corroboration or we can use it for... to speed the hearing up, if every... if the other parties agree that, you know, we accept it as it is, and this is the evidence we need to... so it can be used in many ways. But I think the usefulness is corroboration. Some time has gone by. Perhaps some elements of the story may have to be revisited. If there are... you know... major discrepancies. But the general account, I think, and the general practice we"ve had is to use it sparingly. Even though it"s usually put on the record it"s not referred to dramatically. It"s generally... And in this case I think counsel"s objection is more a matter of form than reality, and... |
| Counsel: I wouldn"t put it that way, quite honestly. |
| Presiding member: Counsel, do you want ... I"ll give you the last word before we... |
| Counsel: As indicated, it"s my view that when a hearing is sent back from the Federal Court on the basis of a de novo hearing, that is exactly what it should be, a de novo hearing. The client is here to give her evidence. What... my concern is, in reality... it"s not a superficial... it"s not just an objection for the sake of objecting. It"s that I fear that it is possible that if she... if that is entered as an exhibit and somehow she"s cross-examined on previous testimony, that it would be unfair to her. I am aware that the board does at times put in the transcript despite objections . My concern is that she not be cross-examined on it since I have not reviewed that transcript with her because... in my view that is not what we"re here for. |
| Presiding member: Okay. Maybe I"ll ask Mr. Johnston, then. Do you plan to go over that... |
| RCO: I don"t plan to go over it in any depth, but I may refer to it in some cross-examination... or cross-questioning regarding credibility if some major... I mean, if a minor date is missing or something like that, I"m not concerned about that. I"m just concerned about the broad outlines. And if... for example, if the claimant kept on referring to her husband as a member of a different party than was indicated in the... |
| Counsel: Just one last thing in terms of... as indicated, I"m aware that sometimes, depending on board members... sometimes the transcript goes in, sometimes it doesn"t. Just to say I wasn"t advised by anybody that in this particular case it would be sought to be entered. I anticipated that it might be sought to be entered, I"ll be honest with you, but if there is going to be any particular cross-examination on any particular aspect of it, I would at least ask that we be notified in advance so I can review that page or two with the claimant. So that"s my... |
| Mr. Cooke: How can you ask the RCO to notify you in advance when he hasn"t heard your client"s evidence yet, though? |
| Counsel: Well, if... every document that he intended to rely upon was sent to me. If there was going to be reliance on the transcript in full, I mean, I suppose it could have been put in a letter to me. If there were particular aspects of it, then that could have been as well sent to me. What I"m saying is if... it"s just an issue of fairness, in my view, that if Mr. Johnston or the board wishes to cross-examine based on previous sworn testimony in the transcript on a certain area, give me a few minutes with my client to refresh her memory [of] what she said. It"s been three years since she said it. That"s all. |
| Presiding member: We"re back on the record, same parties present. Counsel, the panel has looked into your request and we will be entering these transcripts, since they had been sent , and the practice has been always to make use of these transcripts for the sake of expediency and speeding up the process. From our perspective at this moment, we really do not want to rehash all the testimony which was in the transcript. If, during these proceedings, a certain area becomes required to delve into further, we will grant you that little pause to review those specific pages with your clients.2 [emphasis added] |
[12] In the result, as indicated earlier in these reasons, the principal applicant did not testify at the second hearing before the CRDD. That was apparently a decision voluntarily made by the principal applicant, in the light of all of the circumstances as they became known.
[13] Subsections 68(2) and (3) of the Immigration Act provide as follows:
(2) The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
(2) Dans la mesure où les circonstances et l'équité le permettent, la section du statut fonctionne sans formalisme et avec célérité.
(3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision.
[14] Clearly, the presiding member"s concern regarding "expediency and speeding up the process" reflected in the foregoing extracts from the transcript is consistent with the obligation placed on the CRDD by subsection 68(2). At the same time, that subsection emphasizes an overriding concern with fairness which was at the heart of the concerns expressed by counsel for the applicants.
[15] I am satisfied that the decision of the CRDD to rely upon the transcript from the first hearing of the principal applicant"s testimony constituted that transcript "evidence adduced in the proceedings", within the meaning of subsection 68(3). Nowhere in the transcript of the second hearing or in the reasons of the CRDD for the decision here under review is the principal applicant"s testimony, as reflected in the transcript relied upon, questioned as to its credibility or trustworthiness. If it had been, I am satisfied that the CRDD could not have relied on subsections 68(2) and (3) to justify reliance on the transcript. To rely on a mere transcript as a basis for a finding of want of credibility or trustworthiness would, I am satisfied, constitute a breach of natural justice and fairness. Principles of natural justice and fairness would require that the CRDD hear testimony and have the opportunity to observe the demeanor of the person testifying before a finding of want of credibility and trustworthiness of testimony could be fairly made. But no such finding was made here.
[16] I conclude that the CRDD made no reviewable error in relying on the transcript of the principal applicant"s testimony at the first hearing before the CRDD. I am satisfied that, on the facts of this matter, such reliance was consistent with subsections 68(2) and (3) of the Immigration Act .
[17] During the course of the hearing of this matter before me, counsel for the respondent made reference to two reported decisions that he was unable to distribute to counsel for the applicant and to the Court. Reasons for those decisions were distributed following the close of the hearing and, as agreed during the hearing, counsel for the applicant was given an opportunity to provide written submissions in reply. Such submissions were received within the time provided.
[18] The first case cited was Sitsabeshan v. Canada (Secretary of State)3. Counsel for the respondent drew the Court"s attention to paragraph 16 of the reasons where I wrote:
| I have however modified the normal order of reference back, ...to indicate that the CRDD should take into account the record before the panel that has already heard this matter as well as any other evidence that the new panel considers appropriate. While I am not satisfied that an order requiring the CRDD to take into account the record before a previous panel is necessary, that option always being open to a second panel, counsel advised me that some panels of the CRDD have been reluctant in a hearing de novo to do anything else than to in fact start "de novo" ignoring all of the evidence previously before the earlier panel. That strikes me as a significant waste of resources. While, as in this case, the evidence before the earlier panel may not be fully satisfactory, it should be possible to overcome the weaknesses in the earlier evidence by supplementing that evidence. It should not be necessary to revert to the beginning. [emphasis added] |
Counsel for the applicant urged that the facts in Sitsabeshan are distinguishable from those in this matter.
[19] The second case to which counsel for the respondent referred the Court, and for which reasons were distributed following the close of the hearing, is Diamanama v. Canada (Minister of Citizenship and Immigration)4 where Madame Justice Reed wrote at paragraph 10:
| With respect to the wording of the order, I do not think it appropriate to word it in a way which would limit the Board that rehears the application. What is in issue, in this case, is the evaluation of factual evidence in which the credibility of the applicant is an integral component. I would not be prepared to require that a decision maker (in this case the second panel) has to accept a credibility finding made by another decision maker. I am not prepared to require the second decision maker to accept the facts as found by the earlier panel. The applicant wishes to rely on the transcript of the earlier hearing and add evidence thereto. I consider this to be quite inappropriate. The second panel must be free to conduct the hearing as it sees fit and to make its decision by reference to the evidence adduced before it. The second panel can, of course, use the transcript of the first hearing for whatever purposes it wishes but no order, from me, conditioning that use is either required or appropriate. [emphasis added] |
Once again, counsel for the applicant urged that the reasoning reflected in the foregoing quotation from Diamanama should be distinguished on the basis that the fact situation there was different from the facts now before me.
[20] I am satisfied that the conclusion I have reached herein regarding no reviewable error in relying on the transcript of the principal applicant"s testimony at the first hearing before the CRDD is consistent with the reasoning in the foregoing cases and should stand regardless of any distinction that might be drawn on the facts in thoses cases and the facts of this case.
[21] The issue raised on behalf of the applicants regarding a reasonable apprehension of bias on the part of the members of the CRDD who conducted the applicants" second Convention refugee hearing is closely related to the issue of reliance on the transcript of testimony from the first hearing before the CRDD. I find no basis whatsoever to conclude that the members of the second panel of the CRDD conducted themselves in a manner that would give rise to a reasonable apprehension of bias.
[22] Further, I am satisfied that an analysis of the reasoning of the CRDD reflected in the reasons for the decision here under review discloses no reviewable error in the CRDD"s conclusion that the applicants do not have good grounds for fearing persecution by reason of any of the grounds set out in the definition "Convention refugee", should they be required to return to Syria.
[23] For the foregoing reasons, this application for judicial review will be dismissed.
Certification of a question
[24] At the close of the hearing of this matter, I reserved my decision and undertook to distribute my reasons and to allow counsel an opportunity to make written submissions regarding certification of a question. Accordingly, these reasons are distributed but no order has been issued. Counsel for the applicant shall have until the close of business at the Registry of the Court in Toronto on Thursday the 13th of April, 2000 to provide to the Court and to counsel for the respondent any written submissions on certification of a question. Thereafter, counsel for the respondent will have until the close of business at the Registry of the Court in Toronto on Tuesday, the 18th of April, 2000 to provide to the Court and to counsel for the applicant any submissions on behalf of the respondent. Counsel for the applicant will have to the close of business on Thursday the 20th of April, 2000 to provide any reply submissions to the Court and to counsel for the respondent. Thereafter, following consideration of any submissions received, an order dismissing this application for judicial review will issue.
J.F.C.C.
OTTAWA, ONTARIO
April 7, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: HANINA KHALOF AND SOZAN AKEL |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: WEDNESDAY, MARCH 29, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: THURSDAY, MARCH 30, 2000
APPEARANCES: Ms. Linda Martschenko
For the Applicants
Mr. Martin E. Anderson
For the Respondents
| SOLICITORS OF RECORD: Linda Martschenko |
Windsor, Ontario
N9A 1G9
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondents
Date: 20000330
Docket: IMM1719-99
Between:
| HANINA KHALOF AND SOZAN AKEL |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondents
REASONS FOR ORDER
__________________
1 R.S.C 1985, c. I-2.
2 Tribunal Record, p.p. 290-292.
3 (1994), 82 F.T.R. 29.
4 [1996] F.C.J. N0 121 (Q.L.), (F.C.T.D.).
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