Docket: IMM-3336-11
Citation: 2012 FC 511
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, May 2, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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REYNOLD SAINT-EUSTACHE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review, submitted pursuant to subsection 72(1) of
the Immigration
and Refugee Protection Act,
SC 2001, c 27
(IRPA), of the decision by the Immigration and Refugee Board (IRB) dated
May 11, 2011, that Reynold Saint-Eustache (applicant) is not a Convention
refugee or a person in need of protection under sections 96 and 97 of the IRPA.
[2]
For
the following reasons, this application for judicial review is allowed.
II. Facts
[3]
The
applicant is a citizen of Haiti.
[4]
In
1973, he ran a crafts and electronics business. He bought these products in
Haiti and the Dominican Republic and then resold them at profit. His work
involved doing business and travelling in the two countries.
[5]
He
was informed that certain people wanted to kill him.
[6]
The
applicant then decided to leave Haiti to settle in the Dominican Republic. He nonetheless
alleges that he was still in danger because he could have easily been found.
[7]
He
left the Dominican Republic to settle in the United States of America, but
passed through Haiti before going there. The applicant’s brother, an American
citizen, filed a permanent residence application in the applicant’s name. The
applicant claims that he is still waiting for a reply from the American
authorities.
[8]
Because
the applicant feared removal from the United States, he decided to claim
refugee protection in Canada.
[9]
He
claimed refugee protection on January 16, 2008, in Saint-Armand.
[10]
The
panel found that the applicant is not a refugee or a person in need of
protection under sections 96 and 97 of the IRPA.
[11]
At
the beginning of the hearing, counsel for the applicant asked the IRB member to
recuse himself because of extreme hostility between them. The member refused
this request. The applicant maintains that the existence of extreme hostility between
the member and his counsel raises a reasonable apprehension of bias in his case.
III. Legislation
[12]
Sections
96 and 97 of the IRPA specify the following:
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Convention
refugee
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Définition de « réfugié »
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
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(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
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a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
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(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be
faced by the person in every part of that country and is not faced generally
by other individuals in or from that country,
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(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
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(iii) la menace
ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
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(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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IV. Issue
and standard of review
A. Issue
a.
Does the Board member’s conduct at
the hearing raise a reasonable apprehension of bias?
B. Standard of
review
[13]
Procedural
fairness issues are reviewed on the standard of correctness (see Ghirmatsion
v Canada (Minister of Citizenship and Immigration), 2011 FC 519 at
paragraph 51).
V. Position of
the parties
A. Position of
the applicant
[14]
At
the beginning of the hearing on March 8, 2011, counsel for the applicant asked Board member
Diop to recuse himself on the basis of what might be considered extreme
hostility that has existed between them since she filed a complaint with the
IRB against the Board member in 2009. The Board member refused the request without
reasons and decided to proceed.
[15]
Counsel
for the applicant alleges that the refusal of her recusal request and the
Board member’s comments raise an apprehension of bias.
[16]
She
also contends that the Board member had decided the outcome of the refugee
claim of her client, Mr. Saint-Eustache, in advance.
B. Position of
the respondent
[17]
The
respondent replies that the applicant has the correlative burden of proving
that the Board member was biased in this case and that he did not submit any
convincing evidence in support of his position.
[18]
He
also points out that the parts of the application to reopen that address the
conflict between Ms. Iannicelo and the Board member since 2009 are inadmissible
in evidence because Mr. Saint-Eustache, who filed the application in
support of his affidavit, had absolutely no personal knowledge of this, which
is contrary to Rule 81(1) of the Federal Courts Rules, SOR/98-106.
[19]
The
respondent submits that if the Court allows the applicant’s arguments, the
decision would result in the incorporation into Canadian law of the concept of
automatic disqualification, which the Supreme Court rejected in Wewaykum Indian
Band v Canada, [2003] 2 S.C.R. 259 at paragraphs 69 to 71 (Wewaykum).
[20]
The
respondent also claims that the IRB’s administrative independence could be
called into question if the Court allows this application.
VI. Analysis
[21]
The
Supreme Court reminds us that it is impossible to determine the precise state
of mind of a decision-maker (see Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of
Public Utilities), [1992] 1 S.C.R. 623
at page 636).
[22]
Regarding bias, it has also taught us that it “ . . . is worth
repeating that the standard refers to an apprehension of bias that rests on
serious grounds, in light of the strong presumption of judicial impartiality”
(see Wewaykum, above, at paragraph 76).
[23]
An inquiry on bias remains, of course, fact-specific (see Wewaykum,
above, at paragraph 77). “Whether the facts, as established, point to financial
or personal interest of the decision-maker; present or past link with a party,
counsel or judge; earlier participation or knowledge of the litigation; or
expression of views and activities, they must be addressed carefully in light
of the entire context. There are no shortcuts.” (see Wewaykum, above,
at paragraph 77).
[24]
Because the applicant alleges the existence of a reasonable
apprehension of bias and “[t]he matter must be determined upon the
probabilities to be inferred from the circumstances in which the justices sit”
(see Wewaykum, above), the Court determines that, in this case,
there are sufficient elements to find that there is a reasonable apprehension
of bias on the part of the Board member.
[25]
“Parties are not normally able to complain of a breach of the duty
of procedural fairness by an administrative tribunal if they did not raise it
at the earliest reasonable moment. A party cannot wait until it has lost before
crying foul.” (Geza v Canada (Minister of Citizenship and Immigration),
2006 FCA 124 at paragraph 66).
[26]
However, the hearing transcript is very telling.
[translation]
BY COUNSEL (to the panel
member)
- I would
just like to finish telling you what I want to tell you, if you let me. I know
that you know what I want to tell you in any event. It is that, from what I have
understood, we were no longer going to work together you and me.
A. Counsel,
I have no questions, I have no answers to give you on that. If you have . . .
- But I, I, I
cannot proceed with you because . . .
A. If you
have reasons for not wanting to work with me, you will go and provide them to
the Immigration and Refugee Board.
- Exactly.
A. So then, here we
are . . .
- And we are not .
. .
A. . . . .to proceed.
- No.
A. I am in
the room. I initiated the hearing. If someone told you that I will not work
with you or that you will not work with me, that is your problem.
- No, but
it is not a problem. Myself, I will ask you . . .
A. Myself,
I am assigned, I am assigned files and I do not consider the counsel with whom
I have to process them.
- No, that I
understand but . . .
A. So then,
please, I will proceed with my hearing. If you would like to leave the room,
leave. I am proceeding; let me be absolutely clear.
- Myself, I will
ask you . . .
A. And I
will not permit you, I do not permit you to interrupt me at this stage.
- I did
not interrupt you, I am making a preliminary request . . .
A. OK, let me . . .
- . . . for you to
recuse yourself from the case.
A. Listen,
I will not recuse myself for you, let me be absolutely clear. I do not choose the
counsel I work with.
- No, that I
understand.
A. I do not
have to answer that question as far as I am concerned. OK. So . . .
- No, you have a
recusal request that is very clear.
A. Counsel.
- I cannot
work with you because of what you know.
A. Counsel, there is
no, counsel . . .
- And
myself, I was told that we had no more cases, you and me together.
A. Counsel, I do not .
. .
- So I will ask you
to adjourn for five (5) minutes.
A. I . . .
- Time to
resolve this issue because I was told that we would no longer be working
together.
A. Counsel.
- And you
see, I cannot even talk to you without you interrupting me. I asked you to
recuse yourself because of what you know.
The two (2) of us have a very
bad relationship. We are unable to work together, you know that.
A. I hear
you, yes. Finish what you have to say.
- No. So,
I do not see how we can work together, you are well aware of that.
A. Counsel,
I do not work with you.
- But I,
I work [with] you when I am here.
A. Please,
please. You are finished talking. I will reply to your recusal request. And if
you [want] to put it in writing, you will put it in writing, and I will reply
in writing.
So I will not
recuse myself as per your wishes.
. . .
BY THE PANEL
MEMBER (to the person in question)
- So, she
should accept her responsibilities, but she should not ask me to leave the room
as per her wishes. Therefore, we will proceed with the hearing. I refuse her
recusal request. My reply is very clear.
Now, I will provide you with some
direction. This hearing will proceed as follows: I asked her to present you with
your Personal Information Form. If she does not do so, I will present it to you
myself and ask you if you recognize it and if the information contained therein
was written by yourself. That is the first thing.
(see the hearing transcript
at pages 190, 191, 192 and 196 of the Tribunal Record)
[27]
First, it was noted that the Board member refused the recusal
request by counsel for the applicant without providing explanations. He then accused
counsel of disrupting the conduct of the hearing and asked that she, in turn, recuse
herself. She explained to him, in her own words, that the code of conduct does
not permit her to do so. This exchange in the presence of the applicant created
a highly sensitive context. For example, the applicant stated the following: [translation] “I do not feel good if
counsel representing me does not get along with my Board member” (see the
hearing transcript at page 201 of the Tribunal Record). However, the Board
member provided him with the following reply: [translation] “The harmony that must prevail in the courtroom
consists in respect for the institution, for the Canadian justice system” (see
the hearing transcript at page 201 of the Tribunal Record).
[28]
The Board member placed the applicant and his counsel in an
unacceptable position. First, he had to explain the reasoning behind his refusal
of the recusal request by counsel instead of attacking her. His conduct created
an untenable environment for the applicant, who was forced, ultimately, to
choose between his counsel and run the risk of offending the Board member who had
to decide his fate.
[29]
The Court, after more than one reading of the hearing transcript, believes
that, despite the assurances of impartiality that the Board member tried to give
the applicant, the damage was already done, as stated by the saying jacta
alea est. In fact, the Board member had already accused counsel for the
applicant of being at the source of the ongoing hostility between them. In
these circumstances, the average person may have an apprehension of
impartiality. Furthermore, the applicant’s reply to the Board member’s question
on the conduct of the hearing is very eloquent.
[translation]
Q. In your
opinion, did this hearing go smoothly?
R. Yes, very
well, very tranquil. I like that very much and I agree.
(see the hearing transcript
at page 231 of the Tribunal Record).
[30]
It is noted that the applicant referred to the tranquil atmosphere
in contrast to the animosity that existed at the beginning of the hearing, but
avoided answering the substantial question.
[31]
Consequently, the Court finds that a well-informed person, viewing
the matter realistically and practically, and having thought the matter through,
would think it more likely than not that the Board member, despite his
assurances, could have been biased.
VII. Conclusion
[32]
The Court allows the application for judicial review, sets aside
the IRB decision and refers the matter back to a differently constituted panel.
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