Date:
20121205
Docket: IMM-1610-12
Citation: 2012 FC 1423
Ottawa, Ontario, December 5, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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MIHALY TUROCZI,
ZSUZSANNA EDINA KARPATI
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Applicants
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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
[1]
The applicants are failed Convention refugee
claimants. They are citizens of Hungary and their refugee claim was dismissed
in 2011 by Member David McBean. They submit that they were denied procedural
fairness in that determination because there was a reasonable apprehension of
bias because the Member’s rejection rate is “astronomically different
from his colleagues and of the total average.”
The Evidence filed
by the Applicants and the Submissions of the Parties
[2]
The evidence filed by the applicants in support
of this allegation consists primarily of a report authored by an assistant
professor of law at Osgoode Hall Law School, Sean Rehaag, entitled “2011
Refugee Claim Data and IRB Member Recognition Rates” [the Rehaag Report].
[3]
The Rehaag Report, which is based on and
summarizes data obtained through an access to information request to the
Immigration and Refugee Board, shows that the Member granted two of the 108
refugee claims he heard in 2011 and of the negative determinations he found 21
to have no credible basis pursuant to subsection 107(2) of the Immigration
and Refugee Protection Act, SC 2001, c 27. The Member’s recognition rate of
1.9% was 20.3% lower than “the recognition [rate] that would [have been]
predicted based on the average recognition rates for the countries of origins
in the cases [the Member] decided.” The Member did not grant any of the 12
applications filed by Hungarian citizens that he heard in 2011.
[4]
The Rehaag Report also provides a summary of the
Member’s determinations in prior years and shows that the Member:
(i)
did not grant any of the 35 claims he heard in
2008, when the “predicted” recognition rate based on the relevant country
averages (15.67%) would have predicted that he grant, rounded to the nearest
number, 5 of those claims;
(ii)
did not grant any of the 72 claims he heard in
2009, when the “predicted” recognition rate based on the relevant country
averages (15.74%) would have predicted that he grant, rounded to the nearest
number, 11 of those claims; and
(iii)
did not grant any of the 62 claims he heard in
2010, when the “predicted” recognition rate based on the relevant country
averages (14.88%) would have predicted that he grant, rounded to the nearest
number, 9 of those claims.
[5]
The applicants submit that “in the eyes of the
reasonable person […] the number of acceptances by the Board Member is
astronomically different from his colleagues [and that] one must be wilfully
blind to […] not conclude that there is a reasonable apprehension of bias.”
[6]
The respondent challenges the admissibility of
the applicants’ evidence and submits that the test for bias is not met because
(a) no evidence supports the methodology used in the Rehaag Report; (b) no
evidence addresses the statistical significance of the figures presented; (c)
even assuming the methodology used in the Rehaag Report was internally sound,
other than country averages (which are accounted for), there are many variables
that are not accounted for; and (d) the applicants make no attempt to
demonstrate that their case, or any of the other cases heard by the Member were
actually wrongly decided.
Admissibility
of the Rehaag Report
[7]
The respondent submits that “the note is
inadmissible as expert opinion evidence,” referring to the Rehaag Report’s
short narrative, because this narrative “provides not only data regarding
acceptance rates of the members of the Refugee Division, but draws conclusions
based on the author’s assessment of that data.” The applicants’ submissions
concerning the reasonable apprehension of bias does not rely or depend on the
opinion of the author of the Rehaag Report, however, but rather the data
summarized in the Rehaag Report.
[8]
Under the heading “The evidence is not properly
before the Court,” the respondent submits that the Rehaag Report and its
associated materials, which were attached as an appendix to the affidavit of a
legal assistant for the applicants’ counsel, “must be called into question.”
No reasons are provided why, except to reference Benoit v Canada, 2003 FCA 236, which has no relevance to the respondent’s submission. The respondent only asserts that “the applicants’ material cannot be
adduced as evidence in this manner” because Ms. Fu has “no particular expertise
on the subject matter,” and because the report is “brief,” “posted to a
web-site,” and “produced by a legal academic.” The respondent fails to
identify its objection to this evidence with any clarity and I therefore accept
the data contained within the Rehaag Report as evidence of the acceptance and
rejection rates of the members of the Refugee Protection Division of the
Immigration and Refugee Board [the RPD].
Reasonable
Apprehension of Bias
[9]
The parties agree that the test for determining
whether there is a reasonable apprehension of bias was articulated in Committee
for Justice and Liberty v Canada (National Energy Board) (1976), [1978] 1
SCR 369 at p 394 [Committee for Justice and Liberty]:
[...] 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... [T]hat test is “what would an 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.” [emphasis added]
[10]
Needless to say, the parties disagree about what
the “informed person, viewing the matter realistically and practically – and
having thought the matter through – [would] conclude.”
[11]
The applicants made it clear in their
submissions that they were not suggesting any actual bias by the Member; this
is a much higher test than that required when the allegation is an apprehension
of bias. Nonetheless, whether one alleges actual bias or a reasonable
apprehension of bias, the allegation is a serious one. A person occupying a
judicial or quasi-judicial position against whom it is alleged that there is a
reasonable apprehension of bias is entitled to have that allegation properly
tested against credible evidence and sound reasoning.
[12]
In my view, even if the data in the Rehaag
Report is credible evidence, it is credible evidence only of the result of various
refugee determinations made by various members of the RPD over a specific
period of time. It is not evidence of any of the variables that may impact the
inference that the applicants seek to make.
[13]
Quite simply, the statistics provided by the applicants
are not, without more, sufficiently informative. Furthermore, one must
question what the “informed person” would take from them.
[14]
The applicants submit, and this is the true
focus of their submission, that the acceptance and rejection rate data, standing
alone, is such that “one must be wilfully blind not to see that there exists a
reasonable apprehension of bias” on the Member’s part. This ignores or
overlooks that the acceptance and rejection rate alone says nothing to the
“informed person” even if the uninformed person might reach the conclusion that
the applicants suggest.
[15]
Although the statistical data presented by the
applicants may raise an eyebrow for some, the informed reasonable person,
thinking the matter through, would demand to know much more, including:
•
Were all of the figures, including, importantly,
the weighted country origin averages, properly compiled?
•
Did the RPD randomly assign cases within each
country of origin? If not, how did the RPD assign cases?
•
Can factors affecting the randomness of case
assignment be reliably adjusted for statistically?
•
If so, what are the adjusted statistics, and
what is their significance?
•
If the RPD did randomly assign cases, what is
the statistical significance of the Member’s rejection rate?
•
Beyond the Member’s relative performance within
the RPD, is there anything objective impugning the Member’s decisions (i.e.
that suggests they are wrongly decided)?
•
Accounting for appropriate factors (if that is
possible), are the Member’s decisions more frequently quashed on judicial
review than would be expected?
•
Has the Member made recurring errors of a
certain type, e.g. on credibility, state protection, etc., that bear a
semblance to the impugned decision?
In short, the
informed reasonable person, thinking the matter through, would demand a
statistical analysis of this data by an expert based upon and having taken into
consideration all of the various factors and circumstances that are unique to
and impact on determinations of refugee claims before he or she would think it
more likely than not that the decision-maker would not render a fair decision.
[16]
The applicants submit that the data raises a
reasonable apprehension of bias in the mind of an informed person, even without
the additional evidence and analysis I think necessary. They rely on the
following statement attributed to Peter Showler, a former Chair of the
Immigration and Refugee Board, in an article published in the Toronto Star on
March 4, 2011:
For Showler, a zero
per cent pass rate from a single adjudicator is “tremendously suspicious.”
“It certainly hints
at bias, that this member has an attitude about either particular claimants
from particular countries or claimants in general.” [emphasis added]
[17]
That something is said to “hint” at a result can
hardly be said to raise to the level that one “think[s] that it is more likely
than not” as required by Committee for Justice and Liberty.
[18]
The applicants make no attempt to impugn the
Member’s decision on their application. It did not involve the exercise of
discretion on his part. The applicants claimed refugee protection fearing Ms.
Karpati’s violent former boyfriend, who could not accept that their
relationship was over and that a new one with Mr. Turoczi had begun. The
Member determined that the applicants had a suitable internal flight
alternative (IFA) in Budapest, which is 200 kilometres away from the
applicants’ home town, and that they had not rebutted the presumption of state
protection. These findings were straightforward applications of binding legal
authorities and the relevant burden of proof. In my view, the fact that the
Member was practically obliged, in light of the relevant law and the burden of
proof, to decide as he did, is another factor that a reasonable and informed
person, examining the issue thoughtfully, would consider. Indeed, in the
instant case, there is every likelihood that an informed person, viewing the
matter realistically and practically – and having thought the matter through –
would conclude that there was very little likelihood that any member would have
decided the claim differently.
[19]
Accordingly, this application must be
dismissed. No question for certification was proposed.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is dismissed and no question is certified.
"Russel W. Zinn"
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