Date: 20070125
Docket: IMM-729-06
Citation: 2007 FC 86
Ottawa, Ontario, January 25,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
NALINI
DEVIKARA SWAMINATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001 c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated January 16, 2006, which determined that the applicant
was neither a Convention refugee nor a person in need of protection.
[2]
The
applicant seeks an order quashing the Board’s decision and remitting the matter
for redetermination by a differently constituted panel of the Board.
Background
[3]
The
applicant, Nalini Devikara Swaminathan, is a forty-nine year old Tamil citizen
of Sri
Lanka. She
alleged having a fear of persecution due to her membership in a particular
social group, namely, as a Tamil woman subjected to domestic violence and the
wife of an alleged child molester.
[4]
The
applicant explained the circumstances leading to her claim for asylum in her
Personal Information Form (PIF) narrative. The applicant married her husband in
1986 and moved to join him in the United Arab Emirates in 1989. Her husband
began taking frequent business trips during which the applicant suspected that
he was participating in homosexual relationships. When she complained to her
husband about feeling neglected, he threatened to send her back to Sri Lanka. The applicant’s son
was born in 1992 and diagnosed with Down syndrome. The applicant claimed that
in 2003, her husband began sleeping in the same room as their son and became
obsessed with him. The applicant later found out that her son displayed physical
signs of sexual abuse. When she confronted her husband, he denied the
allegations.
[5]
The
applicant went to Sri
Lanka in
July 2004 and told her husband’s family about her son’s sexual abuse. As a result,
she was beaten by her husband and verbally abused by his family. The applicant
was accused of having psychological problems and was forcibly taken to a
psychiatrist. The applicant’s husband eventually left her and their son in Sri Lanka, but kept their
passports. The applicant’s husband called her cousin in Sri Lanka and told him that he
was hiring a hit man to kill the applicant. In November 2004, the applicant’s
husband returned to Sri
Lanka and
took their son back with him to Dubai. He gave the applicant her passport and told
her not to return to Dubai.
[6]
Family
members advised the applicant to come to Canada and her husband provided her with a visitor’s
visa. The applicant left Sri Lanka on November 27, 2004, and travelled to Dubai, where she stayed until
December 2, 2004. She arrived in Canada on December 2, 2004, and claimed refugee
protection on March 2, 2005. The applicant claimed that she was unable to
return to Dubai or Sri Lanka because her husband or
his brothers would harm her. In addition, she sought legal status in Canada in order to rescue her
son.
[7]
Applicant’s
counsel requested that the refugee hearing take place in-person in Toronto. The applicant had a
videotape supporting her allegations of sexual abuse which could not be used in
a video conference. This request was denied and the hearing was held by video
conference on November 15, 2005. Applicant’s counsel did not make a motion to
vary the order of questioning at the outset of the hearing and the Board questioned
the applicant first. The applicant felt that the Board conducted the hearing in
an aggressive and intimidating manner. The Board rejected the applicant’s claim
by decision dated January 16, 2005, because she failed to provide credible evidence
in support of her claim. This is the judicial review of the Board’s decision.
Board’s Reasons
[8]
The
Board found that the applicant had not met the burden of establishing through
credible evidence that she was a Convention refugee or a person in need of
protection. The Board acknowledged that statements given under oath are
presumed to be true unless there are reasons for doubting their veracity. The
Board noted certain problems with the applicant’s testimony which placed her
credibility into question:
- She
was asked why her husband would tell her cousin that he had hired a hit man. She
did not provide a satisfactory answer and did not produce a written statement
from her cousin confirming the conversation. She failed to establish that it
was unreasonable to expect her to contact her cousin and obtain a document
which was central to her alleged fear.
- The
applicant stated that she feared being deported to Sri Lanka for raising the issue of her son’s sexual abuse. The Board
found it implausible that it would take her husband three years from the time
she began accusing him to fulfill this threat.
- She
gave unclear testimony about the time she spent in 2004 with her husband’s
family in Sri Lanka. The Board noted discrepancies regarding
the dates when the applicant claimed to have stopped living with her husband’s
family and rented a room in which to live with her son.
- She
claimed to fear her husband’s family but testified that from July until
November 2004, she had no contact with them. The Board concluded that her
husband’s family did not pose a serious risk to the applicant.
- She
claimed to have no support system in Sri
Lanka, however, she had not
asked her brother for help on the basis that he had his own problems. The
applicant also explained that her family was not as powerful as her husband’s,
a fact which was not mentioned in her PIF narrative.
- Her
explanation for failing to seek protection from Sri Lankan authorities (because
she was scared), lacked credibility since she had a cousin who had helped her
and a brother whom she had not approached.
- The
applicant did not give a satisfactory answer as to why she did not hide her son
in order to protect him from her husband when he returned to Sri Lanka in November 2004.
- The
applicant testified that her husband threatened her with death upon his return
to Sri Lanka. She also testified that she had stayed
with her husband in Dubai for four days prior to her arrival in Canada and explained that she wanted to see her children. The
Board did not find these actions consistent with her allegation of having been
threatened with death. Her PIF narrative did not mention that her husband had
threatened her life in November 2004.
- The
applicant did not obtain a sworn statement from her cousin in Canada, upon whom she was counting for help. She gave the
unsatisfactory explanation that she did not want anyone to get involved.
[9]
The
Board considered documentary evidence regarding state protection in Sri Lanka which indicated that in
2002, the police opened an office to help the National Child Protection
Authority with child abuse investigations. In addition, Sri Lankan law defined
child abuse as including acts of sexual violence against children. The Board
noted that the applicant had a videotape of her son’s injuries, but found that
she had not established that she could not have reasonably expected to receive
protection for her son in Sri Lanka. Also, her PIF narrative did not refer to connections
between her husband’s family and the police.
[10]
The
Board concluded that the applicant had not established that she had been
threatened by her husband or was endangered by his family. In any case, the
Board did not believe that there was more than a mere possibility that she
would face a risk to her safety if returned to Sri Lanka. The Board noted its consideration of the
Gender Guidelines but did not find that they changed the outcome of the
decision, since the applicant had not come to Canada for the reasons alleged. The Board noted
that the applicant’s husband allowed her to speak to her children every week
and that this was inconsistent with the allegations she had made against him. The
applicant’s claim was therefore rejected.
Issues
[11]
I
would rephrase the issues submitted for consideration by the applicant as
follows:
1. Did the Board breach the
principles of procedural fairness?
2. Was the Board’s
credibility finding patently unreasonable?
Applicant’s Submissions
[12]
The
applicant submitted that the Board’s findings of fact are reviewable if made in
a perverse or capricious manner, or without regard to the material (see Federal
Courts Act, R.S.C. 1985, c. F-7, as amended., subsection 18.1(4)). It was
submitted that errors of law are reviewable on a correctness standard (see Pushpanathan
v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193).
[13]
The
applicant submitted that pursuant to Chairperson’s Guideline 7, the Board
cross-examined the applicant before she presented her case through counsel,
which may have affected the fairness of the hearing. In Thamotharem v. Canada (Minister of
Citizenship and Immigration), [2006] 3 F.C.R. 168, 2006 FC 16, the Court held
that this practice breached the applicant’s right to procedural fairness. The
applicant noted that guidelines are not legally binding and that the Board
fetters its discretion by following them automatically. The applicant submitted
that counsel’s failure to object to the order of questioning at the hearing did
not waive her right to raise the issue on judicial review (see Ganji v. Canada (Minister of
Citizenship and Immigration) (1997), 135 F.T.R. 283, 40 Imm.L.R. (2d) 95).
[14]
The
applicant submitted that the Board member breached his oath of office and
violated Rule 8 of the IRB Code of Conduct by proceeding to cross-examine her
first and failing to ask questions in a neutral manner. It was submitted that
pursuant to this rule, Board members who question claimants except for the
purpose of clarification are in violation of their oath and their decisions are
void ab initio. The applicant submitted that she was denied a fair
hearing due to the Board’s abusive conduct. Her affidavit indicated that the
Board’s questioning was aggressive and frightening. In Ritchie v. Canada (Minister of
Citizenship and Immigration) (2006), 146 A.C.W.S. (3d) 331, 2006 FC 99, the
Court held that posing insensitive questions, using inflammatory language and
asking unanswerable questions, amounts to a denial of natural justice.
[15]
The
applicant submitted that the Board’s failure to consider the Gender Guidelines
constituted a breach of natural justice. It was submitted that the Board
committed an error in circular reasoning in finding that credibility concerns
pre-empt the application of the Gender Guidelines. In Ritchie above, the
Court stated that while the Guidelines are not law, they should be followed in
order to ensure a fair hearing in gender-based protection claims. The Court
held that the Board committed a breach of natural justice in failing to mention
or apply the Guidelines.
[16]
The
applicant submitted that the Board committed a reviewable error in failing to
consider her post-hearing submissions (see Avci v. Canada (Minister of
citizenship and Immigration) (2003), 313 N.R. 307, 2003 FCA 359). These
submissions included relevant case law which, if considered, would have
provided the Board with the proper context in which to make the decision.
[17]
The
applicant submitted that the Board’s negative credibility determination was
based upon two findings: (1) the implausibility of the three-year delay before
her husband acted upon his threat to send her to Sri Lanka for having accused
him of sexual abuse; and (2) her failure to produce corroborating evidence that
her husband wished to harm her. It was submitted that the Board did not make a
clear credibility finding. The applicant submitted that the Board’s
implausibility finding was directed at her husband’s behaviour and not her own.
It was submitted that the passage of time after her initial accusation made his
actions plausible.
[18]
The
applicant submitted that the Board did not notify the applicant that she should
bring corroborating evidence to the hearing. The applicant submitted that the
Board could have alerted her to the possibility of producing such evidence
through the File Screening Form. It was noted that affidavit evidence is
generally seen as self-serving when filed in refugee hearings. The applicant
submitted that the videotape, her best piece of evidence, was dismissed at the
beginning of the hearing. It was therefore unreasonable to blame her for
failing to produce additional affidavits, the need for which she could not have
foreseen without proper notice (see T. A. v. Canada (Minister of
Citizenship and Immigration) (2006), 53 Imm.L.R. (3d) 132, 2006 FC 212). The
applicant submitted that the Board’s credibility finding is therefore
reviewable by the Court.
Respondent’s Submissions
[19]
The
Board found that the applicant’s story included several discrepancies and
implausibilities, and that she failed to provide credible evidence in support
of her claim. The respondent submitted that the Board has expertise in the
determination of questions of fact and that the Court should not interfere with
its conclusions merely because it disagrees (see Aguebor v. Canada (Minister of Employment
and Immigration)
(1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)). The respondent submitted
that a refugee claimant must provide credible evidence, including corroborating
documentation, in support of their claim (see Canada (Minister of Employment
and Immigration)
v. Obstoj, [1992] 2 F.C. 739, 93 D.L.R. (4th) 144 (F.C.A.)). It was
submitted that the applicable standard of review was patent unreasonableness
and that the applicant had failed to point to a conclusion that was not
supportable on the evidence (see Sinan v. Canada (Minister of
Citizenship and Immigration) (2004), 128 A.C.W.S. (3d) 1173, 2004 FC 87).
[20]
In
light of documentary evidence regarding child protection efforts in Sri Lanka, the Board found the
applicant’s explanation for failing to approach the authorities objectively
unreasonable. It was submitted that given the lack of credible and objective
evidence supporting the applicant’s alleged fear, the Board properly determined
that her claim was not well-founded.
[21]
The
respondent submitted that the applicant failed to establish that the hearing
did not comply with natural justice. Counsel did not formally object to the
order of questioning at the hearing and therefore cannot allege that the Board
fettered its discretion (see Refugee Protection Division Rules,
S.O.R./2002-228, Rules 43 and 44). The respondent submitted that in Thamotharem
above, the Court concluded that the principles of natural justice do not
require an examination-in-chief by counsel. In addition, there is case law
stating that Guideline 7 incorporates a flexible approach (see Benitez
v. Canada (Minister of
Citizenship and Immigration) (2006), 40 Admin.L.R. (4th) 159, 2006 FC 461).
Nonetheless, it was submitted that the applicant was precluded from challenging
the order of questioning since counsel failed to bring a formal motion before
the Board and the right to raise the issue on judicial review was thus waived
(see Yassine v. Canada (Minister of Citizenship and Immigration)
(1994), 172 N.R. 308, 27 Imm.L.R. (2d) 135 (F.C.A.)).
[22]
The
respondent submitted that the Board considered the Gender Guidelines and
properly concluded that they would not have changed the outcome of the
decision, since the applicant did not come to Canada for the reasons alleged. It was submitted
that the Gender Guidelines were neither intended to cure deficiencies in a
claim nor create new grounds for finding someone to be a victim of persecution
(see Newton v. Canada (Minister of
Citizenship and Immigration) (2000), 182 F.T.R. 294, 97 A.C.W.S. (3d) 736).
[23]
The
respondent noted that the Board has found that in view of adverse findings of
credibility, it is unnecessary to consider the Guidelines. In Gunel v. Canada (Minister of
Citizenship and Immigration) Docket IMM-8526-03, 6 October, 2004, the Court
held that it was not necessary to consider the Guidelines when the applicant
had failed to point to a finding made by the Board in contravention of them. It
was submitted that this reasoning applies to the case at hand. The Guidelines
state that a female refugee claimant must demonstrate that the harm feared
amounts to persecution. It was submitted that the applicant failed to provide
credible evidence of the accusations of child molestation allegedly made
against her husband.
[24]
The
respondent submitted that the applicant failed to demonstrate that the Board’s
questions unduly interfered with the proceeding or amounted to bias. The
respondent noted that the Board is entitled to ask questions during the hearing
(see Quiroa v. Canada (Minister of
Citizenship and Immigration) (2005), 30 Admin.L.R. (4th) 316, 2005 FC 271).
It was submitted that the transcript of the hearing did not support the
allegation that the Board’s questioning was aggressive, but rather that
questions were asked in order to clarify the applicant’s evasive answers (see Mahendran
v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L. R.
(2d) 30 , 134 N.R. 316 (F.C.A.)).
[25]
In
response to counsel’s allegation of bias, the Board explained that his tone
reflected his frustration with the applicant’s confusing testimony and that the
applicant did not appear to be intimidated by his tone. The respondent
submitted that the Board asked questions in order to grant the applicant an
opportunity to respond to concerns, and did not breach natural justice. The
respondent submitted that the applicant failed to provide substantial grounds
for establishing an apprehension of bias on the part of the Board (see R.
v. R.D.S., [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193).
[26]
The
respondent submitted that unless the contrary is shown, the Board is presumed
to have taken all of the evidence before it into consideration, whether or not
this is indicated in its reasons (see Hassan v. Canada (Minister of Employment
and Immigration)
(1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.)). The respondent also
submitted that the Board had valid reasons for refusing to consider the
videotape evidence, as it had not been submitted to the Board and there were
problems with its reliability and probative value.
Analysis and Decision
Standard of Review
[27]
A potential
breach of procedural fairness is reviewed upon a correctness standard. The
Board’s credibility findings are reviewed on a standard of patent
unreasonableness and are therefore accorded a high level of deference (see Juan
v. Canada (Minister of Citizenship
and Immigration),
2006 FC 809 at paragraph 2).
[28]
Issue
1
Did the Board breach the
principles of procedural fairness?
Aggressive Questioning
[29]
The
applicant submitted that the Board’s aggressive questioning was intimidating
and resulted in an unfair hearing. The respondent submitted that the Board was
entitled to ask questions and that its conduct did not give rise to a
reasonable apprehension of bias nor breach natural justice. I have reviewed
the hearing transcript and believe that at times, the Board’s manner of questioning
was adversarial. For example, at pages 22 to 24 of the hearing transcript:
BY
PRESIDING MEMBER (to person concerned)
.
. .
-
Madam, I’m talking about your son. I’m talking about the contrast between the
pictures that have been created by different pieces of evidence here. Your oral
testimony says that there was no marriage for all intent and purpose. For
eighteen years you lived a lie.
…
-
And then three years ago you accused him of being paedophile, and now he’s
gonna travel on a vacation to Canada with you. It doesn’t make sense, madame.
A.
I didn’t know that he was travelling. I didn’t know…
-
Well, even if I would believe…
A.
…till I got the passport.
Q.
Even if I were to believe that, and I’m not sure I do, but even if I were to
believe that, what possible logic is there in bringing you to Canada when he has no desire to be with you? He brought you in (inaudible)
in Sri Lanka, why in hell would he be applying for a visitor visa for you to
come to Canada?
A.
I don’t know. I don’t know why, what’s the reason, and I never came with him to
Canada. We never came together to Canada.
-
That’s not the point.
…
Q.
I’m asking you to tell me what happened in November 2004, madame?
…
A.
He came. He came and he took my son and he gave the passport and he said you’re
not coming back to Dubai. You go to Canada, and come back to Sri
Lanka. That’s the time when
he gave me the passport only I knew that I had a visa to Canada. Till then I didn’t know.
-
Madame, I’m sorry, I don’t understand that. The man comes back. He gives you
his passport, gives you your passport, says you’re not coming back to Dubai. Go to Canada and come back to Sri Lanka.
Q.
What does that mean? What is all that about?
A.
I don’t know what motive he had, he has.
-
Madam, you’re gonna have to do better than this, because this is…you’re gonna
have to give me some kind of an understanding because none of this makes sense
to me. You can’t put everything off on your husband, madame. You’re gonna have
to tell me what’s going on here.
And at page 27 of the transcript:
-
Madam, this isn’t about the communication between you and your husband, as much
as it’s just about you, I mean you do have some education, madame.
A.
I do.
Q.
And with the level of education. You have a secondary school education, why you
would not ask the question why are you sending me to Canada, what am I supposed to do there? Why would I go there and
come back. You’re telling me you didn’t even ask that question, madame. That
doesn’t make sense to me.
A.
I didn’t, yeah. I didn’t ask him like that.
Q.
So you got on a plane and travelled ten-thousand miles around the world and you
didn’t know why you were doing it?
A.
My state of mind was like that with the stress and the sufferings I have gone
through.
And again at page 35 of the transcript:
Q.
What is it you fear is gonna happen to you in Sri Lanka?
A.
I have no help there. I have no one to protect me. I need help and protection.
-
Madam, that is not…that sounds more like somebody coaching you, telling you to
answer. That sounds like a pat answer.
[30]
I
would note that counsel raised the issue of the Board’s intimidating tone of questioning
during the hearing. The Board responded as follows (see pages 39 to 41 of the
hearing transcript):
[…]
I understand that some of my questions have been emphatic. You know,
I’m,…well, it’s been a while since we’ve worked today, but I will remind you
that I’m not a poker player, that if I feel it, I’ve got to share it because I
want the claimant to have an opportunity to address it. The intention is not to
intimidate anyone. The intention basically is to tell the claimant, look, I’ve
got trouble with this. There’s conflicting evidence before me and you need to
give me some kind of an explanation because this is clearly not a cut and dry
case.
…
Okay.
I didn’t pick up that she was too intimidated. She was frustrated because there
were some answers that weren’t there and she probably doesn’t want to hear the
panel member say this doesn’t make sense to me. I know that’s not a pleasant
thing to hear. I wish I wasn’t saying it. I wish everything was perfectly
clear. Makes my day a whole lot more enjoyable. But when it’s not, my
preference. Some of my colleagues are a lot better or a lot different in their approach.
They may not say what they’re thinking. I choose to put it out on the table. If
I do it forcefully, then your perfectly right to remind me that I shouldn’t be
doing it quite a forcefully. My preference would still be to put it on the
table that there are issues that…need to be clarified.[…]
[31]
In
her affidavit, the applicant stated that she was intimidated by the Board’s aggressive
tone of questioning. She stated that the Board member shouted loudly and
frightened her. The applicant also provided affidavit evidence from Bahee
Sriskanda, who listened to an audio recording of the hearing and observed the
following:
As
evident from the audio disk, the Board Member’s line of questioning was very
aggressive, rude and sometimes outside the scope of inquiry. At some points
during tape, he was shouting very loudly. It appeared that the Member had
assumed an adversarial role and his tone was intimidating the claimant…
I
am advised by counsel that at times the Member pushed himself toward the table
from the chair, pushing his chest in front and fired questions in a loud voice.
At these times, the claimant’s reply was hardly audible as she seemed to be
frightened by the tone of the Member. Many times the claimant was sighing “Oh
my God”.
[32]
I
would note that although the affidavit of Bahee Sriskanda does contain some
opinions, it also contains descriptions of the Board member’s manner of
questioning.
[33]
The
respondent urged upon me that the Board member’s questioning resulted from the
vague and contradictory answers given by the applicant in response to
questions. From a review of the transcript, I cannot agree.
[34]
In
my view, the type of questioning which occurred in this matter is similar to
that discussed by Mr. Justice Campbell in Ritchie, above.
[35]
I
am of the opinion that the type of questioning used by the member in this case
resulted in an unfair hearing and a denial of natural justice for the
applicant.
[36]
Consequently,
the application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
[37]
Because
of my finding on this issue, I need not deal with the other issues raised by
the applicant.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[39]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the Board is set aside and the matter is referred to a different panel of
the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The
relevant statutory provisions of the Federal Courts Act, R.S.C. 1985, c.
F-7, as amended, are set out in this section.
|
18.1 . . .
(4) The Federal Court may grant relief under subsection
(3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its
jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice,
procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether
or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or without regard for the
material before it;
(e) acted, or failed to act, by reason of fraud or
perjured evidence; or
(f) acted in any other way that was contrary to law.
|
18.1 . . .
(4) Les mesures prévues au paragraphe (3)
sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le
cas:
a) a agi sans compétence, outrepassé
celle-ci ou refusé de l’exercer;
b) n’a pas observé un principe de justice
naturelle ou d’équité procédurale ou toute autre procédure qu’il était
légalement tenu de respecter;
c) a rendu une décision ou une ordonnance
entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du
dossier;
d) a rendu une décision ou une ordonnance
fondée sur une conclusion de fait erronée, tirée de façon abusive ou
arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d’agir en raison d’une
fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à
la loi.
|
The relevant provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 state as follows:
|
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,
(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
(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.
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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(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.
153.(1)
The Chairperson and members of the Refugee Protection Division, Refugee Appeal
Division and Immigration Appeal Division
. . .
(b) shall
swear the oath or give the solemn affirmation of office set out in the rules
of the Board;
. . .
|
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:
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;
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.
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:
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;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(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.
153.(1)
Pour ce qui est du président et des commissaires de la Section de la
protection des réfugiés, de la Section d’appel des réfugiés et de la Section
d’appel de l’immigration:
. .
.
b)
ils prêtent le serment professionnel ou la déclaration dont le texte figure
aux règles de la Commission;
. .
.
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The relevant
provisions of Chairperson's Guideline 7: Concerning Preparation and
Conduct of a Hearing in the Refugee Protection Division state as follows:
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19. In a claim for refugee protection, the standard
practice will be for the RPO to start questioning the claimant. If there is
no RPO participating in the hearing, the member will begin, followed by
counsel for the claimant. Beginning the hearing in this way allows the
claimant to quickly understand what evidence the member needs from the
claimant in order for the claimant to prove his or her case.
23. The member may vary the order of questioning in
exceptional circumstances. For example, a severely disturbed claimant or a
very young child might feel too intimidated by an unfamiliar examiner to be able
to understand and properly answer questions. In such circumstances, the
member could decide that it would be better for counsel for the claimant to
start the questioning. A party who believes that exceptional circumstances
exist must make an application to change the order of questioning before the
hearing. The application has to be made according to the RPD Rules.
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19. Dans toute demande d'asile, c'est
généralement l'APR qui commence à interroger le demandeur d'asile. En
l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et
est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet
ainsi au demandeur d'asile de connaître rapidement les éléments de preuve
qu'il doit présenter au commissaire pour établir le bien-fondé de son cas.
23. Le commissaire peut changer l'ordre
des interrogatoires dans des circonstances exceptionnelles. Par exemple, la
présence d'un examinateur inconnu peut intimider un demandeur d'asile très
perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de
comprendre les questions ni d'y répondre convenablement. Dans de telles
circonstances, le commissaire peut décider de permettre au conseil du
demandeur de commencer l'interrogatoire. La partie qui estime que de telles
circonstances exceptionnelles existent doit soumettre une demande en vue de
changer l'ordre des interrogatoires avant l'audience. La demande est faite
conformément aux Règles de la SPR.
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The relevant provisions of the Refugee
Protection Division Rules, S.O.R./2002-228 state as follows:
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43. Unless these Rules provide
otherwise
(a) a party who wants the Division to make a decision on
any matter in a proceeding, including the procedure to be followed, must make
an application to the Division under rule 44;
(b) a party who wants to respond to the application must
respond under rule 45; and
(c) a party who wants to reply to a response must reply
under rule 46.
44.(1)
Unless these Rules provide otherwise, an application must be made in writing
and without delay. The Division may allow a party to make an application
orally at a proceeding if the party with reasonable effort could not have
made a written application before the proceeding.
(2) Unless these Rules provide otherwise, in a written
application the party must
(a) state what decision the party wants the Division to
make;
(b) give reasons why the Division should make that
decision; and
(c) if there is another party and the views of that party
are known, state whether the other party agrees to the application.
(3) Unless these Rules provide otherwise, any evidence
that the party wants the Division to consider with a written application must
be given in an affidavit or statutory declaration that accompanies the
application.
(4) A party who makes a written application must provide
(a) to any other party, a copy of the application and any
affidavit or statutory declaration; and
(b) to the Division, the original application and any
affidavit or statutory declaration, together with a written statement of how
and when the party provided the copy to any other party.
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43. Sauf indication contraire des
présentes règles:
a) la partie qui veut que la Section
statue sur toute question soulevée dans le cadre d'une procédure, notamment
sur le déroulement de celle-ci, lui en fait la demande selon la règle 44;
b) celle qui veut répondre à la demande
le fait selon la règle 45;
c) celle qui veut répliquer à la réponse
le fait selon la règle 46.
44.(1) Sauf indication contraire des présentes règles, toute
demande est faite sans délai par écrit. La Section peut permettre que la
demande soit faite oralement pendant une procédure si la partie n'aurait pu,
malgré des efforts raisonnables, le faire par écrit avant la procédure.
(2) Dans sa demande écrite, sauf
indication contraire des présentes règles, la partie:
a) énonce la décision recherchée;
b) énonce les raisons pour lesquelles la
Section devrait rendre cette décision;
c) indique si l'autre partie, le cas
échéant, consent à la demande, dans le cas où elle connaît l'opinion de cette
autre partie.
(3) Sauf indication contraire des
présentes règles, la partie énonce dans un affidavit ou une déclaration
solennelle qu'elle joint à sa demande écrite tout élément de preuve qu'elle
veut soumettre à l'examen de la Section.
(4) La partie qui fait une demande par
écrit transmet:
a) à l'autre partie, le cas échéant, une
copie de la demande et, selon le cas, de l'affidavit ou de la déclaration
solennelle;
b) à la Section, l'original de la demande
et, selon le cas, de l'affidavit ou de la déclaration solennelle, ainsi
qu'une déclaration écrite indiquant à quel moment et de quelle façon une
copie de ces documents a été transmise à l'autre partie, le cas échéant.
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