Date:
20130618
Docket:
IMM-11191-12
Citation:
2013 FC 675
Ottawa, Ontario,
June 18, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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KIFLEMARYAM ENDEMIKAEL
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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 a judicial review of a decision of an Immigration and Refugee Board Member
[Member] finding that the Applicant was not a refugee or in need of protection
[Decision].
II. BACKGROUND
[2]
The
Applicant was born in Eritrea and had a birth certificate to support his claim.
He also used the name Seife Gemechu Aboye on a false Ethiopian passport he
purchased.
[3]
This
judicial review does not deal substantially with the facts supporting his claim
but with procedural/substantive matters at the Applicant’s hearing. It is
sufficient to note that he fled Eritrea, but was deported back to Ethiopia. The details of his claim and travels are set forth in the Member’s decision.
[4]
Eventually
the Applicant fled to the U.K. where his refugee claim was rejected. He then
went to Norway where his refugee claim was likewise rejected. He subsequently
arrived in Canada where he again claimed refugee status.
[5]
In
preparing his Canadian PIF, the Applicant relied on an Ethiopian translator
whom he alleges advised him not to mention his prior unsuccessful refugee
claims.
[6]
The
refugee hearing took place over three days. Prior to the hearing the Applicant
made an initial request for adjournment because his counsel was scheduled to
appear at another hearing. That request was denied. However, on the first day
of the hearing counsel for the Applicant renewed his request to postpone. Both
counsel made submissions on the issue and the Member, according to the
transcript, drafted reasons with the intention of including the reasons in the
written decision.
[7]
On
the second day, the Applicant’s counsel raised the issue that the translator on
the first day of the hearing was the same person whom the Applicant alleges
told him to lie on his PIF. Upon counsel learning about this translator, he
requested an audit of the first day’s translation and removal of the
translator. There were no material issues with the translation.
[8]
In
response to any potential translation issues, the Member determined that he
would commence the hearing de novo and disregard the first day’s
evidence. The Applicant asked that the case be adjourned and be rescheduled
because there had been a breach of natural justice in regards to translation.
The Member continued the hearing.
[9]
On
the third day, Applicant’s counsel renewed the request to adjourn on the
translation unsuccessfully. The Applicant also alleges bias on the part of the
Member by virtue of the Member’s frequent interruptions.
[10]
In
the Member’s decision, he provides four grounds for the decision to continue;
administrative efficiency, the allegation against the translator was
unsubstantiated, that the Member could ignore the first day’s evidence, and
that the Applicant’s counsel had agreed to the process initially. The Member
also alluded to the need to expedite because the Applicant was in custody.
In dealing with
the matter of natural justice, the Member found that there was no breach
because the translation was not tainted or inaccurate. The decision to re-commence
de novo was done out of an abundance of caution.
[11]
On
the merits of the refugee claim, the Member found the Applicant not to be a
refugee nor a person in need of protection based significantly on the lack of
identity documents. Specifically, the Member did not accept the photocopy of
the birth certificate because of flaws both on the face of the document as well
as the questionable source of the photocopy of the document.
[12]
There
are four issues raised:
•
the
admissibility of the Applicant’s affidavit to supplement the Certified Tribunal
Record;
•
the
alleged breach of procedural fairness regarding the adjournment request;
•
the
existence of reasonable apprehension of bias; and
•
the
reasonableness of conclusion that the copy of the birth certificate is not valid.
III. ANALYSIS
A. Standard of Review
[13]
The
issues of procedural fairness and of bias are subject to the correctness
standard of review while the evidentiary issue is subject to the reasonableness
standard of review (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190).
B. Affidavit
[14]
In
view of the disposition of this judicial review, I need not order the deletion
of the Applicant’s affidavit from the Court record. It is largely irrelevant
and argumentative and would have been struck if it was necessary to do so.
C. Procedural Fairness
[15]
The
procedural fairness issue turns on the Applicant’s argument that he had not
received the reasons for not postponing the matter as requested on the first
day. On this matter I see no merit in the Applicant’s argument for the
following reasons.
[16]
The
adjournment request was not just to adjourn to another day but to terminate the
proceedings due to the translation issue. Firstly, the Member did provide the
basis for continuing the hearing; those reasons are described in paragraph 10
above. Secondly, to the extent that the Applicant did not receive reasons for
not adjourning in the reasons for decision, the Applicant never requested such
reasons.
[17]
On
this second point, there is some confusion on the circumstances (the Respondent
did not address this issue in written argument assuming quite reasonably that
reasons had been given). The confusion stems from a comment by the Member that
draft reasons were prepared in respect of the refusal to adjourn but in order
to save time, the reasons would appear in the decision itself.
[18]
No
such specific reasons were included in the decision. The Applicant contends
that this was a breach of procedural fairness. At no time did the Applicant
request reasons even though he knew what was the result of the Member’s
determination. Fairness is not just formalistic; there must be substance to the
claim. If the absence of reasons had worked some demonstrable unfairness, then
judicial review may be warranted. However, in this instance the Applicant is
asserting a bald claim, the merit of which is further diminished by the fact
that the Applicant was aware that the Member had drafted reasons to include in
his decision, but took no steps to secure those reasons.
[19]
In
Tran v Canada (Minister of Public Safety and Emergency Preparedness),
2009 FC 1078, 181 ACWS (3d) 981, this Court held that in such circumstances, an
applicant must request a copy of the reasons before complaining. At its very
best for the Applicant, this is not a case of absence of reasons for a decision
but a misstep in not issuing the reasons. There is no breach of natural justice
or procedural fairness on this issue.
D. Bias/Reasonable
Apprehension
[20]
The
Applicant firstly complains that the interaction between his counsel and the
Member in interrupting the closing argument discloses bias. The exchanges may
have been sharp but were directed at clarifying counsel’s submissions. There
was nothing untoward in the Member questioning and challenging the submissions
– it is frequently part of many court cases. The Member committed no act which
could raise a concern by a reasonable person informed of the facts and
circumstances.
[21]
The
second basis for the bias argument is that having heard the first day’s
evidence, the Member ought not to have started de novo. The argument is
that the Member was unable, or a reasonable person would conclude that the
Member was unable, to approach the evidence fairly, and that the Member was
somehow tainted.
[22]
This
is a bare allegation and there is nothing in the record that even suggests that
the Member did not ignore the first day’s evidence. It is a common circumstance
where a decision maker has to hear or see evidence which then must be ignored;
this is particularly so with respect to admissibility issues. Absent “convincing
evidence” of possible bias, as required in Horne v Canada (Minister of Citizenship and Immigration), 2010 FCA 337, 414 NR 97, the
Applicant cannot succeed.
E. Birth Certificate
[23]
There
was extensive evidence surrounding identity and the copy of the birth
certificate which formed the basis for the Member’s conclusion that the
document was unreliable. The Member’s conclusion was not based simply on
looking at the document.
[24]
Therefore,
there is no reason for the Court to interfere with the Member’s finding.
IV. CONCLUSION
[25]
For
these reasons, the judicial review is dismissed. There is no question for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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