Docket:
IMM-11823-12
Citation: 2014 FC 283
Ottawa, Ontario, March 24, 2014
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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ARTAN HULEJ, MARJANE HULEJ,
HENRY JOZEF HULEJ
AND MARSILDA HULEJ
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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, Mr. Artan Hulej and his wife,
Mrs. Marjane Hulej, are citizens of Albania. Their two children, Henry Jozef
Hulej (5 years old) and Marsilda Hulej (8 years old), were born in, and are
citizens of, the United States. The adult applicants unsuccessfully sought
asylum in the United States on political grounds following admission to that
country in 2001.
[2]
The family entered Canada in March 2011 and
sought protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]. The Refugee Protection
Division of the Immigration and Refugee Board determined on October 26, 2012
that they were neither Convention refugees, nor “persons in need of protection”.
They seek judicial review of that decision expressing dissatisfaction of the
manner in which the Board conducted the hearing.
[3]
The sole issue on this application is whether
the Board Member’s conduct breached the rules of natural justice and procedural
fairness?
[4]
It is well established by the prior jurisprudence that questions
of procedural fairness relating to the Board’s conduct are reviewed on a
correctness standard: R.M.Q.M. v Canada (Minister of Citizenship and
Immigration), 2011 FC 1150, [2011] FCJ no 1429 at para 52. See also: Balasubramanian
v Canada (Minister of Citizenship and Immigration), 2012 FC 228, [2012] FCJ
no 249; Swaminathan v Canada (Minister of Citizenship and Immigration),
2007 FC 86, [2007] FCJ no 106; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. Where procedural
fairness is in question, as here, the proper approach is to ask whether the
requirements of natural justice in the particular circumstances of the case
have been met.
[5]
This Court has considered the conduct required
of Board Members when hearing a case on several occasions. It has noted, for
example, that patience, respect and restraint are required at all times: Toth
v Canada (Minister of Citizenship and Immigration), 2001 FCT 149, [2001]
FCJ no 305 at para 22. The Court has also recognized that Board Members have a
difficult and stressful but essential role to play. At all times they must keep
in mind that the rules of natural justice must be observed, and that their
conduct during hearings must be irreproachable and objective. This extends to
the questioning that may be required to clarify a claimant’s statements: Guermache
v Canada (Minister of Citizenship and Immigration), 2004 FC 870, [2004] FCJ
no 1058 at paras 4-6.
[6]
In this matter, the applicants submit that the
Board Member’s conduct was dismissive and mocking with respect to their claim.
They contend that his conduct contaminated the hearing and affected his
consideration of the evidence. In the decision, they argue, the Member “cast
aspersions” on the applicants because records of their U.S. refugee claim had not been produced, although evidence of efforts to do so had been
put before the Board. They also refer to the Member’s negative credibility finding
based on the answer to a question in a Canadian immigration form (IMM 5611)
that was completed in the U.S., prior to their entry in 2011, as illustrating
his dismissive treatment of their evidence.
[7]
In his decision, the Member commented twice on
Mr. Hulej’s “notably poor manner of testifying” and failure to answer
“responsively”.
[8]
In his affidavit, Mr. Hulej states that the
Board Member asked questions so quickly that both he and the interpreter had
difficulty understanding him. According to Mr. Hulej, he was unable to be more
responsive to the questions posed because he didn’t understand what was being
asked. Mr. Hulej also claims that the Board Member’s body language and facial
expressions throughout the hearing showed that he was not engaged in the
hearing and that he would rather be somewhere else. He attempted to watch a
video, submitted in evidence to show damage to the family home in Albania,
while at the same time listening to Counsel’s examination of Mr. Hulej. Finally,
Mr. Hulej claims that when his counsel made submissions, the Board Member
turned his chair around and faced the other way.
[9]
The respondent submits that the Member’s
negative credibility findings relating to the U.S. claim and the content of the
Canadian immigration form were reasonable, as were several other negative
credibility findings relating to the alleged blood feud for which there was no
documentary evidence in support. The applicants’ allegations with respect to
the Board Member’s conduct cannot be confirmed or denied on the basis of the
Certified Tribunal Record (the “CTR”), but were not commented upon at the time.
If this Court were to find that the Member conducted himself in a manner that
breached the duty of procedural fairness, the decision should not be remitted
for redetermination because the result would be the same: Yassine v Canada (Minister of Citizenship and Immigration), [1994] 172 NR 308 (FCA) [Yassine]
at paras 9-10.
[10]
The applicants’ contend that Mr. Hulej’s
affidavit is the best evidence available with respect to the Board Member’s
conduct, as the alleged conduct would not be evident in a transcript. Moreover,
it was open to the respondent to cross-examine the applicant on his affidavit. The
respondent submits in reply that there was nothing to be gained through a
cross-examination of Mr. Hulej on his affidavit. The applicants could have
obtained an audio recording of the hearing if they had thought it would support
their case.
[11]
The failure to complain at the hearing can
amount to an implied waiver of any breach of natural justice that may have
occurred: Yassine, supra, at para 7. At one point, counsel says
that the Member is going a little too fast. At another, counsel objects to the
Member watching the video while listening to the questioning of his client. The
Member responds that he can “multitask”.
[12]
The transcript indicates that the Member was, at
times, rather abrupt in his comments and some could be interpreted as sarcastic
or impatient. At one point, for example, the Member states: “…You know sir, you
are either not listening to my questions or you are not understanding them
because I am not… I am getting answers which I am having difficulty with […]”. At
another point in the hearing the Member says:
Sir you are going
to have to listen to my questions and answer… answer carefully. I am assessing
your credibility, I am writing down your answers and if you say all sorts of
contradictory things it could lead to me not believing what you say. As I told
you before, if you do not understand ask me to repeat or rephrase.
[13]
This suggests a level of frustration on the part
of the Member with what he evidently perceived to be the principal applicant’s
lack of responsiveness. But the transcript, as a whole, does not reveal any
glaring misconduct. It appears that the Member was trying to move the case
along quickly to be completed within the allocated time. There is no indication
that the interpreter expressed any concern about the speed at which the Member
asked questions. There is, furthermore, no way to verify the facial expressions
and body language allegedly exhibited by the Member.
[14]
In the result, I am not satisfied that the
applicants have established that they were denied procedural fairness. The
adverse credibility findings were open to the Member based on the evidentiary record,
including the testimony of the two adult applicants. The decision was within
the range of acceptable outcomes justified on the facts and the law, and it is
unlikely that any other Board Member would arrive at a different decision based
on this evidence. Accordingly, the application is dismissed.
[15]
I can’t leave this matter without commenting
upon a submission made by counsel for the applicants. In his reply memorandum
and oral representations he submits that, as an officer of the Court and a
lawyer subject to the Rules of Professional Conduct which govern him, he could
not allow an affiant to tender an affidavit raising issues that were not, in
his view, true. These comments were offered in support of his client’s
affidavit evidence.
[16]
As I stated at the hearing, I do not believe
that it is proper for counsel to rely on such matters to, in effect, bolster
the credibility of his client. While it is undoubtedly correct that counsel is
bound by his duty to the Court and by his ethical obligations, this breaches
the principle that counsel may not also be a witness in the proceeding. Had he
wished to give evidence, counsel should have obtained his clients’ consent to
withdraw from the record and assisted them to retain other counsel to present
their case including his evidence.
[17]
No question was proposed for certification and
none will be certified.
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