Date: 20000829
Docket: IMM-4323-99
BETWEEN:
MOHAMMAD ENAMUL HAQUE,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The applicant is seeking judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated July 23, 1999, which concluded that the applicant was not a Convention refugee.
[2] The applicant was born on May 10, 1965, in Meherpur, Bangladesh. He comes from a family of six children, and two of his brothers were granted refugee status in Australia. He claimed refugee status in Canada on the basis of his political opinions and his membership in a particular social group.
[3] In November 1996, the applicant opened a ready-to-wear clothing store in Meherpur, which rapidly became successful. He joined the Bangladesh National Party (BNP) in February 1997 and began receiving threats from goons in the Awami League (AL). On March 23, 1997, he picketed in Meherpur and took part in some meetings on the occasion of a general strike called throughout the country by the BNP leaders. The police intervened and arrested him, beat him brutally and held him under inhuman conditions. He was released the following day after promising not to take any further part in anti-government demonstrations.
[4] In March and April 1998, the applicant was attacked and severely beaten by goons from the Awami League, each time requiring medical treatment in a local clinic. Those incidents were reported to the police, but to no avail. On May 15 and June 7, 1998, as the claimant had not paid the Awami League all the contributions they had demanded, his store and then his home were sacked and looted. At his father's suggestion, the claimant left Meherpur on June 8, 1998, taking refuge in a relative's home in Dhaka. On June 17, 1998, the applicant learned that his business had been burned down. The news upset him so much that he had to be treated in a psychiatric clinic.
[5] On June 22, 1998, the applicant was warned that the police was looking for him. The family lawyer was consulted and advised that the police decision was indisputable; he suggested that the applicant leave the country. The applicant left Bangladesh on September 24, 1998, and arrived in Canada the next day, where he immediately claimed refugee status. In his answer to Question 35 of the Entry Form he completed upon his arrival in Vancouver, the claimant stated that he had "come to Canada because Bangladesh is under flood for about two months and because of that Bangladesh became almost bankrupt (handicapped) and at the same time my district Meherpur also became flood and consequently my family also became victim of the flood".1
[6] The Board concluded that the applicant was not credible and also concluded that his claim had no credible basis pursuant to paragraph 69.1(9.1) of the Immigration Act, R.S.C. 1985, c.I-2.
[7] In his submissions, the applicant argues that the Board showed a reasonable apprehension of bias, that there has been a violation of a principle of natural justice at the hearing when the tribunal failed to rule on a motion by the claimant that it had taken under reserve, and that the Board did not examine all the evidence adduced before making its "no credible basis" finding. The respondent submits that nothing indicates that the Board was biased, that the applicant failed to raise his bias allegation at the first occasion, that the Board took into account all the evidence that was before it, and that its decision was reasonable.
[8] In this case, the Court might be satisfied that the Board did not make any reviewable error by finding that the claimant was not credible and that his claim had no credible basis, would it not be for the following statement made by the Board:
| "The documents adduced in support of his claim, which we examined with care despite our conclusion, are indubitably forgeries, like Exhibit P-6, or written simply to back up his case, as often occurs with refugee claims made by citizens of Bangladesh.."2 |
[9] Does that statement by the Board give rise to a reasonable apprehension that it was biased against the applicant because he is a Bangladeshi refugee claimant and prejudged the claim before examining the whole of the evidence?
[10] The applicable test for bias was set out in The Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
| The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, 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. In the words of the Court of Appeal, that 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 Mr. Crowe, whether consciously or unconsciously, would not decide fairly." |
[11] Impartiality is recognized as an essential requirement of a refugee claim hearing. In Sivaguru v. Canada (Minister of Employment and Immigration), (1992), 16 Imm.L.R. (2d) 85 (F.C.A.), Justice Stone, writing for the Court, held that:
| An essential requirement for such a hearing [refugee claim hearing] is that the Board act with impartiality. The impartiality required of judges, as it was explained by LeDain, J. in Valente v. Her Majesty the Queen, [1985] 2 S.C.R. 673, extends, it seems to me, to a Board member. At page 685, his Lordship stated: |
| Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" as Howland C.J.O. noted, connotes absence of bias, actual or perceived. |
| . . . |
| For a "hearing" to be worthy of the description the Board must be willing to give the evidence the dispassionate and impartial consideration it requires in order to arrive at the truth. |
[12] In Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 (S.C.C.), the Honourable Justice L'Heureux-Dubé observed that the immigration decisions require sensitivity and understanding from decision-makers. As she wrote at paragraph 47:
| It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Old St. Boniface, supra, at p. 1192. The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than decision of a general nature. They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, and understanding of others, and an openness to difference. |
[13] In the decision under review, the Board concluded that the documents adduced by the applicant in support of his claim were all forgeries, based on the fact that the document P-6 (i.e. the applicant's business license dated May 25, 1997, issued to him by the town of Meherpur) contained spelling mistakes and characters viewed as "amateur" work. But the Board's reasons also reveal that the decision-makers had already decided the applicant's case before even looking at the documents he adduced. In its decision, the Board wrote:
| "In order to prove he had run a clothing store in his country from November 1996 to June 1998, the claimant filed as Exhibit P-6 a supposed business license dated May 25, 1997, allegedly issued to him by the town of Meherpur. |
| The printing of the document, written exclusively in English, is, on examination of the characters, the work of an amateur. Spelling mistakes also abound, such as "premicess" for premises, "thousent" for thousand, "brejudice" for prejudice, and so on. |
And then it made the statement reproduced above, at paragraph 8.
[14] Not only does the passage "despite our conclusion" indicate that the Board had already arrived at a conclusion regarding the applicant's lack of credibility, before examining the applicant's numerous documentary evidence3, but the reasons that led the Board to conclude that the applicant's documents were indubitably forgeries was tainted by prejudice against Bangladeshi refugee claimants as revealed in the Board's inappropriate comment "as often occurs with refugee claims made by citizens of Bangladesh". To paraphrase what my colleague Nadon said in Hagi-Mayow v. Canada (Minister of Employment and Immigration), F.C.T.D., IMM-5011-93, March 4, 1994: "I am of the opinion that the impugned comments . . . were unwarranted and irrelevant observations for which there was no justification whatsoever". Like L'Heureux-Dubé J. in Baker, supra, at paragraph 48, I am of the opinion that these comments by the Board do not disclose an open state of mind and "a weighing of the particular circumstances of the case free from stereotypes."
[15] I therefore conclude that upon examining the Board's comments realistically and practically, an informed person who has thought the matter through, would inevitably conclude that they give rise to a reasonable apprehension of bias. Finally, since bias was disclosed from written statements of the Board in its decision, I conclude that the applicant raised the issue at its first possible opportunity.4
[16] A further reason, but to a lesser extent, warrants this Court intervention. During the hearing, when the applicant was obviously having difficulty answering questions, his counsel made a motion to suspend the hearing in order to have the applicant tested for competency to undergo the hearing. The motion was taken under reserve5, but the Board never decided on it in spite of a further undertaking by the tribunal during counsel's last submissions.6
[17] This Court is well aware that pursuant to subsection 68(2) of the Immigration Act, proceedings before the Refugee Division must be "as informally and expeditiously as the considerations of fairness permit", and that the tribunal is not bound by any rules of evidence (68(3)). However, in the circumstances of this case, I am of the view that the omission by the tribunal to rule on the motion violated a principle of procedural fairness.
[18] For these reasons, this application for judicial review will be granted and the decision of the Immigration Refugee Board set aside. No serious question of general importance is involved in this case.
ORDER
This application for judicial review is granted. Accordingly the decision of the Refugee Division dated July 23, 1999, is set aside and the matter is referred back for re-hearing and re-determination by a differently constituted panel of the Refugee Division.
_____________________________________
| Judge |
Ottawa, Ontario
August 29, 2000
__________________1 Tribunal Record (T.R.), pp. 104 and 153-154.
3 Extract from the applicant's birth Register, dated December 6, 1998, T.R., p. 113; letter from M.D. Moniruzzaman, advocate judge Court, Meherpur, dated April 30, 1999, T.R., p. 115; psychological report from the Institute of community mental health, Dhaka, dated December 22, 1998, T.R., p. 116; discharge certificate, Ideal clinic, Meherpur, dated December 20, 1998, T.R., p. 117; Meherpur business license dated May 25, 1997, T.R., p. 119; medical certificate signed by Dr. Ephraim Massey, Priorité 1 medical clinic, dated May 28, 1999, T.R., p. 120; letter signed by a representative of the BNP, dated April 28, 1999, T.R., p. 121; psychological evaluation signed by psychologist Saliha Bahig Benkacem, La Ressource clinic, dated May 28, 1999, T.R., pp. 123-126.
4 Khakh v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 548.
6 When counsel renewed his motion, the presiding member said: "You will have an answer." - T.R., pp. 178-179.