Date:20050711
Docket: IMM-6819-04
Citation: 2005 FC 974
Ottawa, Ontario, this 11th day of July, 2005
Present: THE HONOURABLE JUSTICE von FINCKENSTEIN
BETWEEN:
KHALID ZUBAIR RANA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] The Applicant has been in Canada since April 8th, 1988. The claims of individuals who indicated their intent to claim refugee status prior to January 1, 1989 were processed as part of a backlog scheme set up under the transitional provisions of the former Immigration Act. Subsections 46.01(6) and (7) provided for the determination of whether there was a "credible basis" for the refugee claim, as a threshold for referral of the claim to the Convention Refugee Determination Division ("CRDD").
Immigration Act, 1976, R.S.C. 1985, C. I-2, c. 31
An Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof, S.C. 1988, c. 35 (in force 1 Jan. 1989)
Refugee Claimants Designated Class Regulations and Regulatory Impact Analysis Statement (RIAS), SOR/90-40, 27 December 1989, Canada Gazette Part II, Vol. 124, No. 2 at pp. 223-230.
[2] The Refugee Claimants Designated Class Regulations (the "Regulations") subsequently
came into force. Following pre-screening for a credible basis finding, and prior to a hearing before an immigration adjudicator and a member of the Immigration and Refugee Board ("IRB"), a claimant would be interviewed to determine whether humanitarian and compassionate factors exist to warrant landing from within Canada. Cases where there were no humanitarian and compassionate factors and where the Minister did not concede a credible basis, proceeded to a hearing before an adjudicator and a member of the IRB.
RIAS, supra, at p.227
[3] If an individual was determined to have a credible basis for his claim, the Regulations
permitted the claimant to apply for permanent residence from within Canada. To qualify for landing, the applicant had to meet statutory requirements (security, criminal, health) and must not have been dependent on public welfare assistance. Those claimants who had a credible basis for their claims, but who were not eligible for landing, for the foregoing reasons, were referred to the CRDD for full hearings.
RIAS, supra, at p. 227
[4] The Applicant fell into the backlog processing scheme detailed above. After being interviewed in 1992, it was determined that there were no humanitarian and compassionate grounds to warrant landing the Applicant from within Canada. In the same year, the Applicant's claim then proceeded to a hearing before an adjudicator and a Board member of the IRB to determine whether or not there was a credible basis for his claim. The decision was that there was such a credible basis for the Applicant's claim.
Certified Tribunal Record (CTR) pp. 84, 115 and 133-134
[5] The Applicant then made an application for permanent residence. In processing his
application for permanent residence, it was determined that the Applicant had two drug possession convictions in Saudi Arabia and was sentenced to two years imprisonment. The Applicant's application for landing was eventually refused as he was found to be inadmissible due to his inability to financially support himself, causing the Minister to issue an inadmissibility report under s. 19(1)(b) of the former Immigration Act in November of 2000.
CTR, pp. 115, 148, Transcript of the Pre-Hearing
Conference, p. 149C
CTR, pp. 124-131, 148
[6] Pursuant to the refusal of the Applicant's permanent residence application due to his
inadmissibility, his claim for refugee status was referred to the Refugee Protection Division ("RPD") for a full hearing which was held in 2004 and a decision rendered on June 18, 2004.
[7] The IRB denied his refugee claim on the basis of two conclusions: [a] the lack of general credibility of the Applicant; and [b] the absence of an objective basis for the alleged fear.
[8] The IRB determined that the Applicant was not a credible witness, citing numerous inconsistencies, contradictions and omissions in his testimony (i.e. regarding his father's death and the investigative fallout, his political involvement and his psychiatric report). The IRB considered the Applicant's explanation for his "unclear" testimony, but ultimately determined that he was unpersuasive.
[9] The IRB evaluated the objective basis for the Applicant's alleged fear within the context of the Applicant having spent the last 16 years in Canada. The IRB concluded that the Applicant had failed to demonstrate that he would face serious harm or persecution should he be returned to Pakistan.
Issues
[10] The Applicant argued three points:
1. The Applicant was deprived of a fair hearing by reason of the IRB's delay in hearing his refugee claim;
2.The IRB ignored the medical evidence; and
3. The IRB made perverse or capricious credibility findings.
I will address these issues in reverse order.
Standard of review
[11] It is undisputed that with respect to credibility findings, the applicable standard of review is patent unreasonableness (see Umba v. Canada (Minister of Citizenship and Immigration, [2004] F.C.J. No. 17). With respect to delay, this is an issue of natural justice as an applicant must be heard in a timely manner. As such, the appropriate standard of review is one of correctness (see Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 at paragraph 45).
Perverse and capricious findings.
[12] The Applicant's testimony was anything but clear and straightforward. The IRB noted the following contradictions:
(1) the Applicant first testified that he joined the Pakistan Peoples' Party (PPP) and later
changed his testimony to say that he was only a supporting member;
(2) the Applicant first stated that when his father was killed there was no investigation.
When questioned by his counsel, he subsequently said that there was a final court
decision closing the case;
(3) the Applicant was repeatedly asked what would happen to him if returned to
Pakistan and he could not say;
(4) the Applicant was also repeatedly asked what he feared if returned to Pakistan today
and responded stating, "I have no idea";
(5) the Applicant did not provide any corroborating evidence in support of his claim,
such as documentation that he was a PPP member or that his father had died in a
traffic accident; and
(6) the Applicant was unable to establish his sexual identity; in particular, responding
when asked if he was homosexual, "I guess so".
Reasons for Decision, CTR, pp. 4-9
[13] On the basis of this testimony, I fail to see how the IRB made a patently unreasonable finding when it found his credibility wanting. Surely a person who allegedly fled Pakistan out of fear for his life would at least be able to identify who and what he was afraid of.
Medical evidence
[14] The Applicant was abused as a child and traumatised. He argues that the resulting psychiatric illness was made worse by the long wait for the outcome of his claim. In effect, he lost his ability to coherently express his story.
[15] However, the IRB found:
(T)he claimant presented as an alert witness. He was able to answer questions and he could respond in an appropriate manner to questions when he considered it advantageous to do so. (Tribunal Record at p. 4)
[16] The evidence of a psychiatrist tendered by the Applicant points out that his problems originated a long time ago. It refers to his troubled youth, a longstanding major depressive episode of a duration of 15 years and the use of several drugs, including cannabis. However, as to his mental status, the report concludes that:
On mental examination, the patient presented as an alert and oriented adequately groomed, appropriately dressed individual of Indian sub-continent origin, appearing his stated age. He displayed appropriate and consistent eye contact and was cooperative with the interview process. His speech and mannerisms were effeminate, and his responses to questions and chronology of events were vague, and contained many contradictions and inconsistences. His general attitude throughout the interview was haughty, but not delusional. When challenged with respect to the incongruity between his grandiosity and his actual accomplishments and functioning he became extremely defensive. Speech was normal in rate, volume, tone and prosody and was not pressured. There was no abnormal psychomotor activity or involuntary movements. Mood was reported as "good" and affect was euthymic, somewhat labile, normal in range, and appropriate. Thought content was focused on his impending lawsuit against his residence and his perception of having been treated unfairly by the residence. There was no suicidal or homicidal ideation. Thought form was characterized by significant vagueness but no loosening of associations, tangentiality or circumstantiality. Insight was very poor with respect to his psychological defenses, and judgement with respect to personal care appeared to be fair. Cognition was grossly intact.
[17] The IRB did consider the medical evidence. However, as it is far from conclusive and as the IRB observed the Applicant first hand, it was entitled to make its own finding. Expert evidence is evidence like any other and it is up to the IRB to decide what weight it should be afforded (see Bula v. Canada (Secretary of State), [1994] F.C.J. No. 937). I do not find that it acted unreasonably in its treatment of the medical evidence.
Delay
[18] The Applicant relies on the decisions of the Federal Court of Appeal in Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32; Canadian Airlines International Ltd v. Canada (Human Rights Commission) [1996] 1 F C 638 and Hernandez v. Canada (Minister of Employment and Immigration) (F.C.A.) [1993] F.C.J. No. 345 for the proposition that unreasonable delay can deprive the applicant of a right to a fair hearing and thus amount to a violation of s. 7 of the Charter of Rights and Freedoms.
[19] The impact of delay on fair hearings and the preceding three cases where succinctly summarized by Pinard J. in Canada (Minister of Citizenship and Immigration) v. Cortez [2000] F.C.J. No. 115 where he stated at paragraphs 11 to 13:
In Akthar v. Canada (Minister of Employment and Immigration) (1991), 14 Imm.L.R. (2d) 39, the Federal Court of Appeal found that a refugee claimant is not in the same legal position as an accused person because refugee claimants are ascertaining claims against the State and bear the burden of showing that their claim has a credible basis. The Court of Appeal further stated "[i]f no disposition is ever made in his case an accused is and remains innocent; a refugee claimant in the same circumstances never attains refugee status." The Federal Court of Appeal concluded, in that case, that any claim in a non-criminal case to Charter breach based on delay must be supported either by evidence or, at the very least, by some inference from the surrounding circumstances that the claimant has in fact suffered prejudice or unfairness because of the delay.
In Hernandez v. M.C.I. (1993), 154 N.R. 231, the Federal Court of Appeal again dealt with the issue of delay in processing a refugee claim. Robertson J.A. warned counsel that, in light of the framework set out in Akthar, supra, the "'unreasonable delay' argument cannot be perceived as a fertile basis for setting aside decisions of tribunals. It is probably closer to legal reality for one to presuppose that rarely, if ever, will the argument be successfully invoked."
In Canadian Airlines International Ltd. v. Canada (Canadian Human Rights Commission), [1996] 1 F.C. 638 (leave to appeal to S.C.C. denied, [1996] S.C.C.A. No. 44, 205 N.R. 399), the Federal Court of Appeal dealt with the issue of whether a four and a half year delay between the filing of a complaint and a decision by the Human Rights Commission to appoint a Human Rights Tribunal was unreasonable. Décary J.A. adopted the words of the Manitoba Court of Appeal in Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744, at pages 756 and 757:
It cannot now be doubted that the principles of natural justice and the duty of fairness which are part of any administrative civil proceeding include the right to a fair hearing, and that delay in the performance of a legal duty may amount to an abuse that the law will remedy" (at page 756); that "If there has been prejudice of such a kind and degree as to significantly impair the ability of a party to receive a fair hearing, then the administrative tribunal may well lose jurisdiction" (at page 756); that "In certain circumstances, unreasonable delay can constitute an abuse of process" (at page 756); and that "The question is simply whether or not on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing (at page 757).
Décary J.A. went on to say that:
In our view, a delay in the proceedings of an administrative tribunal which has not been caused by the applicant will only give rise to prohibition where it is such that it prevents the tribunal from adequately fulfilling its legislative mandate in accordance with the requirements of natural justice. Thus, a tribunal may, by reason of its failure to proceed expeditiously, be unable to fulfill its mandate in accordance with these requirements, if there is evidence that the prejudice caused by the delay is such as to deprive a party of his right to a full and complete defence. The accent is to be put on the nature of the prejudice suffered by a party rather than on the cause for the delay or on the length of the delay. Since the test used with respect to non-penal proceedings is distinct from the test used with respect to penal proceedings, it may be less confusing to speak in terms of "unreasonable" delay when Charter rights are involved and of "unacceptable" delay when the rules of natural justice are involved.
[20] In this case, the delay caused by processing the Applicant under the backlog scheme resulted in a delay of 14 years. The case was not referred to the IRB before 2002. While this is an exceedingly long period and as much as one may sympathise with the Applicant's long wait in having his refugee claim addressed, there is simply no "evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing" within the meaning of Nisbett, supra. The Applicant relied on assertions but failed to produce any proof. He never even asserted that it was the passage of time that made him forget who he is afraid of or why. In light of this total lack of evidence regarding prejudice caused by delay, there is no reason for finding the Board's decision to be incorrect.
[21] Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed
"Konrad von Finckenstein"
Judge
Names of Counsel and Solicitors of Record
DOCKET: IMM-6819-04
STYLE OF CAUSE: KHALID ZUBAIR RANA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 30, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINKENSTEIN, J.
APPEARANCES BY:
Mr. John Guoba
Applicant
Ms. Anshumala Juyal
Respondent
SOLICITORS OF RECORD:
John Guoba
Toronto, ON
Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
Respondent