Ottawa, Ontario, June 15, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board, dated November 8, 2005, in which the applicant was determined not to be a Convention refugee nor a person in need of protection.
[2] The applicant, Fengying Ren, is a citizen of the People's Republic of China. Her claim for refugee protection is based on political opinion and religion and membership in a particular social group, namely her status as a practitioner of Falun Gong. She arrived in Canada on August 20, 2004 and filed her refugee claim on September 1, 2004.
[3] The applicant had a hearing before the Board on July 14, 2005. At the outset of the hearing, the Member stated that he would not accept some of the documentary evidence that counsel had introduced as exhibits, because he did not feel that the materials related to the claim or that they had any probative value. The evidence related to restrictions on the disclosure of information in China. After objections from counsel for the applicant, the Member eventually allowed two of the four packages of documents in dispute. The applicant made a formal objection to the refusal to permit entry of all the documentation, arguing that this would restrict the applicant's ability to make her case.
[4] Following this exchange, counsel for the applicant made a motion to have the Member recuse himself from the hearing on the ground that the applicant could obtain a fair hearing given the negative views already expressed by the Member. The Member refused to recuse himself, stating that a reasonable person would not find any appearance of bias.
[5] The transcript reveals that at the end of the hearing, as counsel for the applicant was making final submissions the Member repeatedly interrupted and cut-off counsel when he attempted to make submissions relating to the material not admitted. The Member warned counsel that if he continued to reference these materials he would prevent further submissions from counsel.
[6] The Board concluded that the applicant was not a Convention refugee or person in need of protection as the Member was not persuaded by the evidence that the applicant had ever practiced Falun Gong in China or that she had come to the unwanted attention of the Public Service Bureau. While the Board accepted that she may indeed be practicing Falun Gong in Canada, he found this to be opportunistic.
[7] The relevant issue on this judicial review is whether the Board breached procedural fairness by not allowing applicant's counsel to introduce documentary evidence.
[8] A pragmatic and functional analysis is not required when the Court is assessing allegations of the denial of natural justice or procedural fairness: Canadian Union of Public Employees (C.U.P.E.) v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. The job of a reviewing Court is to look at the circumstances of the particular case and determine whether the tribunal in question observed the duty of fairness. If the Court concludes that the conduct of the tribunal has breached natural justice or procedural fairness, no deference is owed and the Court will set aside the decision of the tribunal.
[9] It is recognized that administrative tribunals such as the Refugee Protection Division are masters in their own house on matters of procedure and the admissibility of evidence: Prassad v. Canada(Minister of Employment and Immigration), [1989] 1 S.C.R. 560, 57 D.L.R. (4th) 663. The member's refusal to recuse himself does not, in itself, give rise to a breach of procedural fairness. It was open to the member to conclude that the evidence proffered by the claimant was not relevant and admissible or, if admissible, of little weight. But that presupposes that the claimant be given a fair opportunity to demonstrate relevance. The transcript discloses that this was not done.
[10] I am satisfied that the member breached the duty of fairness by refusing to allow counsel to make submissions on the question at the outset of the hearing and by the peremptory manner in which he concluded the proceedings. This could give rise to the appearance of bias in the mind of a reasonable and informed observer: Newfoundland Telephone Co. v. Newfoundland(Bd. of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289.
[11] Accordingly, the decision should be set aside and the matter remitted for redetermination by another RPD member.
JUDGMENT
THIS COURT ORDERS that the application is granted and the claim for protection is remitted for determination by a differently constituted panel.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7198-05
STYLE OF CAUSE: FENGYING REN
And
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 13, 2006
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
| Marvin Moses
|
|
| John Loncar
|
SOLICITORS OF RECORD:
| MARVIN MOSES Marvin Moses Law Office Toronto, Ontario
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |