Halifax, Nova Scotia, November 24, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated December 5, 2005, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order setting aside the decision and remitting the matter for re-determination by a differently constituted panel of the Board.
Background
[3] The applicant, Sundararajan Srikrishnarajah, is a Tamil citizen of Sri Lanka. He alleged a fear of persecution at the hands of:
1. the Liberation Tigers of Tamil Eelam (LTTE); because they consider him an army informant and he refused to donate to LTTE charities while abroad;
2. the People’s Liberation Organization of Tamil Eelam (PLOTE); because he chose not to join their organization and became a Youth Council member; and,
3. the Sri Lankan authorities; because they suspect him of belonging to the LTTE.
[4] The applicant and his family moved to the Jaffna district of Sri Lanka during the 1980s. The applicant claimed that while living there, he was beaten by members of the Indian Peace Keeping Force (IPKF) and questioned about whether he had links to the LTTE. The applicant stated that he tried to appear cooperative with the IPKF without giving them specific information. The IPKF withdrew from Sri Lanka in 1990, and the LTTE took control of Jaffna. The applicant stated that he fled to India in 1990 because he feared being killed by the LTTE, for they considered him an army informant. The applicant lived in a refugee camp for two years and was deported to Sri Lanka in 1992, after being caught at the Chenai airport with a forged passport. Upon his return to Sri Lanka, the applicant was warned not to remain in Colombo and settled in Vavuniya, a government-controlled city.
[5] PLOTE was a pro-government Tamil militia which recruited Tamil youths. The applicant was pressured to join PLOTE because he could attract young voters, but he joined the government-sponsored Youth Council instead and eventually became its president. The applicant stated that in April 1995, he was abducted and beaten by PLOTE for refusing to join them. A Youth Council member found out about the abduction and requested his release. Since PLOTE was a government-supported organization, they were forced to release the applicant as he was a Youth Council member and government employee.
[6] In April 1995, the applicant decided to flee Sri Lanka and join his family in Canada. The applicant first went to Colombo, where he was detained by police in August 1995. The applicant stated that he was beaten and questioned by the police about his move to Colombo because he was suspected of supporting the LTTE. The applicant told the police that he was a Youth Council member seeking employment and was released once his explanation was confirmed by the Youth Council.
[7] The applicant fled Sri Lanka in August 1995 and was smuggled to England in September 1995. He was denied asylum in England and was smuggled to Canada on February 14, 2005. The applicant sought refugee protection two days later. The applicant’s claim was scheduled to proceed by expedited interview in Toronto, but his case was later transferred to a full hearing in Montreal. His request for an expedited interview was denied.
[8] The applicant’s claim was heard on October 24, 2005. Applicant’s counsel filed an objection with the Board seeking to prevent the application of Guideline 7 (reverse order questioning), stating that the policy violated natural justice. A motion was also made objecting to Guideline 7 at the commencement of the hearing. It was submitted that the applicant was under stress and should be questioned by counsel first in order to facilitate his testimony. The Board rejected the motion and stated in its decision that in the absence of a psychological evaluation of the applicant, the reasons put forward by counsel were insufficient to warrant a change in the order of questioning. The Board noted that according to Canadian jurisprudence, Guideline 7 does not deny the claimant an opportunity to present his case and does not breach the principles of natural justice.
[9] The Board questioned the applicant first, followed by applicant’s counsel. Counsel objected to the Board’s manner of questioning, stating that it was akin to hostile cross-examination. Counsel’s motion that the Board member recuse herself for bias was also refused. By decision dated December 5, 2005, the Board refused the applicant’s refugee claim. This is the judicial review of the Board’s decision.
Reasons for the Board’s Decision
[10] The Board first noted its rejection of the motion objecting to Guideline 7. No mention was made of the motion for recusal on the basis of bias.
[11] The Board then dealt with the applicant’s claim that he feared persecution by the LTTE because he was suspected of collaboration with the IPKF. The Board noted that no evidence was adduced to show why the LTTE suspected the applicant of collaboration with the IPKF or whether others living under IPKF control were persecuted by the LTTE for being traitors. The Board then dealt with the applicant’s fear of persecution based upon his Youth Council membership. The Board found it implausible that the applicant, who did not have problems with the LTTE when he was an active member, would have problems with them ten years later. No evidence was adduced showing that the LTTE was targeting Youth Council members or that those involved with the group a decade ago were currently in danger of the LTTE.
[12] The Board went on to consider the applicant’s fear of persecution by PLOTE on the basis that he refused to join them in the early 1990s. The Board found it implausible that the applicant would be endangered by PLOTE because he refused to join them ten years ago and instead worked for Youth Council. It was noted that PLOTE and Youth Council were both government-sponsored. The Board found that even if PLOTE sought to harm the applicant, he could rely upon state protection, as he did when abducted by PLOTE in 1995.
[13] The Board then addressed the applicant’s fear of the army and police. The Board noted that the applicant did not have problems with these groups while in Vavuniya, and was released by the police following his arrest in Colombo once his story was confirmed. No evidence was led to show that the applicant faced a reasonable possibility of persecution by the army or police in any region of Sri Lanka.
[14] The Board went on to consider the applicant’s fears that: (1) the police would detain and torture him because he left Sri Lanka with false documents, and that he is therefore a “refugee sur place”; (2) the government and the LTTE would persecute him for being a wealthy Tamil who had lived abroad; and, (3) the LTTE would persecute him for failing to contribute to Tamil charities while abroad.
[15] The Board considered the claimant’s testimony and all other documentary evidence, including country reports, reports by human rights agencies, press articles, internet sources and affidavits. The Board acknowledged the difficulty of evaluating the situation in Sri Lanka today due to the existence of conflicting reports and noted its reliance upon reliable sources. The Board analysed the evidence and found that serious problems persist in Sri Lanka, especially in areas controlled by the LTTE. The Board found that since the signing of the 2002 Ceasefire Agreement, the situation in Sri Lanka had improved. However, the Board pointed out that peace talks ended in 2003.
[16] The Board noted that the recent elections in Sri Lanka were mostly fair, and that all elements of society were represented in Parliament. Based upon the documentary evidence, the Board found that the population’s risk of persecution from the government and the LTTE (except in areas in LTTE control) had decreased significantly. However, politically motivated violence, including the murder of informants by the LTTE, was found to be increasing. No evidence indicated that war was imminent in Sri Lanka.
[17] The Board found that although the government is taking serious measures to stop abuse by security forces, torture is still used with impunity. Evidence was cited stating that there were no reports of security forces committing politically-motivated killings in 2004. However, the Board noted that the LTTE still commits human rights abuses in its territory. It was found that the ceasefire helped reduce human rights abuses and that government persecution on the basis of suspected LTTE membership was unlikely.
[18] The Board found that the applicant was never involved in politics outside of Youth Council, and was neither an LTTE member nor a high-profile rebel. It was noted that the applicant was not personally targeted by the LTTE or security forces and had lived outside Sri Lanka for ten years. The Board found that based upon the documentary evidence, similarly situated Tamils did not face a reasonable risk of persecution by the LTTE, PLOTE or the authorities, nor would they face torture or a risk to life or cruel and unusual punishment upon return to Sri Lanka. The Board found that there were no reliable reports of failed asylum seekers facing persecution or torture upon returning to Sri Lanka. Evidence indicated that failed asylum seekers entered Sri Lanka without delay, following routine procedures and identity checks. In response to the applicant’s concern that he had travelled with a false passport, the Board stated that the applicant could apply for new travel documents.
[19] The Board found no evidence that people living in government-controlled areas were at risk from the LTTE for failing to contribute to its charities while abroad. Two articles mentioned the existence of a tracking system used to identify Tamils who contributed to LTTE charities, but there was no corroborating evidence of its existence. The Board concluded that the applicant could avoid tracking by living in a government-controlled area and found that the applicant had not established a risk of persecution upon this basis.
[20] The Board held that the applicant had not established a well-founded fear of persecution in Sri Lanka and was not a Convention refugee. Also, the Board found that no credible evidence was submitted to show that the applicant was a person in need of protection.
Issues
[21] The applicant submitted the following issues for consideration:
1. Should the Board’s decision be set aside, based upon the Federal Court’s decision in Thamotharem, and what are the appropriate means of addressing any potential rulings on appeals in Thamotharem?
2. Did the Board’s questioning of the applicant gave rise to a reasonable apprehension of bias, and did the Board’s administration unfairly disadvantage the applicant by failing to provide his lawyer with a recording of the hearing? (I have not addressed this issue as leave was granted and there is a transcript on file).
3. Was the Board’s decision patently unreasonable, perverse and capricious, or made without regard to the evidence on record?
4. Did the Board’s administration act arbitrarily and in violation of a reasonable expectation in transferring the applicant’s case from Toronto to Montreal and refusing to grant him an expedited interview?
[22] I would rephrase the issues as follows:
1. Did the Board err in finding that the applicant was neither a Convention refugee nor a person in need of protection?
2. Did the Board fetter its discretion by treating Guideline 7 as binding?
3. Did the Board’s questioning lead to a reasonable apprehension of bias?
4. Was there a violation of the applicant’s legitimate expectation that an expedited interview would be held?
[23] I will summarize the parties’ submissions under the following headings:
A. Standard of Review
B. Substantive Decision
C. Interpretation of Thamotharem
D. Bias
E. Legitimate Expectations
Applicant’s Submissions
A. Standard of Review
[24] The applicant submitted that the standard of review applicable to errors of law is correctness and that the Board’s findings of fact are reviewable if made in a perverse or capricious manner, or made without regard to the material.
B. Substantive Decision
[25] The applicant submitted that the Board’s analysis of the evidence was patently unreasonable. It was submitted that the finding that conditions in Sri Lanka were improving in December 2005 did not reflect the evidence on record. The applicant submitted that upon consideration of the types of sources accepted by the Board (such as reports by human rights organizations); its decision was patently untenable. Documentary evidence reported that since the ceasefire, the LTTE has engaged in extortion, murder and abductions throughout Sri Lanka, and that security forces routinely torture Tamils. Reference was made to the murder of a Tamil visitor to Colombo who refused to donate to the LTTE while living abroad. The applicant submitted that Colombo was therefore not an internal flight alternative for a person subject to LTTE demands.
[26] The applicant submitted that in October 2005, the former head of international peace monitors for Sri Lanka declared that the country was in a subversive war. The applicant submitted that in November 2005, the situation in Sri Lanka worsened and acts of war were committed. However, the Board only cited country reports from 2004 and ignored evidence from 2005. The applicant submitted that the Board has not weighed and considered evidence if it fails to address evidence which specifically contradicts its assumptions. The applicant submitted that the Board’s finding that war was not imminent in Sri Lanka was patently unreasonable, since recent documentary evidence indicated that Sri Lanka was in a state of undeclared war.
[27] The applicant submitted that the Board’s finding that there was no risk of abuse by the LTTE outside areas in its control was patently unreasonable. The applicant stated that the LTTE controls only Vanni, in Northern Sri Lanka, and that if the Board believed that areas outside Vanni are dangerous, then it accepted that the LTTE is killing people in government-controlled areas. The Board stated that Tamils were only at risk of extortion by the LTTE for failure to donate while abroad if they live in the North and East of Sri Lanka. The applicant submitted that this conclusion was unreasonable, since most of the North and East is now government-run and evidence shows that the LTTE targets Tamils for extortion in Colombo and has infiltrated government-controlled areas to kill Tamils.
[28] The applicant submitted that the finding that there was no evidence that the LTTE considered him an informant contradicted his undisputed testimony to this effect. The applicant testified that the LTTE searched for him because he had acted cooperatively with the IPKF and that he fled as a result. The applicant submitted that the finding that there was no evidence of the LTTE targeting those perceived as informants was unreasonable since the documentary evidence showed that the LTTE is eliminating traitors within its community. It was submitted that the conclusion that there should be evidence of current murders of Youth Council members ignored the applicant’s uncontradicted testimony that all Youth Council members from Vavuniya fled Sri Lanka.
[29] The applicant submitted that the Board’s view that he was given state protection when PLOTE abducted him, and that he could therefore receive it now was perverse. The applicant is no longer a Youth Council member, and the evidence shows that LTTE is killing government collaborators and that they are not receiving state protection. Finally, the applicant submitted that the Board’s view that there was no evidence of Sri Lankan authorities persecuting Tamils was an overstatement, since there was evidence that the army and police harassed and murdered Tamils extra-judicially.
C. Interpretation of Thamotharem
[30] The applicant submitted that the Federal Court has held that Guideline 7 is invalid as it unduly fetters the discretion of the Board (see Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 168 (F.C.), from which questions were certified). The applicant submitted that the Board fettered its discretion by rejecting a motion to dispense with reverse-onus questioning on the basis that without a psychological evaluation of the applicant, there were insufficient reasons to permit a change in the order of questioning. It was submitted that the Board’s decision should therefore be set aside (see Jin v. Canada (Minister of Citizenship and Immigration), 2006 FC 57).
[31] The applicant submitted that the Board’s reasoning was capricious. The Board stated that the particular situation of the claimant is always considered when making a determination concerning reverse order questioning, but concluded that a psychological evaluation was required to meet the Guideline 7 standard. The Board was aware of the stress that the applicant had experienced while subject to reverse order questioning in England. It was acknowledged that Guideline 7 does not generally violate natural justice (see Thamotharem, above). However, it was submitted that the Board’s adversarial conduct in this case, in addition to its use of reverse order questioning, violated the applicant’s right to natural justice.
D. Bias
[32] The applicant submitted the Board aggressively cross-examined the applicant for hours and made sarcastic comments. Although the Board is given wide latitude in questioning refugee claimants, it was submitted that the Board should not appear to act as an advocate against them. It was submitted that when applicant’s counsel was able to elicit helpful information from his client, the Board resumed questioning in order to undermine his answers. It was submitted that the Board made sarcastic references to testimony given during a Tamil refugee hearing held earlier that day.
[33] The applicant submitted that the Board displayed its lack of impartiality by first questioning the applicant in an attacking manner and later asking questions in rebuttal. The applicant stated that the Board’s questioning made him feel like a criminal defending himself against a prosecutor. The applicant submitted that Board members should conduct themselves with patience, respect and restraint (see Toth v. Canada (Minister of Citizenship and Immigration) (2001), 202 F.T.R. 13 at paragraph 22). The applicant submitted that counsel’s allegation of bias was not taken seriously, as the Board responded by reading from a prepared statement.
E. Legitimate Expectations
[34] The applicant was promised an expedited interview in Toronto. However, his case was transferred to a full hearing in Montreal. The applicant stated that country conditions are presumed to be clear in an expedited interview and that since his testimony was not considered incredible, it was predictable that his claim would have been approved had the interview taken place. It was submitted that the denial of an expedited interview was not justified by any change in country conditions and the fact that a promise was broken constituted a breach of his legitimate expectations (see Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (F.C.A.)). It was also submitted that administrative convenience should not trump reasonable expectations or procedural fairness.
Respondent’s Submissions
B. Substantive Decision
[35] The respondent submitted that the Board conducted a fair review of the documentary evidence on country conditions, both favourable and unfavourable to the applicant’s claim. The respondent submitted that upon review of country conditions and the applicant’s personal circumstances, history and profile; the Board was not persuaded that he faced a serious possibility of persecution in Colombo or Vavuniya.
[36] The respondent submitted that disagreement with the weight attributed to documentary evidence on country conditions is not a basis for judicial intervention by this Court (see Hussain v. Canada (Minister of Citizenship and Immigration), 2004 FC 1186). The respondent submitted that the Board is presumed to have weighed and considered all of the evidence unless there is clear evidence to the contrary. It was submitted that the Board may rely upon certain documents and not others if there is conflicting documentary evidence. It was submitted that ample evidence supported the Board’s conclusion that the applicant’s fear was not objectively well-founded.
C. Interpretation of Thamotharem
[37] The respondent submitted that the Board did not fetter its discretion, but gave serious consideration to the applicant’s circumstances in determining whether there were grounds to justify deviating from Guideline 7. The absence of a psychological report was only one factor considered by the Board in concluding that a change in the order of questioning was not warranted. The respondent cited several cases which conclude that the policy is flexible and not mandatory in nature (see Zaki v. Canada (Minister of Citizenship and Immigration), 2005 FC 1066 at paragraph 16).
[38] Since questions were certified for consideration by the Federal Court of Appeal in Thamotharem, the respondent submitted that reverse order questioning does not offend the principles of fairness and natural justice. It was submitted that a determination about procedural fairness must be based upon the particular facts of the case (see Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1121). The respondent submitted that the onus was on the claimant to demonstrate his need to be questioned by counsel in order to fully present his case (see Cruz v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 191). It was submitted that the Board is the master of its own procedure and that Guideline 7 accommodates both the interests of procedural efficiency and natural justice (see Pillai v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 481 (F.C.)).
D. Bias
[39] The respondent submitted that none of the excerpts of the hearing referred to by the applicant indicated that the Board lacked impartiality. The applicant cited Bankole v. Canada (Minister of Citizenship and Immigration), 2005 FC 1581 at paragraph 23, which stated that extensive and energetic questioning alone will not give rise to a reasonable apprehension of bias in claims for refugee status. The respondent submitted that the fact that the Board asked questions first does not automatically give rise to a reasonable apprehension of bias (see Ithibu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 288).
[40] The applicant submitted that the test for a reasonable apprehension of bias is whether an informed person viewing the matter realistically and practically, and having given thought to the matter, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly (see Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at page 395). The respondent submitted that the applicant failed to meet the test and that the evidence demonstrated that he had a meaningful opportunity to present his case.
E. Legitimate Expectations
[41] The respondent submitted that the fact that the applicant was initially granted an expedited interview cannot be construed as a promise by the Board that his claim would be dealt with by way of an interview. It was submitted that the Board must determine in which manner to best address a case and that there was no established practice mandating that the claims of all male Tamils would proceed by way of an expedited interview. The respondent submitted that even if this Court were to find that the Board committed a breach of natural justice, the resulting decision should stand since other elements of the claim support the original finding and a re-determination would result in the same decision (see Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 (F.C.A.) at paragraph 31).
Analysis and Decision
Standard of Review
[42] Issues relating to procedural fairness are subject to judicial review on a standard of correctness, therefore a breach of procedural fairness would automatically vitiate the Board’s decision (see Begum v. Canada (Minister of Public Safety and Emergency Preparedness) (2005), 279 F.T.R. 157 at paragraph 9).
[43] I would adopt Justice Tremblay-Lamer’s analysis in Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R 280 at paragraph 15 (T.D.), wherein the pragmatic and functional approach was applied to conclude that the Board’s determinations regarding findings of fact, including whether the applicant would face more than a mere possibility of persecution if returned to his home country, are subject to the standard of review of patent unreasonableness.
[44] Issue 1
Did the Board err in finding that the applicant was neither a Convention refugee nor a person in need of protection?
The Board denied the applicant’s claim on the basis that he had not established a well-founded fear of persecution in Sri Lanka and that there was no credible evidence demonstrating that he was a person in need of protection. The Board stated the following in its reasons:
From the global analysis of the documentary evidence, it appears that a risk of persecution for the population, in general, and for the Tamils, in particular, from the government and from the LTTE (except for the areas under the LTTE control) has considerably decreased. However, there seems to be an increase of politically motivated violence. There are reports of killings in various parts of Sri Lanka, including Colombo, of the politicians, policemen and other high profile political activists, as well as the LTTE political rivals and people considered by the Tigers as informants.
…
Based on the documentary evidence, I do not consider that, in the present situation, people with the claimant’s profile face a reasonable risk of persecution by the LTTE, by the Sri Lankan army, by the Tamil groups controlled by the government, like PLOTE, or by the police because of their Tamil nationality. I do not consider that it is more likely than not that people with the claimant’s profile would personally be subjected to a danger of torture or face a risk to life or a risk of cruel and unusual punishment, upon return to his country.
(Emphasis added)
[45] The Board had the applicant’s testimony before it when reaching its decision on this part of the case. Since the Board did not make a finding regarding the applicant’s credibility, the Board is presumed to have accepted the applicant’s testimony as credible. The applicant testified as follows (tribunal record pages 674 to 675):
BY PRESIDING MEMBER (to person concerned)
Q: So you are telling me that you will be persecuted in Sri Lanka because during your ten year stay in England you didn’t give donations to LTTE?
A: Yes, that is one of the reasons why I would be persecuted by the LTTE. And there are other reasons too.
Q: What are other reasons?
. . .
BY INTERPRETER (to presiding member)
. . .
(Because when I was in Sri Lanka they suspected that I was helping the Indian Army that was present in Sri Lanka at that time.
BY PRESIDING MEMBER (to the person concerned)
Q: Why were you suspected of that?
A: Because my house was close to the Indian camp. So we used to speak to the Indian soldiers because we wanted to avoid stirring their suspicion.
Yes.
A: So that’s why they suspected me, and because of that problem I left the country.
[46] The Board stated in its decision (tribunal record, pages 6 and 7) that:
. . . No evidence whatsoever was presented to the Tribunal as to why the claimant should be suspected by the LTTE of collaborating with the IPKF during that time. Moreover, no evidence was produced to the Tribunal that people who, like the claimant, lived in the eighties in the areas under the IPKF control, are considered as traitors and persecuted by the LTTE.
[47] In my view, in light of the Board’s own statement, the sworn testimony of the applicant and his PIF, the Board’s reasoning with respect to the risk of persecution faced by the applicant is problematic. The applicant has stated that he fears persecution by the LTTE due to his cooperation with the IPKF and the resulting perception by the LTTE as an army informant. Contrary to the Board’s statement, there is evidence as to why the applicant would be suspected of collaborating with the IPKF. As noted earlier, the Board itself said there were reports of killings in various parts of Sri Lanka, including Colombo, of people considered by the Tigers as being informants. The evidence shows that the applicant was suspected of being an informant.
[48] I am of the view that the Board committed a patently unreasonable error in failing to consider the applicant’s testimony and finding that there was no evidence to suggest that the applicant might face persecution from the LTTE if returned to Sri Lanka.
[49] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for re-determination.
[50] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[51] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for re-determination.
ANNEX
Relevant Statutory Provisions
The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 are as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
. . .
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; and
. . .
162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
159. (1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre:
. . .
h) après consultation des vice-présidents et du directeur général de la Section de l’immigration et en vue d’aider les commissaires dans l’exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel;
. . .
162. (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie.
(2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité.
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Chairperson’s Guideline 7 (Concerning Preparation and Conduct of Hearing in the Refugee Protection Division) sets out the framework for reverse order questioning:
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19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
23. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules.
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19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas.
23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR. |
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7765-05
STYLE OF CAUSE: SUNDARARAJAN SRIKRISHNARAJAH
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 31, 2006
APPEARANCES:
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Raoul Boulakia
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Robert Bafaro
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SOLICITORS OF RECORD:
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Raoul Boulakia Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |