Ottawa, Ontario, December 12, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
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 (the Board), dated January 4, 2006, which concluded that the applicant was not a Convention refugee or a person in need of protection.
Background
[2] The applicant is a 29 year old citizen of El Salvador. In July 1994, at the age of 17, the applicant left El Salvador and illegally entered the United States and requested asylum. The claim was denied because the applicant failed to appear for interviews and hearings. The applicant obtained a work permit in the United States, but, upon being informed that it would not be renewed, he came to Canada and claimed refugee protection on June 29, 2000.
[3] The applicant alleged a fear of persecution in El Salvador at the hands of his father, other male relatives, and a death squad which targeted his father. These allegations were modified and were ultimately based solely on an allegation of childhood sexual abuse by relatives. The Board determined that the applicant was not credible and denied his claim for refugee status and protection.
[4] The applicant takes issue with the Board’s credibility finding and assessment of the evidence. The applicant also alleges that the Board member’s comments at the hearing gave rise to a reasonable apprehension of bias.
Issues
[5] This application raises the following issues:
1. Did the Board err in making patently unreasonable findings of fact?
2. Did the Board breach the duty of procedural fairness by providing an inadequate record of the hearing?
2. Did the Board member’s statements give rise to a reasonable apprehension of bias?
Standard of Review
[6] With respect to the Board’s factual findings, including its determinations of credibility, the appropriate standard of review is patent unreasonableness. Only if the Board’s findings are unsupported by the evidence before it will the decision under review be patently unreasonable. Otherwise, the Court will not revisit the facts or weigh the evidence before the Board: Jessani v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127 at paragraph 16.
[7] With respect to the issue of procedural fairness and bias, the Supreme Court of Canada has held that questions of procedural fairness or natural justice are subject to the correctness standard: Ellis-Don Ltd. V. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221 at para. 65. If a breach of the duty of fairness is found, the decision must be set aside: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665.
Relevant Legislation
[8] The legislation relevant to this application is the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The relevant provisions governing protection and refugee status 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. Person in need of protection 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 […] (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, […] |
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 : […] 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, […] |
Analysis
Issue No. 1: Did the Board err in making patently unreasonable findings of fact?
[9] The applicant argues that certain of the Board’s findings of fact were made in a perverse or capricious manner.
[10] The first impugned finding of fact is the Board’s finding that the applicant’s fear of the death squad targeting his father was not well-founded. The applicant maintained in his PIF narrative that his mother informed him that his father died of poisoning. The English translation of the applicant’s father’s death certificate states that he died “as a consequence of intoxication without medical help”. The Board noted this discrepancy and disbelieved the applicant’s allegation of fear of the death squad.
[11] The applicant argues that the death certificate was incorrectly translated. The Spanish word appearing on the certificate is “intoxicacion”, for which the English translation in the medical context is “poisoning”: Collins Spanish Dictionary, 6th ed, 2000. The applicant did not challenge the translation during the hearing or provide the Board with the reference materials submitted in this application. On the basis of the evidence before him during the hearing, it was open to the Board to find that the applicant’s fear of the death squad was not well founded. The Board’s finding was not made in a perverse or capricious manner, and it is not patently unreasonable. In any event, the Board’s decision does not turn on this finding.
[12] The applicant also referred the Court to the Board’s findings in respect of the applicant’s unwillingness to seek counseling after having been advised to do so by a psychologist, and the applicant’s decision to reside in Toronto despite the fact that two of his alleged aggressors also lived in Toronto. It was open to the Board to weigh the evidence before it and make factual findings on both of these issues. In my view, the applicant is asking the Court to re-weigh the evidence before the Board. Since there was evidence on which the Board could have reached the factual conclusions it did, the Court will not disturb those findings on judicial review absent patent unreasonableness. I cannot conclude that the Board’s findings are patently unreasonable.
Issue No. 2: Did the Board breach the duty of procedural fairness by providing an inadequate record of the hearing?
[13] The applicant argues that there are portions of the applicant’s testimony at the Board hearing that have not been transcribed into the tribunal record and that the transcript is thus incomplete. The hearing took place by videoconference over three sittings. During the first sitting, at page 195 of the tribunal record, the transcriber stated: “(Please note: Some part of question or answer not recorded.”. At page 215, a note appears: “(Please note: Inaudible – Echo on recording)”. Similar notations appear at pages 232, 246-249 and 253. The applicant argues that the omissions represent significant portions of the applicant’s testimony which the Board found to be not credible or trustworthy.
[14] I agree with the Respondent that the missing portions of the transcript refer to parts of the hearing that are immaterial to the Board’s final conclusions. The deficiencies in the transcript relate to the second hearing. The evidence on which the Board’s decision is premised, namely evidence concerning he applicant’s allegation of childhood sexual abuse, was presented at the third hearing. Based on my review of the transcripts, it appears unlikely that there was any evidence tendered during the missing portions of the second hearing that formed the determinative basis of the Board’s decision.
[15] I also note and adopt the analysis of Madam Justice Snider in her Order dismissing a complaint on similar grounds in Osayamwen v. Canada (Minister of Citizenship and Immigration), IMM-7120-04 (July 13, 2005):
[…] The transcript is of poor quality in that it contains gaps of one or more words in a number of places where the transcriber was unable to understand words on the tapes. Nevertheless, the transcript is sufficient for me to assess whether the Board could reasonably come to its conclusions and whether the Applicant had a reasonable opportunity to put his case forward (Istrate v. Canada (M.C.I.), 2005 FC 372, at para. 10). The transcript is not so fundamentally deficient as to deny the Applicant his right to judicial review (C.U.P.E., Local 302 v. Montreal, [1997] 1 S.C.R. 793, at para. 77). Nor is this a case where entire tapes are missing as in Agbon v. Canada (M.C.I.), 2004 FC 356. Further, while the Applicant had the opportunity to adduce evidence in this application that the gaps contained explanations of the Board’s findings, he did not do so (Aman v. Canada (M.C.I.), 2004 FC 827, at para. 7).
[Emphasis added]
[16] For these reasons, the Court cannot conclude that the Board breached the duty of procedural fairness in providing a deficient transcript.
Issue No. 3: Did the Board member’s statements give rise to a reasonable apprehension of bias?
[17] The applicant referred the Court to various comments made by the Board member in the course of the hearing which, it is argued, give rise to a reasonable apprehension of bias. The impugned comments concern the applicant’s sexual orientation and generally reveal a mood of impatience on the part of the Board member.
[18] At pages 18-19 of the hearing transcript dated October 12, 2005, the following exchange is recorded:
Counsel (C): Can I just… I don’t know if you can… Sir, I don’t know if you can see the claimant’s demeanour, but he’s in tears right now.
Board (B): Well, he’s in tears. He’s in tears.
C: Yeah.
B: You know, I would be in tears also if I could keep my story straight.
C: Well, but as far as this part of the story is, I don’t see where he’s said anything other than what he said here. I’ve asked him.
B: Well…
C: What was the real reasons were that he left El Salvador.
B. Well, the thing is counsel, look, let’s play it straight. He lives [sic] El Salvador because his father is abusing him. His uncle is abusing him. His three cousins are abusing him.
C: Yes.
B: The first question I think that you should ask is he a homosexual, okay.
B: And are you, sir, a homosexual?
C: Sir, I don’t see what the relevance of that is.
B: Well, the thing is, is that you know, you can have relationships. I’m not for or against homosexuality. It doesn’t bother me in the least. But the thing is, is that if he’s a homosexual he has homosexual relationships. It’s not persecution, okay. Now, he leaves El Salvador.
C: But, sir, at the age of 10 years is he supposed to have sexual orientation?
C: Even if he was a homosexual, if he was unwillingly abused by other men, that’s still abuse. I don’t think that whether [sic] his sexual orientation right now is relevant.
B: Fine. Okay, have it your way, counsel. Fine, I don’t mind. Have it your way. I’m just trying to clarify the point. He leaves El Salvador, goes to the United States. He loses his work permit. Comes to Canada where his abusers are in the same city.
[Emphasis added]
[19] Pages 28 to 32 of the transcript recount the following exchange concerning the applicant’s attempts to seek counselling:
Counsel (C): Have you gotten counseling here in Canada?
Applicant (A): No.
C: And have you tried to get counseling?
A: I went once to a centre that is located close to Jane and Wilson, but the person that helped me there said they didn’t provide that type of help.
C: Okay. Well, what type of help did you ask for?
A: Because I wanted to change and to tell something of the things I was living.
[…]
C: So that centre that you went to what kind of centre is that?
A: It’s a community centre.
Board (B): A community centre?
A: Yes.
C: Okay. For whom? Community centre for whom?
A: For Spanish speaking.
C: For Spanish speaking people?
A: Yes, people.
C: Okay, so when they said that they did not provide that type of counseling, what did you do or did you do anything to try and get counseling somewhere else?
A: No, because it was very difficult for me.
B: Because what please?
A: Because it was very difficulty for me to go on looking, to look for another centre or a place where they would provide that kind of help.
C: Why was it difficult for you?
A: Because I didn’t want to go on telling about the things I was living through.
B: Oh, come on. For God’s sake, please. Look, counsel, let’s get something going here. He tells me that he’s not working. He stays in his room. He doesn’t go out.
C: No, he didn’t say he was not working. He is working. He said he was working.
B: Well, he said earlier that all he does is stay in his room. He doesn’t have any friends. And he doesn’t want to make friends. And now he says he doesn’t have time to look after his own health, and therefore I can’t send him back to El Salvador because he won’t be getting help in El Salvador, but he’s not taking help here.
C: Well, perhaps, sir, if… I would just refer the member to the psychological report. And so, you know, I mean, what is… You know, it says here that this man is suffering from depression. He’s suffering from various other psychological ailments and so on. I’m just trying to see what efforts he made and why he didn’t get counseling that the psychologist recommends. Obviously, given your opinion that you don’t put much weight or much stead in what this claimant is testifying to with respect to his emotional and psychological condition, which tells me that you… which way you are thinking in terms of this claimant.
B: Well, counsel, we’ve been talking now for an hour and a half, okay, and I’ve let you do what you want to do, and that’s fine with me. But let’s understand one thing. Is that we’re trying to establish why this claimant is in Canada. And we’re trying to establish why he can’t return to El Salvador. Whether or not he’s a refugee. That’s my only concern, okay.
C: Right.
B: He says that he has problems in El Salvador, okay. He says that he can’t go back because there are people there who aggressed him in the past are still there.
C: That’s part of what he’s saying. I would add something else too in submissions.
B: You probably will.
C: Sorry?
B: You probably will. And the thing is, is that he comes to the only city in North America where there are other aggressors. The only place. There’s none in the U.S. There was his father but he passed away. And now the only place where he has aggressors are in Toronto. He doesn’t go to Montreal. He doesn’t go to Vancouver. He goes to Toronto. You know, it’s hard for me to understand that when you want to get away from the people who are aggressing you, you go huge distances to make your way to where these aggressors are.
C: Well, sir, for one thing, he testified and it’s also in the psychological report that although a number of those abusers are here in Toronto, he feels protected by the laws in Canada. These people cannot abuse him here. He doesn’t have anything to do with them here in Toronto.
B: Okay.
C: And that’s…
B: I’m just telling you what my concerns are, counsel.
C: Okay, well, well, okay. Just, just by the way it’s 2:30 now.
B: Yeah. Well, I’m trying to help you. Believe me I’m trying to help you.
C: No, I appreciate that you’re trying to help, sir. I’m just saying you did make the comment “oh, for God’s sake,” when he said I … explaining why it was difficult for him to find counseling. He said “I don’t want to go on telling these things to other people.” And clearly this person, like a psychological report says, he’s got a great deal of shame about this.
B: But, counsel, he hasn’t told anyone. He hasn’t told… he doesn’t want to go on telling, he hasn’t told anyone. Not one. He’s not trying to avoid telling somebody else, he hasn’t told anyone. Okay. Because when he said that he could no… that the psychologist had told him to go to seek help. He went to seek help and the people there told him look, we don’t deal with this type of stuff. There’s nothing that says he explained all of his problems to these people – Nothing.
C: I think what he’s, I would submit that what he’s saying is that I don’t want to (inaudible) this because he’s got a reluctance, you know, to reveal this to anybody. He’s demoralized, he’s suffering from depression. That’s all I’m getting at, you know.
B: Yeah, well, look, I realize that if a psychologist tells him that he needs psychological help, technical help of any kind, that one would reasonably believe that he would seek that help. But then when he tells me…
C: Well, perhaps, well, perhaps the reason is that he’s so psychologically affected by this stuff, as the psych report points out, that he can’t bring himself to do that. That’s something known as depression, sir. It’s a disease.
B: Yet he’s been in Canada what since 2004, five years [sic]. He’s been in Canada for five years and he’s still waiting to find the right way to resolve his problem. And he’s left El Salvador in 1994. That’s eleven years ago.
C: As the psychologist report points out that these people that have been sexually abused as children take years before they resolve this stuff. Anyway, I was going to ask you if we could take a short break and maybe…
B: Granted. Granted.
[…]
[Emphasis added]
[20] The respondent properly concedes that the certain of the Board member’s statements are unfortunate and insensitive. The respondent argues, however, that, after counsel objected, the member did not pursue the line of questioning concerning the applicant’s sexual orientation. The respondent also argues that these statements were immaterial to the conclusions drawn by the Board in its reasons for decision.
[21] With respect to the Board member’s comments concerning the applicant’s attempts at counselling, the Respondent agrees that the Board member’s language is unfortunate but demonstrates his frustration in addressing the implausibility of the applicant’s evidence.
[22] The applicant argues that the Board member’s comments during the hearing indicate that, despite his statement to the contrary in response to counsel’s objection, the member had already decided the claim before hearing all the evidence and before receiving counsel’s submissions.
[23] The applicant further argues that the Board member’s remark that the applicant’s alleged childhood sexual abuse would not be “persecution” if he was a homosexual, and the Board member’s comment that he too would be crying if he could not keep his story straight, indicate at best an inappropriate insensitivity at best and, at worst, bias on the part of the Board member.
[24] The parties do not dispute that the Board member’s comments were insensitive. The question before this Court is whether the Board member’s comments gave rise to a reasonable apprehension of bias. In R. v. R.D.S., [1997] 3 S.C.R. 484 at paragraph 31, Mr. Justice Cory confirmed the test for reasonable apprehension of bias as set out by Grandpré J. in Committee for Justice and Liberty v. National Energy Board:
The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de Grandpré J.'s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see, for example, Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267. De Grandpré J. stated, at pp. 394-95:
. . . 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.... [T]hat 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 [the decision-maker], whether consciously or unconsciously, would not decide fairly."
The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
[Emphasis added]
[25] The Board member’s view--as expressed during the hearing--that children sexually abused by male relatives do not suffer abuse or persecution if they are homosexual is gravely prejudicial in the context of a refugee claim based on such persecution. While the Court acknowledges that the Board member purported to let the applicant’s counsel “have it [his] way”, considerable doubt remains as to the Board member’s ability to decide the case fairly in light of his previously expressed views.
[26] The Board member also demonstrated insensitivity towards victims of depression and the challenges they face in seeking appropriate treatment. The Board member was noticeably impatient and openly dismissive of the applicant’s account in this regard. While the Board is the master of its own proceedings, it is understandable that the applicant detected signs of a “closed mind” in respect of the Board member’s consideration of the applicant’s allegations and explanations. It is reasonable to expect that the Board member’s dismissive approach negatively impacted on his determination of the applicant’s credibility.
[27] In my view, an informed person viewing the matter realistically and practically would reasonably conclude that it was more likely than not that the Board member would not, consciously or unconsciously, decide the case fairly. A reasonable apprehension of bias having been found, the Court must determine the appropriate remedy.
[28] After the hearing of this application, the Court invited the parties to provide written submissions concerning whether a breach of natural justice such as bias should be disregarded by the Court because the applicant’s refugee claim would have been dismissed in any event. Both parties have provided written submissions. As requested by the Court, the parties addressed the applicability of the Supreme Court of Canada’s judgment in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, where at page 228 the Supreme Court quoted with approval the following views of Professor Wade:
A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
[29] The applicant argues that it is not inevitable that his refugee claim will be dismissed on redetermination. While the Board’s adverse credibility findings were not patently unreasonable, they were tainted by a reasonable apprehension of bias. A new Board member on redetermination may make a different assessment of the applicant’s credibility. The applicant argues that the only way a result on a re-hearing would be inevitable is if the evidence against the applicant is so compelling that no other conclusion would be open to the Board.
[30] The applicant also argued that the Court should not go beyond the reasons for the decision provided by the Board to examine other possible reasons why the claim could be rejected. The applicant relies on the Federal Court of Appeal’s judgment in Tagari v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 982, in which the Court stated:
Nor are we prepared to find, as we were invited to do by respondent's counsel, that there were other implausibilities, not mentioned by the Board, which moved it to find him not credible: if the reasons given by the Board for not believing the appellant cannot be rationally supported, it is not for this Court to find others.
The applicant also referred to the Federal Court’s judgment in Su. v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 70, in which Justice Reed held that it was not the Court’s role to supplant alternate grounds on which the Board might have rested its decision:
I agree with counsel for the respondent that there may very well be evidence on the record that could have led the Board to conclude that the applicant's involvement in the pro-democracy movement prior to June 4th was not of such a nature that it would likely result in repercussions leading to persecution in the convention refugee sense. But the Board did not base its decision on that analysis of the evidence, and I am not prepared to independently go down that path and supplant the Board's decision.
My job is to review the Board's decision on the basis it was given. It based its decision on a finding that the applicant's story was incredible; it based its decision on a finding that the applicant was not a credible witness; it did not base its decision on a finding that even if the story was true, the facts recounted would not lead to a finding of persecution.
[Emphasis added]
[31] The respondent argues that a decision should not be sent back for redetermination if there are other valid grounds for sustaining a decision not inherently linked to the breach of natural justice. The respondent relies on the Federal Court of Appeal’s judgment in Lord's Evangelical Church of Deliverance and Prayer of Toronto v. Canada, 2004 FCA 397. In that case, the Court applied the Mobil Oil exception in dismissing an appeal of a decision of the Minister of National Revenue revoking the appellant’s registration as a charitable organization. In my view, the ratio of this case does not apply to this application because the “other grounds for revocation” not linked to the breach of natural justice were “squarely raised” by the Minister in the decision under review: Lords Evangelical Church, above, paragraph 18.
[32] In this case, the Board rejected the applicant’s claim solely on the basis of adverse credibility findings. While it may have been open to the Board to reject the applicant’s claim on other grounds, the only basis for rejection provided by the Board—and, in turn, the only issue the parties could properly address on judicial review—was that the applicant was not credible. I find Justice Reed’s comments in Su, above, both persuasive and relevant to this application. I must therefore decline to assess the merits of other grounds on which the Board might have reached a negative decision. I must accordingly remit this matter to the Board for redetermination.
[33] Both parties advised the Court that this case does not raise a question which warrants certification.
Conclusion
[34] This application for judicial review is allowed. The Board’s decision dated January 4, 2006 is set aside and remitted for reconsideration by a differently constituted panel.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
1. this application for judicial review is allowed; and
2. the decision of the Board dated January 4, 2006 is set aside and the refugee claim is referred to another panel of the Board for redetermination.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-479-06
STYLE OF CAUSE: CARLOS ROBERTO SANTOS v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: November 9, 2006
APPEARANCES:
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Neil Cohen Toronto, Ontario |
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Anshumala Juyal Toronto, Ontario |
SOLICITORS OF RECORD:
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Neil Cohen Barrister and Solicitor |
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John H. Sims, Q.C. Deputy Attorney General of Canada |