Date: 20020628
Docket: IMM-3877-01
Neutral citation: 2002 FCT 714
BETWEEN:
DENA KOZMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Dena Kozman, (the "applicant"), was born in Egypt on February 15, 1980. She arrived in Canada on January 18, 2000, and made a refugee claim twelve days later, based on her religion, the Coptic denomination of Christianity.
[2] Her claim was heard on June 20, 2001, by a single member tribunal (the "tribunal"). At the beginning of the hearing, the tribunal asked the applicant whether she would like to swear on the Holy Book or make an affirmation. She answered "a solemn affirmation by raising of my hand".
[3] As she was about to start to testify, the tribunal instructed her counsel as follows:
Counsel, could you start with why she made a solemn affirmation rather than swearing on a Holy Book, given her devotion to her religion? So I'd like to start there. It's her choice, of course, we know that, but in this case religion is a primary issue. Is that O.K.?
[4] Her counsel proceeded to examine her on the point. She explained that her father advised his children not to swear on the Holy Bible because it was very holy and humans are imperfect. There were several follow-up questions by her counsel and the tribunal interjected twice.
[5] The tribunal asked the applicant:
What was the reason why you would be told this? When do you need to swear on a Holy Book, on a daily basis?
The claimant answered:
I'm a human being and as a human being, I can't claim that I'm perfect. And that's why. The Holy Book is so Holy, I can't swear on that.
The tribunal followed up with this question:
What I want to know is, why would it even come up that, "Don't swear on it".
Her counsel answered:
Well, I'm sure you're aware that in some religions, you're absolutely forbidden from taking an oath on a Holy Book, specifically Jehovah Witnesses.
To which the tribunal responded:
Yes. Not -- go ahead. But not swearing on a Bible, that is --
[6] The following interchange between the tribunal and the applicant's counsel continued:
Counsel
It seems that it's optional and her explanation --
Ghosh
It is optional.
Counsel
--Is that because of early religious instructions she thinks that she should not?
Ghosh
O.K. That's fine. We'll move on.
[7] The tribunal, after hearing and considering the applicant's testimony and after reviewing the documentary evidence, rendered a decision on July 6, 2001, denying the applicant's claim on the basis it found her testimony to be inconsistent and lacking in credibility amongst other reasons. The following are examples related to uncertainty.
[8] First, a review of the transcript shows the applicant believed an incident of persecution occurred on Sunday, March 18, 1999, which turned out to be on a Thursday. The tribunal wrote:
The panel finds her uncertainty regarding the alleged attack, which she purportedly remembered "clearly", negates the veracity of her account.
[9] Second, the tribunal found the applicant had corrected her testimony on where a particular aggression, (acid being spilled on her) occurred. It continued:
The claimant was asked if she went to the police after this incident; she said that it was a Sunday, and she did not. The panel was incredulous and asked if the police in Egypt did not work on Sundays; she replied that they did, but on Sundays, the same policeman who had not acted on her earlier complaints would be on duty; therefore, she decided not to report the incident. It is clear to the panel that the claimant was fabricating her responses. The panel finds that once again, the claimant demonstrated her hesitation and uncertainty in describing the alleged incident of persecution, which erodes her credibility further. [emphasis mine]
[10] The tribunal then went on to consider the objective basis of the applicant's fear referring to documentary evidence in order to determine the extent of protection which may be available to someone with the applicant's profile and resources and whether the government was taking active steps to deal with the militant Muslims who were targeting Christians. The panel found that rather than being involved in persecuting its Christian population, the preponderance of the documentary evidence illustrates that the Government of Egypt was taking stringent measures to wipe out the terrorism of the fundamentalists. It concluded that protection against criminal militants in Egypt may not be perfect, it was nevertheless available. It found it was objectively unreasonable for the claimant not to have made any serious efforts to seek the protection of her home authority. It concluded with these words:
In view of this claimant's profile, the lack of credibility of her account, and the totality of the documentary evidence above, the panel finds that there is no serious possibility of the claimant being persecuted if she returns to Egypt.
[11] In her un-cross-examined affidavit in support of this judicial review proceeding, the applicant stated in paragraph 7, in its material part, the following:
However, it was always of concern to me that the Board member would not be believing my testimony because of questioning why I was not taking an oath to tell the truth on the Bible. [emphasis mine]
[12] Counsel for the applicant submits that the oath/affirmation issue resulted in the applicant not receiving a fair hearing of her claim as she was entitled to at law. The inquiry into why she affirmed was an improper inquiry as she had the right to affirm under section 14 of the Canada Evidence Act.
[13] Counsel for the applicant further argues this improper inquiry laid the foundation for her unease and affected her ability to answer questions. The atmosphere of the hearing had been tainted and she was off-balance from the very beginning. He argues the tribunal made its finding on credibility based on the manner she answered questions --_ her hesitation and uncertainty.
[14] Counsel for the respondent acknowledged the tribunal embarked upon an impermissible inquiry when it wanted an examination of why she affirmed rather than take the oath. He acknowledged, in the circumstances, it was difficult to rebut the applicant's contention the affirmation/oath issue did not throw the applicant off balance or poison the atmosphere from her perspective thereby
affecting both, the content and manner of her testimony.
[15] In Singh et al. v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, the Supreme Court of Canada held refugee claimants were entitled to an oral hearing to determine their claim particularly because such claims often turn on questions of credibility and findings of fact.
[16] This obligation for an oral hearing is now contained in subsection 69.1(5) of the Immigration Act.
[17] The applicant, having a right to a hearing, had a concomitant right to a fair hearing (see, MacDonald v. Montreal (City), [1986] 1 S.C.R. 460).
[18] The question raised in this judicial review proceeding is whether, in the circumstances, the applicant received a fair hearing of her claim or, to put it in the terms of the statute, did she have a reasonable opportunity to present evidence.
[19] I have the uncontradicted evidence of the applicant the oath/affirmation inquiry materially affected the manner in which she presented her evidence.
[20] I am prepared to accept that affidavit which was not cross-examined upon. Reading the tribunal's decision, I find how she testified was an important factor in the conclusion the tribunal reached on whether it believed the applicant regarding certain acts of persecution she had identified.
[21] During the hearing, I expressed my concern the tribunal may have based its decision not on how she presented her evidence but for other reasons (such as implausibilities which the tribunal pointed to, the issue of delay and the issue of the applicant not seeking state protection) which would justify upholding its decision.
[22] Counsel for the applicant argued it was impossible for anyone to determine the extent to which the taint permeated these other issues because they were, in part at least, anchored on findings of fact reached by the tribunal based on its assessment of the applicant's testimony.
[23] I believe counsel for the applicant's call for prudence is a wise one and finds support in the Federal Court of Appeal's decision in Caron v. Canada (Attorney General), [1998] F.C.J. No. 97, where the Court said this:
¶ 4 It is very possible that the breach of the rules of natural justice attested to by the incident did not have a major influence, particularly since the findings of fact being discussed were the findings made by the Board of Referees, where everything had proceeded properly. It is also very possible that the applicant's somewhat disordered and unorganized submissions could not have been viewed favourably in any event, regardless of the context and the language in which they were presented. However, we do not believe that these considerations can have any influence whatever. It is plain to us that this kind of breach of natural justice must vitiate the proceedings before the umpire, and accordingly the decision that resulted therefrom.
[24] For all of these reasons, this judicial review application is allowed, the tribunal's decision dated July 6, 2001, is set aside, and the matter is remitted for reconsideration by a differently constituted tribunal. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3877-01
STYLE OF CAUSE: DENA KOZMAN v. The Minister of Citizenship and Immigration
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 18, 2002
REASONS FOR ORDER OF
The Honourable Mr. Justice Lemieux
DATED: June 28, 2002
APPEARANCES:
Mr. John M. GuobaFOR THE APPLICANT
Mr. Lorne McClenaghanFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. John M. GuobaFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada