Date: 20020531
Docket: IMM-3081-01
Neutral citation: 2002 FCT 628
Toronto, Ontario, Friday, the 31st day of May, 2002
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
ACHETA EMMANUEL OJAKOL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Introduction
[1] Mr. Acheta Emmanuel Ojakol ("Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("Board") dated
May 28th, 2001. In his decision, the Board determined that the Applicant is not a Convention Refugee.
Facts
[2] The Applicant is a citizen of Uganda, from the north eastern part of that country. He belongs to the Iteso ethnic grouping. His family and community of birth were active politically with the Uganda People's Congress ("UPC") and the Applicant participated in the affairs of the UPC while a university student at Makerere University in Kampela.
[3] The Applicant left Uganda in 1996, upon being warned that he was on an internal security organization list after that his dog was slaughtered and a written death threat was left for him. He also said that he and his family were assaulted by men in military uniforms, two of whom were armed.
[4] In these circumstances, the Applicant left Uganda and went to Ziamba where he remained as an undocumented refugee. He returned to Uganda for three weeks in December 1998 for meetings with his former chapter of the UPC but upon being warned that his presence has been detected, he left Uganda.
[5] The Applicant arrived in Canada on a visitor's visa, on April 13th, 1999. On August 24th, 1999, he indicated his intention to seek protection as a convention refugee and file his completed Personal Information Form ("PIF") on May 12th, 2000.
[6] The Applicant testified before the Board on January 25th, 2001. The Board subsequently delivered reasons in which it determined that the Applicant was not a convention refugee. At the commencement of the hearing, the Board had identified the issues of credibility, identity including a political identity and the subjective basis for a well-founded fear of persecution, as the main issues for its concern.
[7] In its reasons, the Board concluded that the Applicant was neither credible nor trustworthy because of the manner of his testimony, internally inconsistent evidence and an unplausible story which was dependent on speculation.
[8] The Board also expressed doubt as to the Applicant's subjective fear of persecution and the four months delay, following arrival in Canada before presenting a claim for convention refugee status.
[9] The Board commented, specifically, upon the lack of evidence submitted by the Applicant to support his claim of membership in the UPC. In reaching this conclusion, the Board relied on findings concerning the role of a Mr. George Okurapa.
Submissions
[10] The Applicant argues that the Board unfairly changed its position regarding its concerns about his membership in the UPC. The Applicant says that the Board, at the commencement of the hearing, indicated that it was satisfied with his membership in that political party, thereby
creating an expectation that it was no longer necessary for the Applicant to lead evidence on that point. The Applicant says that this was a breach of procedural fairness.
[11] Furthermore, the Applicant argues that the Board capriciously made a finding of fact, plainly contrary to the evidence before it, as to the ability of Mr. Okurapa to freely travel to Uganda. According to the Applicant, this capricious finding of fact tainted the further conclusion of the Board relative to the Applicant's political affiliation and activities, a key basis upon which he sought convention refugee status.
[12] The Respondent argues that the conclusions of the Board are entitled to deference as they are supported by the evidence before it. Insofar as the Applicant's arguments go to the weight of the evidence, that is a matter within the jurisdiction of the Board and beyond review by this Court. In this regard, the Respondent relies on the decision in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300.
Analysis
[13] The present application for judicial review was brought pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended. Sections 18.1(4) sets out the grounds upon which this court may grant relief, as follows:
| (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law. |
4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi. |
[14] Sections 18.1 (4)(b) and (d) are relevant to this case.
[15] I accept the Applicant's submissions about capricious findings of fact by the Board and that the Board misapprehended the evidence concerning Mr. George Okurapa. That finding influenced the Board in its finding concerning the Applicant's political identity.
[16] In its reasons, the Board said that the Applicant had testified that Mr. Okurapa, a highly placed person with the UPC, travelled regularly back to Uganda. That is manifestly wrong.
[17] The transcript shows that the Applicant did not give this testimony. The Board made a finding of fact which was not supported by the evidence and which was obviously related to the question of the Applicant's political identity, a question which was specifically identified by the Board as an issue of concern. The Board made a finding in a perverse or capricious manner, clearly without regard to the evidence before it.
[18] There are other problems apparent from the record. A review of the transcript shows that shortly after the commencing of the examination-in-chief of the Applicant, questions were constantly posed by one or both members of the Board. The examination-in-chief begins at page 184, line 45, of the Tribunal Record. The first question by a Board member is on page 185 and continue throughout the examination-in-chief, up to page 247. Questions resume from the Board again during the re-examination of the Applicant by his counsel; see pages 271 and 272.
[19] While some questions from the Board members appear to be simply for the purpose of clarification, many other questions were not and those questions, in my view, cast doubt on the fairness of the hearing.
[20] In this regard, I refer by example to page 182, line 70 - page 183, line 1, where the Board said that identity was an issue. Following the commencement of the direct examination by counsel for the claimant on the issue of identity, questions were asked about the Applicant's use of his father's name. At page 186, line 20, a Board member questioned the relevance of this line of questioning. That question was echoed by the second Board member.
[21] In my opinion, the Board improperly and unfairly interfered with the line of the examination introduced by counsel for the Applicant in response to a specific issue identified by the Board.
[22] Further examples of over-involvement by the Board members in the examination of the Applicant appear at pages 193, 194, 195, 196, 199, 200, 202, 203, 207, 208, 209, 211, 212, 213, 216, 217, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 238, 239, 242, 243, and 247.
[23] At page 232, lines 10-20, a Board member asked a series of questions at one time, as follows:
WRIGHT: Given this presence of intelligence and security, given that the president himself is landing at the same time that you were taking off in Entebbe, given that the ISO agents are after you - all of these things - did nothing occur? You were able to leave the country without a problem? I mean, if the ISO is after you, you - in my view that you're probably a security risk of some kind. How were you able to leave Entebbe without any problem?
[24] On page 232, in seems that the situation was so confusing that the refugee claims officer asked for clarification, lines 63-65, and went on at page 233 to make the following comment: "So, I'm not sure what we're looking for."
[25] In response, a Board member said, "Well, we're not, I suppose. Thanks, Mr. Di Vecchia."
[26] The exchange between a Board member and the Applicant recorded on page 243, lines 33-45, further illustrates the over-involvement by this Board in the presentation by the Applicant of his case, as follows:
KITCHENER: What was the last desperate effort to save your life? You said, "This was the last desperate effort..." As far as I understood.
CLAIMANT: Yes. To - to -
KITCHENER: Can I finish, please?
CLAIMANT: Yes, madam. Sorry.
[27] As noted above, there were many interruptions during the direct examination of the Applicant. The transcript shows that there two interruptions by the Board during the cross-examination by the refugee claims officer and in this regard, I refer to page 262, lines 7-20, as follows:
RCO: If you could just answer "yes" or "no".
KITCHENER: The question was -
RCO: If you could just answer "yes" or "no" -
KITCHENER: Just answer the question.
[28] In addition to the questions already asked during the direct examination and cross-examination of the Applicant, the Board members asked questions themselves, as recorded on pages 267 to 271.
[29] Deference to the findings of fact made by a Board which listens to the evidence, asking questions only when necessary and for the purpose of clarification is one thing. It is a wholly different matter to talk about deference to the findings of a Board who actively participated in the task of eliciting the evidence, acting more as inquisitor than adjudicator.
[30] As well, the Board members disclosed a concern with an observer in the hearing room, although the observer was there with the consent of the Applicant and that had been discussed
earlier in the hearing, as appears from pages 176-177. The following statements appear on pages 274 and 275 of the tribunal record, as follows:
KITCHENER: We're both slightly worried about the - worried is maybe wrong. Wondering about what the observer has in his bag, so our thought was to ask Mr. Di Vecchia to go though it-
RCO: I'm not going to do that.
KITCHENER: You're not going to?
RCO: No. No.
KITCHENER: H'mm.
RCO: If we have a concern, I don't know how to go about it, but I'm not going to go though someone's bag.
KITCHENER: Well, and it's -
WRIGHT: Then it might be better to get security to do it.
RCO: Yeah. It's just - it would be so outside (inaudible)...
WRIGHT: Because he's been going in that bag much too often.
[31] This was the second intervention by the Board in relation to the observer. At page 217 and 218, a Board member had asked the observer if he had recording equipment in his bag. The observer replied that he did not and was only cleaning his glasses. The security check requested disclosed nothing more than maps.
[32] This concern of the Board with the contents of a bag held by an observer in the hearing room, who was present with the knowledge and consent of the Applicant and the Board, implies
that the members of the Board were not duly concentrating on the matters at hand, that is the presentation of the case by the Applicant.
[33] Overall, the transcript gives rise to serious doubt as to the procedural fairness with which the Applicant's hearing was conducted.
[34] For these reasons, I conclude that this application for judicial review must be allowed. The matter will be remitted to the Board for consideration before a differently constituted panel.
[35] Counsel advised there was no question for certification arising from this application.
ORDER
The application for judicial review is allowed and the matter is remitted to the Board for consideration before a differently constituted panel.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3081-01
STYLE OF CAUSE:ACHETA EMMANUEL OJAKOL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 29, 2002
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
APPEARANCES BY: Mr. Davies Bagambiire
For the Applicant
Ms. Kareena Wilding
For the Respondent
SOLICITORS OF RECORD: Davies Bagambiire
Barrister and Solicitor
National Building
347 Bay Street
Suite 1202
Toronto, Ontario
M5H 2R7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020531
Docket: IMM-3081-01
BETWEEN:
ACHETA EMMANUEL OJAKOL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER