Ottawa, Ontario, January 19, 2006
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This case concerns an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") May 31, 2005 (the "Decision") denying the Applicant's refugee application. The Board concluded that the Applicant was neither a Convention refugee nor a person in need of protection.
[2] The Applicant, Guang Ri Jin, is a 28 year old alleged citizen of the People's Republic of China. He arrived in Vancouver on March 1, 2003 with a false Malaysian passport. The Applicant claimed protection as a Convention refugee due to a well-founded fear of persecution for reasons of religion (i.e., Christianity). He also claimed protection as a person in danger of torture and facing a risk to life or of cruel and unusual treatment or punishment.
[3] In the course of the hearing, the Applicant raised a number of procedural issues, inter alia, he challenged the validity of the Board Chairperson's Guideline 7, in as much as it generally directs a claimant's counsel to question the claimant after the Refugee Protection Officer ("RPO") and/or the presiding member ("reverse order of questioning").
[4] The Board found that the Applicant's evidence regarding his identity was not credible and rejected his claims.
ISSUES
[5] Originally, the Applicant submitted seven points, but in light of the intervening decision of Justice Blanchard in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, the principal arguments before me concerned the validity of the Chairperson's Guideline 7 and the effect of Thamotharem, supra on this case.
ANALYSIS
[6] Early on, but not at the outset of the Board hearing (actually at page 21 of the 108 page transcript), the Applicant's counsel made the following objection:
The panel is aware that guidelines have come into place that have established the panel's right to proceed with questioning, or actually in the case where an RPO is present, with the RPO first then the claimant's counsel. These guidelines also provide the right to counsel to make a request that questions be initiated by counsel in appropriate circumstances. I am an experienced counsel. I attend here on a daily basis. Although I believe that these guidelines are illegal, and contrary to the rules of natural justice, it has been my practice to allow the guidelines - or allow the questioning to proceed pursuant to the guidelines in instances where I am satisfied that the claimant can gain a fair hearing, despite the order of proceedings.
However, in relation to my attendance before this particular panel member, I have now had several experiences where I am left with the impression that questioning is overly aggressive, and fishing expeditions are entered into, and this would be an example of one of those.
Therefore, in my submission, I am going to take the opportunity here today to object to the guidelines generally on the basis that the onus to shift - shifting the onus to the claimant's counsel to establish his right to question first, is illegal, because it is ultraviolous (ph) of the authority given to the chair, and furthermore, is contrary to the rules of natural justice, because the guidelines prevent the claimant's counsel from establishing the order in which he wishes to present evidence, and in my submission this would be a perfect example of where in circumstances where the panel member wishes to pursue questioning, which may not have been the choice of the claimant's counsel had he proceeded first with questioning, where the guidelines can therefore work against the claimant.
[7] The Board overruled the objection and in its decision provided the following rationale:
With respect to order of questioning, the Chairperson's Guideline 7 states, "the standard practice will be for the RPD to start questioning the claimant followed by the member and counsel." The panel notes that it makes no reference that a member may not question the claimant after counsel. It is clear from Federal Court cases that the claimant must be provided with an opportunity to explain inconsistencies and omissions. The panel can make a finding of fact only based on credible evidence. The panel must consider and assess both oral and documentary evidence before it. Moreover, the RPD is an administrative tribunal that is not bound by the strict rules of evidence, instead the Board may receive and base a decision on evidence that is considered credible or trustworthy. To suggest otherwise and deny the claimant the opportunity to provide an explanation for apparent inconsistencies or omissions and leave questionable areas in the mind of the decision maker, in the panel's opinion is unfair and a denial of natural justice. In this case, counsel was provided an opportunity to conduct a re-direct examination based on the panel's questions.
[8] The question of the validity of Guideline 7 was the focus of the recent decision of Justice Blanchard in Thamotharem, supra . After a careful and lengthy review of the applicable jurisprudence, Mr. Justice Blanchard found that Guideline 7 does not amount to breach of the principles of natural justice or a denial of procedural fairness. He concluded in paras. 91 and 92:
The Intervener has provided some evidence pointing to the difficulties refugee claimants face and the benefits to them of "counsel-first" questioning. However, in my view, neither the Applicant nor the Intervener has established that the principles of natural justice or procedural fairness require that refugee claimants be afforded an "examination-in-chief" in order for the refugee determination process before the Board to be fair. The opportunity for the Applicant to make written submissions and provide evidence to the Board, to have an oral hearing with the participation of counsel, and to make oral submissions, in my opinion, satisfies the requirements of the participatory rights required by the duty of fairness in this case.
After considering the factors set out in Baker and the further factors submitted by the Intervener, I am not persuaded that the principles of natural justice or procedural fairness demand that the Applicant's refugee determination hearing be conducted with a particular order of questioning - that is, with counsel for the Applicant questioning first - in order to ensure the Applicant has a meaningful opportunity to present his case fully and fairly.
[9] However, Justice Blanchard also came to the conclusion in paragraph 135 of his decision that Guideline 7 fettered the Board's discretion for the following reasons:
In the instant case, I am satisfied that there is significant evidence that the IRB made known to its members that they are expected to comply with the guideline save in exceptional cases. The problem is not so much with the expression of this expectation by the IRB, but rather its combination with a number of factors: the monitoring and expectation of compliance, the evidence of compliance, and especially the mandatory language of Guideline 7. These factors, in my view, all serve to fetter Board members' discretion. As Mr. Aterman acknowledged in testimony given on cross-examination: "It's a balancing which respects adjudicative independence on the one hand and the public and institutional interests in consistency on the other hand". In the circumstances of this case, the balancing of these interests, essentially because of the mandatory language used in Guideline 7, results in the interests of consistency outweighing the adjudicative independence of the Board member. The mandatory language of Guideline 7, the limited and narrow description of exceptional circumstances provided for in the guideline and the not so subtly expressed expectation of compliance by the IRB, all combine to limit a Board member's discretion. The fact that there are cases where a Board member has chosen not to follow the guideline does not cure these deficiencies. As stated earlier, the essence of discretion is that it can be exercised differently in different cases on the merits of the case. A guideline should not have the effect of causing a member, in conducting a hearing, to question whether he or she can adopt a particular procedure or a particular order of questioning of a claimant when the Board member legitimately holds the view that the standard order prescribed by the guideline is not the best or fairest way to proceed in the circumstances. There is uncontroverted evidence that for at least certain Board members this is the case. Guideline 7 in my view has the effect of dictating a certain procedure and allowing few exceptions, on a procedural issue that could potentially affect the fairness of the hearing. Put another way, Guideline 7, for the most part, requires a member to exercise her or his discretion in a particular way. In the result, I find that Guideline 7 fetters the discretion of Board members.
[10] Lastly, Justice Blanchard observed that a breach of procedural fairness will render the underlying decision invalid, but a court may exercise its discretion and decide to not set a decision aside where, regardless of the breach, the result is inevitable. He summarized this in paragraphs140 to 142:
[140] Procedural fairness in the refugee determination process requires at a minimum the right to a fair hearing: see Singh, above. Fundamental to the right of a fair hearing is that a Board member exercise independent judgment in deciding a case on its merit free from undue influence. Fettering of a Board member's discretion to decide the most appropriate process in the circumstances of each case constitutes undue influence and violates the principles of procedural fairness.
[141] The Supreme Court of Canada has held that once a breach of the principles of natural justice or procedural fairness is established, the decision of an administrative agency is invalid. In Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 at paragraph 23, Mr. Justice Le Dain wrote:
... the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. (my emphasis)
This approach was also adopted by Chief Justice Lamer in Université du Québec à Trois-Rivières v. Laroque, [1993] 1 S.C.R. 471. At page 493 of the Supreme Court's decision, the Chief Justice wrote:
Secondly, and more fundamentally, the rules of natural justice have enshrined certain guarantees regarding procedure, and it is the denial of those procedural guarantees which justifies the courts in intervening. The application of these rules should thus not depend on speculation as to what the decision on the merits would have been had the rights of the parties not been denied.
[142] The Federal Court of Appeal applied the same principles in Gale v. Canada (Treasury Board), 2004 FCA 13. In that decision at paragraph 13, the Court of Appeal, citing Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at 228-29, acknowledged that: "... a court may exercise its discretion not to grant a remedy for a breach of procedural fairness where the result is inevitable". As was the case in Gale, the result is not inevitable here. (Underlining added)
[11] The Respondent urged me to ignore Thamotharem, supra and instead rely on Zaki v. Canada(Minister of Citizenship and Immigration),2005 FC 1066 where Justice Snider held at para. 13:
I conclude, as have numerous of my colleagues, that the implementation of Guideline 7 in RPD hearings is not, in and of itself, a breach of procedural fairness.
[12] This submission is beside the point as:
a) the decision in Thamotharem, supra does not disagree with this conclusion;
b) Justice Blanchard took notice of the Zaki, supra decision and distinguished it; and
c) the crux of Thamotharem, supra is the finding with respect to the fettering of discretion which Zaki, supra did not address.
[13] The Respondent also submitted that the Applicant's objection was not made at the outset of the hearing and therefore the Applicant had impliedly accepted the reverse order of questioning as set out in Guideline 7 and could not now ask for a reversal of the decision.
[14] I am fully in accord with the reasoning of Justice Blanchard in Thamotharem, supra and propose to apply it in the instant case.
[15] In the instant case, as shown by the quote in paragraph 6 herein, the Applicant's counsel objected to the reverse order of questioning as set out in Guideline 7. He specifically felt his client was prejudiced by the way the Board member approached the issue of identity and the assumptions he made when posing questions on identity documents. His objection was overruled. While it would have been preferable if this objection was made at the outset of the hearing, it does not become irrelevant merely because it was made partially into the hearing.
[16] Had his objection been sustained and had he been allowed to present the balance of identity evidence (as well as all remaining evidence) first, the outcome might well have been different. One cannot forget that the failure to establish identity was the reason why the Applicant's claim was denied. Thamotharem, supra establishes that Guideline 7, as worded and applied, fetters the Board's discretion which is a violation of procedural fairness. Thus, the failure to allow the Applicant's objection regarding the reverse order questioning in Guideline 7 goes directly to the heart of the decision. It is far from inevitable (to use the words of Gale, supra) that the outcome would have been the same had the objection been allowed. Therefore, this is not a case to apply the exception to the use of discretion in cases involving a breach of procedural fairness referred to in Gale, supra.
[17] Accordingly, applying the decision of Thamotharem, supra. I feel I have no choice but to set the decision of the Board aside and send the matter back for reconsideration.
ORDER
THIS COURT ORDERS that the decision of the Board dated May 31, 2005 is hereby set aside and the matter is referred back to the Board for reconsideration by a differently constituted panel, which panel shall not apply the 'reverse order of questioning' set out in Guideline 7.
Ottawa, Ontario
January 19, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3736-05
STYLE OF CAUSE: GUANG RI JIN v. MCI
DATE OF HEARING: January 17, 2006
REASONS FOR ORDER: Justice Konrad W. von Finckenstein
APPEARANCES:
Shelley Levine
Neeta Logseety
SOLICITORS OF RECORD: Shelley Levine
Levine Associates
Toronto, ON
John H Sims, Q.C
Deputy Attorney General of Canada
Dept of Justice
Toronto, ON
FOR RESPONDENT