Ottawa, Ontario, March 30, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MAGDELINE SONGITA GOMES AND
PEUSH SUNITH GOMES
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The primary Applicant, Rony Gomes, his spouse, Magdeline Gomes and their child, Peush Gomes, seek to set aside a decision of the Immigration and Refugee Board (Board) dated May 17, 2005 which denied their respective claims for refugee protection. Their application for judicial review relies primarily upon a point of procedural fairness and, because I have accepted their argument on that point, it is unnecessary for me to consider their submissions on other issues.
Procedural Background
[2] The Applicants contend that the Board's finding of adequate state protection in Bangladesh ran counter to their legitimate expectations that that issue was not in issue during the hearing before the Board. In the result, they say that they were effectively denied an opportunity to know the case they had to meet and were denied the opportunity to offer a meaningful answer to that case. The Respondent counters by arguing that state protection is always a live issue and that, in any event, the Applicants were alert to its potential significance.
[3] It is uncontradicted that state protection was not flagged as a preliminary issue in the Board's screening form. It is also evident from the hearing transcript that state protection was not mentioned as an issue of concern to the Board at the outset of the hearing. What the Board did identify as issues before it were identity, credibility, re-availment and failure to claim elsewhere.
[4] The case was presented utilizing reverse-order questioning pursuant to the Board's Guideline 7. Nowhere in the direct questioning of the Applicants by the Refugee Protection Officer or by the Board was there any explicit questioning about the issue of state protection. Most of the questioning of the adult Applicants concerned their personal situation as Christians in Bangladesh and their specific experiences as members of an alleged persecuted religious minority. It was only when the Applicants' counsel questioned Mr. Gomes that any direct reference to state protection came up, and then only in a cursory way.
[5] The Board did have before it a considerable amount of documentary material which dealt with the prevailing conditions in Bangladesh for Christians and other religious minorities. Some of that material was submitted on behalf of the Applicants. Included in that material was evidence pertaining to the availability of state protection (and the lack of it) for religious minorities. This evidence was germane to the Applicants' claims to persecution in Bangladesh but, in the end, the Board used it to support its finding that adequate state protection was available to Christians in that country. The Board's specific findings on that point were as follows:
Because I have not found the male claimant to be a credible witness on his own behalf and because I have found that there is adequate state protection in Bangladesh for Christians, I find that there is no serious possibility that the claimant will be subjected to persecution, a risk to his life, or cruel or unusual treatment or punishment if he returns to Bangladesh. No evidence was adduced on which to make a finding that he would face a danger of torture if he were to return to Bangladesh. Therefore, his claim must fail.
Because their claims are based on that of the male claimant, I find that the claims of the female claimant and the minor child must also fail.
Issue
Did the Board breach its duty of fairness by failing to identify state protection as a live and potentially determinative issue and by then deciding against the Applicants on that issue?
Analysis
[6] The issue here is one of procedural fairness. As such, there is no requirement to take a pragmatic and functional approach to the question before me but only to decide, on a standard of correctness, whether the Board's approach conformed with the principles of natural justice: see Ha v. Canada (Minister of Citizenship and Immigration) 2004 FCA 49, [2004] 3 F.C.R. 195, [2004] F.C.J. No. 174 (F.C.A.).
[7] There are many cases dealing with the requirement for the Board to identify for the applicant what it considers to be the potentially determinative issues in a refugee hearing.
[8] InVelauthar v. Canada(Minister of Citizenship and Immigration) [1992] FCJ No. 425 the Federal Court of Appeal described the Board's identification of a single issue in the hearing as a "stipulation" so that the determination of the case on a different point constituted "a gross denial of natural justice".
[9] In Butt v. Canada(Minister of Citizenship and Immigration) [1998] F.C.J. No. 325 credibility was raised at the outset of the hearing but was not mentioned at the end when the applicant's counsel asked the Board to identify the issues for written submissions. The Board's decision then turned on credibility. This Court sent the case back for a rehearing on the following grounds:
9 The circumstances in this case, in my opinion, are clearly comparable to those in Velauthar v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 239 (F.C.A.). There the Court of Appeal found that, having indicated issues on which submissions should be made, not including credibility, the tribunal could not render its decision based on negative credibility findings without providing an opportunity for the applicant to respond to its concerns. The process, without that opportunity, constituted a denial of natural justice, and the decision was set aside. Similar circumstances led to a similar decision by my colleague Mr. Justice Gibson in Rodriguez v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 77 (F.C.T.D.).
10 In my opinion, the failure of the panel to indicate that credibility was an issue when, at the request of counsel, it listed issues on which submissions should be made, resulted in a denial of natural justice when by its decision the panel determined that the applicants' evidence was not credible. In the circumstances the applicants were denied an opportunity to address the matter of principal concern to the panel in its decision.
[10] In Rodriguez v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 77 the Court considered a situation where the Board had identified three issues which it wanted addressed including one specific matter potentially affecting the applicant's credibility. When the Board rendered its decision on the basis of an overall lack of credibility, the Court applied Velauthar, above, and sent the case back for a redetermination.
[11] The approach taken by the Board in this case was similar to that adopted by the Board in the case of Kaldeen v. Canada(Minister of Citizenship and Immigration) [1996] F.C.J. No. 1033. There Justice Paul Rouleau allowed the application for judicial review on the following basis:
4 In this case, did the Board deny the Applicant natural justice by only considering the issue of state protection when the Applicant was directed to address only the issue an IFA?
5 The Applicant submits that at the outset of the hearing he was advised by the Board that the only issue to be addressed during the hearing would be that of an IFA. Starting at page 191 of the Minister's Record, line 65, it is clear that the presiding member of the Board did in fact indicate that only one issue, the IFA, was going to be dealt with at the hearing. After having reviewed the transcripts, it is also clear that the Applicant never had an opportunity to directly address the issue of availing himself of the protection of the state. That is not to say that the protection of the state was not dealt with in a peripheral manner. In an IFA determination, the geographical areas in which an applicant is safe is of course at issue. However, at no point was the Applicant directly questioned on whether he availed himself of the protection of the state nor did his counsel ever make submissions on the issue. The Board ultimately rejected the Applicant's claim based on lack of evidence of the state's inability to provide protection without providing any notice to the applicant or his counsel that this question was at issue.
6 In light of the decisions of the Federal Court of Appeal as well as of this Court, I am of the view that the Applicant was denied natural justice by the Board in the case at bar.
[12] The requirement that an applicant know the case she has to meet is so important to the duty of fairness that even where there exists some potential for a misunderstanding of the issues for determination before the Board the case may be sent back for a rehearing: see Augustine v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1069.
[13] The argument that counsel for a claimant has a duty to anticipate the issues in play is not particularly persuasive. In Sivamayam v. Canada(Minister of Citizenship and Immigration) [1999] F.C.J. No. 1218 Justice Denis Pelletier dealt with a similar submission on the following basis:
11 I accept that a tribunal does not necessarily have to put every step of its reasoning process before an applicant before it can find against him. This is particularly true where an applicant is represented by counsel. It is counsel's function to be persuasive, to respond to indications given by Board as to the issues on which it requires persuasion. But where a tribunal indicates to counsel that it wishes to hear from him/her on certain issues, it is implicit that other issues will not be determinative of the claim. This does not preclude the tribunal from considering other issues, but if it wishes to decide the case on the basis of those other issues, fairness and natural justice require that the applicant be allowed to speak to those issues, given the prior indication that the tribunal did not consider those issues to be conclusive of the claim.
[14] The facts of these cases seem to me to be indistinguishable from those at hand. Here the Board gave no indication to the Applicants that state protection was an issue on which the outcome of the case could turn. The issue was not identified in the Board's screening form, at the opening of the hearing or in the direct questions posed to the two adult Applicants by the Refugee Protection Officer or by the Board. The cursory treatment of the issue by the Applicants' counsel in his following examination of Mr. Gomes and in argument is not a basis for concluding that the issue had been fully canvassed. Had state protection been identified as a live issue at the outset, there can be no serious doubt that it would have drawn far more attention from the Applicants and their counsel than it did.
[15] This case also identifies one of the risks of reverse-order questioning. By essentially taking over the direct presentation of an applicant's case and leaving it to the applicant's counsel to fill in the gaps, the Board may create or enhance an expectation that what it appears unconcerned about is not of any concern. Justice Pelletier commented on this issue in Veres v. Canada(Minister of Citizenship and Immigration), [2001] 2 F.C. 124, [2000] F.C.J. No. 1913 when he said:
25 One would not think it contentious to say that the person who has the onus of proof must be given a fair chance to meet that onus. In court proceedings, whether civil or criminal, the person with the onus of proof in the cause leads their evidence first and is then cross-examined. If there is an omission in the evidence, the party has no one to blame but themselves. They controlled the process by which the evidence was put before the trier of fact. The same is not true where a claimant's personal information form is taken as read, the claimant is asked not to repeat everything that appears in it and the oral evidence begins with cross-examination. The person with the onus is no longer in control of the process and is in the position of not knowing what needs to be said and what doesn't. In those circumstances, it is unfair to reproach claimants for having failed to provide some piece of evidence unless they have noticed that they are at risk on the issue.
26 The situation is akin to that in the case of Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 120 F.T.R. 136 (F.CT.D.), in which this Court found a breach of natural justice in circumstances where the CRDD dissuaded the claimant from giving evidence on a crucial point, and then proceeded to make an adverse finding based on a lack of evidence on that point. The Court concluded [at paragraph 3]:
It is clear that the Board cannot discourage testimony on a point and then rely on the absence of evidence on it in its decision. The Board dissuaded the applicant from pursuing evidence of his work as a seaman. It cannot then rely on the absence of the passport to say he was not a seaman.
[16] I agree with the Applicants' counsel that the practice followed by the Board to identify issues in advance is useful in bringing focus and efficiency to the adjudicative process. In the absence of such a practice, refugee hearings would be unduly protracted and would end up canvassing issues which were really not of significance to the final outcome. Counsel for the Respondent did acknowledge the procedural value of narrowing the issues to achieve adjudicative efficiency. The adoption of such a practice may, however, create a legitimate expectation of conformity so that a subsequent failure to follow it can breach the duty of fairness: see Baker v. Canada(Minister of Citizenship and Immigration) [1999] 2 SCR 817, [1999] S.C.J. No. 39 at para. 26. To my mind that is what took place here.
[17] I am satisfied that the Board failed to adhere to the requirement that it apprise the Applicants of the issues of concern either before or during the hearing of the evidence. Accordingly, I will set aside the Board's decision and direct that this matter be remitted to a differently constituted Board for a redetermination on the merits.
[18] Neither party requested that a question be certified and, therefore, no question will be certified.
JUDGMENT
THIS COURT ORDERS that the Board's decision is set aside with the case remitted for a redetermination by a differently constituted panel.
" R. L. Barnes "
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3672-05
STYLE OF CAUSE: RONY JOSEPH GOMES
ET AL.
v.
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 23, 2006
APPEARANCES:
| DOUGLAS LEHRER
|
|
| JOHN PROVART
|
SOLICITORS OF RECORD:
|
VANDERVENNEN LEHRER TORONTO, ONTARIO
|
|
| JOHN H.SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO
|