Ottawa, Ontario, August 24, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Nadeem Chaudhry, is a Shia Muslim from Pakistan who entered Canada in 2003. He sought refugee protection here on the basis of allegations of religious-based persecution at the hands of Sunni Muslims including members of his own family. According to Mr. Chaudhry, at the root of the family conflict was the conversion of his father to the Shia faith which apparently split the family along religious lines. Mr. Chaudhry’s difficulties were also magnified by his alleged involvement in the conversion of a friend from the Sunni faith to the Shia faith.
[2] Mr. Chaudhry’s protection claim made its way to the Immigration and Refugee Board (Board) which presided over hearings on June 29, 2004 and November 1, 2004. The Board decision was rendered more than ten months later and it was unfavourable to Mr. Chaudhry. The Board concluded that adequate state protection was available and it also found that Mr. Chaudhry had “fabricated” evidence concerning his attempts to engage police protection.
[3] Mr. Chaudhry has advanced two grounds for setting aside the Board decision. The first of these concerns is the fairness of the proceeding and, in particular, allegations of inappropriate conduct by the presiding Member during the hearing. The second of Mr. Chaudhry’s complaints is that the Board made a patently unreasonable decision concerning the availability of state protection.
The Fairness of the Hearing
[4] A review of the hearing transcript does disclose several instances of inappropriate tone and questionable demeanour by the Member. Taken individually most of these interjections would not be sufficiently troubling to justify the Court’s intervention, but when considered collectively I have concluded that Mr. Chaudhry should receive the benefit of a new hearing.
[5] Very early into the hearing the Member began to express reservations, and a certain frustration, with Mr. Chaudhry’s evidence about his father’s conversion from the Sunni faith to the Shia faith.
[6] It is apparent from the recorded exchanges that Mr. Chaudhry was doing his best to answer rather poorly crafted questions from the Member. In one early exchange, the Member rather curtly stated:
MEMBER: So when I ask a question like that, you can just say “yes.”
CLAIMANT: That’s fine.
MEMBER: If I need you to explain it, I will ask you to explain it.
[7] Later, in attempting to elicit evidence about Mr. Chaudhry’s annual income, the Member expressed unwarranted frustration in stating that Mr. Chaudhry was “not being very helpful here” and “I told you before I was interested in your income”.
[8] At a later point, Mr. Chaudhry asked the Member to repeat a question and was met with the Member’s response: “What part don’t you understand?”. The tone of this remark was apparently sufficiently troubling that Mr. Chaudhry’s counsel interjected:
COUNSEL: I am hoping – if he doesn’t understand the question, then we will repeat the question. I am going to make sure he understand what is being asked.
[Quoted from original text]
[9] The Member also questioned Mr. Chaudhry extensively about the attitudes of Sunni and Shia Muslims concerning support for terrorism. At one point, he asked if “all Sunni support the extremists?”. Counsel properly objected to the line of questioning which prompted the Member to express doubt about whether it was reasonable for one of Mr. Chaudhry’s friends to convert. When Mr. Chaudhry gave the entirely reasonable explanation that his friend had “learned about Shia religion and he changed his mind”, the Member rudely responded: “that explains nothing”. Mr. Chaudhry’s counsel again objected and a further testy exchange took place with the Member. During that exchange, the Member wanted to know what “magic words” Mr. Chaudhry had used to convert his friend. This insensitive remark led Mr. Chaudhry to respond: “I haven’t used any magic words. That’s what his own thinking was.”
[10] Counsel again objected and attempted to refer to his notes of Mr. Chaudhry’s actual evidence. The Member rudely responded: “I don’t need to hear your notes because they are -- now, you are going to give testimony and I don’t want to hear your testimony; I want to hear his.” In returning again to the issues of the religious conversion of Mr. Chaudhry’s friend, the Member asked: “What was so profoundly interesting in the [Shia] leadership that a Sunni would adopt it?” Up to this point, Mr. Chaudhry had given a fairly detailed and reasonable description of the process leading up to the conversion of his friend culminating in the following exchange:
MEMBER: Other than the leadership issue, can you tell me one other thing?
CLAIMANT: Beside leadership?
MEMBER: Yes.
CLAIMANT: Beside this, the place of Karbala, take the example of that.
MEMBER: Well, that is a historical event. I am talking about matters of faith.
CLAIMANT: For religions matter, one or two things are not enough, but an individual has to get – or educated himself.
MEMBER: Well, that may be true. I am only asking, however, for you to provide me with one or two examples and I haven’t heard any yet.
CLAIMANT: One or two examples were not instrumental, but once he thought about it – once he’s – begins studying about our faith afterwards, then he quit Sunni religion and entered into Shia religion.
MEMBER: I don’t know how to – how else to ask the question, counsel, and I – I am frankly thinking that he is intentionally refusing to answer and the reason that he doesn’t know the answer is because it never happened.
CLAIMANT: (inaudible)
COUNSEL: Hold on. Hold on.
INTERPRETER: Sorry.
MEMBER: I am asking counsel.
COUNSEL: Is that a finding you are making?
MEMBER: I am about to.
[11] When counsel properly objected to the relevance and prematurity of the Member’s credibility “finding”, the Member retreated somewhat but still indicated that he was “leading” to an unfavourable credibility conclusion. He also excused the remark by suggesting he had made it for its “shock value”.
[12] It is these final remarks by the Member which are the most troubling because they reflect both intemperance and a predisposition that were entirely unwarranted given the content of Mr. Chaudhry’s preceding testimony. When this is added to the Member’s rudeness and obvious religious insensitivity as reflected in his reference to “magic words” and by linking the conversion issue to the Muslim terrorist cause, the fairness of the process was sufficiently compromised that a new hearing is warranted.
[13] While I do accept the Respondent’s argument that considerable latitude is owed to the Board in the manner in which it conducts a hearing including the right to extensively and energetically question a claimant (see Bankole v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1942; 2005 FC 1581) and that some degree of rudeness, sarcasm or harshness may be legally excusable (see Kankanagme v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1757; 2004 FC 1451), fairness does not permit intrusive, insensitive, intimidating, harassing, unwarranted, or highly irrelevant interventions by the Member which are capable of giving the impression that the Member was biased: see Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629, [1991] F.C.J. 1049 (F.C.A.) and Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14, [1987] F.C.J. No. 1015 (F.C.A.). As was stated by Justice Michael Phelan in Quiroa v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 338; 2005 FC 271, there is an appropriate tone and demeanour to the adjudicative process necessary to ensure that the Member may be seen not to have reached a decision prematurely. I think that the Member’s conduct in this case did cross the line, and I do not accept the Respondent’s contrary argument.
[14] To my mind, any reasonably informed person reviewing this hearing in its totality would conclude that the Member had lost his objectivity and that the fairness of the process was irretrievably compromised.
[15] The Respondent also argued that any objectionable behaviour by the Member was implicitly waived by Mr. Chaudhry and his counsel by their failure to raise the issue of apprehended bias during the hearing.
[16] It is clear from the Record that Mr. Chaudhry’s counsel appropriately objected to the Member’s conduct. It is easy, after the fact, to find fault with counsel’s efforts to defend his client’s interests in the context of a hearing like this one. Usually, counsel will attempt to find a balance and to be decorous and somewhat selective with interventions. That was the case there. But as the tone of this hearing deteriorated, the gravity of counsel’s objections increased accordingly. This was certainly not a case where counsel mutely tolerated the Member’s behaviour. Here, Mr. Chaudhry’s counsel objected to the Member’s premature adverse credibility “finding” and squarely raised it with him in a fairly lengthy exchange at the conclusion of the hearing. Although the Member attempted to excuse his remark, it is clear from the Record that he was unable to appreciate the full significance of his conduct in the face of counsel’s objection to it. Given the Member’s reaction, it is highly unlikely that he would have acquiesced to a motion for recusal in any event.
[17] While the principle of waiver is often applied to situations of arguable bias, it is not universally applied in situations like this one where the issue of bias is co-mingled with more generalized problems of procedural fairness. This distinction was recognized by Justice François Lemieux in Mohammad v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 319 where he stated at paragraph 25:
The case law surrounding the issue at hand interchangeably calls upon these two distinct legal principles although there is a tendency to characterize statements, observations or comments made by panel members about a claimant or the evidence a claimant has given as more closely related to the principle of impartiality as contrasted to issues of how, when and in what manner the questioning takes place which is attached to the concept of the right to a fair and equitable hearing.
[18] Many of the frequently cited authorities which discuss the problem of bias arising from overly intrusive or intimidating conduct by a Member in the course of Board proceedings do not address the issue of waiver and it seems not to have come up.
[19] The principle of waiver can, of course, be applied to any breach of the rules of natural justice and is not restricted to the problem of bias. Many of the authorities which expressly deal with waiver indicate that a failure to make a timely or fulsome objection to a natural justice deficiency is not necessarily fatal to raising the issue in the context of a judicial review proceeding. Some of those authorities suggest the need for flexibility in the application of the principle of waiver. For instance, in Kankanagme, above, waiver was not applied in a case similar to this one. In Quiroa, above, failure to object was held to be “not necessarily fatal” (see paragraph 15).
[20] In the text Principles of Administrative Law by Jones and de Villars (4th Ed.), the authors confirm the desirability of a flexible approach to waiver and describe quite pointedly at paragraph 414 the problems faced by counsel in attempting to make the best of a poor situation for a client facing a hostile adjudicator:
The fact that is often overlooked by courts is the practical difficulty that many parties face in making allegations of bias. “Bias” is a dreadfully loaded word. Tribunals frequently treat allegations of a reasonable apprehension of bias as an allegation of actual bias. It is hard for some tribunal members not to feel that their honour and integrity is at stake. Consequently, it is difficult for a party to risk alienating the tribunal. For all these reasons, it is often better to hope for the best in the tribunal’s decision than to make allegations of bias. This choice is not really a choice to sit on one’s rights, but rather a choice to make the allegation of bias in the forum best equipped to deal with it.
In this case, counsel for Mr. Chaudhry was faced with a similar dilemma and did his best to confront it. He did not ignore the Member’s objectionable interventions and, in several instances, pointedly took issue with him. I do not think that his failure to demand that the Member recuse himself is a sufficient failing that it ought to be taken to amount to an implicit waiver of the problem.
[21] Because the determinative issue in this case involves a matter of procedural fairness, a pragmatic and functional analysis is not required. Where a breach of natural justice or procedural fairness has occurred, no deference is due and the Court will set aside the impugned decision: see Benitez v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 631; 2006 FC 461 at paragraph 44.
[22] In light of my finding with respect to the issue of fairness, it is unnecessary to deal with Mr. Chaudhry’s second argument concerning the issue of state protection.
[23] This matter will be remitted to a differently constituted Board for redetermination on the merits.
[24] At the conclusion of the hearing in this matter, I allowed either party a period of seven days following the rendering of the Judgment to propose a certified question. In the event that either party does propose a certified question, I will allow the other party a period of three days for a reply.
JUDGMENT
THIS COURT ADJUDGES that this matter shall be remitted to a differently constituted Board for redetermination on the merits.
THIS COURT FURTHER ADJUDGES that either party shall have a period of seven days to propose a certified question followed by a period of three days for a reply.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6226-05
STYLE OF CAUSE: NADEEM CHAUDHRY v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 28, 2006
APPEARANCES:
Marianne Zoric FOR RESPONDENT
SOLICITORS OF RECORD:
Robert I. Blanshay
Barrister/Avocat FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario