Ottawa, Ontario, February 15, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
QURESHI, MOEYYAD GHUFRAN
XI, LULU (aka XI, Lu Lu)
QURESHI, IMRAN AHMAD
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, dated March 16, 2006, denying the applicants’ claim for refugee protection under section 96 and subsection 97(1) of the Act.
BACKGROUND
[2] The adult applicants are Dr. Xia Rong Xi (Dr. Xi) and her husband Dr. Imran Ahmad Qureshi (Dr. Qureshi). They are also accompanied by two minor children, their daughter Lulu Xi and their son Moeyyad Ghufran Qureshi. Dr. Qureshi and the son are citizens of Pakistan, while Dr. Xi and the daughter are citizens of the People’s Republic of China.
[3] The adult applicants base their claims to a well-founded fear of persecution on the grounds of perceived political opinion, religion, race/nationality and membership in a particular social group, namely those who are married to foreign nationals of different faith. They also allege that they are persons in need of protection based on a danger of torture or a risk of cruel and unusual treatment should they be forced to return to their respective countries of citizenship. The children’s claims are based on their parents’ claim.
[4] The panel heard the claims jointly, pursuant to rule 49(1) of the Refugee Protection Division Rules, (RPD Rules) on March 23, 2005, June 29, 2005 and September 30, 2005.
[5] The decision of the panel was released on March 2, 2006. The panel found that the adult claimants were not Convention refugees under section 96 of the Act, nor persons in need of protection under section 97 of the Act. The panel further stated that it was of the opinion that there was no credible or trustworthy evidence on which a favourable decision could have been based. The claims of the minor applicants were also rejected as they were based on the claims of their parents and no independent credible evidence was presented on their behalf.
ISSUES FOR CONSIDERATION
[6] The applicants made numerous submissions, some of which were unsubstantiated, while others were focused on peripheral aspects of the panel’s decision. The remaining arguments can be addressed under the following issues:
1) Does the panel’s assessment of credibility give rise to a reviewable error as a result of a failure to properly consider all of the evidence before it?
2) Were the applicants denied procedural fairness?
STANDARD OF REVIEW
[7] This application for judicial review involves both considerations of procedural and substantive issues, giving rise to the application of different standards of review.
[8] According to the existing jurisprudence, the choice of the proper standard of review for substantive decisions of the Board is driven mainly by the nature of the decision. On questions of law, the proper standard is that of correctness, on questions of mixed fact and law, reasonableness, and on questions of fact, patent unreasonableness. This approach was confirmed in the recent decision by the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100. With respect to questions of fact, the Supreme Court stated at paragraph 38:
On questions of fact, the reviewing court can intervene only if it considers that the IAD "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" (Federal Court Act, s. 18.1(4)(d)). The IAD is entitled to base its decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances: s. 69.4(3) of the Immigration Act. Its findings are entitled to great deference by the reviewing court. Indeed, the FCA itself has held that the standard of review as regards issues of credibility and relevance of evidence is patent unreasonableness: Aguebor v. Minister of Employment & Immigration (1993), 160 N.R. 315, at para. 4.
[9] Therefore, the findings on the credibility of the applicants and the assessment of the evidence by the panel are entitled to great deference and should only be reviewed by this Court on a standard of patent unreasonableness.
[10] With respect to any issue of procedural fairness, including reasonable apprehension of bias, the Supreme Court of Canada has held that correctness is the proper standard (Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221 at paragraph 65). Therefore, if a breach of procedural fairness is found, the decision must be set aside (Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665).
ANALYSIS
1) Does the panel’s assessment of credibility give rise to a reviewable error as a result of a failure to properly consider all of the evidence before it?
[11] First, I must determine whether the panel based its decision regarding the lack of credibility of the applicants on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it.
[12] There is a presumption, recognized by the Supreme Court of Canada in Woolaston v. Canada (Minister of Employment and Immigration), [1973] S.C.R. 102, that the decision-maker considered all of the evidence in the record in rendering its decision. While the applicants recognize this presumption, they believe that the panel either ‘forgot’ a lot of the information it had previously read by the time the decision was drafted, or misunderstood the information, which led to the unfounded rejection of the applicants’ claim. The applicants also argue that the panel erred by misconstruing or ignoring material evidence when it dismissed the medical reports submitted by Dr. Qureshi.
[13] In its decision, the panel stated that it had made a general finding of lack of credibility, and thus found the evidence submitted to support the claim not to be credible. The reasoning of the panel was supported by the decision of the Federal Court of Appeal in Sheikh v. Canada (MEI), [1990] F.C.J. No. 604, 71 D.L.R. (4th) 604, at paragraphs 7 and 8:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.
[14] The same reasoning may be applied to the refusal of the panel to assign any weight to the medical reports submitted by Dr. Qureshi. As stated by Madam Justice Barbara J. Reed in Danailov v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 1019 at paragraph 2:
With respect to the assessment of the doctor's evidence, to find that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
[15] While it was no doubt open to the panel to make a general finding of lack of credibility, such a finding must be supported in its reasons. From the panel’s decision, it is clear that the panel’s concern arose from the comparison between the original Personal Information Forms (PIFs) submitted by the applicants, and the updated PIFs submitted shortly before the first hearing. The panel’s finding of lack of credibility was based on “contradictions, omissions of significant material evidence in their original PIF narratives, implausibilities and improbable coincidences”.
[16] On this point, the applicants note that RPD rule 6(4) allows claimants to amend their PIFs before the hearing, that there is nothing inherently suspicious or illicit about amending the PIFs, that it is normal when dealing with such complex stories that details might have been left out of the original PIFs, and thus that the panel should not have drawn a negative inference from the existence of more detailed amended PIF narratives. The respondent for his part submits that the panel was entitled to make negative credibility findings based on the omission of significant events from the applicants’ first PIFs, even though these events were later described in the amended PIFs.
[17] Justice James O’Reilly’s decision in Gimenez v. Canada (MCI), [2005] F.C.J. No. 1386, 2005 FC 1114, can be used to support both the arguments of the applicants and of the respondent. As noted by Justice O’Reilly at paragraph 5 of his decision, “the Board should not draw an adverse inference from the timely filing of an amended PIF or written narrative”. However, as he further noted at paragraphs 6 and 7, “[t]he Board found numerous inconsistencies and unexplained omissions” between the original PIF and the amended PIF, and “[t]he Board was perfectly entitled to take account of those discrepancies in determining the weight of the evidence before it”.
[18] The question therefore becomes whether there were alleged omissions and inconsistencies between the two versions of the applicants’ PIF narratives that could not be satisfactorily explained and that could justify a finding of lack of credibility.
[19] There is no doubt that the amended PIF narratives submitted by Dr. Xi and Dr. Qureshi are more detailed than the original PIFs. That being said, the original PIFs were not insignificant in themselves, being comprised of five typed pages each.
[20] The applicants submit that the differences between the two versions of the PIFs did not show blatant contradictions and that the panel erred in rejecting the plausible explanations provided for the discrepancies. The applicants maintain that the updated PIF narratives mainly add details to the events already recounted in the original. The respondent for his part supports the reasonableness of the panel’s decision and maintains that, given the significance of the omissions and inconsistencies between the two versions of the PIFs, the panel had a firm grounding for finding these differences negatively affected the applicants’ credibility.
[21] In its decision, the panel identifies a number of omissions and inconsistencies that it finds undermine the credibility of the applicants. It is not my intention to go through each of these findings in order to determine whether they were in fact reasonable, but I will address a few of the examples raised by the applicants Dr. Xi and Dr. Qureshi in their respective affidavit, identify a number of mistakes of various import made by the panel in its decision, which they allege show a misunderstanding of many aspects of their story, the net effect of which was to mistakenly reject their claims.
[22] By way of example, at page 15 of the decision, the panel noted that Dr. Qureshi had failed to mention in his original narrative that the assailants who physically attacked him were charging that his wife had said bad things about Islam. As noted by Dr. Qureshi in his affidavit, there was in fact a reference to that fact in the original PIF, which stated that the assailants accused him of failing to control his wife and permitting her to raise foolish questions. Also, at page 17 of the decision, the panel noted that, in the original PIF, Dr. Qureshi had failed to mention the menacing telephone call he received and the story about Allah he told his students which allegedly led to this phone call. Yet, the original PIF refers clearly to two telephone calls, including one concerning his “example about the love of Allah”. Admittedly, he did not recount the story about the love of Allah in his original PIF narrative, but such details can hardly be said to be crucial information to support his claim – the fact that he had mentioned the story, however briefly, should have been sufficient.
[23] Turning to the claim of Dr. Xi, the panel seemed most concerned with the fact that she had failed to provide the explanation in her original PIF as to why she was discovered reading the Bible. Under the circumstances, I would have to agree with Dr. Xi that the fact that she was found reading the Bible by her Muslim family is the most important factor. The reason for her action – searching for a quote for a public health poster destined for a Christian neighbourhood – is largely irrelevant, as it does not appear to have affected her family and neighbours’ reaction to her action. Also, at page 13 of the decision, the panel noted that Dr. Xi alleged in her revised narrative that stones were thrown at her and her mother in August of 1998 and concludes that, given the evidentiary importance of this incident, it ought to have been mentioned in the original narrative. While I would normally agree with the panel on this point, it remains that this incident was noted in Dr. Qureshi’s original PIF narrative, so that it could not be said that the story was invented in the years following the submission of the original PIF narrative, as was implied by the panel.
[24] While I find that the existence of such errors in the appreciation of the evidence by the panel does raise some doubts as to the reasonableness of the decision, I am not convinced that these errors are sufficient to support a finding of patent unreasonableness.
2) Were the applicants denied procedural fairness?
[25] With regards to procedural fairness, the applicants first take issue with the practice of reverse order questioning, and argue that counsel should have been allowed to question them first, which would have avoided confusion and saved time.
[26] In recent years, there have been a number of challenges to the practice of reverse order questioning by the Board on the ground that it violates procedural fairness. The leading cases on the issue are Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 8, 2006 FC 16, and Benitez v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 631, 2006 FC 461. While the two decisions differ in their answer to whether Guideline 7, which sets out the practice of reverse order questioning, might unlawfully fetter the discretion of Board members, neither decision can be said to support the proposition that reverse order questioning inherently violates a principle of natural justice or procedural fairness. As stated by Justice Mosley in Benitez, at paragraphs 127 and 128:
I have no difficulty, after considering the Baker factors and the further factors submitted by the applicants, in deciding that it has not been established that natural justice requires that counsel for a refugee claimant be provided with the opportunity to question the claimant first in order for the claimant to have a meaningful opportunity to present his or her case fully and fairly, or that the Guideline results in denial of the effective assistance of counsel.
I agree with the conclusion reached by Justice Blanchard [in Thamotharem] that 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, satisfies the requirements of the participatory rights required by the duty of fairness and that Guideline 7 does not, in itself, breach that duty.
[27] As noted by the respondent, counsel for the applicants failed to make any submissions to the panel to the effect that an exemption should be made allowing counsel to question the applicants in chief, which can be taken as an implied waiver of any perceived procedural unfairness that might result from the application of reverse order questioning.
REASONABLE APPREHENSION OF BIAS
[28] Finally, the applicants suggest that “one must conclude that the panel without malice failed to understand the evidence and negligently failed to remember key parts of it when writing its reasons; alternately one perceives a reasonable apprehension of bias (comparing the reasons to the evidence) whether or not the panel was actually biased”.
[29] The test for determining bias of an administrative tribunal was stated by Mr. Justice Louis-Philippe de Grandpré in the Supreme Court of Canada decision Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394-395:
…the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through—conclude [...]”
[30] Raising a reasonable apprehension of bias on the part of the panel is a very serious matter, which is why the Court sought clarification from counsel on his intentions. Responding to questions by the Court, counsel for the applicants seemed unclear about whether he was really suggesting that: “an informed person, viewing the matter realistically and practically and having thought the matter through”, would fine the panel’s action to raise a reasonable apprehension of bias.
[31] The jurisprudence is clear that allegations of reasonable apprehension of bias must be raised at the first opportunity; failure to do so will result in an implicit waiver of the right to invoke such allegations at a later time (West Region Tribal Council v. Booth et al. (1992), 55 F.T.R. 28, Ithibu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 499, 2001 FCT 288). This rule applies as long as the applicant or the applicant’s counsel is aware of the right to object on this basis (Khakh v. Canada (M.E.I.), [1993] F.C.J. No. 1183, [1994] 1 F.C. 548 ). As such, if the applicants wished to raise allegations of bias stemming from the behaviour of the panel at the hearing, then such allegations would generally have had to be raised first by their counsel at the hearing.
[32] In this case however, the applicants raised concerns of reasonable apprehension of bias stemming not from the behaviour of the panel at the hearing per se, but from the written decision itself. The applicants’ main argument is that the number of mistakes in the decision in itself, was sufficient to raise a reasonable apprehension of bias.
[33] I have carefully reviewed the material submitted, particularly the 47 page decision by the panel which addressed all the evidence submitted by the applicants, including the testimonies of both applicants, as well as the documentary evidence. As I mentioned earlier in these reasons, I have already found some errors in the appreciation of the evidence by the panel. Nevertheless, such errors are insufficient to meet the test set out by the Supreme Court of Canada to establish reasonable apprehension of bias, or any other lack of procedural fairness.
CONCLUSION
[34] It was not unreasonable for the panel to question the credibility of the applicants given all the evidence, notably the reasons provided by the applicants for not claiming refugee status in Sweden and the United States, as well as the fact that the applicants had also applied for permanent residence in Canada. All those elements were assessed by the panel and, in my view, the panel did not make a reviewable error that justifies the intervention of this Court.
[35] Therefore, this application for judicial review is dismissed.
[36] No questions were suggested for certification.
JUDGMENT
1. The application is dismissed;
2. No questions for certification.
“Pierre Blais”
Judge
ANNEX
PERTINENT LEGISLATION
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themselves of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2117-06
STYLE OF CAUSE: XI, XIAO RONG, QURESHI, MOEYYAD GHUFRAN, XI, LULU (aka XI, Lu Lu), QURESHI, IMRAN AHMAD
v.
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: January 31, 2007
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS J.
APPEARANCES:
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RANDAL MONTGOMERY
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MARIA BURGOS
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SOLICITORS OF RECORD:
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RANDAL MONTGOMERY TORONTO, ONTARIO
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JOHN H.SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO
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