PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
The Minister of Citizenship and Immigration
[1] Mr. Sali Mulliqi, the Applicant, is a Muslim and ethnic Albanian from the Kosovo region of Serbia and Montenegro. The Applicant bases his refugee claim on a fear of persecution by reason of political opinion, namely that he is a member of the LDK political party and that he and his family are perceived by his community as deserters from the resistance against Serbian invasion. The Applicant fled Kosovo on March 21, 2004 to France. He flew from France to Canada on May 25, 2004, travelling on a false passport, and claimed refugee protection upon arrival at Pearson Airport.
[2] In a decision dated July 4, 2005, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board) determined that the Applicant was not a Convention refugee or person in need of protection. The Board made two key determinations: (i) neither the Applicant nor his allegations were credible, and (ii) he had not rebutted the presumption of state protection in Kosovo. The Applicant seeks judicial review of that decision.
Issues
[3] The Applicant raises the following issues:
- Do the actions of the Board in the process leading up to the hearing and during the hearing give rise to a reasonable apprehension that the Board was biased against the Applicant?
- Did the Board make patently unreasonable credibility findings?
- Did the Board breach its duty of fairness to the Applicant by following the order of questioning set out in "Guideline 7 - Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division" (Guideline 7)?
Analysis
Standard of Review
Issue #1: Did the actions of the Board give rise to a reasonable apprehension of bias?
[4] The hearing for the Applicant followed a somewhat unusual path. Sequentially, the following sets out the key events in the processing of the Applicant's claim:
- Upon arrival in Canada at the Port of Entry, in a processing that took place over the course of six hours, the Applicant was interviewed by two immigration Officers, one of whom was described by the Applicant as argumentative, aggressive, and verbally abusive to the Applicant, and the second as polite and friendly.
- Both immigration officers completed interview reports, with the first officer describing the Applicant as uncooperative.
- Prior the refugee hearing, the Applicant was advised that Refugee Protection Officer (RPO) Adamidis intended to call the first immigration officer as a witness. Applicant's counsel requested that the second officer also be summoned to testify.
- At the first hearing, held on December 6, 2004, the Applicant's counsel argued that RPO Adamidis, who was a former colleague of the first officer, was biased and had tainted the first officer as a witness through communications between the two. The counsel asked that the first officer be barred from testifying, that the Port of Entry (POE) notes be excluded, that the RPO be dismissed, and that the presiding member of the Board recuse himself. The hearing was adjourned on the motion of the Board.
- Following the first hearing, RPO Adamidis provided a written account of his communications with the immigration officer. Applicant's counsel responded in writing to the Board and lodged a complaint against the RPO. An inquiry was performed by the Board into RPO Adamidis' actions, which did not agree with the complaint.
- The second hearing was held on April 26, 2005. A different RPO was brought in for the hearing. The Board decided that it would not hear from the immigration officers but that the POE notes should not be excluded. The Board member ruled that he did not need to recuse himself, since none of the foregoing matters tainted his neutrality.
[5] The Applicant's assertion of bias extends beyond the actions of the particular member in this case to include the actions of all officials who have been involved in his claim. He finds fault with the entire process dealing with his refugee claim. He refers to a "collusion" that has prevented him from obtaining a fair hearing. The collusion and, hence, the grounds for his allegation of bias are evidenced, in his view, by:
- an allegedly abusive interview by an immigration officer at the Port of Entry,
- the actions of RPO Adamidis in speaking with a prospective witness,
- the failure of RPO Adamidis' supervisor to discipline him,
- "yelling" by the second RPO during the hearing,
- "smirking" and laughter of the member during the hearing and,
- the failure of the Board to include the transcript of the first hearing day in the Certified Tribunal Record.
[6] A reasonable 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." Applied to this case, the question is what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that the Board, whether consciously or unconsciously, would not decide fairly? This is the test described by Justice de Grandpré, who dissented in the hallmark case of Committee for Justice and Libertyv. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, but whose test has been subsequently adopted universally in Canadian jurisprudence as the proper, objective test.
[7] The question of apprehension of bias must focus on the decision maker. Who was the decision maker in this case? It is obvious that the actions of the immigration officers at the Port of Entry are not relevant to the allegation of bias; they are the employees of Citizenship and Immigration Canada and not associated (except as federal public servants) with the Board. The record does not show that they influenced the Board in any way. The Applicant did not point to any evidence that they were involved in the decision making in this case.
[8] With respect to the Refugee Protection Division, the Applicant apparently is arguing that the members of the Board, the RPOs and the administrative staff should be viewed as one decision-making entity. He did not support this assertion with any evidence or jurisprudence.
[9] The Board is an independent administrative tribunal with members appointed by the Governor in Council. Staff members, on the other hand, are engaged as employees with Treasury Board being the ultimate employer. It is true that the Board is supported in its work by an administrative staff, including the RPOs and their supervisors. However, it does not follow that actions of the administrative employees are deemed to be actions of the Board members.
[10] Thus, the decision maker is the member of the Board who heard and decided this matter. Accordingly, I must examine the actions of the particular Board, in this case, against the standard set out in the test for reasonable apprehension of bias. In this regard, there are three concerns expressed by the Applicant; (1) the Board's treatment of RPO Adamidis; (2) the failure of the Board to react to the behaviour of the second RPO; and (3) the behaviour of the Board during the hearing.
[11] I turn first to the actions of the Board prior to the commencement of the second day of hearing. Specifically because of the actions of RPO Adamidis, the Applicant requested, after the first day of hearing, that the member of the Board recuse himself and continues to argue, before this Court, that the Board member should have stepped down. In refusing to recuse himself, the member stated that "I don't think that anything happened before today would affect me in making a neutral decision". I agree with the Board. The communication that concerned the Applicant occurred between the RPO and the immigration officer and did not involve the Board. Further, when the issue of the alleged impropriety of RPO Adamidis was raised, the Board decided to adjourn the hearing, in spite of the desire of both parties to continue. The Board provided the parties with an opportunity to make submissions on this issue and, ultimately determined that the RPO should be replaced. The Board also determined that it would refrain from hearing testimony from either immigration officer involved at the Port of Entry. The Board took steps, in my view, which displayed great attention to the fairness of the process. There is no evidence to indicate that the actions of RPO Adamidis had coloured the Board member's perception of the case, or that the Board member had been involved with those actions or colluded in them. None of the Board's actions with respect to RPO Adamidis can be regarded, on any standard, as giving rise to an apprehension of bias.
[12] The Board's decision not to exclude the POE notes was not favourable to the Applicant, since those notes were eventually used to locate contradictions in the Applicant's evidence. However, I do not think that an impartial, third party would view the Board's decision as indicating bias. The notes themselves were important, relevant evidence, and there was no indication that they had been altered or otherwise tainted in some manner by RPO Adamidis' communications with the immigration officers.
[13] The second area of concern is the behaviour of the Board and the second RPO at the hearing. I do not see any evidence of serious impropriety in the transcript of the second hearing. The relevant passages are found in the Certified Tribunal Record at pp. 255-259, wherein the Applicant's counsel states that the RPO was shouting at him and the Applicant, and that the Board member was smiling at him and about to laugh at him. No further such accusations were made by the counsel. Having reviewed the entire transcript, I am satisfied that this appears to have been an isolated incident. The RPO appeared very cautious, careful, and sensitive in her phrasing of questions and her acceptance of answers by the Applicant. In my reading, she was alive to the apparent difficulties of translation. In similar manner, the Board member did not appear to press the Applicant hard on any particular issue. Both the RPO and the Board did repeat or rephrase questions on several occasions, but this was clearly due to difficulties in translation and difficulties that the Applicant had in understanding the questions.
[14] Overall, the transcript of the second hearing does not support the idea that the Board member or the RPO treated the Applicant poorly or that the Board member had prejudged the case.
[15] To conclude, based on the record before me, a reasonable, impartial observer would not decide that it was more likely than not that the Board would not decide fairly. The allegation of apprehension of bias is not sustainable.
Issue #2: Did the Board make patently unreasonable credibility findings?
[16] Although the Board made some reference to the issue of state protection, the clear conclusion of the Board was that the Applicant had failed to produce credible or trustworthy evidence to establish his claim either as a Convention refugee or a person in need of protection. The Applicant asserts that a number of the Board's findings are patently unreasonable.. In particular, he disputes 6 findings as follows:
- the Board drew a negative inference from the fact that "the claimant did not acknowledge his use of [a fraudulent] document in his application for a [Canadian Visitor's Visa (CVV)] at the hearing until he was confronted with his response at the CIC office".
- the Board drew a negative inference from the fact that the Applicant "changed his testimony as the hearing proceeded" with respect to when other families left his village.
- the Board drew a negative inference from Applicant provided two different dates (1999 and 2000) to the immigration officer at the Port of Entry and at the hearing as to when he formally joined the LDK.
- the Board drew a negative inference from the failure of the Applicant to refer to alleged harassment by KLA soldiers during his testimony.
- the allegation that LDK members were being killed was "merely the claimant's speculation and he did not produce any credible or trustworthy evidence to substantiate that many LDK members were killed by members of other political parties".
- the Board drew a negative inference from the Applicant's failure to claim refugee protection during the two months that he was in France.
[17] Credibility findings are within the heartland of the Board's discretion and the Board is in the best position to gauge credibility and draw the necessary inferences (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). The Board's decision should be reviewed on a standard of patent unreasonableness; unless the decision is entirely unsupported by the evidence or is made in a perverse or capricious manner, without regard for the material before it (s. 18.1(4)(d), Federal Courts Act, R.S.C., 1985, C. F-7), this Court should not intervene.
[18] I have reviewed the alleged errors against the record before me and cannot conclude that any of these findings were patently unreasonable or that the decision, when read as a whole, is patently unreasonable.
[19] The Applicant argues that certain of the findings (for example, the year of joining the LDK and his CVV) are microscopic, within the meaning of Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.). I do not agree. While the two cited findings, if considered on their own, appear minor, these are credibility findings that are supported by a multitude of other problems with the testimony of this Applicant. The Board should not be faulted, in this case, for its thoroughness. Further, particularly with respect to the issue of his CVV, I regard this matter as an important aspect of his claim.
[20] The Applicant failed to provide reasonable explanations for other omissions and contradictions. The Board is entitled to reject a claimant's explanations if they are not found reasonable (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Huang v. Canada (Minister of Citizenship and Immigration) (2001), 213 F.T.R. 14, 2001 FCT 1239). In this case, the Board provided cogent reasons in those instances where explanations were rejected.
[21] Contrary to the assertions of the Applicant, it was not unreasonable for the Board to draw a negative inference from the Applicant's shifting responses regarding whether families or family members all fled the Serbian advance, or whether some stayed behind to fight, and whether many or few did so. It was open to the Board to find that the Applicant was contradicting himself and generally providing non-credible testimony. The Applicant argues that the Board misses the point, and the only relevant question is how the community perceived the Applicant and his family upon their return. It appears to me that the Board's interest in this testimony was directly relevant to that point. The breadth of the Applicant's knowledge regarding who fled the Serbs and who did not was material to determining (a) whether he had any real knowledge of how many families left someone behind to fight the Serbs, and (b) whether it made sense that the Applicant and his family would be singled out as the only people who did not leave someone behind to fight.
[22] In regards to the Applicant not claiming refugee status in France, it was open to the Board to find that this undermined his fear of persecution, particularly since the Applicant remained in France for two months. The Applicant submits that the Board ignored the explanation found in his testimony and his PIF. The Applicant explained that he always planned to come to Canada, that his stay in France was caused by an interruption to his travel plans; in essence, that he was not interested in remaining in France, even though he was forced to spend two months there. A principle tenet of refugee protection is that a person who genuinely fears persecution will make reasonable attempts to make a claim at the first opportunity. Having been unexpectedly detained in France, why would the Applicant not make efforts to claim protection in that country, regardless of the fact that his original plan was to travel directly to Canada? Accordingly, even if the Applicant's sojourn in France was unanticipated, it was reasonable for the Board to draw a negative inference from his failure to claim in France. Particularly in light of the other credibility concerns, the Board did not err.
[23] Finally, I note that the Board made about 13 negative credibility findings. Only six are disputed. Even if the Applicant established that the Board erred on these matters, the remaining findings would sustain an overall negative credibility disposition.
Issue #3: Did the Board breach its duty of fairness to the Applicant by following Guideline 7?
[24] The Applicant submits that, at the beginning of the second hearing, the Board member "jumped in" and conducted a direct examination without advising the Applicant's counsel that this would be done in accordance with Guideline 7. The Applicant noted that this Court ruled in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, and Jin v. Canada(Minister of Citizenship and Immigration), 2006 FC 57 that Guideline 7 fetters the discretion of the Board. The Applicant concedes that he did not object to the application of Guideline 7 at the hearing. Nor was the issue raised in the Notice of Application or the Applicant's Record; the issue was only raised in the Applicant's further memorandum of argument.
[25] Even assuming, as asserted by the Applicant, that Guideline 7 fetters the discretion of the Board, the question raised by the facts of this application is whether, by not objecting to the use of Guideline 7 at the hearing, the Applicant has waived his right to raise this issue at the judicial review stage. This issue, while not considered by the Court in Thamotharem, was before Justice Mosley in Benitez v. Canada(Minister of Citizenship and Immigration), 2006 FC 461. In respect of the issue before me, Justice Mosley concluded as follows, at para. 237:
The common law principle of waiver requires that an applicant must raise an allegation of bias or a violation of natural justice before the tribunal at the earliest practical opportunity. If counsel were of the view that the application of Guideline 7 in a particular case would result in a denial of their client's right to a fair hearing, the earliest practical opportunity to raise an objection and to seek an exception from the standard order of questioning would have been in advance of each scheduled hearing, in accordance with Rules 43 and 44, or orally, at the hearing itself. A failure to object at the hearing must be taken as an implied waiver of any perceived unfairness resulting from the application of the Guideline itself.
[26] On this point, I adopt the reasoning and the conclusion of Justice Mosley. The Applicant's failure to raise the Guideline 7 issue at the hearing before the Board must be taken as an implied waiver of any perceived unfairness resulting from the application of Guideline 7.
[27] Further, I will also certify the same questions that were certified by Justice Mosley in Benitez.
Conclusion
[28] In conclusion, the decision of the Board should stand and that the application for judicial review be dismissed.
[29] Neither party proposed a question for certification on either of the first two issues. With respect to Guideline 7, questions were certified in Thamotharem and Benitez, which questions have direct relevance to the application before me and which will be certified for purposes of this judicial review. I adopt the questions certified by Justice Mosley in Benitez as questions to be certified in this application.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed with the following questions certified as serious questions of general importance:
1. Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms by unduly interfering with claimants' right to be heard and right to counsel?
2. Does the implementation of paragraphs 19 and 23 of the Chairperson's Guideline 7 violate principles of natural justice?
3. Has the implementation of Guideline 7 led to fettering of Refugee Protection Division Members' discretion?
4. Does a finding that Guideline 7 fetters a Refugee Protection Division Member's discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?
5. Does the role of Refugee Protection Division Members in questioning refugee claimants, as contemplated by Guideline 7, give rise to a reasonable apprehension of bias?
6. Is Guideline 7 unlawful because it is ultra vires the guideline-making authority of the Chairperson under paragraph 159 (1) (h) of the Immigration and Refugee Protection Act?
7. When must an applicant raise an objection to Guideline 7 in order to be able to raise
it upon judicial review?
"Judith A. Snider"
____________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4637-05
STYLE OF CAUSE: SALI MULLIQI v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 25, 2006
APPEARANCES:
| Mr. Randal Montgomery
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| Ms. Matina Karvellas
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SOLICITORS OF RECORD:
| Randal Montgomery, Toronto, ON
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| John H. Sims, Q.C. Deputy Attorney General of Canada
|