Date: 20000824
Docket: IMM-5870-99
BETWEEN:
MORIE B. LAHAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
1_ This is an application for judicial review under s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated November 9, 1999, wherein the Board determined that the Applicant was not a Convention refugee.
The Facts
2_ The Applicant's claim was first heard and rejected by a two-member Board. Thereafter, the Board agreed that it had breached the principles of natural justice by mistakenly issuing its decision without reviewing the Applicant's additional evidence. Accordingly, a new hearing was scheduled before a single member of the Board. It is the decision of the single Board member on the new hearing which is the subject of this application for judicial review.
3_ The Applicant, age 35, is a citizen of Sierra Leone. His wife, two sons and other family members still live in that country. The Applicant worked as a banker with the Sierra Leone Commercial Bank in Freetown. He described himself as a "middle management employee". During the period after a military junta deposed the civilian government that ruled Sierra Leone, only the Applicant's bank remained open.
4_ In February 1998, a civilian government replaced the junta. The Applicant stated that "all those who worked and received salary during the junta became targets of harassment and interrogation". The Applicant stated that he and other "managers" of the bank were interrogated about their conduct while the bank operated under the junta. Apparently, bank employees who had fled the country when the junta took power made allegations that those employees who remained were either collaborators or supporters of the junta. These allegations were targeted specifically at senior officers of the bank. The Applicant acknowledged that he was not a senior officer.
5_ The Applicant states that some senior bank officers were detained by the civilian government and charged with treason. The Applicant claims that he was directed to give false evidence against the accused. He was told that, if he refused, he would be charged with a crime which was punishable by death. The Applicant initially agreed to cooperate, but he later decided to "escape". To effect his departure from Sierra Leone, the Applicant first travelled to Guinea to obtain a visitor's visa from the Canadian embassy there.
6_ The Canadian government issued a visitor's visa to the Applicant on October 10, 1998. His application for a visa was supported by letters from his bank, the Sierra Leone embassy in Guinea, and a letter from a Mr. Mohamed Swaray, president of a company called Global Exchange in Halifax, Nova Scotia. Mr. Swaray's letter informed the Canadian embassy in Guinea that Global Exchange was inviting the Applicant to visit Halifax for three weeks to discuss business ties between the Applicant and the company, which had just established an affiliate in Sierra Leone. The Applicant was also to meet potential customers who were interested in working with the company and doing business in Sierra Leone. After obtaining his visa in Guinea, the Applicant returned to Sierra Leone.
7_ The Applicant entered Canada on November 11, 1998, and filed a claim for Convention refugee status on November 17, 1998. He appeared before a two-person panel of the Board on May 4, 1999. During the hearing (the "First Hearing"), the Board indicated that it would conduct independent research on certain issues, and it invited the Applicant to file material on those issues.
8_ After the First Hearing, the Applicant found documentary evidence of persecution of officials of the Sierra Leone Commercial Bank because of their alleged collaboration with the former military junta. This material was sent to the Board but it appears that it was not given to the Board members before they issued their decision of July 7, 1999 (the "First Decision").
9_ On July 27, 1999, the Applicant filed a motion with the Board to re-open his claim, pursuant to Rule 28 of the Convention Refugee Determination Rules, on the grounds that the Board's failure to consider his new evidence amounted to a denial of natural justice. The Board granted the Applicant's motion.
10_ On October 6, 1999, the Applicant consented to his new hearing (the "Second Hearing") being held before a one-member Board. Thereafter, on October 13, 1999, the Board member sent a letter to the Applicant's counsel (the "Letter") setting out the list of exhibits the Board would consider at the Second Hearing. The list included the documents which were before the Board at the First Hearing, the new evidence, and (significantly) the Board's decision following the First Hearing. The Board member indicated in the Letter that he had read the documentation and that there would be no need to repeat the information it contained. He said that the emphasis should be on "clarifications, elaborations, insights, etc."
11_ The Second Hearing took place on October 21, 1999. The Applicant testified at the hearing, as did a supporting witness, Mr. Swaray of Global Exchange. The Applicant testified in detail about all aspects of his refugee claim.
The Board's Decision
12_ In its decision of November 9, 1999 (the "Second Decision") the Board rejected the Applicant's claim for refugee status on the basis that the Applicant had failed to provide sufficient evidence to demonstrate that he was a Convention refugee. It noted that his testimony and the documentary evidence did not show even the "mere possibility" that he would face persecution in Sierra Leone.
13_ The Board noted that the fear of persecution alleged by the Applicant was based on his refusal to provide false evidence at the trial of senior bank employees and his escape from Sierra Leone in order to avoid testifying. However, the Board noted that there was no evidence that the trial was ever held and the senior bank officials have since been released from custody. There was also no evidence that the civilian government would have cause to consider the Applicant a traitor since it was unaware of his decision not to testify. Further, the government had not dismissed the Applicant from his employment at the bank, nor was there any evidence that the government considered the Applicant to have committed any crime.
14_ At the time of the hearing, the rebel military junta had again occupied Freetown. However, the Board also rejected the Applicant's submissions that he would be persecuted by the junta on the basis that there was no evidence that they would persecute the Applicant. Indeed, his experiences with the junta had been positive. During the military government, the Applicant had retained his post at the bank and had received a promotion.
The Issues
15_ The Applicant acknowledged that the Second Hearing was required to be a hearing de novo after the Board rescinded its First Decision. However, the Applicant said that, during the Second Hearing, the Board failed to observe the principles of natural justice because the Board member:
1)failed to actually treat the matter as a hearing de novo and did not permit counsel for the Applicant to lead his full case, preferring instead to rely on the First Decision;
2)read the First Decision and made the First Decision an exhibit in the Second Hearing, thereby vitiating the possibility of a true trial de novo.
Discussion
Issue One
16_ The Board member's conduct at the Second Hearing did not, contrary to the Applicant's submissions, curtail the presentation of his full refugee claim. The Applicant pointed to five places in the transcript of the Second Hearing where, according to his submission, the Board member restricted the evidence. I have reviewed each reference and have concluded that, in each situation, the Board member was simply organizing the proceeding. Each time when he asked that the new material be addressed first, he also indicated that all the evidence would be heard. As well, on one occasion, he decided that two documents should be dealt with in submissions rather than put before a witness. However, he never refused to receive material, and he did not restrict the scope of counsel's presentation. Indeed, on several occasions the Board member intervened with questions to ensure that he received all relevant information. It is clear from a review of the transcript that the Board member intended to and did in fact hear all the evidence and submissions in support of the Applicant's claim.
Issue Two
17_ The second question is whether, simply by reading the First Decision the Board member became incapable of conducting a hearing de novo in accordance with the principles of natural justice. Or, stated another way, was a reasonable apprehension of bias created by the fact that the Board member read the First Decision?
18_ It is my view that no informed person who reviewed the matter thoughtfully, realistically and practically would conclude that the Board member who conducted the Second Hearing could not proceed with an open mind only because he had read the First Decision[1]. As the Board member who conducted the Second Hearing was certainly aware, the First Decision was based on incomplete information. Accordingly, it is reasonable to conclude that he read the First Decision with that defect in mind.
19_ It is my view that, in the circumstances of this case, which include the fact that all the relevant evidence was heard during the Second Hearing and the fact that the Second Decision does not refer to the First Decision, the Board member's neutrality is not automatically suspect by reason only of his having read a colleague's prior decision.
20_ The next question is whether the situation changed because the First Decision was made an exhibit in the Second Hearing. In my view, this action only had the effect of making public the fact that the Board member had read the First Decision. This act of disclosure did not create a reasonable apprehension of bias.
Conclusion
21_ For all these reasons, the application for judicial review will be dismissed.
Certification
22_ The Applicant posed, and I have accepted, the following question for certification:
Is it a violation of the principles of natural justice for a Board member to read a previous adverse decision before hearing a refugee claim de novo?
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
August 24, 2000
[1]This paraphrases the test for reasonable apprehension of bias set out by de Grandpré J., writing in dissent in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, relied on by the Supreme Court of Canada most recently in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 46.