BETWEEN:
CRISTINA ALEJANDRA GONZALEZ VAZQUEZ
ENZO NOYA GONZALEZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AMENDED REASONS FOR ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, made on the 31st day of January, 2005 wherein the Applicants were not found to be Convention Refugees.
[2] The Applicants are a mother and her son, both are citizens of Uruguay where they resided until they entered Canada, via the United States, in August 2000. A claim for refugee protection as a Convention Refugee was made on the basis that the principal Applicant and her family members actively supported the Communist Party in Uruguay. The principal Applicant claims to have received a number of anonymous telephone calls threatening her life, as a result of which, she claims, she left Uruguay and seeks protection in Canada.
[3] The Applicants= claims were denied by the Board. The Board held that there was no objective basis for the expressed subjective fear and that the situation in Uruguay had changed sufficiently such that, if they returned to Uruguay, there was no reasonable or objective foreseeable possibility that they would face persecution or risk to their lives there.
[4] The plight of the Applicants has, in this case, taken a back seat to Counsel=s urgings with respect to procedural Guidelines established by the Chairman of the Board.
[5] At the outset of the oral hearing before the Board this exchange between the presiding member and Applicants= counsel is recorded in the transcript:
PRESIDING MEMBER: The documents which the Board will be relying on. R/A-1 will be the standard information package on Uruguay and that package is updated in December of 2003 and of course we have the Immigration notes when the claims were made, R/A-2. I suppose I can, Counsel, put you on notice that the Board takes the position that the member will be first questioning the claimant and counsel will have the opportunity to ask all of the questions that are relevant and so I=ll begin.
COUNSEL: Yes, before we proceed. Yes, sir, she has been advised about that and to that respect I=d like to inform you of some of the (inaudible). I have an objection to proceedings being conducted in that manner because in my opinion they are contrary to the rules of natural justice, contrary to the right to counsel and to different provisions of the Immigration Act and the regulations around it.
I will be sitting at the hearing, but I will not take part in it. I won=t be asking questions and I will not be making submissions. I=m confident that you will ask your necessary questions that would be appropriate and the fact we have enough information to make a decision I just want to make it clear for the record that I am proceeding on objection to the process being conducted the way it as after June.
INTERPRETER: Excuse me, can you repeat that again?
COUNSEL: The process as we know it after June of this year.
PRESIDING MEMBER: Okay , I - - obviously you don=t have anything in writing, but it=s on the record that you have raised an objection, an objection to the process.
COUNSEL: Okay.
PRESIDING MEMBER: I=d like to assure you that you=ll have every opportunity to ask all of the questions that you require and probably or for most of the hearing I will not be asking questions ad infinitum, I have a specific set of questions that I want clarified and I think this should give you an idea as to what I=m looking for and should not take away from your right to examine your claimant.
Now, the question of natural justice I don=t think is being violated because you=ll have all of the opportunity to deal with the issues as you see fit. Now, so are you saying that when your turn comes that Madam Malvino will be doing all of the questions?
[6] The transcript shows that, thereafter, Counsel took no further active role in the proceedings, neither tendering evidence, nor examining the only witness, who was the Applicant mother.
[7] The Board, in its Reasons, dealt with Counsel=s objections preliminarily, stating:
At the start of the hearing counsel made oral submissions objecting to the order of questioning, implemented by the Refugee Protection Division, pursuant to the Chairperson=s authority. Counsel submitted that the preferred process, outlined in the IRB=s Guideline 7, is contrary to the rules of natural justice, and that it was a violation of the claimant=s legal rights to be able to present the best case.
I considered Counsel=s oral submissions on the matter, and I assured Counsel that he would be given the opportunity to pursue any additional questions he may have, as he sees fit, and that questions put forward to the claimants ahead of Counsel=s questions will not constitute breach of fairness. I proposed to proceed with the hearing, and I agreed that no decision would be rendered before receiving Counsel=s written arguments in support of his objections to the process laid out in Guideline 7.
Counsel and his assistant remained at the hearing and participated in the preliminary matters such as the entering of exhibits, and the swearing in of the claimants.
They raised no further objections nor did they excuse themselves from the room. However, Counsel did not ask any questions of the claimant. Neither did Counsel submit any oral or written arguments on the merits of the claims, although it was my understanding that Counsel was prepared to submit final arguments on the merits of the claim, together with his written objections to the changed order of questioning. That suggestion had been put to counsel.
In his written submissions, Counsel argues, in part, that there is no legislative authority for the IRB to change the previous process of a refugee hearing, that the new guideline is contrary to the rules of natural justice; that the claimant has the onus of proof., and he/she is being placed in a defensive and prejudicial position, without the opportunity to Apresent his best case forward@.
Having considered Counsel=s argument, I conclude that no violation of the rules of natural justice was committed, and I adopt the reasoning in the IRM decision in TA-12810. In that decision, I find to be persuasive, the arguments that the Chairperson has the authority to make Guidelines, such as for the process of a refugee hearing. Moreover, in this particular case, no breach of procedural fairness arises nor is there a violation of Section 7 of the Charter.
In my opinion, Counsel had a reasonable opportunity to present evidence on behalf of the claimants. In refusing to make use of that opportunity, in my opinion, Counsel has not provided the best service to the claimants.
[8] The nub of the issue is in respect of the procedure adopted by the Board late in 2003 including Guideline 7 whereby Areversed order@ questioning has been adopted by the Board, leaving it to the Applicants or their counsel, to supplement the answers given or present further evidence once the Refugee Protection Officer is finished questioning.
[9] The procedures and the effect of the changes followed prior to the 2003 changes, was set out in the affidavit of Malvino filed in support of this judicial review, as follows:
4. As a result of my experience in attending at refugee hearings, I understand the process that used to be followed by the Refugee Protection Division that used to be followed in the in conducting refugee hearings. It has always been the case that the claimant bears the onus of proof in a refugee hearing. The practice that was normally followed, unless otherwise agreed to with counsel, was that counsel for the claimant would do an examination-in-chief, followed by questions from the Refugee Protection Officer (hereinafter referred to as ARPO@) and/or by the Panel Member of the Refugee Protection Divisions (hereinafter referred to as Athe Panel@).
5. I know by my attendance and assisting counsel in refugee hearings, that more recently, effective December 2003, the Refugee Protection Division changed the order of questioning of claimants as set out in a new guideline, Guideline 7. The process now being followed by the Board has altered the process of hearings, and now the RPO questions the claimant first, if one is participating in the hearing, followed by the Member, and finally the claimant=s counsel. I am aware from my attendance at hearings and from assisting counsel that this new process is being applied in each and every refugee hearing. I have reviewed and attach as Exhibit AA@to this my Affidavit, a copy of Guideline 7 issued by the Chairperson of the Immigration and Refugee Board.
[10] It was agreed between Counsel that the pre December 2003 procedure set out in paragraph 4 of this affidavit reflects the procedure in Toronto where a majority of such cases are dealt with, but other cities may have adopted different procedures. In any event there was no Rule nor any Guideline prior to December 2003 dealing with questioning at an oral hearing.
[11] The most relevant parts of Guideline 7 for the purposes of this review are those set out in paragraph 19 and 23:
1. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
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2. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules.
[12] These Guidelines are apparently established by the Chairperson of the Board under the provisions of sections 159(1)(h) and 162(2) of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27 as amended, which state in part:
| 159.(1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties;
162.(2) PROCEDURE - Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit |
159.(1) Le président est le premier dirigeant de la Commission ainsi que membre d'office des quatre sections; à ce titre :
(h) après consultation des vice-présidents et du directeur général de la Section de l'immigration et en vue d'aider les commissaires dans l'exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel; 162.(2) FONCTIONNEMENT - Chacune des sections fonctionne, dans la mesure oùles circonstances et les considérations d'équitéet de justice naturelle le permettent, sans formalisme et avec célérité.
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[13] These Guidelines do not have the force of Statute or Regulation. The Court agrees with the Respondent Minister who says in paragraph 14 of his memorandum that the Guidelines are not a formal rule, they provide for a standard order of questioning that does not prevent members from exercising their discretion to vary the order of questioning when they see fit depending on the facts of each case. The Introduction to the Guidelines and discussion as to The Roles of Members, RPOs an Counsel make that clear:
The Chairperson has issued these guideline to explain what the RPD does before and during the hearing to make its proceedings more efficient but still fair. The guidelines also set out what the RPD expects participants to do.
The guidelines apply to most cases heard by the RPD. However, in compelling or exceptional circumstances, the members will use their discretion not to apply some guidelines or to apply them less strictly.
Generally speaking, the RPD will make allowances for unrepresented claimants who are unfamiliar with the Division=s processes and rules. Claimants identified as particularly vulnerable will be treated with special sensitivity.
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A member=s role is different from the role of a judge. A judge=s primary role is to consider the evidence and arguments that the opposing parties choose to present; it is not to tell parties how to present their cases. Case law has clearly established that the RPD has control of its own procedures. It decides and gives directions as to how a hearing is to proceed, including who will start the questioning. The members have to be actively involved to make the RPD=s inquiry process work properly.
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The role of counsel is the same whether counsel is representing a claimant or the Minister. Counsel assists the client in presenting the case in an efficient manner within the limits set by the member. Their role is essentially to protect the client=s interests and right to a fair hearing.
[14] Counsel for the Applicant, in oral argument, raised two issues:
1. Are the Guidelines directed to questioning at an oral hearing, ultra vires, as such matter could only be dealt with by a Rule?
2. Are the Guidelines, in any event, in breach of natural fairness?
Consideration
[15] This matter was argued in open Court at which time the Court advised Counsel for the parties that the same issues were at that time under consideration by another Judge of this Court, Justice Blanchard, in another proceeding, Thamotharem v. Canada (MCI) IMM-7836-04. It was agreed that Counsel would be allowed to make further submissions once a decision in that case had been released and that this present proceeding, including any judgement, would be held in abeyance pending that decision and any further such submissions. Counsel for the Applicants filed written submissions on January 27, 2006, the Respondent filed submissions just moments before the close of business on January 27, 2006. Due to an error in the Registry office these submissions were not placed before the Court at the time that these Reasons were originally signed on January 31, 2006. These submissions however do not affect these Reasons or the Order given.
[16] The decision in Thamotharem, neutral citation 2006 FC 6, was released January 6, 2006 and provided to Counsel in these proceedings for further submissions herein. The Thamotharem decision is important since Blanchard J. had the benefit of extensive evidence as to how Areverse order@ questioning was practiced and Guideline 7 was implemented as a practical matter. Intervener submissions were also received in that case from The Canadian Council for Refugees.
[17] Blanchard J. in Thamotharem gave extensive reasons and concluded, inter alia, as to what is Issue 1 in this present case, at paragraph 92:
After considering the factors set out in Baker and the further factors submitted by the Intervener, I am not persuaded that the principles of natural justice or procedural fairness demand that the Applicant=s refugee determination hearing be conducted with a particular order of questioning Bthat is, with counsel for the Applicant questioning first Bin order to ensure the Applicant has a meaningful opportunity to present his case fully and fairly.
[18] As to what is Issue 2 in this present case, Blanchard J. concluded at paragraph 143:
In this case, since Guideline 7 fetters the discretion of the Board member, it consequently breaches the Applicant=s right to procedural fairness. Following the principle of law set out by the Supreme Court of Canada in Cardinal and in Universitédu Québec, I therefore find the Board=s decision to be unlawful. Given this determination, it is unnecessary to consider the issues raised by the Applicant in respect of the merits of the Board=s decision rejecting his claim.
[19] It is important to note what Blanchard J. said at paragraph 141 of his Reasons, citing the Supreme Court of Canada decisions, that once a breach of natural justice or fairness is established, the decision of the administrative agency is invalid:
The Supreme Court of Canada has held that once a breach of the principles of natural justice or procedural fairness is established, the decision of an administrative agency is invalid. In Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 at paragraph 23, Mr. Justice Le Dain wrote:
Ythe denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. (my emphasis)
This approach was also adopted by Chief Justice Lamer in Universitédu Québec à Trois-Rivières v. Laroque, [1993] 1 S.C.R. 471. At page 493 of the Supreme Court=s decision, the Chief Justice wrote:
Secondly, and more fundamentally, the rules of natural justice have enshrined certain guarantees regarding procedure, and it is the denial of those procedural guarantees which justifies the courts in intervening. The application of these rules should thus not depend on speculation as to what the decision on the merits would have been had the rights of the parties not been denied.
[20] Since Thamotharem was decided this Court has made a further determination respecting the same issues in Jin v. The Minister of Citizenship and Immigration, January 19, 2006, 2006 FC 57 wherein the determination of the Board was set aside and the mater sent back for reconsideration, applying the principles set down in Thamotharem.
[21] Applying the principles established in Thamotharem, as set out above, to the present proceeding, it is clear that the Applicants objected to Areverse order@ questioning at the hearing before the Board, and raised this matter as an issue before this Court. The Board followed Areverse order@ questioning in the proceeding under review here, despite objections from the Applicants counsel. As such, there has been a breach of natural justice or fairness and the decision of the Board must be set aside.
[22] This matter will be returned to the Board to be heard by a differently constituted tribunal. The Board shall not proceed by way of Areverse order@ questioning as established by Guideline 7. There is no order as to costs.
[23] Since Thamotharem will apparently be going to the Court of Appeal, I see no value in certifying a question in this case and therefore none will be certified.
ARoger T. Hughes@
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1193-05
STYLE OF CAUSE: CRISTINA ALEJANDRA GONZALEZ VAZQUEZ ENZO NOYA GONZALEZ
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 16, 2005
APPEARANCES:
Cynthia Mancia For the Applicants
John Provart For the Respondent
SOLICITORS OF RECORD:
Mancia and Mancia
Barristers and Solicitors
Toronto, Ontario For the Applicants
John H. Sims, Q.C.