BETWEEN:
SHAWN VALENTINE
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated March 23, 2006, wherein the Board determined that the applicants are not “Convention refugees” or “persons in need of protection” as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Ms. Laura Valentine (the applicant) is a citizen of Nigeria. She made a refugee claim for herself and on behalf of her eldest son, Shawn Valentine, who was born in Nigeria in 2002. The applicant’s youngest son was born in Canada shortly after the applicant’s arrival in Canada.
[3] The applicant claims that she was married in a traditional marriage ceremony in Nigeria on December 20, 1999. She was the seventh wife of her husband.
[4] The applicant claims that after her second pregnancy her husband became distant and indifferent. Some time after she noticed this, the first wife, who was from the same tribe as the applicant, told the claimant that her husband was part of a secret society and, as part of his commitment to the society, he had to turn over the second child born to any of his wives to the cult. According to the applicant, the first wife told her that when she delivered the second baby then it would be used in a ritual. The first wife advised the applicant to leave and gave her 20,000 Nigerian Naira to do so.
[5] The Board found that the applicant had not established with credible and trustworthy evidence that she is a Convention refugee or a person in need of protection.
[6] This case raises the following issues:
1. Did the Board fetter its discretion by beginning the questioning of the applicant rather than asking the applicant’s counsel to begin the questioning?
2. Did the Board fetter its discretion or violate the principles of natural justice by denying the applicant’s request to produce personal documents?
3. Was there a reasonable apprehension of bias on the part of the Board?
* * * * * * * * * *
Order of questioning
[7] In arguing that Board member’s discretion was fettered by following Guideline 7 which reversed the order of questioning, the applicant relied on Thamotharem v. Minister of Citizenship and Immigration, [2006] 3 F.C.R. 168. In Thamotharem, Mr. Justice Blanchard found that:
[135] In the instant case, I am satisfied that there is significant evidence that the IRB made known to its members that they are expected to comply with the guideline save in exceptional cases. The problem is not so much with the expression of this expectation by the IRB, but rather its combination with a number of factors: the monitoring and expectation of compliance, the evidence of compliance, and especially the mandatory language of Guideline 7.
[8] Shortly after Thamotharem was decided, Mosley J. decided Benitez v. Canada (M.C.I.), [2006] F.C.J. No. 631 (QL), 2006 FC 461, a case which arose from a consolidation of 20 applications which raised the issue of whether Guideline 7 fettered the Board members’ discretion. In Benitez, Mosley J. distinguished Thamotharem on the basis that there was more evidence before him as to the manner in which Guideline 7 is actually being applied by Refugee Protection Division (“RPD”) members than there was before Blanchard J.
[9] Mosley J. found that:
[163] I accept that the language of Guideline 7 could be construed as mandatory in nature by an inexperienced and less confident Board member and that Board members in general may, as found by Justice Blanchard, feel some top-down pressure to follow it. But that does not necessarily lead to the conclusion that members consider themselves bound to apply it as if it were legislation, a regulation or a formal rule made under the Chairperson’s authority.
[…]
[171] There is considerably more evidence before me as to the manner in which Guideline 7 is actually being applied by RPD members than there was before my colleague in Thamotharem. On that evidence in these proceedings, I am not satisfied that the applicants have demonstrated that the discretion of RPD members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7.
[172] That is not to say that fettering could not be made out in a particular case. As held in Leung v. Ontario (Criminal Injuries Compensation Board) (1995), 24 O.R. (3d) 530, 82 O.A.C. 43 (Ont. Div. Ct.), the application of a policy guideline may amount to an unlawful fettering of a Board's discretion, if applied without due consideration to the evidence and submissions in a particular case. Such a situation may arise where a member decides to apply the Guideline without exception and ignores the evidence or submissions of counsel that there is reason to vary the procedure.
(Emphasis added.)
[10] In the case at hand there is no evidence that the Board member applied Guideline 7 without consideration to the particularities of this applicant’s case or that the Board member was pressured to apply the Guideline.
[11] On the contrary, the evidence indicates that the Board member took the time to speak with the social worker who was present and ask her whether there was anything he should know about the applicant’s psychological state. The social worker replied no and then went on to note that the applicant often became emotional. The Board member also asked the social worker the following question: “She is, as far as you know, she is gonna be okay with my questions?” The social worker replied that “Yeah. All I noticed is that she was a very caring mother. She comes with the little baby also. She’s fine.”
[12] The transcript clearly shows that the Board member took the time to find out whether the applicant required any special accommodations. I am satisfied that the Board member in this case decided to follow Guideline 7 only after having considered the personal circumstances of the applicant. Therefore, in my view, the Board member’s discretion, in this case, was not fettered by Guideline 7.
Failure to allow the applicant to provide documents after the hearing
[13] The applicant submits that the Board member fettered his discretion by refusing to consider allowing the claimant time to produce corroborative evidence.
[14] The respondent submits that the transcript indicates that the Board member was open to getting whatever documents the applicant’s counsel could provide. According to the respondent, it was reasonable for the Board to have expected the applicant to have provided corroborative evidence before the hearing.
[15] The respondent submits that the member’s frustration at the lack of evidence has to be appreciated in light of the fact that the applicant did not know any details about the cult to which her husband belonged.
[16] I believe that the following excerpt from the transcript is relevant:
B.M.: Now going to respond to whatever I have said doesn’t help. What helps is that when you send in the documents that you send in like this, you included in these documents before we came into the hearing are letters that I can review that aren’t reacting. They are supporting. Because I can’t, as of today, I can never be sure that the letter was not just in response to the fact that you had a problem in a hearing. Okay. When it comes in before the hearing, we have a chance to review it. If we have questions about it, we can ask, and so on and so forth. . . .
[17] In my view, the Board did not categorically state that it would not accept affidavits but simply suggested very little weight could be given to affidavits submitted after the hearing because the Board would not have a chance to discuss the evidence with the applicant and because the affidavits would be “reacting” to the hearing.
Reasonable apprehension of bias
[18] The parties agree that the test for bias, from the Supreme Court of Canada case Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, is whether a reasonable person, who is reasonably informed of the facts, views the matter realistically and practically and has thought it through, would think it more likely than not that the tribunal was biased.
[19] More recently, the Supreme Court of Canada described impartiality in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at paragraph 58:
The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. Conversely, bias or prejudice has been defined as
a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.
(R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 106.)
[20] The applicant’s argument on the issue of bias is essentially that there was a reasonable apprehension of bias on the part of the Board member because (1) the Board member behaved inappropriately in expressing his frustration at the fact that the applicant did not have any corroborating documents by shouting and banging his fist; and (2) it was inappropriate for the Board member to talk about the possibility of the applicant being separated from her Canadian-born son. The aggressive behaviour could give rise to reasonable apprehension of bias as could the distasteful suggestion that the applicant may in the end be returned to Nigeria without her Canadian-born son.
[21] Moreover, the evidence from the social worker who observed the hearing could, in effect, meet the reasonable person test laid out in Committee for Justice and Liberty et al., supra. The affiant stated that “By the middle of the hearing it seemed clear to me that the Member was very frustrated and angry with Ms. Valentine. At this point it was already clear to me that the Member had made up his mind to refuse her case.”
[22] Despite the evidence given by the social worker, I do not believe that there was a reasonable apprehension of bias. At one point the Board said, as it appears from the transcript of the hearing, at page 164 of the Tribunal Record:
I know this is difficult, madame. I’m not trying to make your life difficult. I’m not trying to upset you. I’m telling you the challenge that I’m facing right now. That I see myself facing. Okay. And if you need our protection, I’m gonna happy (sic) to give it to you. I just need your help and that’s why I’m telling you that I need more information. So that’s why I’m doing this. It’s not to make your life difficult.
[23] Clearly the Board member expressed a misplaced frustration at times; however, when taken together with other statements such as the one above where he expressed his desire to get the evidence in order to make a positive decision (see for example the transcript of the hearing at pages 123 to 128, 160, 183 and 195 of the Tribunal Record), I believe a reasonable person would think that the Board member was frustrated but not that he did not have an open mind.
[24] Similarly, I can understand how the Board’s comments on the applicant being separated from her baby could have been upsetting to the applicant but I do not believe that they gave rise to a reasonable apprehension of bias.
[25] In my view, there was no reasonable apprehension of bias.
[26] Furthermore, I agree with the respondent’s submission that the applicant did not raise the issue of bias in a timely fashion and, therefore, has waived the right to challenge the decision of the Board on this ground (see Abdalrithah v. Minister of Employment and Immigration (1988), 40 F.T.R. 306; Ithibu v. Canada (M.C.I.), [2001] F.C.J. No. 499 (T.D.) (QL); Khakh v. Minister of Employment and Immigration, [1994] 1 F.C. 548).
[27] The applicant’s lawyer did not raise the issue of bias at the hearing and did not even object during the hearing to those comments by the Board which may have been objectionable. Therefore, given the particular circumstances of this case, I see no grounds on which to refrain from applying the doctrine of waiver.
[28] For all the above reasons, the applicants have failed to demonstrate that the Board committed any reviewable error and consequently, the application for judicial review is dismissed.
Ottawa, Ontario
December 19, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1980-06
STYLE OF CAUSE: LAURA VALENTINE, SHAWN VALENTINE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 9, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: December 19, 2006
APPEARANCES:
Me Mitchell Goldberg FOR THE APPLICANTS
Me Louise-Marie Courtemanche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mitchell Goldberg FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada