Judgments

[1994] 1 F.C. 340

A-1239-92

Dimitry Bovbel (Applicant)

v.

The Minister of Employment and Immigration and the Convention Refugee Determination Division of the Immigration and Refugee Board (Respondents)

Indexed as: Bovbel v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Rouleau J.—Ottawa, November 15 and 26, 1993.*

Citizenship and Immigration — Immigration practice “Procedure under Immigration and Refugee Board’s Reasons Review Policy to submit complete file to legal advisors to review draft reasons — Most, if not all, draft reasons submitted for review — Creating reasonable apprehension of lack of independence — As having access to entire file, counsel may review and assess evidence presented at hearing without any assurances review will not influence advice to author of reasons — Directive not to remove draft reasons with legal adviser’s comments as may trigger concern in other panel members blatant attempt to influence — Raising doubt as to integrity of process and breaching principle of natural justice.

This was an application to set aside the Convention Refugee Determination Division’s decision denying the applicant Convention refugee status. The applicant, a citizen of the former U.S.S.R., defected from a fishing vessel at Halifax in 1991. He claimed Convention refugee status based on his political opinion. The CRDD Member’s Handbook indicates that written reasons from Refugee Division members may be submitted in preliminary draft form to legal advisers in advance of the release of the reasons to the parties affected. The completed draft and case file, including transcripts or tapes of the actual hearing are sent to legal advisers for review. When the file is returned, the presiding member reviews the reasons, has final reasons typed, signs them and forwards the file to the other panel member for signature or to write concurring reasons. The applicant submitted that the procedures set out in the Immigration and Refugee Board’s Reasons Review Policy breached the fundamental principle of natural justice that “he who decides must hear”; that under the present procedures there are grounds upon which one could conclude that a Board member may be influenced by a legal advisor who has not heard the evidence. At the minimum, it was suggested that these procedures raised a reasonable apprehension that the decision was not made freely or independently. The respondents submitted that the procedures did not offend the principles of natural justice because the reasons review policy is not a mandatory process; legal advisors review draft reasons only upon request of the member; members have the option of accepting or rejecting any advice they may receive; the process is confined to a review of legal and policy matters; new evidence or issues are not to be considered without giving the affected party an opportunity to respond; and that while legal advisors may clarify the draft, they do not write independently of it, so that members maintain authorship of the reasons.

The issue was whether the Immigration and Refugee Board’s Reasons Review Policy breached the rules of natural justice.

Held, the application should be allowed.

Consultation is an important element in the decision-making process of any specialized tribunal, particularly the Immigration and Refugee Board which is faced with an enormous case load involving many complex issues. It is not only acceptable, but desirable in so far as it fosters consistency amongst decision-makers. But this consultation must not interfere with the freedom of the Board member to decide according to his/her conscience and opinions. Even if it does not interfere with the actual freedom to decide, the process must be designed so as not to create an appearance of bias or lack of independence.

In practice most, if not all, draft reasons are submitted for review. The current policy gives rise to the perception that draft reasons are to be reviewed as a general rule, thus giving rise to a reasonable apprehension of a lack of independence.

The practice of allowing legal advisors access to the entire file also breached the principles of fundamental justice. A decision as to whether a person is a Convention refugee, although it involves questions of law, is for the most part a factual determination. This Court has the sole jurisdiction to ascertain whether the Board’s findings of fact are supported by the evidence. Notwithstanding directives that legal advisors are to confine their review to legal and policy issues, by allowing counsel access to the entire file, counsel is in a position to review and assess the evidence presented at the hearing without any assurances that this review will not influence any advice that might subsequently be given to the author of the reasons. On the other hand, if counsel did not have access to the entire file, the facts as stated in the draft reasons would have to be accepted as presented. Any subsequent advice given with respect to the legal and policy issues raised by these facts would not be tainted by the legal advisor’s own perception of the facts which may differ from those of the actual decision-maker. In matters affecting the integrity of the decision-making process, an appearance of injustice is sufficient to raise concern.

The directive that the draft reasons with the legal advisor’s comments should not be removed from the file as those comments might trigger a concern in other panel members, prompting them to dissent or to write separate, concurring reasons, or even to convince the author of the reasons to make further changes was a blatant attempt to influence. Most members of the Refugee Division have no legal training. An informed person could reasonably presume that advice coming from a lawyer and given to a Board member with no legal background, would be given great weight and could influence the member’s final decision. This directive also raised a doubt as to the integrity of the process, giving rise to a reasonable apprehension of bias, and therefore breached the fundamental principles of natural justice.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).

CASES JUDICIALLY CONSIDERED

APPLIED:

IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; (1990), 68 D.L.R. (4th) 524; 42 Admin. L.R. 1; 90 CLLC 14,007; 38 O.A.C. 321; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 136 N.R. 5; 47 Q.A.C. 169.

CONSIDERED:

Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.).

AUTHORS CITED

United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, 1988.

APPLICATION to set aside a decision denying the applicant Convention refugee status on the ground that the procedures set out in the Immigration and Refugee Board’s Reasons Review Policy breached the principles of natural justice. Application allowed.

COUNSEL:

Ian E. Fine for applicant.

Anne Turley for respondent.

SOLICITORS:

Gold, Gulliver, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Rouleau J.: The applicant, a 27-year-old citizen of the former U.S.S.R., defected from a fishing vessel in Halifax on April 9, 1991. He claimed Convention refugee status on the basis of his political opinion. On February 11, 1992, the Convention Refugee Determination Division (the Board), determined that he was not a Convention refugee.

The Board found the applicant’s contention that he had been persecuted to be exaggerated; that despite some alleged discrimination beginning at age 14, he had not experienced the types of restrictions on his human rights as outlined in the UNHCR Handbook [Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees] that would amount to persecution. To the contrary, the record indicates that the applicant attended a privileged English school, became an engineer and obtained a coveted seaman’s visa.

The Board also concluded that his “political references” were not as serious as he had indicated to them. They found it implausible that, as Secretary of the Komsomol, he would denounce the Communist party as openly as claimed; further, they also felt that he would not have been issued a seaman’s visa if his political views, as stated by him, were known. In summary, they determined that his evidence was not credible.

Even if they had believed his story, they were of the view that there was no more than a “minimal risk in Russia or a minuscule risk in Belarus”, that he would be persecuted if returned. They noted that his political views are now commonplace in Belarus and Russia; that while he might have to compensate the owners of the fishing vessel for economic damages that they may have experienced as result of his defection, this would not amount to persecution. Furthermore, there was documentary evidence indicating that penalties for illegal exit had not been imposed since 1988, save for one instance reported by Amnesty International and this involved a one-year sentence. Finally, there was no credible evidence to support a finding that he would be prosecuted for treason because he allegedly was an accomplice in Mr. Popov’s escape. For all these reasons, it was determined that he was not a Convention refugee.

Two issues arise out of this application; namely did the Board err in fact or law in determining that the applicant was not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)]; and, secondly, did the Board breach a principle of natural justice by applying the Immigration and Refugee Board’s (the IRB) Reasons Review Policy?

The first issue deals with the actual merits of the applicant’s claim, and as I explained to the parties when they appeared before me, I was satisfied, having reviewed the record, that if this were the only issue before me, this application would fail. With respect to the second issue, both parties conceded that irrespective of the fact that the policy may not have been applied to the applicant’s file, the substantive issue before me is whether or not the IRB’s Reasons Review Policy breaches the rules of natural justice. The applicant’s arguments in this regard have merit and form the basis for my decision to allow this appeal.

The applicant submitted that the procedures set out in the IRB’s Reasons Review Policy breach a fundamental principle of the rules of natural justice, namely the principle that “he who decides must hear”; that upon a careful review of the procedures presently in place, there are grounds upon which one could conclude that a Board member may be influenced by a legal advisor who has not heard the evidence. At the very minimum, it was suggested that these procedures raise a reasonable apprehension that the decision was not made freely or independently.

Both parties agreed that the proper test to be used is whether the practice of submitting draft reasons to legal advisors for review, “would not be perceived by an informed person viewing the matter realistically and practically—and having thought the matter through—as having breached his right to a decision reached by an independent tribunal thereby infringing this principle of natural justice”: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at page 335.

Consultation is an important element in the decision-making process of any specialized tribunal particularly the Immigration and Refugee Board which is faced with an enormous case load involving many complex issues. Consultation in this context is, in my view, not only acceptable but even desirable in so far as it fosters consistency amongst decision-makers. The outcome of a Convention refugee claim should not, after all, depend on the identity of the persons hearing the claim. This consultation must not, however, interfere with the freedom of the Board member to decide according to his/her conscience and opinions. Even if it does not interfere with the actual freedom to decide, the process must be designed so as not to create an appearance of bias or lack of independence.

The underlying objectives and rationale behind the Reasons Review Policy can be summarized as follows:

1. To provide assistance to members by giving direction on legal issues which arise from draft reasons;

2. To advise members of legal issues which have not been addressed in the reasons;

3. To advise members where the reasons depart from Federal Court or other relevant jurisprudence;

4. To bring internal inconsistencies in the reasons to the attention of the members; and

5. To keep the Board advised of the developing trends in the jurisprudence of the Refugee Division and Appeal Division and of any inconsistencies in the jurisprudence.

My concerns are not with the policy itself, rather the procedures in place to implement its objectives. Counsel on behalf of the respondents submitted that the procedures presently in place do not offend the principles of natural justice because:

— the reasons review policy is not a mandatory process; legal advisors only review the draft reasons upon request of the member;

— members have the option of accepting or rejecting the advice they may receive;

— the process is confined to a review of legal and policy matters;

— new evidence or issues are not to be considered without giving the affected party an opportunity to respond; and

— legal advisors may clarify the draft, they do not write independently of it, therefore the members maintain authorship of the reasons.

Dealing with the first submission, namely that the review is optional, counsel for the respondents referred me to the CRDD Member’s Handbook, at page 24:

Written reasons from Refugee Division members may be submitted in preliminary draft form to legal advisers in advance of the release of the reasons to the parties affected. A legal adviser peruses the draft reasons with certain objectives in mind. These are namely:

(a) to ensure that the reasons address the issues which need to be dealt with, and

(b) to ensure that decisions which depart from precedent are made knowingly and after full consideration of the jurisprudence. [Emphasis added.]

In reply, counsel for the applicant referred me to page 26 of the same handbook which reads:

ADMINISTRATIVE ROUTING OF WRITTEN REASONS

When a member has completed a draft set of reasons, the following steps are followed at the present time:

1. The completed draft and the case file are sent to the regional legal advisers. Some files may be sent on to be reviewed by legal advisors in Ottawa. [Emphasis added.]

The IRB Case Processing Manual, a manual that serves as an operational guide to all employees of the IRB who are involved in the processing of cases that come before the Board, gives the following directions in chapter 6, at page 9:

Decision and reasons prepared—Reserved decisions finalized, and Bench decisions with reasons to follow:

1. The presiding member records the disposition on the CRDD Hearing Disposition Record and ensures that it is dated and signed by himself/herself and the other panel member and records any finding of “no credible basis” to be reflected in the decision.

2. The presiding member has reasons drafted and provides to his/her secretary for typing.

3. The member’s secretary types the draft reasons, returns them to the member for verification and forwards them with the file to Legal Services for review.

4. Legal Services returns the reasons with the file to the member’s secretary.

5. The presiding member reviews the reasons returned from Legal, has final reasons typed (the members proofread the final reasons), signs them and forwards the files to the other panel member for signature or to write concurring reasons. [Emphasis added.]

I was also referred to a December 8, 1989, memorandum from the Director of Legal Services, IRB, directed to all senior legal advisors, which indicates that the resources of legal services were being strained by the sheer volume of draft reasons being received and temporary measures were introduced to streamline the Reasons Review Policy to prevent a backlog from developing.

It would appear to me that while the policy is optional in theory, in practice most, if not all, draft reasons are submitted for review. This practice raises concerns not over the potential influence the practice may have over the Board members, but, rather, whether or not it places constraints over the member’s ability to decide freely and according to his/her own conscience.

In Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952, at issue was the consultation process implemented by la Commission des affaires sociales. This particular procedure said that a quorum may suggest that a particular matter should be discussed at a general meeting. The president could also refer a question for discussion without the approval of the quorum responsible for deciding the matter. Gonthier J., writing the reasons for the Court, had this to say, at page 974:

In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers. In such circumstances, they may not feel free to refuse to submit a question to the “consensus table” when the president suggests this. Further, the statute clearly provides that it is the decision makers who must decide a matter. Accordingly, it is those decision makers who must retain the right to initiate consultation; imposing it on them amounts to an act of compulsion towards them and a denial of the choice expressly made by the legislature.

The Commission apparently wishes by this machinery to make the expertise of the Commission as a whole available to its members and to inform them of existing precedents. This is a praiseworthy motive. If the quorum has the advantage of the experience and opinions of its colleagues it may be in a position to render a more thoughtful decision. However, it is the quorum, and only the quorum, which has the responsibility of rendering the decision. If it does not want to consult, it must be truly free not to do so. This constraint, which is subjective for the decision makers, may also cause litigants to have an impression of objective bias. Compulsory consultation creates at the very least an appearance of lack of independence, if not actual constraint.

In the present case, there is no outside authority who can order that reasons be submitted for review. However, the policy, as currently worded, does give rise to the perception that draft reasons are to be reviewed as a general rule, and in my mind this does give rise to a reasonable apprehension of a lack of independence.

I do not feel that this finding alone is sufficient to warrant a holding that it constitutes a breach of the rules of natural justice. However, having determined that most, if not all, reasons are subject to review, I now wish to address my concerns with respect to other aspects of the review process.

As can be seen from the excerpts reproduced from the various handbooks and manuals that I have referred to earlier in my reasons, legal advisors receive not only a copy of the draft reasons, they also receive the whole file, including transcripts or tapes of the actual hearing. It follows that legal advisors have the authority to review these transcripts. When temporary measures were introduced in December 1989 to streamline the review process, legal advisors were told:

Do not spend a great deal of time verifying facts and names; it is important to look for inconsistencies that signal a problem with the facts before embarking on a time consuming review of the transcript.

In Consolidated-Bathurst, supra, at page 337, the Supreme Court of Canada made a distinction between discussions on factual matters and discussions on legal or policy issues. The Court stated that, given a summary of the facts, certain legal or policy issues may arise that involve the consideration of statutes, past decisions and perceived social needs. While a legal or policy decision may have some impact on the outcome of a complaint, they are in effect decisions which are independent from the immediate interest of the parties; it is the factual decisions that actually determine the outcome of the case. The Court felt the discussions on legal and policy matters could be justified. At pages 335-336 of their reasons, the Court made these remarks in respect of discussions on factual issues:

The determination and assessment of facts are delicate tasks which turn on the credibility of the witness and an overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result. Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision. However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence. [Emphasis added.]

A decision as to whether or not a person is a Convention refugee, although it involves questions of law, is for the most part a factual determination. This Court has the sole jurisdiction to ascertain whether the Board’s findings of fact are supported by the evidence.

Notwithstanding directives that legal advisors are to confine their review to legal and policy issues, by allowing counsel access to the entire file, counsel is in a position to review and assess the evidence presented at the hearing without any assurances that this review will not influence any advice that might subsequently be given to the author of the reasons. I can envisage circumstances where this might occur. On the other hand, if counsel did not have access to the entire file, the facts as stated in the draft reasons would have to be accepted as presented. Any subsequent advice given with respect to the legal and policy issues raised by these facts would not be tainted by the legal advisor’s own perception of the facts which may differ from those of the actual decision-maker.

In matters affecting the integrity of the decision-making process, an appearance of injustice is sufficient to raise concern. Accordingly I am of the view that the practice of allowing legal advisors access to the entire file, breaches the principles of fundamental justice.

I have one other concern with regards to this policy and that is the directive that appears at page 26 of the CRDD Member’s Handbook:

When the review process has been completed and the author is satisfied with the reasons, the reasons and the file in the case will be sent to any other panel members. The author of the reasons should not remove the draft reasons with the legal adviser’s comments from the file. It may be that those comments trigger a concern in other panel members prompting them to dissent or to write separate, concurring reasons, or even to convince the author of the reasons to make further changes. [Emphasis added.]

This offensive provision appears to be a blatant attempt to influence.

I am mindful of the fact that most members of the Refugee Division have no legal training. As Mahoney J.A., observed in Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.), at page 337:

The Refugee Division consists of such number of full and part-time members as the Governor in Council may decide. They are appointed for terms of up to seven years. A minimum of one-tenth are required to be barristers or advocates of at least five years’ standing. It would be pure coincidence if either member of a panel hearing a particular claim were legally qualified.

An informed person could reasonably presume that advice, coming from a lawyer and given to a Board member with no legal background, would be given great weight and could influence the member’s final decision. I find that this directive also raises a doubt as to the integrity of the process and therefore breaches the fundamental principles of natural justice.

In concluding, the Court of Appeal had occasion to comment on the Reasons Review Policy in Weerasinge, supra. The appeal in that case was allowed on other grounds so the Court did not have to direct its attention to the issue of the legality of the decision in light of the policy. The following comments of Mahoney J.A., appear, at pages 337-338 of his reasons:

While the reasons review process, both in the more limited format described in the memorandum and the full format suggested, could be abused and result in the reviewing lawyers influencing the decisions to which the reasons relate, there is, in my opinion, simply no foundation for a conclusion that it has been, in fact, abused, either in the case before us or generally. Any consultation by a decision maker before publishing a decision, including consultation by a judge with a law clerk, could be abused. As to whether there is an appearance offensive to our notions of natural justice, it seems to me that the question to be asked is, as in dealing with an assertion of a reasonable apprehension of bias, namely, whether an informed person, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal’s decision that a claimant was, or was not, a Convention refugee had been influenced by the review of its reasons by its staff lawyers. In my opinion, that person would not think it likely.

Although he agreed with the disposition of the case, Henry D.J., had reservations concerning Mahoney J.A.’s analysis of the Reasons Review Policy. He writes, at page 339 of his reasons:

In the case at bar the circumstances disclosed leave an unanswered question as to the role (if any) in the decision of the tribunal, of institutional legal advisors described by Mahoney J.A. in the memorandum he cites. A facility for review of the tribunal’s decision is here disclosed which can give rise to reversible error for breach of the rules of natural justice. In my opinion this Court has the obligation to supervise this process and to inquire into the circumstances raised by counsel for the appellant including the admission of collateral evidence relevant to this issue.

The opportunity to supervise this process presented itself before me and I am of the view that an informed person viewing the matter realistically and practically, and having thought the matter through, would view the practice of allowing legal advisors reviewing draft decisions, access to the entire file, as breaching the principles of fundamental justice. For the same reasons, I find the directive that copies of draft reasons together with comments from the legal advisor should be provided to other panel members, also challenges the integrity of the process and gives rise to a reasonable apprehension of bias.

This application is allowed. I make no order as to costs.

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