[1994] 1 F.C. 524
T-315-93
Dasonda Khakh (Applicant)
v.
The Minister of Employment and Immigration (Respondent)
Indexed as: Khakh v. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, Nadon J.—Toronto, September 16; Ottawa, November 4, 1993.
Citizenship and Immigration — Status in Canada — Convention refugees — Application for judicial review of decision by Immigration and Refugee Board applicant not having credible basis for Convention refugee claim — Applicant’s counsel twice requiring use of interpreter as applicant not sufficiently fluent in English — Adjudicator denying request on both occasions — Request finally granted after Adjudicator stating for record applicant’s ability in English having deteriorated since first appearance — Adjudicator’s comments raising reasonable apprehension of bias — Authors, case law on waiver reviewed — Reasonable apprehension of bias to be raised at first opportunity — Applicant not waiving right to object as unaware of right, not represented by lawyer.
This was an application for judicial review of a decision by the Immigration and Refugee Board that the applicant did not have a credible basis for his Convention refugee claim. The applicant, an Indian Sikh claiming refugee status based on a fear of persecution, was called to a credible basis inquiry which began November 20, 1991. During that session, the applicant’s counsel (who was not a lawyer) required an interpreter but the Adjudicator decided that the applicant spoke and understood English sufficiently well and that an interpreter was not required. When the hearing resumed on February 25, 1992, the applicant’s counsel reiterated his request for an interpreter, which was once again rejected. Shortly after the beginning of the questioning, the Adjudicator stated for the record that the applicant’s facility in English had deteriorated since his last appearance, adding that he had no alternative but to request an interpreter. The main issue was whether the Adjudicator’s comments that the applicant’s English seemed to have deteriorated created a reasonable apprehension of bias.
Held, the application should be allowed.
The test for bias is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude”. The mere suspicion of bias is insufficient to ground a claim for judicial review based on bias. The only reason why the Adjudicator stated for the record that the applicant’s English had deteriorated since the November 20, 1991 hearing was his conviction that he was not “doing his best” in English. After having been twice denied the services of an interpreter, the applicant was told by the Adjudicator that his English had suddenly deteriorated. An informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that there was a reasonable apprehension of bias which should be raised at the first opportunity. Although the applicant had not raised the matter during the hearings before the Panel, he did not thereby waive his right to now raise the issue, as neither he nor his counsel was aware of his right to object on the ground of reasonable apprehension of bias when the Adjudicator made his comments.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, s. 45.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115.
CONSIDERED:
de Freitas v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 60 (F.C.A.); In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103; (1985), 24 D.L.R. (4th) 675; 17 Admin. L.R. 1; 7 C.H.R.R. D/3232; 86 CLLC 17,012; 64 N.R. 126; Regina v. Nailsworth Licensing Justices. Ex parte Bird (1953), 1 W.L.R. 1046 (Q.B. Div.); West Region Tribal Council v. Booth et al. (1992), 55 F.T.R. 28 (F.C.T.D.).
AUTHORS CITED
Baxter, Lawrence. Administrative Law, Cape Town: Juta & Co. Ltd., 1984.
Craig, Paul P. Administrative Law, 2nd ed., London: Sweet & Maxwell, 1989.
Dussault, René and Louis Borgeat. Administrative Law: A treatise, vol. 4, 2nd ed., Toronto: Carswell, 1990.
Halsbury’s Laws of England, vol. 1, 4th ed. London: Butterworths, 1973.
Mullan, David J. “Administrative Law” 1 C.E.D. (Ont. 3rd), title 3, 1979.
Supperstone, Michael and James Goudie. Judicial Review, London: Butterworths, 1992.
APPLICATION for judicial review of a decision by the Immigration and Refugee Board that the applicant did not have a credible basis for his Convention refugee claim. Application allowed.
COUNSEL:
Harminder S. (Harry) Mann for applicant.
Leena A. Jaakkimainen for respondent.
SOLICITORS:
Harminder S. (Harry) Mann, Mississauga, Ontario, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Nadon J.: The applicant seeks judicial review of a decision rendered on June 4, 1992 by a credible basis Panel of the Immigration and Refugee Board (the Panel). The Panel decided that the applicant did not have a credible basis for his claim to be a Convention refugee.
The grounds for this application are that the Panel:
1) denied the applicant a “full and proper hearing” by:
i) not translating the applicant’s examination under oath before it was used to bring out inconsistencies in the applicant’s evidence;
ii) not allowing the applicant to use the services of an interpreter on two separate occasions (November 20, 1991 and February 25, 1992), thereby causing prejudice to the applicant (the first ground);
2) made inferences indicative of bias in its deliberation and, therefore, its finding that the applicant did not have a credible basis to his claim was arrived at in a perverse and capricious manner (the second ground).
The applicant is an Indian Sikh who arrived in Canada on July 12, 1987 and immediately claimed refugee status based on a well-grounded fear of persecution on the grounds of religion, political opinion and membership in a particular social group.
On November 18, 1987, the applicant was examined under oath pursuant to section 45 of the Immigration Act [R.S.C., 1985, c. I-2]. At that hearing, the applicant testified in Punjabi, through a translator.
On November 20, 1991, the applicant’s credible basis inquiry began. During that session the applicant was asked whether English was his first language and whether he wished to proceed in English. At lines 10 to 16 of page 3 (at page 52 of the applicant’s record) of the transcript, the following exchange between the applicant and the Adjudicator takes place:
adjudicator: Is English your first language, Mr. Khakh?
person concerned: Yes (incomprehensible) Punjabi.
adjudicator: But, you wish to proceed in English at this hearing?
person concerned: Yeah.
Then, at lines 24 to 63, the following exchange between the Adjudicator and the applicant’s counsel (who was not a lawyer) takes place:
counsel: … he has indicated … maybe he didn’t understand your question, but he has indicated that at the time of hearing he does need an interpreter.
adjudicator: You didn’t indicate it, counsel.
counsel: Well, he has indicated it to me …
adjudicator: Why didn’t …
counsel: … that’s why I’m …
adjudicator: … you indicate that to me?
counsel: … that’s what, what I’m doing right now.
adjudicator: After I asked Mr. Khakh.
counsel: Because I, I … I think he does … didn’t understand the …
adjudicator: No, no, that’s not the point.
counsel: … question.
adjudicator: The point is why didn’t you advise me of that?
counsel: Well, for today’s hearing we … Mr. Wilson asked and we discussed it’s fine for just adjournment, but, but for the hearing purpose he will need an interpreter.
adjudicator: Well, what would we have done when we came to February the 25th if there was no interpreter present?
counsel: Well, I have indicated to Mr. Wilson and that’s what I’m telling you right now.
adjudicator: Well, I’m going to … I’m going to deal with this issue right now to determine whether an interpreter will be required.
It is clear from the above questions and answers, that counsel for the applicant advised the Adjudicator that the applicant would require an interpreter at the hearing of February 25, 1992. Instead of granting the applicant’s counsel’s request, the Adjudicator asked the applicant a series of questions, in order to determine whether the applicant required an interpreter. After conversing with the applicant, as well as hearing the applicant’s counsel’s submission, the Adjudicator decided that the applicant spoke and understood English sufficiently well and that consequently, an interpreter was not required.
The credible basis hearing was adjourned to February 25, 1992. At the resumption of the hearing, the applicant’s counsel again requested that an interpreter be provided. The Adjudicator refused to grant the request. At lines 30 through 46, at page 9 of the transcript (at page 58 of the applicant’s record), the following exchange between the applicant’s counsel and the Adjudicator takes place:
counsel: Mr. Adjudicator, before I proceed with the questions I have a submission that Mr. Khakh is not proficient enough in English whereby he’ll be able to explain everything.
I would request if an interpreter is provided because otherwise we’ll have a problem in, you know, his giving the testimony (incomprehensible).
adjudicator: This issue was dealt with at the opening of the hearing on November 20th, Mr. Mangat. I did determine at that sitting not to use an interpreter as I did not think that Mr. Khakh required one at this hearing.
I propose that we proceed without the use of an interpreter. If we do run into difficulties, then certainly I shall entertain any motion you may make to use …
counsel: Thank you.
The applicant’s counsel then began questioning the applicant and after nine preliminary questions, the Adjudicator noticed that the applicant was having difficulty responding properly in the English language. The Adjudicator concluded that the applicant’s English had deteriorated since November 20, 1991. The following extract from the February 25, 1992 transcript, at page 10 (applicant’s record, at page 59), is relevant:
Q: What is your political opinion? Could you explain to the panel.
A: Political is, is problem in (incomprehensible) and there (incomprehensible) you know, it’s … and the problem in my countries, many peoples against that government is in my … no, no … no … it’s a little problem in English now (incomprehensible) please.
adjudicator: Yes, I think you’ve said something significant, Mr. Khakh. There’s little problem in English now. It does seem that your English is … has deteriorated since the last sitting of this hearing.
person concerned: Yes.
adjudicator: … on November the 20th. At that time based on the questions and responses that you gave to me in English I was of the opinion that you could communicate and understand in English.
However, it seems that this morning your, your facility in English seems to have deteriorated. As such, I really have no alternative, but to request that an interpreter be here, although I do state for the record that there does seem to be a deterioration since November the 20th.
We’ll recess.
At the resumption of the hearing on June 2, 1992, the applicant testified through an interpreter and five documents were filed as exhibits. The applicant’s counsel advised the Adjudicator that he wanted all of the documents translated before any questions were posed, except for the transcript of the examination under oath conducted on November 18, 1987, as a copy thereof had already been provided to the applicant. The Adjudicator then decided to dispense with the translation of the examination under oath.
The applicant was cross-examined with regard to his testimony given under oath at the November 18, 1987 hearing. All specific references from the November 1987 examination were translated to the applicant. Furthermore, the applicant’s counsel did not object to the fact that the cross-examination made reference to the examination under oath.
On June 4, 1992, the Panel decided that there was no credible basis for the applicant’s claim for refugee status because material aspects of the applicant’s testimony were not credible. The Panel cited contradictions between the applicant’s testimony and documentary evidence before the Panel as well as the applicant’s evasive manner in answering questions. In its reasons for decision, the Panel did not specifically rely on any inconsistencies between the applicant’s testimony and his evidence given during his prior examination under oath.
DECISION
In my view, there is no substance to the applicant’s first ground. The applicant’s examination under oath was not translated because the applicant’s counsel indicated to the Adjudicator that there was no necessity of translating it. Following these representations, the Adjudicator decided not to order the translation thereof.
With respect to the fact that the Adjudicator twice denied the use of an interpreter to the applicant, the point is moot as the applicant was provided with an interpreter for the full hearing, except for the 9 preliminary questions at the February 25, 1992 hearing.
I now turn to the second ground.
The applicant submits that the comments made by the Adjudicator at page 10 of the February 25, 1992 transcript give rise to a reasonable apprehension of bias. The respondent answers the applicant’s submission by arguing that the applicant has not met the test for bias set out in the case of Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, that an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide the issue unfairly. The respondent further argues that in failing to raise an objection to the jurisdiction of the credible basis Panel on the ground of apprehension of bias, the applicant waived his right to subsequently raise the issue.
The relevant test for bias was formulated by Mr. Justice de Grandpré in the Committee for Justice and Liberty case where, at page 394 he writes:
… the 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 …. that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude ….”
Thus the mere suspicion of bias on the part of a party is insufficient to ground a claim for judicial review based on bias.
Dussault and Borgeat, in Administrative Law: A treatise, 2nd ed., Vol. 4 (Toronto: Carswell, 1990) at page 300, make the point that appearance dominates the test. In de Freitas v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 60, the Federal Court of Appeal held that there was reasonable apprehension of bias where, at the outset of a refugee redetermination hearing, a Panel member made the following statement to the applicant [at page 61]:
Personally I read your file twice. And in 20 years that I am on the Bench I find this case to be so frivolous that I wonder sometimes how much people do abuse this system. I would just like to comment on this particular point and with reason.
Contrary to the comments made by the Adjudicator in the present case, those made by the Panel member in de Freitas were unequivocally hostile. In other words, in de Freitas, apprehension of bias was very obvious.
The question to be answered in the present case is whether the Adjudicator’s comments that the applicant’s English seemed to have deteriorated create a reasonable apprehension of bias—i.e. an appearance of bias—from the perspective of an informed person.
The Adjudicator’s comments regarding the deterioration of the applicant’s English must be examined in conjunction with the applicant’s requests for an interpreter. The respondent has taken the position that the applicant failed to exercise his right to request the services of an interpreter after having been given the opportunity to do so. Thus, the respondent submits, the applicant cannot later assert that his right to an interpreter has been infringed. In my view, the transcript is quite clear. The applicant’s counsel requested an interpreter during the November 20, 1991 hearing, but the Adjudicator decided that the applicant’s English was sufficient and he therefore denied the applicant’s counsel’s request. At the beginning of the February 25, 1992 hearing, the applicant’s counsel again requested that the applicant be provided with an interpreter. The Adjudicator reminded the applicant’s counsel that he had already decided this issue on November 20, 1991.
Consequently, it is quite surprising that the respondent would argue both in writing and orally, that the applicant failed to request the services of an interpreter. The respondent’s arguments on this issue appear to be made on the premise that the interventions made by the applicant’s counsel should not be taken into consideration.
The first question asked by the Adjudicator to the applicant was whether the applicant’s first language was English. The applicant answered: “Yes (incomprehensible) Punjabi.” The Adjudicator then asked the applicant whether he wished to proceed in English and the applicant answered: “Yeah.” The applicant’s counsel interjected and requested that an interpreter be provided. Had the Adjudicator granted the applicant’s counsel’s request for an interpreter, this issue would not have arisen.
When the hearing resumed on February 25, 1992, the applicant’s counsel reiterated his request for an interpreter. Again, the Adjudicator refused stating that, in his opinion, the applicant did not require an interpreter. Shortly after the beginning of the questioning, the Adjudicator stated for the record that he had noticed that the applicant’s English “has deteriorated since the last sitting of this hearing.” The Adjudicator then stated that he had no alternative but to request an interpreter. The Adjudicator’s closing words on this issue were as follows:
… although I do state for the record that there does seem to be a deterioration since November the 20th.
Why did the Adjudicator feel that he had to state for the record that the applicant’s English had deteriorated since the November 20, 1991 hearing? In my view there can only be one reason and that is that the Adjudicator was convinced that the applicant was not “doing his best” in English. Perhaps the Adjudicator was right, perhaps he was not, but that is beside the point. This situation arose because the Adjudicator had decided, notwithstanding the requests to the contrary made by the applicant’s counsel, that the applicant’s understanding of English was sufficient so as to dispense with the services of an interpreter.
Thus, after having been twice denied the services of an interpreter, the applicant was told by the Adjudicator that his English had suddenly deteriorated.
In these circumstances, what would an informed person, viewing the matter realistically and practically, and having thought the matter through conclude? In my view, such a person would conclude that there is a reasonable apprehension of bias.
The respondent submits that, in any event, the applicant, by not raising the matter during the hearings before the Panel, has waived his right to now raise the issue.
Dussault and Borgeat, in Administrative Law: A treatise, Vol. 4, 2nd ed., (Toronto: Carswell, 1990) at pages 296 and 297 write as follows:
At common law, it is also a fundamental rule of natural justice that an agency or inferior tribunal manifest neither bias nor interest: nemo judex in sua causa. Contrary to actual bias, which as we have seen affects the tribunal’s capacity to act and therefore may impair its jurisdiction, mere apprehension of bias will remove capacity to act only if it is invoked within the time frame available.
P. P. Craig in Administrative Law, 2nd ed., (London: Sweet & Maxwell, 1989), writes as follows at pages 238 and 239:
It is permissible for an individual to waive the interests of an adjudicator, and the courts were quick to infer such a waiver. Later courts have been more reluctant to so infer, particularly where the applicant did not know of his right to object at that stage. This restriction on waiver is to be welcomed; such a surrender of rights should not be inferred lightly. It is in fact open to question whether it should be allowed at all, at least in certain types of cases. The premise behind the ability to waive is that it is only the individual who is concerned, and thus if he “chooses” to ignore the interest then so much the worse for him. However there may well be a wider interest at issue, in that it may be contrary to the public interest for decisions to be made where there may be a likelihood of favour to another influencing the determination.
Lawrence Baxter in Administrative Law, (Juta & Co. Ltd.), writes as follows at pages 591 and 592:
Natural justice requires that the affected individual be afforded the opportunity of a fair and unbiased hearing. Should he not wish to take advantage of this right, then he is at liberty to waive it. Indeed, it seems that the administration depends for its smooth functioning upon the large-scale waiver of this right in practice.
Where the individual does not exploit his opportunity of a hearing, he cannot afterwards have the decision set aside for want of a hearing. And where he suspects the decision-maker of bias but does not request a recusal, or possibly even if a request for recusal is refused and the complainant continues with the hearing, he cannot later attack the decision of bias. All this presupposes, of course, that the opportunity to be heard was a fair one and that the individual had a choice in the matter. For a layman, taking objection to the fairness of the conduct of an officious and overbearing official or tribunal may not be easy. It is submitted, therefore, that waiver ought to be judged according to the standard of reasonable conduct under the circumstances.
David J. Mullan in Administrative Law, being Title 3, Volume 1 of the Canadian Encyclopedic Digest, 3rd ed., (Ontario: Carswell, 1979), writes at page 57:
§58 A possible defence to an allegation of bias is waiver. If a party to proceedings, with full knowledge of all the facts, consents nevertheless to the continued presence of an adjudicator in whom there is a reasonable apprehension of bias, that person is precluded from subsequently complaining about the particular adjudicator’s presence and participation in the decision-making process. Indeed, a failure to object has at times been held sufficient to constitute a waiver of any future right to complain.
Michael Supperstone and James Goudie in Judicial Review (London: Butterworths, 1992) write at pages 245 and 246:
Waiver will be implied if once a party or his representative has come to know of the facts that give rise to the disqualification no objection is taken, at least if the party or his representative is fully cognisant of the right to take objection. See R v Essex Justices, ex p Perkins [1927] 2 KB 475. For example, in R v Nailsworth Licensing Justice, ex p Bird, above, the solicitor for an objector to an application for the grant of a licence discovered after the bench had retired that one of the justices had earlier signed a petition in favour of the licence being granted. Lord Goddard CJ said, at p. 1048:
« The solicitor did not take his objection then and it seems clear that he decided to let the matter go on, taking the view that this was a heaven-sent opportunity of getting the order quashed if the committee found in favour of the application. That would be sufficient ground for refusing this application …”
In In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103, the Federal Court of Appeal held that Atomic Energy of Canada Ltd. had waived its right to object to the jurisdiction of a Human Rights Panel on the basis of reasonable apprehension of bias in appearing before the Tribunal. At pages 113 and 114 of the judgment, Marceau J.A. writes as follows:
At common law, even an implied waiver of objection to an adjudicator at the initial stages is sufficient to invalidate a later objection: …. The principle is stated as follows in Halsbury’s, Laws of England (4th ed.), volume 1, paragraph 71, page 87:
The right to impugn proceedings tainted by the participation of an adjudicator disqualified by interest or likelihood of bias may be lost by express or implied waiver of the right to object. There is no waiver or acquiescence unless the party entitled to object to an adjudicator’s participation was made fully aware of the nature of the disqualification and had an adequate opportunity of objecting. Once these conditions are present, a party will be deemed to have acquiesced in the participation of a disqualified adjudicator unless he has objected at the earliest practicable opportunity.
Cartwright J. put the rule as follows, by way of dicta, in delivering the judgment of the Supreme Court in Ghirardosi v. Minister of Highways for British Columbia, [1966] S.C.R. 367, at page 372:
There is no doubt that, generally speaking, an award will not be set aside if the circumstances alleged to disqualify an arbitrator were known to both parties before the arbitration commenced and they proceeded without objection.
From the above authorities, one can conclude that a reasonable apprehension of bias should be raised at the first opportunity. The question that flows from this is: “When is the first opportunity?” Halsbury’s Laws of England, to which reference is made by Marceau J.A. in In re Human Rights Tribunal, states that there is no waiver unless the party entitled to make the objection is fully aware of the nature of the disqualification and has an adequate opportunity to make the objection.
Mullan states that the Court will imply a waiver where a party or its representative knows of the facts that give rise to an apprehension of bias and, notwithstanding, does not object. However, Mullan qualifies his statement by adding that the party or its representative must be “fully cognisant of the right to take objection”.
Craig states that the courts have become more reluctant to infer waiver where a party is not aware of its right to object.
As I have already pointed out, the applicant was not represented by legal counsel at the hearings before the Panel. I am of the view that no waiver can be inferred here as neither the applicant nor his counsel was aware of his right to object on the ground of reasonable apprehension of bias when the Adjudicator made the comments which are now under attack by the applicant.
In Regina v. Nailsworth Licensing Justice. Ex parte Bird (1953), 1 W.L.R. 1046 (Q.B. Div.), Lord Goddard C.J. made the following remarks at page 1048:
The solicitor did not take his objection then and it seems clear that he decided to let the matter go on, taking the view that this was a heaven-sent opportunity of getting the order quashed if the committee found in favour of the application. That would be sufficient ground for refusing this application ….
In West Region Tribal Council v. Booth et al. (1992), 55 F.T.R. 28, Muldoon J. of this Court held that a party had waived its right to raise reasonable apprehension of bias as it had not raised the objection at the first opportunity. Muldoon J. wrote as follows [at page 46]:
A nullity ab initio can be perceived and declared almost at any later time for it never was of any effect, and demonstrably so. However, when one alleges a denial of natural justice by means of alleged prejudice, one should -nay, must-so allege promptly, for effluxion of time can render such allegation not objectively demonstrable at all. The allegation of prejudice should not be secretly harboured, but made public immediately, thereby hoping to catch the tribunal “red handed”, so to speak, in its prejudice and misconduct. So it is that the posture of waiting to discover whether one wins the contention before the adjudicator, prepared to make no allegation of prejudice if one does win, and complaining of alleged prejudice as a means of trying to avoid a confirmed loss, is abusive and to be discouraged.
I am of the view that the applicant herein was not waiting to find out whether he had succeeded before the Panel. In other words, the applicant did not view the comments made by the Adjudicator as a “heaven-sent opportunity” as he was not aware that the comments made by the Adjudicator gave him the right to take an objection thereto. Had the applicant been represented by legal counsel at the February 25, 1992 hearing, my conclusion might possibly have been different.
In concluding, I note that in the decision of the Federal Court of Appeal in de Freitas, supra, Hugessen J.A., who rendered the decision for the Court, does not allude to the issue of waiver in his reasons. It appears that, following the comments made by Chairman Benedetti, the applicant made no objection thereto, even though the December 10, 1987 hearing, during which the comments were made, was adjourned to December 15, 1987. Apprehension of bias appears to have been raised for the first time when the judicial review proceedings were commenced.
I have therefore concluded that there is a reasonable apprehension of bias in the present matter and that the applicant did not waive his right to object on the ground of reasonable apprehension of bias. As a result, the decision rendered by the credible basis Panel cannot stand. Its decision will therefore be set aside and the matter will be sent back for redetermination by a differently constituted Panel.