IMM-2423-01
2002 FCT 568
Patricia Shiromi Reginald (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Reginald v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Gibson J.--Toronto, April 23; Ottawa, May 16, 2002.
Citizenship and Immigration -- Judicial Review -- Extracts from transcript of CRDD hearing revealing members constantly interrupting counsel's presentation of applicant's case, submissions -- Amounting to "gross interference" with orderly presentation of case -- Other avenues open to CRDD to express concern with conduct of examination -- Contrary to Board's own Guideline, CRDD members insensitive toward applicant when testified as to alleged rape -- Denial of natural justice warranting setting aside CRDD's decision applicant not Convention refugee.
Administrative Law -- Judicial Review -- Certiorari -- Extracts from transcript of CRDD hearing revealing constant interruptions during counsel's presentation of applicant's case, counsel's submissions -- Amounting to "hijacking" orderly presentation of case -- CRDD members also insensitive toward applicant when testifying as to alleged sexual assault -- Denial of natural justice -- CRDD's decision set aside.
This was an application for judicial review of the Convention Refugee Determination Division's decision that the applicant was not a Convention refugee. Shortly after the hearing opened the presiding member indicated that he and the other member would be asking some questions to clarify issues. Thereafter counsel was only able to ask one or two questions before one or the other of the Board members would interrupt to ask questions or give directions to counsel as to how to pose questions. At one point the Board member stated that the objective was "spontaneous and not rehearsed" evidence or "spontaneous responses". At times the Board members took over the questioning of the claimant. The same level of intervention by the Board members continued throughout counsel's examination of the applicant, and during submissions by counsel. The applicant disclosed an alleged sexual assault for the first time at the CRDD hearing. The second Board member commented that the applicant seemed to testify very dispassionately, and that her comportment was very matter-of-fact, perfunctory and without emotion, and asked her to explain. He also questioned the fact that she had not previously told her lawyer about the assault, but was able to give a "dispassionate account . . . to a room full of complete strangers".
The issue was whether the CRDD's conduct of the hearing amounted to denial of natural justice.
Held, the application should be allowed.
Extracts from the transcript disclosed "gross interference with the orderly presentation of the applicant's case" by the CRDD members. The "tone of the hearing" was set almost immediately. The Board members did not restrain themselves to clarification of issues, but "hijacked" the orderly presentation of the applicant's case. Their concerns about the style and some of the substance of the questioning of the applicant by her counsel could not justify the manner in which the CRDD members intervened and chastised both counsel and the applicant, and then proceeded to essentially take over the examination of the applicant. Other avenues were open to the CRDD members to express their concerns, eg. they could have declared a recess and met privately with counsel thereby avoiding undermining the applicant's confidence in herself and in her counsel. During counsel's submissions the CRDD members exhibited an unwarranted degree of impatience and an almost palpable disdain for counsel's presentation which evidenced itself in the CRDD's reasons for decision.
Contrary to the Immigration and Refugee Board's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, there was nothing "extremely sensitive" about the "handling" of the applicant by CRDD members. Both the "gross interference" by the CRDD members "with the orderly presentation of the applicant's case" and the insensitivity demonstrated toward the applicant when she testified as to her alleged rape were denials of natural justice.
statutes and regulations judicially
considered
Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).
cases judicially considered
applied:
Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14; (1987), 81 N.R. 157 (C.A.); Shaker v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1077 (T.D.) (QL).
authors cited
Immigration and Refugee Board of Canada. Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update. Ottawa: Immigration and Refugee Board of Canada, 1996.
APPLICATION for judicial review of the decision of the Convention Refugee Determination Division (CRDD) that the applicant was not a Convention refugee on the ground that the member's interference with counsel's presentation of the applicant's case and submissions, and lack of sensitivity toward the applicant when testifying about an alleged rape, amounted to a denial of natural justice. Application allowed.
appearances:
Barbara L. Jackman for applicant.
Alexis Singer for respondent.
solicitors of record:
Jackman, Waldman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Gibson J.: These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the CRDD) of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning given to that phrase in subsection 2(1) of the Immigration Act.1 The decision of the CRDD is dated April 19, 2001.
[2]The applicant is a Tamil and a citizen of Sri Lanka. She was born in the city of Colombo and lived all of her life there until leaving for Canada. She bases her claim to a well-founded fear of persecution if required to return to Sri Lanka on her race, nationality, membership in a particular group, namely, young Tamil women from Sri Lanka, and on her imputed political opinion.
[3]The applicant married in 1988. Her husband operated a trucking business. He transported goods from Colombo to destinations in the north of Sri Lanka, and perhaps to other destinations. He was arrested and held in custody for transporting contraband goods to the north. Upon his release from custody, his relationship with the applicant soured. There were instances of spousal abuse including threats to the applicant. Eventually, in 1997, with the aid of the police, the applicant secured the removal of her husband from the family home. Subsequently, in order to supplement her income, the applicant took into her home a Tamil youth from the Jaffna region. The applicant's husband threatened that he would expose the applicant to the police for harbouring a terrorist.
[4]In August of 1999, the applicant alleged that she was in fact arrested for harbouring, that she was detained for four days and then released with a warning. Thereafter, her home was searched by security forces in times of crisis in Colombo. To ensure the safety of her young son, she sent him to Denmark where her parents and two siblings had obtained citizenship.
[5]In June of 2000, following a suicide bombing in Colombo, the applicant alleges that she was again detained, this time for three days. She alleges she was questioned, beaten and sexually assaulted before being released on a bribe. The alleged sexual assault was not disclosed in the applicant's Personnel Information Form. She first disclosed it at her hearing before the CRDD.
[6]Counsel for the applicant urged that the CRDD erred in a reviewable manner in four respects: first, in breaching its duty of fairness to the applicant by reason of the manner in which it conducted the applicant's hearing before it; second, in its assessment of the credibility of the applicant based upon its requirement for "spontaneous" responses and "passionate" demeanor in her appearance before it; third, by ignoring and/or misinterpreting evidence; and fourth, in its determination that there existed no credible basis for the applicant's claim. At the opening of the hearing of this application for judicial review, the fourth ground was abandoned.
[7]I am satisfied that the decision of the CRDD that is under review cannot stand and that the CRDD erred in a reviewable manner in its conduct of the applicant's hearing and in the interrelated assessment of credibility. Unfortunately, the foregoing conclusion can only be effectively demonstrated by extensive references to the transcript of the hearing before the CRDD. Those references follow.
[8]Shortly after the opening of the hearing, the presiding member addressed himself to the applicant in the following terms:
PRESIDING MEMBER: Okay, then. Our position also is that the PIF is sworn testimony. Therefore, there is no need to recite the PIF. However, if there are areas in the PIF that you need to highlight, Counsel, that is acceptable to the panel.
Miss Reginald, Counsel is now ready to ask you some questions. If you don't understand the question please say so. It will be repeated in a form such that you can understand it. If you don't know the answer to a question, say I don't know. That's an answer also. Let me emphasize that it will not be to your benefit to try to make up an answer for something you don't know. Please speak clearly because the microphones are not for amplification, they are merely recording the voices.
The RCO will also have some questions for you, and from time to time, my colleague and I will ask some questions to clarify issues. Okay? Do you understand?
CLAIMANT: Yes.2 [Emphasis added.]
[9]Counsel for the applicant commenced his examination. After establishing the applicant's name and age, counsel asked one question to highlight an aspect of the substance of the applicant's Personal Information Form. The presiding member intervened and posed six questions to the applicant. A portion of the exchange between the presiding member and the applicant is in the following terms:
PRESIDING MEMBER: . . . Do you remember what I told you at the beginning? [a reference to the instructions quoted immediately above]
CLAIMANT: Yes.
PRESIDING MEMBER: It doesn't seem as if you remember? What did I say?
CLAIMANT: I don't know.
PRESIDING MEMBER: I asked you -- and I'm going to do it again -- if you don't know the answer to a question, say you don't know.3
[10]Counsel succeeded in posing two questions, only the first of which was answered. The presiding Board member then intervened three times with directions to counsel. The second Board member also intervened.
[11]Once again, counsel succeeded in posing two questions and, once again, only one was answered. The second Board member intervened with the following comment:
Who cares, Counsel? With respect, who cares? What we care about: I'm in this country seeking international protection because I've had problems.4
[12]An exchange between the second Board member, the claimant and counsel followed.
[13]Counsel posed one question in the following terms:
Why were you arrested by the police?5
Once again, the second Board member intervened, this time in the following terms:
No, Counsel. Counsel, that's a leading question. A leading question. What you want to say is: What happened: . . .6
Once again, an exchange followed among counsel, the second Board member and the claimant. In effect, the second Board member took over the questioning of the claimant.
[14]Counsel reasserted himself and once again succeeded in posing two questions. The second is in the following terms and gave rise to the following exchange:
COUNSEL: When were you next arrested?
SECOND MEMBER: No, Counsel. Counsel, you have to ask questions. I had a word with you before, so let me just give you my perspective. You have to ask questions that are not leading. The only evidence I want to hear is spontaneous and not rehearsed. When you say, when were you next arrested, it sets up a story.
COUNSEL: It's because we are not going in -- we are going in parts. So that's my problem.
SECOND MEMBER: But you -- no, it's not a problem, Counsel. It's actually something that works within your purview as a Counsel. [The Presiding Member] as Presiding Member has stated that credibility is what we assess as with all refugee claims.
COUNSEL: Yes.
SECOND MEMBER: So in your purview of leading an examination-in-chief, you want to adduce spontaneous responses. Did you ever have any other problems with the police is an appropriate question but with specificity. I can't assign any weight when you lead her and you're leading. Okay. I hope that's solved for you.
PRESIDING MEMBER: Before you move on, however, Counsel, Miss Reginald, you said after four days, you were released.
CLAIMANT: Yes.
PRESIDING MEMBER: Were there any conditions of release?
CLAIMANT: What they told me was that if something happens in the area, they could come and arrest me again. That's what they told me.
PRESIDING MEMBER: Was any money paid to obtain your release?
CLAIMANT: No. We didn't give any money for the first time.
PRESIDING MEMBER: Thank you.
SECOND MEMBER: I will just ask my question while we're on this point. What happened to the student who was living in your house?
CLAIMANT: So he was there to continue his studies in London. So in `99 -- by `99, October, he had got a visa. Before that -- before he could go, only I was arrested. So as soon as I returned from the police station, I asked him that he should leave my house. So after that, he went with a friend.
SECOND MEMBER: Let me ask you this then. Why do you think they would arrest you and not the very person they suspect of being an LTTE supporter?
CLAIMANT: They came to arrest him, he was not there. He had been away to Jaffna. So that is why they arrested me.
SECOND MEMBER: Yes, but listen to what you're saying. One, you said that your husband told the Security Forces that he and his friends had been behind certain attacks in Colombo.
CLAIMANT: Yes.
SECOND MEMBER: You've also suggested that between August and October 1999, he studied purportedly without incident because he was able to get a visa and go off to studies in London.
CLAIMANT: Yes.
SECOND MEMBER: So if he lived with you till October and he's a possible LTTE terrorist in the eyes of the Security Forces, why does nothing happen to him, either in August `99 or any time after that?
CLAIMANT: The time they came to arrest him, he was not in the house. That is why they arrested me.
SECOND MEMBER: On August -- okay. So you're out four days later. Why aren't they still looking for him? He's suspected of terrorist attacks.
CLAIMANT: That time, he had gone to Jaffna. That is why he was not there. That's what I told you before.
PRESIDING MEMBER: Yes, but listen now. You said when you came out of detention four days later, you asked him to leave.
CLAIMANT: What I meant was after I was released from the police station, as soon as he came, I told him to leave.
PRESIDING MEMBER: When was that?
SECOND MEMBER: Just a minute. Just a minute. You know what, Madam Interpreter, I'm not convinced you're interpreting everything there. I'm hearing the word "September" and I'm hearing it three times and you didn't say anything.
INTERPRETER: Yeah.
SECOND MEMBER: So let me get the full . . . .
INTERPRETER: I will clarify that.
CLAIMANT: He told me that he got a visa to go to London to study in September.
SECOND MEMBER: Yes, but you said he was with you till October.
CLAIMANT: Yeah.
SECOND MEMBER: Don't listen to the English.
CLAIMANT: He went to Jaffna and he couldn't come back in September, so he came in the first week of October. So when that time -- he was one month already late the time he left my house.
SECOND MEMBER: Okay.
CLAIMANT: After that, I don't know what happened to him.
SECOND MEMBER: Two things then, Ma'am. One, you're contradicting yourself and I will weigh that evidence in that light. You've been given several opportunities here to clarify your response by both members but I do invite Counsel to re-direct as he wishes or to pursue the question if he wants to. I give Counsel that opportunity to (inaudible) question.7 [Emphasis added.]
[15]The same level of intervention by the Board members continued throughout counsel's examination of the applicant. While the frequency of intervention dropped during examination of the applicant by the refugee claims officer, during the brief reexamination by counsel and during submissions by the refugee claims officer, it rose again during submissions by counsel.
[16]One other exchange between the second Board member and the claimant is particularly worthy of note. It is to the following effect:
SECOND MEMBER: And you said you were sexually abused?
CLAIMANT: Yes.
SECOND MEMBER: Would you explain to the panel what you mean by sexually abused?
CLAIMANT: When the OIC is not around -- officer in charge was not around, they called me in the night for questioning. Two people joined together and raped me.
SECOND MEMBER: That is what I would consider to be a gross human rights violation in general. Yet, you seem to be testifying this morning very dispassionately. Your testimony -- to me, your comportment is very matter of fact, perfunctory and without emotion. Could you explain that to me?
CLAIMANT: I did not want to tell anybody about this incident. During that time, I felt like taking away my life, but I thought about my son since his father is not around, and then I felt that I should not do that. Even though I begged them and offered them money, still, they abused me like that.
SECOND MEMBER: Thank you.
PRESIDING MEMBER: Did this happen more than once?
CLAIMANT: This happened only once.
PRESIDING MEMBER: It seems to me that, as my colleague puts it, this is a gross human rights violation. Why is this not mentioned anywhere in your Personal Information Form?
CLAIMANT: I didn't tell -- I couldn't tell the lawyer. I didn't tell him.
PRESIDING MEMBER: You what?
INTERPRETER: I did not tell him because I was not -- I could not tell him.
SECOND MEMBER: What's the difference between telling your lawyer who's there to represent you and your dispassionate account today to a room full of complete strangers?
CLAIMANT: Until today, I haven't told about this incident to anybody except to my parents. I did not have the courage to tell him. I mentioned to him something happened but I did not tell him in detail. But I was thinking to myself, if a situation arose where I should tell that I would tell.
PRESIDING MEMBER: So I take it you did not report it to the officer in the police force -- the officer in charge?
CLAIMANT: They threatened me not to report to anybody. They cautioned me that there would be danger for my life if I did that. At the same time, they don't pay much heed whenever the Tamils make a complaint.
COUNSEL: Can I proceed?
SECOND MEMBER: Can Counsel continue?
PRESIDING MEMBER: Yes. Yes. Continue.8 [Emphasis added.]
[17]In Kumar v. Canada (Minister of Employment and Immigration),9 Mr. Justice Mahoney, for the Court, wrote at page 15:
The examination in chief of the applicant began at page 2 of the transcript. The tone of the hearing was set almost immediately.
Mr. Justice Mahoney then went on to quote somewhat extensively from the transcript, albeit not as extensively as I have in these reasons. Later in his reasons, he wrote at page 18:
In my opinion both the latter failure [not relevant here] and the Chairman's gross interference with the orderly presentation of the applicant's case were denials of natural justice which require that this section 28 application be allowed, that the decision of the Board be set aside and that the matter be referred back for rehearing.
[18]I am satisfied Mr. Justice Mahoney's reference to "gross interference with the orderly presentation of the applicant's case" represents an accurate description of the interference by the CRDD members, as evidenced by the extracts from the transcript quoted in these reasons. As noted by Mr. Justice Mahoney, here as well the "tone of the hearing" was set almost immediately. After the presiding member indicated as quoted above, that he and his colleague would "from time to time, . . . ask some questions to clarify issues", he and his colleague in no sense restrained themselves to clarification of issues. Rather, I am satisfied, they "hijacked" the orderly presentation of the applicant's case. It is apparent that the CRDD members had concerns about the style and some of the substance of the questioning of the applicant by her counsel. But those concerns simply could not justify the manner in which the CRDD members intervened and chastised both counsel and the applicant, and then went on to essentially take over the examination of the applicant. Other avenues were open to the CRDD members to express their concern with the way counsel was conducting his examination. For example, it would have been open to the CRDD members to declare a recess and to meet privately with counsel to express to him their concerns. Such a strategy could have avoided the undoubted impact of the conduct of the members of the CRDD on the applicant's confidence, both in herself and in her counsel.
[19]The same might be said about the interventions of the CRDD members in counsel's presentation of his submissions. At that time, there was certainly no question regarding counsel "leading" the applicant. The members of the CRDD simply exhibited, at this stage close to the end of the hearing, an unwarranted degree of impatience and an almost palpable disdain for counsel's presentation which, in turn, evidenced itself in the CRDD's reasons for its decision.
[20]The same might also be said about the interventions of the members of the CRDD when the applicant presented her evidence, albeit for the first time, of her alleged rape by police officers.
[21]In the Immigration and Refugee Board of Canada Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update,10 under the heading "D. Special Problems at Determination Hearings" the following appears:
Women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy. Some of the difficulties may arise because of cross-cultural misunderstandings. For example:
| 1. Women from societies where the preservation of one's virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonour their family or community. |
. . .
| 3. Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome, and may require extremely sensitive handling. [Citations omitted; emphasis added]. |
With great respect, there was nothing sensitive, let alone extremely sensitive, about the "handling" of the applicant by the CRDD members when she testified as to her alleged ordeal.
[22]In Shaker v. Canada (Minister of Citizenship and Immigration),1 Madam Justice Reed wrote at paragraph 10:
It is not immediately obvious why one should expect the applicant to become emotional when describing the beating, so long after the event. Individuals vary greatly as to the degree of emotion they show when describing such events--why is she assumed to be a person who would react emotionally?
Precisely the same must be said here of the comments of the CRDD members regarding the "dispassionate", "perfunctory" and "emotionless" testimony by the applicant in relation to her alleged ordeal.
[23]For the foregoing reasons, this application for judicial review will be allowed. I am satisfied that, in words analogous to those of Mr. Justice Mahoney quoted above, both the "gross interference" by the CRDD members "with the orderly presentation of the applicant's case" and the insensitivity demonstrated toward the applicant when she testified as to her alleged rape, were denials of natural justice which require this Court's intervention. The decision of the CRDD that is under review will be set aside and the applicant's application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[24]I have not commented on the third issue raised on behalf of the applicant, that being an alleged ignoring and/or misinterpreting of the evidence that was before the CRDD. In light of my conclusions to this point, I regard it as unnecessary to do so. That being said, if I were to turn to that issue as stated, I would find that no reviewable error had been committed by the CRDD in that regard on the evidence, such as it was, that was before it.
[25]As earlier noted, a fourth issue raised on behalf of the applicant was abandoned at the opening of hearing.
[26]Counsel for the applicant did not propose a question for certification arising out of this application for judicial review. Counsel for the respondent requested that I circulate my reasons and provide a brief opportunity for her to make submissions. Such an opportunity will be provided before my order issues. These reasons will be circulated and both counsel for the applicant and counsel for the respondent will have ten days from the date of circulation to exchange submissions and file them with the Court. Exchange of submissions should be made in a timely manner that will allow for any reply submissions within the same time frame.
1 R.S.C., 1985, c. I-2 [s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)].
2 Tribunal Record, at p. 183.
3 Tribunal Record, at pp. 184-185.
4 Tribunal Record, at p. 185.
5 Tribunal Record, at p. 186.
6 Tribunal Record, at p. 186.
7 Tribunal Record, at pp. 187-190.
8 Tribunal Record, at pp. 194-195.
9 [1988] 2 F.C. 14 (C.A.).
10 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 (Ottawa: Immigration and Refugee Board of Canada, 1996).
11 [1999] F.C.J. No. 1077 (T.D.) (QL).