Thamotharem v. Canada (Minister of Citizenship and Immigration)

Thamotharem v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-01-06
Neutral citation
2006 FC 16
File numbers
IMM-7836-04
Notes
Reported Decision
Decision Content
Date: 20060106
Docket: IMM-7836-04
Citation: 2006 FC 16
BETWEEN:
DANIEL THAMOTHAREM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
and
THE CANADIAN COUNCIL FOR REFUGEES
Intervener
REASONS FOR ORDER
BLANCHARD J.
TABLE OF CONTENTS
Paragraph
1. Introduction 1
2. Factual Background 3
3. Decision under Review 6
4. Issues 13
5. Standard of Review 14
6. Legislative Framework 17
7. Guideline 7 23
8. Does Guideline 7 violate principles of natural justice and procedural fairness? 25
(1) Evidence before the Court 25
(2) Positions of the Parties 28
(3) Analysis 36
(i) Does Guideline 7 deny the Applicant the right to be heard? 36
Baker analysis:
1) the nature of the decision being made and the process 69 followed in making it; that is, "the closeness of the administrative process to the judicial process"
2) the role of the particular decision within the statutory
scheme 76
3) the importance of the decision to the individual affected 79
4) the legitimate expectations of the person challenging the decision 80
5) the choice of procedure made by the agency itself 81
6) other factors 84
(ii) Does Guideline 7 fetter the discretion of Board members? 93
(iii) Does Guideline 7 unlawfully distort the adjudicative role 136
of the Board?
9. Did the Board err in finding the Applicant not to be a Convention refugee
or a person in need of protection? 139
10. Conclusion 144
11. Certified Question 145
1. Introduction
[1] The Applicant, Daniel Thamotharem, applies for a judicial review of a decision of the Refugee Protection Division (the Board) of the Immigration and Refugee Board (the IRB), dated August 20, 2004, wherein he was determined to be neither a Convention refugee nor a person in need of protection.
[2] The Applicant seeks an order setting aside the Board's decision, both with regards to the merits of his refugee claim and the validity of the standard-order of questioning procedure set out in a guideline issued by authority of the Chairperson of the IRB (Guideline 7). The Canadian Council for Refugees intervenes in this application to support the Applicant's position that Guideline 7 violates the principles of natural justice and procedural fairness. For the purpose of these reasons the use of "Guideline 7", unless otherwise stated, will reference the Chairperson's standard-order of questioning procedure.
2. Factual Background
[3] The Applicant is Tamil and a citizen of Sri Lanka. He entered Canada on September 12, 2002, on a student visa. He made a claim for refugee protection on January 12, 2004. The Applicant bases his claim upon fear of persecution at the hands of the Liberation Tigers of Tamil Eelam (the LTTE). The Applicant alleges that since the ceasefire agreement between the LTTE and the Sri Lankan government was signed in February 2002, the LTTE has been more openly active in Colombo. The Applicant claims that the LTTE is extorting money from his mother. He alleges that if returned to Sri Lanka, he faces extortion and threats of kidnapping and physical harm at the hands of the LTTE.
[4] In written arguments submitted prior to his hearing and in oral submissions at the hearing, the Applicant raised objections to Guideline 7, arguing that it violates the principles of natural justice. Under Guideline 7, the Refugee Protection Officer (the RPO) questions the claimant first, and if no RPO is present, the Board member questions first. Guideline 7 allows the Board member to vary the order of questioning in exceptional circumstances.
[5] The Board heard the Applicant's claim on July 5, 2004. After hearing oral submissions from the Applicant's counsel on Guideline 7, the Board proceeded with the RPO questioning first. In its written reasons, the Board dismissed the Applicant's claim that Guideline 7 was contrary to the principles of natural justice, and concluded that the Applicant was not a Convention refugee or a person in need of protection.
3. The Decision under Review
[6] On the issue of Guideline 7, the Board stated that the panel is an independent decision-maker and "in that capacity, the panel does not find that Guideline 7 violates the principles of natural justice". The Board held that having the RPO question the claimant first is consistent with the common-law duty of fairness that claimants be provided with a meaningful opportunity to be heard.
[7] In support of its decision, the Board took guidance from R.K.N. (Re), [2004] R.P.D.D. No. 14 (QL), a decision rendered by the Board on June 16, 2004. In that decision, at page 2, the Board stated:
In my view, proceeding according to the standard order of questioning is fair and efficient. The hearing is focused; the claimant retains full opportunity to know the case to meet, and to present his or her case in accordance with principles of fairness and natural justice...
...
The Federal Court has never indicated that a fair hearing requires that a claimant lead evidence by way of examination-in-chief. Rather, the Federal Court has recently and repeatedly affirmed that the RPD is the master of its own procedure.
[8] Following those reasons, the Board concluded, in the present case, that Guideline 7 does not give rise to a denial of natural justice.
[9] As for the merits of the Applicant's refugee claim, the Board stated that, while accepting that a durable peace has not been achieved in Sri Lanka, the Applicant could return to Colombo with no more than a mere possibility of serious or persistent harm. The Board made several findings of fact in support of its conclusion that the Applicant was not a Convention refugee or a person in need of protection.
[10] First, the Board was not satisfied that the incident involving the Applicant's mother being extorted by the LTTE ever occurred. Second, the Board found it implausible that in all the years the Applicant had lived with his mother in Colombo while his father was working in Saudi Arabia that the family was never targeted for extortion but yet now, after the Applicant came to Canada, the LTTE would suddenly extort money from his mother [emphasis in the Board's decision]. Third, the Board did not accept that the Applicant was at higher risk for extortion because he had spent two years in Canada and the LTTE would therefore consider him to have amassed a certain amount of wealth.
[11] Drawing from the documentary evidence, the Board also found that a number of positive changes in the country conditions made it safe for the Applicant to return to Sri Lanka. The changes cited by the Board include:
(a) that the ceasefire agreement between the Sri Lankan government and the LTTE includes basic proscriptions against harming citizens;
(b) that the Sri Lankan government was reported to have removed all travel restrictions imposed on Tamil civilians in March 2002; and
(c) that Tamils living in Colombo are no longer required to register with the police.
[12] Finally, the Board rejected the Applicant's claim that he was at risk of being recruited by the LTTE on the basis that he had never been approached by the LTTE to join its forces before and there was no reliable evidence that the Applicant would be perceived to be a member of any political group, either pro-government or pro-Tamil.
4. Issues
[13] In this application for judicial review, the Court is asked to determine the following questions:
(A) In respect to the principles of natural justice and procedural fairness:
(i) Does Guideline 7 deny the Applicant the right to be heard?
(ii) Does Guideline 7 fetter the discretion of Board members?
(iii) Does Guideline 7 unlawfully distort the adjudicative role of the Board?
(B) Did the Board err in finding the Applicant not to be a Convention refugee or a person in need of protection?
5. Standard of Review
[14] This judicial review involves consideration of procedural and substantive issues: (1) whether the procedure followed by Board complied with the principles of procedural fairness and natural justice, and (2) whether the Board erred in dismissing the Applicant's claim on its merits.
[15] When the Court is assessing allegations of denial of natural justice or procedural fairness, it is not necessary for the Court to conduct a pragmatic and functional analysis and determine the appropriate standard of review: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. Instead, the Court must examine the specific circumstances of the case and determine whether the tribunal in question adhered to the rules of natural justice and procedural fairness. If the Court concludes that there has been a breach of natural justice or procedural fairness, no deference is due and the Court will set aside the decision of the Board.
[16] With respect to substantive decisions of the Board, the Supreme Court of Canada has recently re-affirmed the standard of review applicable to IRB decisions in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40. The Supreme Court stated that paragraph 18.1(4)(c) of the Federal Courts Act, R.S.C. 1985, c. F-7, allows the Federal Court to grant relief when a federal commission errs in law and that such questions of law are reviewable on a standard of correctness. In respect to questions of fact, the Supreme Court at paragraph 38 of its decision, wrote:
On questions of fact, the reviewing court can intervene only if it considers that the IAD "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (Federal Court Act, s. 18.1(4)(d)). The IAD is entitled to base its decision on evidence adduced in the proceedings which it considers credible and trustworthy in the circumstances: s. 69.4(3) of the Immigration Act. Its findings are entitled to great deference by the reviewing court. Indeed, the FCA itself has held that the standard of review as regards issues of credibility and relevance of evidence is patent unreasonableness: Aguebor v. Minister of Employment & Immigration (1993), 160 N.R. 315 (F.C.A.) at para. 4.
Findings in relation to risk of persecution and country conditions are findings of fact and as such, the appropriate standard of review is patent unreasonableness.
6. Legislative Framework
[17] Before examining the issue of natural justice and procedural fairness, I will review briefly the applicable legislative framework.
[18] The IRB is an administrative tribunal comprised of three Divisions - the Board, the Immigration Division and the Immigration Appeal Division: section 151 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). The IRB and its Divisions are creatures of statute; whatever power and authority they have must be derived from the IRPA.
[19] In section 107 of the IRPA, Parliament vested in the Board the authority to determine whether a person is a Convention refugee or a person in need of protection. Certain powers of the Board are set out in sections 162 to 169; these powers apply to all Divisions of the IRB. Under subsection 162(2), the Board is required to deal with all proceedings before it "as informally and quickly as the circumstances and the considerations of fairness and natural justice permit". Section 170 sets out additional powers specific to the Board with respect to the conduct of proceedings before it.
170. The Refugee Protection Division, in any proceeding before it
(a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;
(b) must hold a hearing;
(c ) must notify the person who is the subject of the proceeding and the Minister of the hearing;
(d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);
(e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;
(f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister's intention to intervene;
(g) is not bound by any legal or technical rules of evidence;
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and
(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge
170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés :
a) procède à tous les actes qu'elle juge utiles à la manifestation du bien-fondé de la demande;
b) dispose de celle-ci par la tenue d'une audience;
c) convoque la personne en cause et le ministre;
d) transmet au ministre, sur demande, les renseignements et documents fournis au titre du paragraphe 100(4);
e) donne à la personne en cause et au ministre la possibilité de produire des éléments de preuve, d'interroger des témoins et de présenter des observations;
f) peut accueillir la demande d'asile sans qu'une audience soit tenue si le ministre ne lui a pas, dans le délai prévu par les règles, donné avis de son intention d'intervenir;
g) n'est pas liée par les règles légales ou techniques de présentation de la preuve;
h) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision;
i) peut admettre d'office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
[20] The Refugee Protection Division Rules, SOR/2002-228 (the Rules) made pursuant to section 161 of the IRPA also set out specific rules concerning the refugee determination process of the Board, including requirements in respect to the Personal Information Form (the PIF), the provision and disclosure of documents, how to become counsel of record, the duties of an RPO, interventions by the Minister, and the reopening and abandoning of refugee claims.
[21] Parliament also vested in the Chairperson of the IRB various powers and responsibilities. Under subsection 159(1), the Chairperson, as the chief executive officer of the IRB, is charged with supervising and directing the work of staff of the IRB; apportioning work among members of the IRB and fixing the place, date and time of proceedings; and taking any action that may be necessary to ensure that the members of the IRB carry out their duties efficiently and without undue delay. The Chairperson also has the authority to issue guidelines in writing to members of the IRB to assist them in carrying out their duties:
159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
...
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties;
...
159.(1) Le président est le premier dirigeant de la Commission ainsi que membre d'office des quatre sections; à ce titre :
[...]
h) après consultation des vice-présidents et du directeur général de la Section de l'immigration et en vue d'aider les commissaires dans l'exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel;
[...]
[22] Section 165 of the IRPA also provides that each member of both the Board and the Immigration Division "...may do any other thing they consider necessary to provide a full and proper hearing."
7. Guideline 7
[23] On October 30, 2003, as part of his Action Plan to reduce the backlog of refugee claims before the Board, the IRB Chairperson issued three procedural guidelines, including Guideline 7 - Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division: see Aterman Affidavit at paragraphs 17 and 18. Guideline 7 addresses procedures for case preparation, hearing preliminaries and the conduct of refugee hearings. Paragraphs 19 to 23 of Guideline 7 set out a standard order for questioning refugee claimants, and the basis and procedure for varying the order of proceeding. Paragraph 24 limits questions to relevant information. I reproduce below the pertinent paragraphs:
19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
20. In a claim for refugee protection where the Minister intervenes on an issue other than exclusion, for example, on a credibility issue, the RPO starts the questioning. If there is no RPO at the hearing, the member will start the questioning, followed by the Minister's counsel and then counsel for the claimant.
21. In proceedings where the Minister intervenes on the issue of exclusion, Minister's counsel will start the questioning, followed by the RPO, the member, and counsel for the claimant. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants.
22. In proceedings where the Minister is making an application to vacate or to cease refugee protection, Minister's counsel will start the questioning, followed by the member, and counsel for the protected person. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants.
23. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPDRules.
24. The member will limit the questioning by the RPOand counsel for the parties according to the nature and complexity of the issues. Questioning must bring out relevant information that will help the member make an informed decision. Questions that are answered by the claimant just repeating what is written in the PIF do not help the member.
[24] Guideline 7 was phased in between December 1, 2003 and May 31, 2004, and as of June 1, 2004 became fully implemented.
8. Does Guideline 7 Violate the Principles of Natural Justice and Procedural Fairness?
(1) Evidence before the Court
[25] Before I turn to consider the arguments of the parties, I will briefly review the evidence adduced in this application. The Intervener and the Respondent both submitted affidavits from persons knowledgeable in matters related to the refugee determination process conducted by the Board.
[26] The Intervener relies on the evidence of three witnesses.
(a) Raoul Boulakia, who swore his affidavit on July 14, 2005, was called to the Bar of Ontario in 1990 and practices in Toronto in the area of immigration and refugee law. He is also the President of the Refugee Lawyers Association (the RLA), a voluntary association of lawyers practicing refugee law in Ontario. He attests to the context behind the implementation of Guideline 7, and the RLA's belief that Board members are under pressure to apply Guideline 7. Mr. Boulakia also attests to the difficulties inherent in "reverse-order questioning" and the necessity of an "examination-in-chief" because of the unique features of refugee protection proceedings; namely, the appointment process for Board members; the adversarial style commonly adopted by RPOs; the funnelling of the claim by RPOs and Board members into their theory of the case; the incomplete nature of PIF narratives and tight filing deadline; and the particular vulnerabilities of refugee claimants. Mr. Boulakia states that Guideline 7 interferes with the right of refugee claimants to know the case against them and to present their claims. Finally, he attests that "reverse-order questioning" has not increased the efficiency of hearings before the Board. Annexed to Mr. Boulakia's affidavit are several exhibits, notably a performance appraisal checklist, e-mail correspondence concerning Board members allowing counsel to question first, and an excerpt from the Board's decision in Baskaran (Board File: TA1-07530).
On cross-examination, Mr. Boulakia acknowledged that it is possible to amend the PIF up to and at the hearing, but states there are dangers of the Board viewing the late amendment as adverse to the claimant's credibility. While noting the difficulties in getting satisfactory responses as to the issues still outstanding after the RPO and Board member question the claimant, Mr. Boulakia acknowledged that some Board members are quite cooperative and candid with counsel. Mr. Boulakia admitted that where Board members apply the exception provided for under Guideline 7 and allow counsel to question first there is no question about the fairness of the guideline.
(b) James Donald Galloway, who swore his affidavit on May 25, 2005, is a Professor of Law at the University of Victoria, a position he has held since 1994. He was previously a Professor of Law at Queen's University. From 1998 to 2001, Professor Galloway served as a member of the then Convention Refugee Determination Division of the IRB in Vancouver. After his tenure as a Board member, he provided personal training to Board members in Vancouver, including jurisprudential training. Professor Galloway gives his opinion on why an "examination-in-chief" is fundamental to a just determination of refugee protection claims. He attests to the inaccuracy or incompleteness of the following perceptions used to justify "reverse-order questioning", namely:
(a) that refugee determination proceedings are non-adversarial;
(b) that the PIF substitutes for an examination-in-chief;
(c) that reverse-order questioning complies with natural justice because there is no abrogation of the right to an oral hearing;
(d) that the expertise of RPOs obviates the need for an examination-in-chief by the claimant's counsel;
(e) that paragraphs 19 and 23 of Guideline 7 do not fetter the discretion of Board members;
(f) that the exceptional circumstances of Guideline 7 ensure that vulnerable claimants will not be subjected to procedures which may intimidate them; and
(g) that reverse-order questioning promotes efficiency.
In Professor Galloway's opinion, Guideline 7 prevents a claimant from adequately presenting her or his claim by allowing the RPO to define presumptively the nature of the claim rendering the right to an oral hearing illusory. With regard to fettering discretion, Professor Galloway is also of the view that Board members would conform to the standard mode of proceeding rather than exercise their discretion on a case-by-case basis, given the strong, mandatory language of Guideline 7 and Board members' loyalty to the Board and the Chairperson.
On cross-examination, Professor Galloway acknowledged that he has not attended any refugee hearings since he left the IRB in 2001. Regarding the nature of questioning during refugee hearings, Professor Galloway agreed that Board members have a responsibility to ask pointed, probing questions and admitted that he sees asking tough questions as being adversarial. With regards to fettering, he stated that even if there are no negative repercussions for not following Guideline 7, that does not mean there are no institutional pressures to conform.
(c) Donald Payne, who swore his affidavit on June 9, 2005, is a medical doctor and has been a certified specialist in psychiatry for over 30 years. He is proffered as an expert on the psychiatric and psychological conditions of refugee claimants who appear before the Board. Dr. Payne has performed psychiatric assessments on more that 1,450 victims of persecution from more than 90 countries, and he has testified before the Board on more than 20 occasions. Dr. Payne comments on the following vulnerabilities faced by refugee claimants that interfere with their ability to accurately testify at their hearings:
(a) Post-Traumatic Stress Disorder (PTSD),
(b) experiences of torture, humiliation and degradation,
(c) psychological suppression and/or repression,
(d) marked anxiety,
(e) marked depression, and
(f) distrust of people and conditioned fear of government officials and police.
Dr. Payne attests that claimants need to feel they are understood and their experiences heard, and that aggressive and repeated questioning by government officials only exacerbates claimants' anxiety. He further comments that it is extremely important that the environment at refugee hearings be made as non-threatening as possible for claimants. In Dr. Payne's opinion, having refugee claimants questioned first by their counsel, a non-government agent whose role is to represent claimants' interests and whom the claimants have previously met and have grown to trust, is more likely to promote effective testimony from refugee claimants who have been subjected to persecution.
On cross-examination, Dr. Payne acknowledged that he has not attended a refugee hearing since Guideline 7 was implemented. He stated that to his knowledge there have been no scientific studies finding that persons suffering from PTSD perform better if examined in chief first. He also admitted that it is the hostile manner of questioning that affects vulnerable refugee claimants most adversely, and that vulnerable claimants may experience distress even when their counsel questions them first.
[27] The Respondent relies on the evidence of one witness.
(a) Paul Aterman, who swore his affidavit on August 16, 2005, is a lawyer and the Director General, Operations Branch, of the Board. His duties include coordinating initiatives to reform the refugee determination process at the Board. Mr. Aterman attests to the role of RPOs, the responsibility and authority of Board members, and the inquisitorial manner in which refugee protection determination hearings are conducted. He comments on the purpose of Chairperson's guidelines and Guideline 7 specifically. Mr. Aterman states that prior to implementing Guideline 7, there was no standard order of questioning, and that part of the rationale behind Guideline 7 was to foster national consistency. He attests to the greater efficiency that has been realized since the implementation of Guideline 7. Attached to Mr. Aterman's affidivat are a number of exhibits, which include:
(a) the policy on the use of Chairperson's Guidelines and the Chairperson's Guidelines 5, 6 and 7;
(b) issues of the "IRB News" with information on Guideline 7;
(c) manuals used for training RPOs and Board members;
(d) decisions in which Board members have addressed challenges to the general validity of Guideline 7; and
(e) decisions in which Board members have varied the standard order of questioning and allowed counsel to question claimants first.
On cross-examination, Mr. Aterman stated that part of the motivation behind Guideline 7 was to reduce hearing time. Later on though, he stated that the Chairperson did not implement Guideline 7 to reduce the length of hearings but to extend the Board's inquisitorial mandate. He also commented that the reason for RPOs and members to go first is that they are in a better position to know what the Board really needs to determine the claim. He admitted that Board members and RPOs only received a four-hour training session on the manner of questioning prior to the implementation of Guideline 7. However, he denied that RPOs and Board members were trained to funnel the evidence towards a negative conclusion. He acknowledged that prior to June 1, 2004, "reverse-order questioning" was not used at hearings in Toronto without the claimant's consent. He further acknowledged that there is monitoring of the implementation of the guideline through managers in the regional offices, and that some individual members have been asked why they had not followed Guideline 7. However, he stated that monitoring is necessary to find out how effective the change is and whether any professional development needs arise. He stated that Guideline 7 is not a set of directives and that members exercise their discretion. That said, he acknowledged that Board members are expected to apply the Chairperson's guidelines or to justify their reasons for not doing so.
(2) Positions of the Parties
[28] On the question of natural justice and procedural fairness, I will summarize the parties' positions.
[29] The Applicant asserts that the person who bears the onus of proof has the right to present her or his case prior to being questioned by other participants at the hearing; that is, the right to conduct an "examination-in-chief". The Applicant contends that this principle is supported by the jurisprudence of the Federal Court.
[30] The Intervener also asserts that Guideline 7 violates the principles of natural justice and procedural fairness by circumscribing a refugee claimant's ability to present her or his case, and as a consequence, rendering the right to an oral hearing illusory. More specifically, the Intervener argues that because of the importance of an "examination-in-chief" in allowing refugee claimants to introduce their claims, to find their voice, and to control the presentation of evidence, principles of natural justice and procedural fairness demand that a refugee claimant have the right to be questioned by her or his counsel first. In support of its contention, the Intervener points to particular features of the refugee determination process that result in Guideline 7 being unfair:
(a) the differing roles of the RPOs, members and counsel;
(b) the adversarial nature of refugee proceedings;
(c) the inadequacy of the PIF in setting out the claim; and
(d) the unique vulnerabilities of refugee claimants.
[31] Both the Applicant and the Intervener refer to the opportunity for counsel of the Applicant to question first as an "examination-in-chief".
[32] With respect to these allegations, the Respondent asserts that the principles of natural justice and procedural fairness do not stipulate that ensuring that refugee claimants have an adequate opportunity to state their case and to know the case they have to meet requires that refugee claimants be allowed to present their case by way of an "examination-in-chief". Further, the Respondent argues that the Applicant and Intervener's contention of a right to an "examination-in-chief" is based on a false analogy between the conduct of criminal and civil proceedings and the Board's proceedings. Unlike the former proceedings, the Respondent submits that refugee determination proceedings are administrative and non-adversarial.
[33] The Respondent argues that the general validity of Guideline 7 has been upheld in several decisions of the Court. The Respondent also contends that denials of procedural fairness must be considered on a case-by-case basis, and in the present case the Applicant has not presented any evidence that by following Guideline 7, the Board deprived the Applicant of any procedural protection. For these reasons, the Respondent submits that this Court should not entertain the Applicant's allegations of procedural unfairness.
[34] The Intervener advances two further arguments. First, the Intervener contends that Guideline 7 unlawfully fetters the discretion of Board members because it is de facto mandatory and binding. Second, the Intervener argues that Guideline 7 is unlawful because it distorts the adjudicative role of Board members, particularly by adding duties which are incompatible with members' primary responsibility of decision-making.
[35] The Respondent argues that Guideline 7 was issued pursuant to the Chairperson's statutory authority and does not fetter the discretion of Board members as it is not binding and explicitly contemplates Board members varying the order of questioning. In response to the second allegation, the Respondent submits that Guideline 7 is consistent with the Board's inquisitorial mandate and the duty of members to assess the merits of claims in an informal, quick and fair manner.
(3) Analysis
(i) Does Guideline 7 deny the Applicant the right to be heard?
[36] The first ground upon which the Applicant and the Intervener challenge Guideline 7 is that it is inherently unfair not to allow a claimant's counsel to question the claimant first, before the RPO or Board member does. The Applicant and the Intervener contend that refugee claimants have a right to conduct "examination-in-chief". The Respondent argues that neither the principles of natural justice nor paragraph 170(e) of the IRPA - the requirement that the Board allow an applicant a reasonable opportunity to present evidence, question witnesses and make representations - gives claimants such a right.
[37] It is useful at the outset to dispose of the following three arguments raised by the Respondent and the Applicant before considering the duty of fairness, namely:
(1) The Respondent asserts that the Federal Court has already confirmed the validity of Guideline 7;
(2) The Respondent argues that the Applicant's allegation of procedural unfairness is hypothetical and therefore should not be entertained by the Court; and
(3) The Applicant contends that the right of refugee claimants to be questioned first by counsel has been established by the Court.
I will deal with each of these arguments in turn.
[38] The Respondent argues that the Court has already upheld the general validity of the Guideline 7 and as a result, this Court should follow those precedents. It is true that the Court has previously concluded that Guideline 7 is not inconsistent with the principles of natural justice and procedural fairness. In Cortes Silva v. Canada (Minister of Citizenship and Immigration), 2005 FC 738 at paragraph 13, Madam Justice Gauthier held that Guideline 7 "does not constitute a breach of the audi alteram partem [the right to be heard] rule, because it is evident that the applicant was fully afforded the right to be heard in order to argue the merits of his claim for refugee protection". In the more recent decision of Zaki v. Canada (Minister of Citizenship and Immigration), 2005 FC 1066 at paragraph 13, Madam Justice Snider concluded that, "as have numerous of my colleagues", the implementation of Guideline 7 in Board hearings is not, in and of itself, a breach of procedural fairness. However, Justice Snider continued on to say at paragraph 14 that a claimant may still be able to establish that he or she was denied a meaningful opportunity to make out his or her case.
The relevant question is whether the procedure, on the facts of this case, resulted in unfairness to the Applicant. That requires an examination of the record on two aspects: (i) whether the RPD fettered its discretion in its refusal to return to the familiar, counsel-first order; and (ii) whether the order of questioning resulted in the Applicant not being afforded the right to be heard.
[39] The Court both in Cortes Silva and in Zaki held that whether or not a breach of procedural fairness has occurred must be determined on a case-by-case basis and in circumstances that are not hypothetical.
[40] The Court has also upheld the general validity of Guideline 7 in B.D.L. v. Canada (Minister of Citizenship and Immigration), 2005 FC 866; Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1121; and Fabiano v. Canada(Minister of Citizenship and Immigration), 2005 FC 1260.
[41] While the previous decisions of the Court considering Guideline 7 are instructive, in my opinion, they are not determinative of the issues before this Court. First, it does not appear that the Court in those cases had the benefit of such extensive arguments and evidence on Guideline 7 as are now before this Court. Second, the Applicant and Intervener contend that the right to be heard in the adjudication of refugee claims includes the right of claimants to have their counsel proceed first in questioning. The Intervener further argues that Guideline 7 in unlawful because it fetters the discretion of Board Members and distorts the adjudicative role of the Board. These arguments have not yet been comprehensively canvassed and determined by the Court. I will address these issues later in these reasons.
[42] The Respondent also asserts that the Applicant's allegation of procedural unfairness is hypothetical and as such should not be entertained by the Court. The Respondent notes that there is no evidence before the Court that the Applicant was prevented from stating his case, that the Applicant was suffering from PTSD or any other particular vulnerability, or that he was questioned improperly. Indeed, the Applicant does not assert any such improprieties by the RPO or Board member or impediments to his ability to testify at the hearing.
[43] The Applicant does not allege that on the specific facts of the conduct of his refugee hearing that the use of the Chairperson's standard-order questioning procedure led to a breach of natural justice. Rather, his allegation is that, in general, Guideline 7 violates the principles of natural justice. In my opinion, the Applicant's argument is not hypothetical. The Applicant challenged Guideline 7 from the outset. In this instant case, the Court is asked to determine whether the standard order of questioning provided in Guideline 7 is inherently unfair in that it violates the principles of natural justice and procedural fairness. In my view such an argument is appropriately raised in the circumstances. If it is established that the procedure by its very nature violates the principles of fairness in the circumstances of the Applicant's case, then the decision of the Board in unlawful. Therefore, the question of procedural fairness is a proper one for consideration by this Court.
[44] The Applicant contends that the jurisprudence of the Federal Court establishes that refugee claimants must be allowed to be questioned first by their own counsel. Specifically, the Applicant cites four decisions: Kante v. Canada(Minister of Employment and Immigration), [1994] F.CJ. No. 525 (QL); Ganji v. Canada(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1120 (QL); Atwal v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 169; and Veres v. Canada(Minister of Citizenship and Immigration), [2001] 2 F.C. 124.
[45] In particular, the Applicant submits that in Kante at paragraph 10, the Court established a refugee claimant's right to an "examination-in-chief":
I would suggest to counsel for Applicants to remember at all times that as the burden of proof is on them they are entitled to present their case as they see fit.
[46] In my opinion, in none of these cases did the Court establish that the principles of natural justice and procedural fairness require that refugee claimants be questioned by their counsel first. In fact, whether the Board's choice of the order of questioning accorded with natural justice or procedural fairnes