Date: 20040308
Docket: IMM-4975-03
Citation: 2004 FC 352
Ottawa, Ontario, March 8, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
BAMATO MONIQUE BONGWALANGA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Bamata Monique Bongwalanga is a citizen of the Democratic Republic of Congo. Her refugee claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board. The presiding member of the Board did not believe Ms. Bongwalanga's claims of persecution at the hands of supporters of the government of Congolese President Laurent-Désiré Kabila. The decision was based, in part, on an October, 2002 report dealing on conditions in the Democratic Republic of Congo (DRC), which report was prepared by the Refugee Commissariat of Belgium. This report was disclosed to Ms. Bongwalanga's counsel six days before the commencement of her refugee hearing.
[2] Ms. Bongwalanga seeks to have the Board's decision set aside, alleging that the circumstances surrounding the late disclosure of the Belgian report give rise to a reasonable apprehension of bias on the part of the presiding Board member, and that the member failed to address Ms. Bongwalanga's request to have the member recuse himself. Ms. Bongwalanga further asserts that the Board's credibility findings were patently unreasonable, and that the Board erred in failing to consider Ms. Bongwalanga's claim under either section 97 or subsection 108 (4) of the Immigration and Refugee Protection Act.
BACKGROUND
[3] Ms. Bongwalanga claims that her late husband was a member of the secret service in the Mobutu government in the DRC. After the fall of the Mobutu government and the ascension to power of President Laurent-Désiré Kabila, Ms. Bongwalanga says that her husband was kidnapped, and killed by militants. Ms. Bongwalanga asserts that with the assistance of neighbours and family, she and her children went into hiding, although militants continued to seek her out. Several months later, one of Ms. Bongwalanga's cousins was shot and killed by militants. Ms. Bongwalanga believes that he was killed because the militants could not find her.
[4] Ms. Bongwalanga says that she complained to authorities, but was not assisted. She then left the DRC, arriving in Canada on November 5, 2001. She had claimed refugee status on October 27, 2001, alleging a well-founded fear of persecution in the DRC by reason of her political opinions and her association with a particular social group, namely her family. She believes that she is still being sought because her ethnic background is the same as that of ex-president Mobutu, and that she will be at risk of torture, and cruel and unusual punishment if she were sent back to the DRC.
THE HEARING PROCESS
[5] Six days before the commencement of Ms. Bongwalanga's refugee hearing, her counsel was provided with a copy of the Belgian report. The report was faxed to counsel's office by Khamisa Khamsi, the Refugee Protection Officer assigned to Ms. Bongwalanga's case. The Belgian report is a lengthy document, one that, if accepted, significantly undermines Ms. Bongwalanga's case.
[6] Ms. Khamsi was not present at the hearing, which took place in Toronto. At the commencement of the hearing, Ms. Bongwalanga's counsel objected to the late disclosure of the document, noting that the document was not new, and had been in existence for a number of months. The Board member hearing the case stated that he did not understand why the document had been disclosed late, noting that the document was well known in the Montreal offices of the Board. The member went on to say "Moi aussi je l'ai reçu en retard, à la même date que vous.". After considering counsel's submissions, the member ruled that the hearing would proceed, but that Ms. Bongwalanga would have two weeks to file supplementary submissions with respect to the Belgian report.
[7] Ms. Bongwalanga's former counsel has filed an affidavit with the Court in support of this application. Part of the affidavit relates to a previous experience that counsel had with this particular Board member in a different case, and is not relevant to this proceeding. In relation to this case, counsel deposes that after the completion of the hearing, he was told by Ms. Khamsi that it was not her fault that the Belgian report had been disclosed late. According to counsel, Ms. Khamsi told him that she had been given the document by the Board member six days before the hearing, and had sent it to counsel that same day on the instructions of the Board member.
[8] Ms. Bongwalanga's counsel was concerned with respect to what he perceived to be discrepancies between the Board member's statement at the hearing, where, counsel says, the member implied that he had not known that the report was being filed until Ms. Khamsi disclosed it to him, and Ms. Khamsi's claim that it was the Board member who had given her the report. Given the highly prejudicial nature of the Belgian report, counsel deposes that he then became concerned about possible bias on the part of the member. Counsel raised his bias concern in the supplementary submissions filed with respect to the Belgian report, suggesting that the member should recuse himself, and that Ms. Bongwalanga should be provided with a new refugee hearing.
THE BOARD'S DECISION
[9] The Board's decision was released some ten months after Ms. Bongwalanga's refugee hearing. The Board refused to deal with the recusal request, stating that the issue should have been raised at Ms. Bongwalanga's refugee hearing, and not once the matter had been taken under advisement.
[10] With respect to the merits of the claim, the Board accepted that Ms. Bongwalanga was who she said she was, but found that she was not credible insofar as her allegations of persecution were concerned. The Board found the death certificate for Ms. Bongwalanga's late husband, which indicated the cause of death as "Défaillance multiviscebrale" was inconsistent with Ms. Bongwalanga's description of the circumstances surrounding his death. The Board also found that much of Ms. Bongwalanga's testimony was implausible, and that she had fabricated her story to assist her in her claim for refugee status.
ANALYSIS
[11] Although Ms. Bongwalanga raises a number of issues in her application, in light of my conclusion with respect to one of these issues, that is, the failure of the member to consider Ms. Bongwalanga's request to have him recuse himself, it is unnecessary to address any of the other issues.
[12] Ms. Bongwalanga asserts that the circumstances surrounding the late disclosure of the Belgian report give rise to a reasonable apprehension of bias on the part of the presiding member.
[13] The test for a reasonable apprehension of bias is well-known. As was stated by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369:
...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. In the words of the Court of Appeal, the test is "what would an informed person, viewing the matter realistically and practically - having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[14] Equally well-established is the proposition that an allegation of bias must be raised as soon as the party apprehending the bias becomes aware of the facts giving rise to the concern. The failure of a party to raise the issue at the earliest possible occasion will result in a finding that the concern has been waived. Zündel v. Canada (Canadian Human Rights Commission) (re Canadian Jewish Congress) (2000), 195 D.L.R. (4th) 399.
[15] In this case, the presiding member refused to address the merits of Ms. Bongwalanga's allegation of bias, ruling that the issue should have been raised at her refugee hearing. In this regard, I am satisfied that the Board erred. In its decision, the Board stated that the bias issue had only been raised after the hearing had been completed, and the matter taken under advisement. The respondent properly concedes that this was not the case, and that the hearing was ongoing at the time the issue of bias was raised. It is clear from the uncontroverted evidence of Ms. Bongwalanga's former counsel that the circumstances giving rise to the concerns about possible bias on the part of the presiding member only came to counsel's attention after the completion of the oral portion of Ms. Bongwalanga's hearing. The presiding member had given counsel an extra two weeks to file whatever submissions he may have had with respect tothe Belgian report. Submissions were filed with the Board within the specified time period. It is in these supplementary submissions that counsel raises the issue of the apprehension of bias on the part of the presiding member.
[16] In these circumstances, I am satisfied that the issue of bias was raised in a timely fashion, and that Ms. Bongwalanga had not waived any concerns that she may have had with respect to possible bias on the part of the presiding member. As a result, the member should have addressed the merits of the bias claim. The failure to do so is a reviewable error, the result of which is that the decision of the Board should be set aside.
[17] It should be noted that this decision relates only to the process that the Board followed in its treatment of the allegation of bias. I make no finding with respect to the merits of the allegation.
CERTIFICATION
[18] Neither party has suggested a question for certification, and accordingly none will be certified.
O R D E R
THIS COURT ORDERS that:
1. For the reasons set out above, this application is allowed, and Ms. Bongwalanga's refugee claim is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4975-03
STYLE OF CAUSE:
BETWEEN:
BAMATO MONIQUE BONGWALANGA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 26, 2004
REASONS FOR ORDER AND ORDER : The Honourable Madam Justice Mactavish
DATED: March 8, 2004
APPEARANCES:
Mr. Michael Crane FOR PLAINTIFF / APPLICANT
Ms. Matina Karvellas FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane FOR PLAINTIFF/APPLICANT
Barrister and Solicitor
Morris Rosenberg FOR DEFENDANT/
Deputy Attorney General of Canada RESPONDENT
Department of Justice
Toronto