Docket: IMM-1248-04
Ottawa, Ontario, December 8, 2004
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
MOHAMMAD ROSHID
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Roshid is a 30 year old citizen of Bangladesh. The Refugee Protection Division of the Immigration and Refugee Board (RPD) determined that he is not a Convention refugee and is not a person in need of protection. The board's decision was rendered orally at the conclusion of a hearing on March 5, 2004. Written reasons, dated March 18, 2004, were later sent to Mr. Roshid. In this application for judicial review, Mr. Roshid requests that I set aside the board's decision and remit the application to a differently constituted RPD for redetermination because of a breach of natural justice. No issue is taken with respect to the merits of the decision.
[2] As a preliminary matter, the applicant requests that the style of cause be amended to reflect the correct spelling of his name, Mohammad Roshid. It will be so ordered.
[3] At the hearing, the RPD heard Mr. Roshid's testimony and then ordered a break that lasted approximately twenty minutes. Following counsel's submissions, there was another break of approximately twenty minutes. Upon reconvening after the second break, the board member rendered his decision, reading from typed pages. The RPD did not find that Mr. Roshid's fear of returning to Bangladesh was well-founded. The board stated that Mr. Roshid failed to provide any evidence to establish: reasons why members of a student political group would be able to harm him; reasons why he would not be able to avail himself of state protection in Bangladesh; and, that executive members of student political groups in small towns in Bangladesh were targeted for persecution by police at the behest of the governing party. The board additionally noted discrepancies between Mr. Roshid's testimony and the statements in his personal information form (PIF).
[4] The basis of Mr. Roshid's argument can be succinctly stated. He contends that the reasons were read - minutes after the close of the hearing - directly from a decision already written in the standard format. This creates an appearance that the decision was written before the board member heard all of the evidence and the submissions of counsel. In turn, this raises a reasonable apprehension of bias and is a breach of fairness or natural justice.
[5] Mr. Roshid asserts that a number of factors point to a reasonable apprehension and the fact that his case was prejudiced. First, at the beginning of the hearing, the board member informed Mr. Roshid of the duty to hear his claim expeditiously. Second, the board member returned to the hearing room only 20 minutes after counsel finished oral submissions and read from a five-page, typed decision. The subsequent written decision was identical to the oral decision. Third, when questioned by counsel about when the decision was written, the board member stated that he wrote the analysis over the two 20-minute breaks and later said that he wrote it only during the second break. Fourth, the board member's explanations for why he was able to decide the case and to write the decision so quickly were erratic, lengthy, and defensive in their tone. Fifth, the board member stated that there was no way that the decision could have been written beforehand because it contained references to answers given at the hearing. Sixth, the board member stated that he could have asked Mr. Roshid to come back after an hour or two, but didn't see the point of making him wait.
[6] Mr. Roshid maintains that, while each of the factors taken alone might not appear significant, their cumulative effect gives rise to a reasonable apprehension of bias and breach of natural justice. A reasonable person would say that it is not plausible for five type-written pages to be completed in 20 minutes, especially when it requires the organization and analysis of testimony. The board member had access to the detailed PIF and documentary evidence well in advance of the hearing and these were referred to in his analysis. While it may have been reasonable for the member to state that the references to oral testimony showed that he put his mind to the case during the break and that this added to what he had prepared beforehand regarding the documentary evidence before him, this is not the explanation that he gave. The comment about there being no point in making Mr. Roshid wait, it is argued, implies that the member had already made a decision but did not feel there was any point in holding onto it for one or two hours for the sake of appearances.
[7] Mr. Roshid's submissions are superficially compelling. However, having thoroughly reviewed the transcript, in my view, Mr. Roshid has not met the onus of establishing the existence of a reasonable apprehension of bias and breach of natural justice. The test articulated in Committee for Justice and Liberty et al. v. National Energy Board et al, [1978] 1 S.C.R. 369 at 394-395 requires that the apprehension be real and be held by reasonable persons applying themselves to the question and obtaining the required information. The question is - what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? The grounds must be substantial and the test should not be related to the very sensitive or scrupulous conscience.
[8] I agree with Mr. Roshid that, when confronted by counsel, the board member's response was lengthy and rambling. However, it is obvious that he was taken completely off guard and was shocked that it was being suggested (for the first time in a tenure of seven and one half years) that he was biased. He explained that he was thoroughly prepared for the hearing - he had prepared for a previously scheduled hearing and had again reviewed the material. He was extremely familiar with the documentary evidence. He had a 25-year background as a journalist and was accustomed to interviewing, going to the heart of the matter, and speaking while thinking. He was a proficient typist, accustomed to working under pressure or deadlines, and therefore could work very fast.
[9] I am not persuaded that his explanation as to when the decision was written is inconsistent as alleged. The member explained that he used a template that included what the claimant was claiming and under which particular section of the Act - the same template is used for both positive and negative determinations. The template portion may have been completed prior to the hearing. He stated that the decision was written during the breaks and after the evidence. My reading of the passages dealing with his response lead me conclude that during the first break after the evidence was taken, he included the dates and evidence that had been provided. When questioned as to whether the "decision" was written during the first break, he stated no, that he reviewed the questions and reviewed the answers. The "decision" was not written at that time. It was not written until after the submissions of counsel were made. In other words, the responses of Mr. Roshid were inserted during the first break, but the decision itself was not written until the second break.
[10] Because of the seriousness of the allegation, I have exercised extreme care and caution in my review of the transcript. In my opinion, the transcript reveals that the member was extremely well prepared for the hearing and possessed a detailed understanding of the facts upon which the claim was based as well as the contents of the documentary evidence. He advised the claimant, at the outset, that he wanted to have a focussed hearing dealing with the heart of the claim and he identified the issues that were of concern to him. He asked Mr. Roshid for explanations, further details, and new information that might have a bearing on his case. Later in the hearing, he told Mr. Roshid and his counsel to focus on evidence supporting Mr. Roshid's objective fear, given that the Awami League lost power in Bangladesh's elections of October 2001.
[11] The case was not a complicated one and the decision is not lengthy. In his decision, the board member included the responses given by Mr. Roshid during the hearing. He also noted discrepancies between the testimony and the statements in the PIF. It is apparent to me that the board member had an open mind with respect to Mr. Roshid's evidence and had not prejudged the case.
[12] In short, an informed person, viewing the matter realistically and practically - having thought the matter through - would not conclude that there exists a reasonable apprehension of bias. There is no breach of natural justice here.
[13] Counsel did not suggest a question for certification and none arises on these facts.
ORDER
THIS COURT ORDERS that:
1. The style of cause is amended to reflect the correct spelling of Mohammad Roshid.
2. The application for judicial review is dismissed.
« Carolyn A. Layden-Stevenson »
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1248-04
STYLE OF CAUSE: MOHAMMAD ROSHID
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: December 7, 2004
PLACE OF HEARING: Ottawa, Ontario.
REASONS FOR ORDER The Honourable Madam Justice Layden-Stevenson
AND ORDER:
APPEARANCES BY:
Ms. Karla Unger FOR THE APPLICANT
Mr. Kris Klein FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Karla Unger FOR THE APPLICANT
Lynn Marchildon FOR THE RESPONDENT
Department of Justice
Ottawa, Ontario