Date: 20050106
Docket: IMM-9797-03
Citation: 2005 FC 4
Ottawa, Ontario, this 6th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
SHAFIUL ALAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Shafiul Alam's claim for refugee protection was dismissed by a panel of the Immigration and Refugee Board. Mr. Alam said he was persecuted on political grounds in Bangladesh, but the Board found his evidence not to be credible.
[2] Mr. Alam argues that the Board made a serious error by imposing on him a more onerous burden of proof than the law requires. He also suggests that this mistake led the Board to make erroneous findings of fact.
[3] In my view, the Board erred. I must, therefore, allow this application for judicial review and order a new hearing.
I. Issue
Did the Board make an error of law by misstating the burden of proof that a claimant for refugee protection must discharge?
II. Analysis
(a) The Standard of Proof
[4] The Board concluded its analysis of Mr. Alam's case with the following statement: "The claimant did not discharge his burden of proof sufficiently to establish, on a balance of probabilities, his claim is well-founded".
[5] While the burden of proof on a claimant for refugee protection is well-known and widely accepted, it is notoriously difficult to express in simple terms. Justice Mark MacGuigan stated the proper test in Adjei v. Canada (Minister of Employment & Immigration), [1989] 2 F.C. 680, [1989] F.C.J. No. 67 (C.A.) (QL):
It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not.
. . .
What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility. (At p. 683.)
[6] This is an awkward standard of proof to articulate. This Court has recognized that various expressions of this standard are acceptable, so long as the Board's reasons taken as a whole indicate that the claimant was not put to an unduly onerous burden of proof. For example, Justice Carolyn Layden-Stevenson found that the Board had expressed itself adequately when it stated: "Nothing in the evidence before me indicates that should the principal claimant's mother return to Albania, on balance of probabilities, there is a serious possibility that she would be targeted for persecution" (Brovina v. Canada (Minister of Citizenship and Immigration), 2004 FC 635, [2004] F.C.J. No. 771 (QL), at para. 11). Similarly, Justice Pierre Denault found the following to be acceptable:
Based on the evidence, the panel finds that on a balance of probabilities, there is no objective basis to support the claim in subjective fear, and there is no "reasonable chance" that the claimant would face persecution for any of the grounds stated in the Convention Refugee Definition in the Immigration Act, if she returned to Russia. (Seifelmlioukova v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1163 (T.D.) (QL), at para. 3)
[7] By contrast, in cases where the Board seemed to be demanding too much proof from a claimant, the Court has ordered a new hearing. For example, Chief Justice Julius Isaac found that the Board had erred when it stated that it was "not convinced that the claimant faces a reasonable chance that he would be persecuted for his political opinions should he return to Bulgaria" (Chichmanov v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 832 (C.A.)(QL); see also Mirzabeglui v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 50 (C.A.) (QL)). In Adjei, above, Justice MacGuigan disapproved of the Board's expression of the standard of proof when it said that the evidence before it was "insufficient for it to conclude that there are substantial grounds for thinking that persecution would result. . .".
[8] The lesson to be taken from Adjei is that the applicable standard of proof combines both the usual civil standard and a special threshold unique to the refugee protection context. Obviously, claimants must prove the facts on which they rely, and the civil standard of proof is the appropriate means by which to measure the evidence supporting their factual contentions. Similarly, claimants must ultimately persuade the Board that they are at risk of persecution. This again connotes a civil standard of proof. However, since claimants need only demonstrate a risk of persecution, it is inappropriate to require them to prove that persecution is probable. Accordingly, they must merely prove that there is a "reasonable chance", "more than a mere possibility" or "good grounds for believing" that they will face persecution.
[9] The case law referred to above shows that where the Board has articulated the gist of the appropriate standard of proof (i.e. the combination of the civil standard with the concept of a "reasonable chance"), this Court has not intervened. On the other hand, where it appears that the Board has elevated the standard of proof, the Court has gone on to consider whether a new hearing is required. Further, if the Court cannot determine what standard of proof was applied, a new hearing may be necessary: Begollari v. Canada (Minister of Citizenship and Immigration), 2004 FC 1340, [2004] F.C.J. 1613 (T.D.) (QL).
[10] Where the Board imposes a burden of proof that is too high, there is a chance that an unsuccessful claimant might otherwise have succeeded. However, in some cases, an error would be purely academic. This would be the case in situations where the claimant's evidence is so weak that it could not possibly meet even the "reasonable chance"standard: Brovina, above.
[11] Accordingly, the Court's role on judicial review in these circumstances is to determine whether the Board applied the appropriate standard of proof. If not, the Court must then decide whether the error requires a new hearing.
(b) The Board's Decision
[12] To repeat, the Board said "The claimant did not discharge his burden of proof sufficiently to establish, on a balance of probabilities, his claim is well-founded".
[13] Mr. Alam did have the burden to prove, on a balance of probabilities, that his fear of persecution was well-founded. However, the Board's statement leaves out the "reasonable chance" or "more than mere possibility" threshold. Had the Board simply said that Mr. Alam had failed to establish that there was a reasonable chance he would be persecuted, no error or ambiguity would have arisen. But in the absence of words indicating that it was applying the correct standard, the Board seems to have required Mr. Alam to prove persecution on a balance of probabilities. This is a clear error. Indeed, the respondent concedes that the Board erred in this respect.
[14] The next question, then, is whether the Board's error requires a new hearing. The Board found that Mr. Alam had failed to prove the facts underlying his claim. It said:
After a review of the claimant's demeanour, the willingness to alter his narrative to have it be consistent with letters in evidence, the inconsistency of the place where the abduction occurred, and the total lack of understanding as to what occurred at the meetings of the group to which he was a member satisfies me that the claimant's evidence is not credible.
[15] Mr. Alam argues that the Board's error is not academic in his case. In particular, he suggests that the Board's approach to the standard of proof may have caused it to discount the value of the documentary evidence he supplied in support of his claim. The Board did not refer to any of that evidence in its reasons.
[16] In my view, in circumstances where the Board has made an error of law regarding a fundamental issue, such as the appropriate standard of proof, the Court should generally order a new hearing unless it is clear that the claim could not possibly succeed. In light of its treatment of the documentary evidence, I cannot be sure that the Board's misstatement had no effect on the result. Accordingly, I feel compelled to allow this application for judicial review and to order a new hearing before a different panel of the Board.
[17] Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed and a new hearing is ordered;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9797-03
STYLE OF CAUSE: SHAFIUL ALAM v. MCI
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: November 17, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: January 6, 2005
APPEARANCES BY:
Mr. Michael Crane FOR THE APPLICANT
Ms. A. Leena Jaakimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL CRANE FOR THE APPLICANT
Toronto, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT