Date: 20020325
Docket: A-532-00
Neutral citation: 2002 FCA 119
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
MORIE B. LAHAI
Appellant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, Monday, March 18, 2002.
Judgment rendered at Ottawa, Ontario, on Monday, March 25, 2002
REASONS FOR JUDGMENT: SEXTON J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
EVANS J.A.
Date: 20020325
Docket: A-532-00
Neutral citation: 2002 FCA 119
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
MORIE B. LAHAI
Appellant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from a decision of the Trial Division which dismissed the Appellant's application for judicial review of a decision of the Convention Refugee Division of the Immigration and Refugee Board dated November 9, 1999.
[2] The Appellant's claim for refugee status was heard by a two-person panel of the Board on May 4, 1999. At the close of the hearing, the Board invited the appellant to file further material relating to possible persecution of people such as himself, which he did. However, the Board failed to take into account this additional evidence and simply dismissed his application.
[3] As a result, the Board granted the Appellant's motion to re-open his claim and a new hearing was ordered.
[4] A new hearing was scheduled before a single member of the Board (Mr. Khan), that member not having been one of the original two on the first hearing. Prior to the commencement of the second hearing, Mr. Khan sent a letter to the Appellant's counsel setting out a list of exhibits that the Board would consider at the second hearing, including documents which were before the Board at the first hearing. The list also disclosed that Mr. Khan would have before him the Board's decision from the first hearing and would, as well, allow new evidence to be presented at the second hearing.
[5] At the second hearing, the Appellant testified in detail about all aspects of his refugee claim, and called further evidence.
[6] Mr. Khan rejected the Appellant's claim for refugee status on the basis that he had failed to provide sufficient evidence to demonstrate that he was a Convention Refugee, noting that his testimony and documentary evidence did not show even the "mere possibility" that he would face persecution as he claimed if he was returned to Sierra Leone.
[7] Before the Motions Judge it was argued that at the second hearing Mr. Khan had failed actually to treat the matter as a hearing de novo and did not permit counsel for the Appellant to lead his full case. Secondly, the Appellant argued that Mr. Khan was wrong in reading the first decision, the result being that there could not be a fair trial.
[8] The Motions Judge found that the Appellant had not been curtailed in any way in the presentation of his claim and on the second issue found that no reasonable apprehension of bias was created as a result of the Board member reading the first decision.
[9] The Motions Judge, while dismissing the application for judicial review, certified the following question for this Court:
Is it a violation of the principles of natural justice for a Board member to read a previous adverse decision before hearing a refugee claim de novo?
[10] As counsel for the Minister pointed out in argument, when the Board reopens a decision for breach of the duty of fairness, its task is to make a fresh determination of the claim on the basis of the evidence that is put before it in connection with the second hearing. The process is in principle exactly the same as if the first decision had been set aside by the Court on an application for judicial review and remitted to the Board for redetermination.
[11] When remitting a matter, the Court normally directs that it be heard by a differently constituted panel of the Board. However, it would seem that the practice may be somewhat different when a matter is reopened by the Board at the request of a claimant who has satisfied the Board that the first decision was vitiated by a breach of the duty of fairness. That is, the second panel may comprise one or both members of the first panel. In these circumstances, it would not be surprising if, in order to save time and resources, the panel conducting the second hearing focussed on any new material or submissions that the claimant wished to put before the panel, since it would already have heard the rest of the claimant's case. Whether a refugee claimant may insist on a completely fresh hearing before a Board member who had not participated in the first hearing is not a question that arises for decision in this case, since Mr. Khan had not been on the first panel that had decided the Appellant's claim.
[12] Accordingly, the Appellant was entitled to a de novo hearing of his claim from Mr. Khan and it would be a breach of the duty of fairness if Mr. Khan did not approach the matter with a view to determining the Appellant's refugee claim de novo on the basis of the oral and documentary evidence adduced before him in connection with the Appellant's claim. This does not mean that, in the interest of efficiency, a second panel may not include in the record documents tendered in connection with the first hearing, including the personal information form completed by the claimant.
[13] Whether a reasonable person would think that it was likely that Mr. Khan had not afforded him the de novo hearing to which he was entitled by the duty of fairness depends on an assessment of the totality of the evidence. One item alone, such as the second panel's reading of the first panel's decision, will normally not be dispositive of the question of whether the claimant was denied the right to procedural fairness.
[14] However, since the reasons for the first panel's decision are irrelevant to the issues before the second panel, the fact that the panel nonetheless read them may create a suspicion that it did so in order to save itself the trouble of conducting its own independent analysis of the material before it, or out of some misguided sense that it would be uncollegial to reach a different decision.
[15] Nonetheless, when, as here, the reasons given by the second panel are so different from those given by the first panel, indicating that the second panel approached the issue with an open mind, the reading of the first panel's reasons is not objectionable. It is also worth noting in this context that the reasons for the second decision in the instant case do not rely on those given by the first panel.
[16] It will also be relevant to consider if the second panel member said anything to indicate that the purpose of the proceeding was not to make a de novo determination of the claim, but, for example, to decide if the new evidence was sufficient to displace the first panel's conclusions.
[17] An examination of the transcript reveals that, although Mr. Khan indicated that he would like to commence the hearing by having the new evidence presented, in fact the Appellant proceeded to lead his entire case in the way he wished to present it. There was no curtailment of this process by Mr. Khan and the transcript indicates that he asked questions relating to the Appellant's case with no predisposition to limit in any way either the presentation of the Appellant's case or his own deliberation.
[18] I am of the view that this appeal must be dismissed. As already mentioned, on the first issue, it is abundantly clear that the Appellant was allowed to present fully his case at the second hearing.
[19] With respect to the second issue, I see nothing wrong with the Board member at the second hearing reading the prior decision. I agree with the motions judge that no informed person who reviewed the matter thoughtfully, realistically and practically would conclude that the Board member who conducted the second hearing could not proceed with an open mind only because he had read the first decision. The Board member at the second hearing was clearly aware that the first decision was based on incomplete information and he permitted the Appellant to lead whatever further evidence he wished.
[20] We do not believe that the mere reading of a previous decision which is adverse to the Appellant can lead to a reasonable apprehension of bias as defined by the de Grandpré J. in The Committee for Justice and Liberty et al. v. The National Energy Board et al., [1978] 1 S.C.R. 369 at 394.
[21] There is no evidence that Mr. Khan prejudged the case on the merits before hearing it and his reasons for rejecting the Appellant's claim exhibit this. The first decision was based on a finding of credibility where as the second decision was based on insufficient evidence of even a mere possibility of persecution.
[22] The appeal will therefore be dismissed with costs and the certified question is answered in the negative.
"J. EDGAR SEXTON"
J.A.
"I agree
Marshall Rothstein"
"I agree
John M. Evans J.A."
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-532-00
STYLE OF CAUSE: MORIE B. LAHAI
Appellant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, MARCH 18, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED BY: ROTHSTEIN J.A.
EVANS J.A.
DATED: MONDAY, MARCH 25, 2002
APPEARANCES BY: Mr. Davies Bagambiire
For the Appellant
Ms. Angela Marinos
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: DAVIES BAGAMBIIRE
Barrister & Solicitor
347 Bay Street, Suite 1202
National Building
Toronto, Ontario
M5H 2R7
For the Appellant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020325
Docket: A-532-00
BETWEEN:
MORIE B. LAHAI
Appellant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT