[2001] 1 F.C. 3
IMM-546-99
Nabil Bouguettaya (Applicant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Bouguettaya v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.—Montréal, October 28, 1999; Ottawa, June 22, 2000.
Citizenship and Immigration — Immigration Practice — Judicial review of IRB, Refugee Division’s dismissal of application for new hearing — Applicant filing military exemption on white paper — Documentary evidence that Algerian military exemption card yellow — Explaining issued to him as teacher, not student — Denied refugee status for lack of credibility — Tribunal acknowledging Algerian authorities issuing deferment certificates on sheets of paper rather than yellow cards since 1998, but principle of natural justice not violated because documentary evidence not contradicted at hearing, while decision under reserve — Application allowed — Breach of natural justice — (1) Tribunal ignoring other decisions of Refugee Division wherein Algerian claimants presenting deferments on white paper granted refugee status — When one panel of Refugee Division reaching conclusion different from that reached by another regarding similar questions of fact, law, should make necessary distinctions to avoid arbitrary, unfair decisions — (2) Tribunal could not have concluded documentary evidence not contradicted by applicant at time case heard given applicant’s explanation for why deferment on white paper — Failed to grasp fact information regarding deferments based on 1993 conversation — (3) Tribunal narrowed scope of breach of natural justice too much — That information not known, not in effect, when case heard relating more to concept of new facts than to breach of natural justice — Concept of breach of natural justice broader, relating to concept of fundamental justice, principle whose content varying with circumstances and can include evidentiary defects.
This was an application for judicial review of the Immigration and Refugee Board (IRB), Refugee Division’s dismissal of an application for a new hearing. The applicant’s refugee claim was rejected on November 28, 1997. An application for leave to apply for judicial review of that decision was dismissed on April 2, 1998. On November 23, 1998 the applicant filed a motion requesting that a new hearing be held on the ground that in the November 28, 1997 decision Board members had relied on documentary evidence which, on the date of the hearing, contained false or inaccurate information. The applicant argued that he had been denied refugee status on the ground of non-credibility, based on an inconsistency with the documentary evidence. He stated that the fresh evidence did not exist either on the date of the hearing or the date of the Tribunal’s decision. The Tribunal had stated that Exhibit A-13 showed that the Algerian military deferment (exemption card) was pale yellow. The applicant had filed a military deferment issued on December 26, 1995 that was printed on white paper. On March 13, 1998 (four months after the Board members had made their decision), in response to a question submitted by the applicant, the Information Services Unit of the IRB indicated that deferment certificates were temporarily being printed on sheets of paper. The applicant contended that this response contradicted Exhibit A-13, which had been attached to a response to a request for information about military service in Algeria, which in turn referred to a Swiss document which cited its source of information as a 1993 telephone conversation with a representative of the Algerian Embassy in Ottawa. The applicant submitted that the information used to deny him refugee status had been false since at least December 26, 1994. He referred to other cases in which the Refugee Division had granted refugee status in 1998 to military absentees who had presented deferments on white paper. In dismissing the motion for a new hearing the Board acknowledged that deferment certificates printed on sheets of paper had been issued at least since March 1998 by the Algerian authorities, replacing the certificates that had been issued on pale yellow cards, but decided that the principles of natural justice had not been violated because when the case was heard and during the period when the decision had been reserved, the documentary evidence was not contradicted.
The issue was whether there had been a denial of the principles of natural justice.
Held, the application should be allowed.
There was a denial of natural justice. (1) The Tribunal ignored the recognition by other panels of the Refugee Division that a military deferment could have been issued by the Algerian authorities, in 1994 and 1995, on white paper. While members of the Refugee Division are not required to follow the decisions made by other members of that Division, when one panel of the Division reaches a conclusion different from that reached by another panel of the same Division regarding similar questions of law and fact, it should make the necessary distinctions to justify this kind of discrepancy and to avoid making arbitrary and unfair decisions. (2) The Tribunal could not have concluded that the documentary evidence (Exhibit A-13) had not been contradicted by the applicant at the time his case was heard since the applicant explained at his hearing that his deferment was on white paper because at the time it was issued he had been a teacher, not a student. Also, the Tribunal failed to properly grasp the fact that the information regarding deferments was not recent since it was based on a 1993 telephone conversation. Moreover, the record did not support the Tribunal’s finding that the new information did not exist when the case was heard. (3) The Tribunal’s conclusions regarding a breach of natural justice narrowed the scope of that concept much too far. The considerations on which the Tribunal relied in concluding that it could not have regard to information that was not known, and did not seem to have been in effect at the time when the case was heard or during the period when the decision was reserved, related more to the concept of new facts than to the concept of a breach of natural justice. Nor did the Tribunal have regard to the fact that other panels of the Refugee Division have not cited the same constraint. The scope of the concept of breach of natural justice is much broader and relates rather to the concept of fundamental justice, a principle whose content may vary and depends on the circumstances, and may include a defect in evidence.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Convention Refugee Determination Division Rules, SOR/93-45, R. 28.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (1990), 44 Admin. L.R. 264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.); Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277.
REFERRED TO:
Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.); Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 170 F.T.R. 153 (F.C.T.D.).
APPLICATION for judicial review of the Immigration and Refugee Board, Refugee Division’s dismissal of an application for a new hearing on the ground that there had been a denial of natural justice. Application allowed.
APPEARANCES:
Denis Girard for applicant.
Martine Valois for respondent.
SOLICITORS OF RECORD:
Denis Girard, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for order rendered by
Lemieux J.:
INTRODUCTION
[1] This application for judicial review raises a question of law relating to the power of the Refugee Division of the Immigration and Refugee Board (the Tribunal) to order that a new hearing be held.
[2] On January 8, 1999, the Tribunal dismissed the application for a new hearing made under rule 28 of the Convention Refugee Determination Division Rules, SOR/93-45, by Nabil Bouguettaya (the applicant), whose refugee claim had been rejected by the Tribunal on November 28, 1997.
[3] The record shows that on April 2, 1998, the application for leave to apply for judicial review of the decision made on November 28, 1997, was also dismissed. However, and as we shall see later, the evidence presented by the applicant in support of his application for a new hearing was not communicated to him until after the pleadings were filed in this Court’s record.
MOTION FOR A NEW HEARING TO BE HELD
[4] On November 23, 1998, the applicant filed a motion asking that a new hearing be held. He asserted in that motion that in their decision dated November 28, 1997, denying him refugee status, Members Handfield and Ndejuru (the Members) relied on documentary evidence which, on the date of the hearing, contained false or inaccurate information. The applicant stated that the fresh evidence did not exist either on the date of the hearing (October 7, 1997) or on November 28, 1997, the date of the Tribunal’s decision.
[5] In order to persuade the Tribunal that there were grounds for reopening, the applicant argued that the Members had denied him refugee status on the ground of non-credibility, based on a major inconsistency or implausibility connected with the documentary evidence (Exhibit A-13). The documentary evidence indicates that the military deferment (exemption card) issued by the Ministry of National Defence is pale yellow in colour, while the applicant had filed a military deferment at the hearing that was printed on white paper and was issued on December 26, 1995 (Exhibit P-6).
[6] The impact of this inconsistency or implausibility may be seen in the following passage from the decision made by the Tribunal on November 28, 1997:
[translation] At the hearing, the Tribunal found, after checking the copies of the passport in question, that the claimant went back to Algeria at least three times after fleeing that country and going to France on February 9, 1996. When confronted with this extremely important point, the claimant gave the explanation that his brother Mohamed, who has lived in France since 1992 with student status, used his passport three times to go and visit his mother and to take her some money. He stated that his brother used his passport and his military deferment [Exhibit P-6] for the following reason: “My brother had his deferment but it takes some time to get it renewed.”
However, according to the documentary evidence in the record, the military deferment tendered by the claimant [Exhibit P-6] is not in the proper form. Exhibit A-13, page 10, shows that a deferment [exemption card] is pale yellow in colour and is issued by the Ministry of National Defence. Exhibit P-6 is not a pale yellow card. When confronted with this, the claimant said that when he got his deferment, he was a teacher and not a student. The authorities therefore took his yellow card. We are not satisfied by this explanation. The documentary evidence makes no distinction between a deferment issued to a student and a deferment for any other reason, in terms of the form of the document in question.
The claimant is not credible when he tells us that his brother was the one who used his passport to travel between France and Algeria. We believe that the claimant invented this story in order to camouflage his trips back to the country of alleged persecution, after leaving that very country in February 1996. This has a major effect on his credibility when he claims to fear persecution in Algeria. [Emphasis added.]
[7] To justify his contention that a new hearing should be held, the applicant referred to a question submitted to the Information Services Unit of the IRB (the Centre) on March 6, 1998 (four months after the Members made their decision) and the response he got back on March 13, 1998. The question submitted was as follows:
[translation] Confirm the existence and validity of the certificate of deferment issued on paper (and not on a card as described in response DZA 27592.F) in the form of the attached specimen. Explain whether this is an original, what authority issued the document, when, in what circumstances, where, why it is different from the one in card form, and how it is different from the one in card form.
[8] Exhibit A-13, which was filed at the hearing of the applicant’s claim, was originally a document attached to a response provided by the Centre (no. DZA 27592.F) dated August 1, 1997, in response to a request for information about military service in Algeria, desertion and refusal to serve, and about a soldier’s training and official credential cards from the National People’s Army.
[9] From this we see that the response dated August 1, 1997 refers the reader to a document dated June 16, 1997 and published by the Office fédéral des réfugiés de la Suisse, entitled [translation] “Algeria: military service, desertion and refusal to serve”. Paragraph 5.2 of that document makes a distinction between an exemption and a deferment. It says that the document for exemption from military service in Algeria is yellow, and is the same size as an open passport (195 x 155 mm). In the case of a deferment granted to secondary or post-secondary students up to the age of 27, the recruiting office stamps the pale yellow exemption card issued by the Ministry of National Defence. In addition, the Swiss document cites as its source of information [translation] “IRBDC. Telephone conversation with a representative of the Embassy of Algeria, Ottawa, 17/11/93”. The acronym IRBDC means “Immigration and Refugee Board Document Centre” (the Centre).
[10] The Centre’s response, dated March 13, 1998, reads as follows:
[translation] A representative of the office of the Defence Attaché of the Embassy of Algeria in Washington said on March 11, 1998 in the course of a telephone conversation that the terms and conditions for issuing certificates of deferment are being changed and that these certificates are being temporarily printed on sheets of paper. These certificates are issued by one of the five sub-branches of the recruiting office of the Ministry of National Defence and are valid only for the length of the student’s program of studies.
On the question of the photocopy of the sample certificate printed on a sheet of paper, the representative said that this is a certificate of deferment but was not able to confirm its authenticity. The representative also said that the sub-branch of the recruiting office was not shown on the document.
This response was prepared by the Research Branch with the help of information taken from sources that are available to the public, and which was available to the Research Branch Direction within the time available. This response does not claim to be an exhaustive treatment of the country in question, or to provide conclusive evidence regarding the basis of a claim for asylum or refugee status. [Emphasis added.]
[11] The applicant contended that the Centre’s response contradicted or modified the documentary evidence (Exhibit A-13) on which the Members had based their finding of implausibility in the decision they made on November 28, 1997, when they rejected Exhibit P-6, which was the applicant’s military deferment, printed on white paper.
[12] In support of his application to reopen, the applicant reproduced the document from the Centre on which the Office fédéral suisse had relied in reaching its conclusion as to the real colour of a military deferment. That document is dated November 16, 1993, and reads as follows:
[translation] The length of national service is set at eighteen (18) consecutive and continuous months (December 13, 1989, 1189).
…
Citizens who are thirty (30) years old or older on November 1, 1989, regardless of their legal status in relation to national service, are exempt from national service (December 13, 1989, 1189).
According to a representative of the Embassy of Algeria in Ottawa, national service was instituted in 1969 and consists of six months of military service (training) and one year of civilian service in a work place that is appropriate to the qualifications of each individual (Nov. 17, 1993). The amnesty law of 1989 for Algerians aged 30 and over applied only to people who were 30 years old and over during 1989 only (ibid). That amnesty was not permanent (ibid). The representative added that exemptions from national service are generally issued only to students (ibid.). Deferment or exemption may be granted only to sons ….
The deferment document is issued by the Ministry of National Defence and is pale yellow in colour (ibid). The exemption document is also yellow and is the same size as an open Canadian passport (ibid.). An application for deferment must be made every year and must be accompanied by a justification (ibid.). When the new application is accepted, the recruiting office stamps the same card for the current year (ibid.). [Emphasis added.]
[13] In his application for a new hearing, the applicant, having laid out the documentation cited, submitted that he had proved that the information used in 1997 to deny him refugee status was false, and also that he had proved that this information had been false since at least December 26, 1994.
[14] The applicant selected December 26, 1994 as the reference date on the basis of certain decisions made by the Refugee Division in the cases of other refugee claims made by Algerian nationals in 1998, that is, after the date when his refugee claim was rejected. That date, December 26, 1994, is particularly crucial in that the military deferment filed by the applicant was issued on December 26, 1995, one year later.
[15] In support of his assertions, the applicant submits that in file no. M97-03276, the claimant had filed a military deferment on white paper, which was renewed on December 26, 1994, and which was recognized as genuine. The applicant also referred to other cases in which the Refugee Division granted refugee status, in 1998, to military absentees who had presented deferments on white paper.
[16] Second, the applicant relied on a new fact that occurred only after the Members’ decision was made. The applicant informed the Tribunal, citing supporting evidence, that on December 27, 1997, one of his sisters and his paternal uncle had been killed at his home in Algeria, thus demonstrating that either he or his family has been targeted.
DECISION OF THE TRIBUNAL DENYING THE MOTION FOR A NEW HEARING TO BE HELD
[17] On January 8, 1999, the Tribunal dismissed the motion for a new hearing to be held. The Tribunal began its analysis by writing:
[translation] While we acknowledge that deferment certificates (R-5) printed on sheets of paper had been issued at least since March 1998 by the competent Algerian authorities, replacing the certificates that were issued in the form of a pale yellow card, must we conclude that there has been a breach of the rules of natural justice by reason of the fact that the Members found the applicant’s document (P-6) to be “not genuine” because it was printed on a white sheet of paper instead of being made up in the pale yellow card format, as set out at page 10 of the Algerian document (A-13) dealing with military service, dated June 16, 1997? [Emphasis added.]
[18] The Tribunal decided that it could not conclude that the principles of natural justice had been violated in this case, because at the time when the case was heard and during the period when decision had been reserved, the Refugee Division which had heard the case examined the document (P-6) relating to the military deferment solely on the basis of the documentary evidence (A-13) in the record which was not contradicted by the applicant at the time his case was heard.
[19] It explained its thinking as follows:
[translation] The information (A-13) to which the Members alluded, which deals with deferments printed on pale yellow paper, was sufficiently recent (June 13, 1997) that the Tribunal quite naturally was led to believe that it was up to date. Accordingly, this cannot be seen as a breach of natural justice because other information (R-5) dated March 13, 1998, exactly four months after the decision was made, describes the issuance of deferment certificates printed on sheets of paper. The CRDD cannot have regard to that information (R-5) today when it was not known and does not seem to have been in effect at the time when the case was heard (October 27, 1997) or during the period when decision had been reserved. [Emphasis added.]
[20] The Tribunal points out that the Refugee Division’s jurisdiction in respect of rehearing a refugee claim is very limited, and that, having made its decision, it is thereby functus officio. It may revisit it only in cases where there has been a breach of the rules of natural justice. It concludes as follows:
[translation] Having examined the motion, the affidavits and the record as a whole, we are unable to reach that conclusion.
[21] On the question of the Refugee Division’s power to intervene to admit evidence after judgment has been rendered, the Tribunal pointed out that, in accordance with the principles laid down in Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.) and in the cases decided by the Federal Court—Trial Division that have followed that decision, it had no authority to intervene in a case of that nature.
ANALYSIS
The applicable principles of law
[22] The decisions of this Court have established unequivocally that the Tribunal has the power to reopen an application for reconsideration of a refugee claim if a denial of natural justice was committed at the hearing. In Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.), Mr. Justice Marceau stated the principle as follows, at pages 293-294:
Indeed, it is now firmly established, in the jurisprudence of this Court, that if the hearing of an application has not been held according to the rules of natural justice, the Board may look at its decision as a nullity and reconsider the matter …. On the other hand, it was found in Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (C.A.), that an immigration inquiry, held at a moment when the person concerned was under the direct influence of a third party (her husband) and not free to bring up facts as they were, could be seen as having breached the rules of natural justice, with the result that the decision that followed was a nullity under the Charter and the adjudicator could reconsider his decision. Was not the Board faced with a similar situation here in view of the applicant’s statement that he had omitted to reveal his membership in the International Sikh Youth Federation between 1985 and 1986 because of fear of repercussions against his family in India? The Board has no comment on the point, for the simple reason, I suppose, that it was never faced with an allegation of breach of natural justice. Nor are we, for that matter; it is my approach to the case which led me to the question. But my answer to it is clearly negative. The duress invoked by the applicant is not of the type which was in question in the Kaur case, i.e. not a direct and immediate one; it certainly cannot be seen as having affected the hearing to the extent of making it a travesty of justice. The Board, on the sole allegation contained in the affidavit filed in support of the application to reopen the hearing, could not come to the conclusion that its initial decision could be regarded as a nullity. It follows that the Board had no more jurisdiction to reopen the hearing to allow the applicant to introduce the particular information he wanted to introduce than to allow him to bring evidence of new facts. [Emphasis added.]
[23] It should be noted that the power of the courts to intervene to remedy a denial of natural justice was also clearly stated by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, where Mr. Justice Sopinka stated, at page 863:
If the error which renders the decision a nullity is one that taints the whole proceeding, then the Tribunal must start afresh …. [All these cases] involve a denial of natural justice which vitiated the whole proceeding. The Tribunal was bound to start afresh in order to cure the defect.
[24] As I said earlier, the Tribunal dismissed the motion on the grounds that it could not conclude that there had been a violation of the principles of natural justice, and that in accordance with the principles set out in Longia, supra, it had no authority to intervene to admit fresh evidence after judgment had been rendered.
The issue
[25] With respect to the second reason cited by the Tribunal for dismissing the motion, that is, its inability to intervene to admit fresh evidence, I do not in fact see any error of law in the application of the principles set out in Longia, supra, that might warrant intervention by this Court. Accordingly, the only issue that remains here is whether the Tribunal erred in concluding that there had been no violation of the principles of natural justice when the applicant’s refugee claim was rejected.
Application of the legal principles to this case
[26] Having regard to the decisions of this Court on the issue, I conclude that in analyzing the decision made by the Tribunal, this Court must evaluate the nature and importance of the defect alleged by the applicant in order to determine whether the Tribunal in fact committed a reviewable error such as would warrant intervention.
[27] In this case, I find, without a shadow of a doubt, that the members who made up the Tribunal that heard and rejected the applicant’s claim relied on Exhibit A-13 as their basis for rejecting the applicant’s testimony on an essential point: three trips to France. Today, the applicant contends that there is no doubt that Exhibit A-13 was a misrepresentation in respect of the form and colour of a military deferment issued in Algeria and that this fact was acknowledged by other members of the Tribunal in 1998 and 1999, including Members Handfield and Ndejuru, who decided the applicant’s claim. I must therefore now determine whether the use of that evidence, which resulted in the rejection of the applicant’s claim, amounts to an error resulting in a denial of natural justice.
[28] After analyzing the question, I must conclude that there has indeed been a breach of natural justice, for at least three reasons that I shall briefly describe. First, the Tribunal completely ignored a fundamental point raised by the applicant, that is, the recognition by other panels of the Refugee Division that a military deferment could have been issued by the competent Algerian authorities, in 1994 and 1995, on white paper. The Tribunal made no mention of this central piece of evidence, despite its duty to do so (on this point, see the reasons of Mr. Justice Evans, now of the Court of Appeal, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).
[29] It is of course true that the members of the Refugee Division are not required to follow the decisions made by other members of that Division. Nonetheless, to avoid the possibility of growing numbers of arbitrary and unfair decisions being made by that Division, it is proper to conclude that when one panel of the Refugee Division decides to reach a conclusion different from the conclusion reached by another panel of the same tribunal regarding similar questions of law and fact, it should make the necessary distinctions in order to justify this kind of discrepancy. I would also refer to the judgment of my colleague Madam Justice McGillis in Ahani v. Canada (Minister of Citizenship and immigration) (1999), 170 F.T.R. 153 (F.C.T.D.) where she reiterates the applicable principles.
[30] Second, the Tribunal failed to properly understand an important piece of evidence that had been introduced before the first Tribunal. It could not have concluded that the documentary evidence (A-13) had not been contradicted by the applicant at the time his case was heard, since the applicant explained at his hearing on October 7, 1998 why his deferment was on white paper and not on yellow cardboard. The reason was that he was not a student, but rather had teacher status.
[31] In addition, I note that the Tribunal failed to properly grasp the fact that the information (A-13) regarding deferments was not recent (June 13, 1997) since it was based on a telephone conversation that had taken place in 1993. Moreover, I note that the Tribunal stated that the new information (R-5) dated March 13, 1998 did not seem to have been in effect at the time when the case was heard or during the period when the decision was reserved. I conclude, however, that the evidence in the record does not support that assertion.
[32] Lastly, the effect of the Tribunal’s conclusions regarding a breach of natural justice is to narrow the scope of that concept much too far. The Tribunal said that it could not, today, have regard to information (R-5) that was not known and did not seem to have been in effect at the time when the case was heard or during the period when decision was reserved. However, the considerations on which the Tribunal relied in reaching that conclusion relate more to the concept of new facts than to the concept of a breach of natural justice. In addition, I find that the Tribunal did not have regard to the fact that other panels of the Refugee Division have not cited the same constraint.
[33] The scope of the concept of breach of natural justice, or travesty of justice, is much broader and relates rather to the concept of fundamental justice, a principle whose content may vary and depends on the circumstances, and may certainly include a defect in evidence.
[34] For all these reasons, this application for judicial review is allowed, the decision of the Tribunal refusing to reopen is set aside and the matter is referred back to the Refugee Division for the application for a new hearing filed by the applicant to be reheard by a new panel.
[35] No other question was proposed for certification and no such question is stated.