[2001] 2 F.C. 124
IMM-2227-00
Gavril Veres, Angela Veres, Razvan Veres (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Veres v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Pelletier J.—Saskatoon, November 3; Ottawa, November 24, 2000.
Citizenship and Immigration — Immigration practice — Evidence — Convention refugee claimant’s story doubted based on evidence improperly assessed by CRDD — In some circumstances, CRDD must explain why certain evidence preferred over other — CRDD timesaving practice of taking personal information form as read into record and commencing with cross-examination, dispensing with having applicant examined in chief, unfair where CRDD making adverse finding based on applicant’s failure to provide enough information — One having onus of proof must be given fair chance to discharge same — Price of setting agenda is to accept responsibility for items missed.
The applicants, Romanian citizens, sought Convention refugee status based on allegations of persecution in their country. The Convention Refugee Determination Division (CRDD) rejected their claims because elements of their allegations of persecution were not credible and were inconsistent with the documentary evidence. This was an application for judicial review of that decision.
Held, the application should be allowed.
There were two instances where the CRDD stated that the applicant, Gavril Veres, could not give adequate explanations: why he had not kept copies of important letters confirming some elements of his story, and why he did not try to resolve an error made by the authorities regarding certain fines imposed on him. However, Veres did give a reasonable explanation in both cases, which the CRDD did not mention in its reasons. Although it was within the CRDD’s mandate to disbelieve the explanations, it was not within its mandate to ignore reasonable explanations and to treat the evidence as though the explanations had never been given.
The CRDD also doubted the authenticity of his membership card in the Roma party, based on what it called documentary evidence: the response, given by a party representative to a telephone information request by the refugee hearing officer, to the effect that the name of the person who had signed the membership card as party President at Dej was unknown to the party. On the other hand, the applicant had presented the CRDD with a local newspaper article from the relevant period identifying that person as the President of the Roma party. The “documentary” quality of the evidence in the response to information request fell far short of the quality of the evidence from the newspaper. While in general, the CRDD is not obliged to justify every evidentiary choice it makes, some choices, such as here where the party representative’s information did not have the same “circumstantial guarantee of trustworthiness” as documentary evidence prepared by independent agencies, call for explanation because they run counter to established rules as to the reliability of evidence. For the CRDD to say, in spite of the newspaper article, that it had no reason to doubt the information received was no explanation at all. The failure to do so was an error.
Another issue was the CRDD’s practice of taking the claimant’s personal information form as read, and proceeding directly to cross-examination without having the applicant put his case before the Tribunal orally. The person who bears the onus of proof must be given a fair chance to meet that onus. The practice adopted by the CRDD herein meant that the person bearing the onus was deprived of control of the process and in such circumstances, he could not be reproached, as he was, for a failure to produce some piece of evidence. The situation was similar to that in the case of Sivaraj v. Canada (Minister of Citizenship and Immigration) where the CRDD had dissuaded the claimant from giving evidence on a crucial point and then proceeded to make an adverse finding for lack of evidence on that point. In that case, this Court found a breach of natural justice. The underlying principle applies equally where, as here, the CRDD, as a timesaving measure, determines that the examination in chief will consist of taking the personal information form as read into the record. It is simply unfair to deny the claimant the opportunity to tell his story and then to reproach him for not providing enough information. The price of setting the agenda is to accept the responsibility for the items which are missed: a gap in the evidence cannot be held against a claimant who has not given evidence in chief. Failure of counsel to object to the procedure chosen by the CRDD does not alter the fact that the CRDD has set the agenda and is bound thereby.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Chehar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1379 (T.D.) (QL); Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106; 98 N.R. 312 (F.C.A.); Aligolian v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 484 (T.D.) (QL); Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 120 F.T.R. 136; 36 Imm. L.R. (2d) 45 (F.C.T.D.); Kaur v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 301 (F.C.T.D.); Mahendran v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 30; 134 N.R. 316 (F.C.A.).
DISTINGUISHED:
Tanase v. Canada (Minister of Citizenship and Immigration) (2000), 3 Imm. L.R. (3d) 308 (F.C.T.D.); Matarage v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 460 (T.D.) (QL).
APPLICATION for judicial review of the decision of the CRDD that the applicants were not Convention refugees. Application allowed.
APPEARANCES:
John D. Hardy for applicants.
Glennys Bembridge for respondent.
SOLICITORS OF RECORD:
Hardy & Hardy, Saskatoon, Saskatchewan, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
[1] Pelletier J.: Gavril Veres is a Romanian émigré whose father was a gypsy (Roma) and whose mother was Ukrainian. His wife Angela is a member of the Hungarian minority in Romania. They have one child, Razvan, who is also an applicant in these proceedings.
[2] Mr. and Mrs. Veres left Romania because of the treatment they received at the hands of the Romanian police and security forces who targeted this family because of their minority ethnicity. They left Romania on May 20, 1998 and arrived in Canada on July 4, 1998, after passing through Hungary and Costa Rica. On July 6, 1998, they applied for refugee status. On April 4, 2000, the Convention Refugee Determination Division (the CRDD) decided that they were not Convention refugees [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6] because elements of their allegations of persecution were not credible and were inconsistent with the documentary evidence. They bring this application for judicial review of the CRDD’s decision, alleging that the CRDD ignored the presumption of truthfulness, misrepresented their evidence, and intervened so aggressively in the proceedings so as to create a reasonable apprehension of bias.
[3] Their story, in brief, is that they came to the attention of the authorities in 1992 when Mrs. Veres’ uncle, a well-known Hungarian rights activist died after being released from police custody. The attending physician told them that it appeared he had been mistreated while in custody. Shortly thereafter, the security service began visiting members of the family asking about the uncle’s activities. Then, Mr. Veres complained to the governing body of the medical profession and to the Chamber of Deputies when his son nearly died of appendicitis, as a result of a physician’s refusal to treat him at the hospital in Dej. This provoked arrests and beatings by the police in a bid to have him withdraw his complaint. Mrs. Veres was manhandled when the police came to arrest her husband in the middle of the night and suffered a miscarriage. Mr. Veres was severely beaten while in detention. They moved to another district for a period of time but returned home when vandals set fire to the woodshed attached to their house and the police abused Mr. Veres instead of investigating the fire. He was beaten again in April 1998 and commenced a civil action against the officer responsible for beating him. When he arrived for the trial, the medical report, which supported his claim, had disappeared from the Court file. The officer in question threatened him and his family with extermination. Eventually, they decided that Romania was getting too dangerous for them and left.
[4] The CRDD rejected much of the Veres’ evidence for reasons which are the grounds of this application.
[5] The CRDD doubted the Veres’ credibility as a result of a number of conclusions which they drew from particular elements of their story. One of the first such elements had to do with production of copies of the letters which Mr. Veres wrote about the treatment (or lack of it) his son received for his appendicitis. Mr. Veres testified that he did not have copies of the letters. The CRDD asked Mr. Veres why he could not produce copies of letters which caused him so much hardship. In their reasons, they record his answer as “he didn’t know what he had to do with them.” The CRDD then concludes that this answer is unreasonable, particularly since he was able to produce other documents.
[6] The difficulty is that Mr. Veres gave another answer which was reasonable and which the CRDD did not mention in its reasons. The first time the issue came up, the discussion was as follows:
Q. How do you explain that you (inaudible), in order to support your claim you kept that copy from, summons from five years ago, discharge from three years ago and you put an action on yourself by complaining and you don’t keep a copy.
A. I didn’t keep a copy of this complaint because I didn’t know at that time how the things will go on in the—and I didn’t know that I had to make to keep a copy of that. And it would have been easier for me to not keep a copy but to write another complaint, complaint like another letter, so I didn’t know at that time if I had to keep a copy or not.
Q. But why did you keep copy of old summons, old hospital discharge from 1995. Why did you keep copies of these things?
A. What you’re having right there, they are not copies where I—they are copies of the originals that I kept and I kept those home in my cupboard. [Tribunal record, at pp. 893, 894.]
[7] A few moments later the issue arises again:
PRESIDING MEMBER: Do you have any copy of these several complaints you made?
CLAIMANT (MR.): No, because I didn’t know that everything were—everything was going at that time or that I would end up with this complaint or …
PRESIDING MEMBER: But you are keeping copies of a hospital charge of 1995, which is P-17, and you’re not keeping documents which are February `96, which you are sending to government authorities.
CLAIMANT (MR.): I didn’t keep any copies from any documents. The original I had from my son, the note of discharge from the hospital I attached to my first complaint in Dej. [Tribunal record, at p. 898.]
[8] And again later:
Q. You made copy of the certificate and you kept a copy of the certificate that you enclosed with your complaint, but you did not make a copy of your letter of your complaint.
A. I want you to understand me very clear. As I mentioned before, I didn’t make any copy of either any document. I attached the original note of discharge from the hospital of my son. [Tribunal record, at p. 900.]
[9] And finally, this exchange occurred:
Q. It doesn’t say, well, where do you see that? I think that the document there, document 18, P-18?
A. No, this is not the document. This is the document that goes—issued to me on January 16th. The first document that was issued to me, the doctor who examined me, his conclusions about the blows I suffered on my—at my head, jaws, all those are issued as a note to direct me to forensic.
Q. Okay, but do you have a report on that forensic lab?
A. Yes, on January 21st when I went to the Court I attached to my complaint, to my file the medical, the legal certificate, forensic certificate which states the bruises I suffered were …
Q. And you did not keep a copy of it, right?
A. No.
Q. You have copies of everything but important documents like this one. You have no copies.
A. As I specified before, I didn’t make any copies for any kind of document. All these documents that I have here today are the originals. [Tribunal record, at pp. 924, 925.]
[10] What appears from these exchanges is that Mr. Veres did not keep copies of documents he sent but he kept the originals of all the documents he received. He explained that it would be easier to write another letter than it would be to make a copy, which presumably is a reference to the availability of photocopying technology.
[11] As a result, Mr. Veres has explained why he was able to produce certain documents (those which were given to him by the authorities) but not others (those which he wrote and sent off to the authorities). As to the latter, he pointed out the problem of access to photocopying technology and indicated that he did not anticipate that he would be appearing before a refugee claims determination board. It is within the CRDD’s mandate to disbelieve Mr. Veres’ explanation for the absence of copies of important documents. It is not within its mandate to ignore a reasonable explanation and to treat the evidence as though the explanation had never been given. See Chehar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1379 (T.D.) (QL), Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.).
[12] This finding applies to other aspects of the CRDD’s decision. At page 10 of its decision, the CRDD apparently made a negative inference from Mr. Veres’ explanation of why he did not try to resolve an error made by Romanian authorities regarding certain fines imposed on him. The details surrounding the fines are not relevant here. What is noteworthy, is that the Board characterized his explanation as follows: “he simply stated that the family had decided to leave Romania”. The transcript tells a different story:
PRESIDING MEMBER: But, sir, did you—weren’t you interested in clearing this up?
CLAIMANT (MR.): No, I considered that I paid the money and I wanted to leave. I was scared. I paid the money and I just decided to leave. And more than that, at the first appearance in court, NCO Coroian verbally told me if you get away now, you are not going to get away next time. [Emphasis added; Tribunal record, at p. 941.]
[13] As I understand Mr. Veres’ words, he did not wish to pursue the issue because of threats he had received from a police officer (an officer who had assaulted him in the past). This is far from “simply” stating that the family had decided to leave Romania.
[14] The CRDD also doubted the applicant’s credibility because of its doubts as to the authenticity of Mr. Veres’ membership card in the Roma party. It did so on the basis of its view of the appearance of the stamps showing that dues had been paid. These stamps appeared to the Tribunal to have all been affixed at the same time which suggested that Mr. Veres had obtained the card in 1999 and not in 1997, as he testified. However, the CRDD noted that there was a more important issue in relation to the membership card which was that the person who signed it as President of the party in Dej, Costel Moldovan, was, according to an information request response, unknown to the party. Mr. Veres presented the CRDD with an article from a newspaper which circulated in Dej at the material time in which Costel Moldovan was clearly identified as President of the Roma party. The CRDD’s reasons refer to “another document provided by the claimant” but indicate that the document gave “no indication as to the locality”.
[15] In fact, counsel for Mr. Veres produced the document and indicated that it was from a Romanian newspaper from Dej. Mr. Veres identified it as a weekly newspaper which was not affiliated with the party. Counsel produced a translation of the article, which the CRDD asked the interpreter to confirm was an adequate translation. When he did so, the presiding member questioned the interpreter closely as to the contents and completeness of the translation.
[16] The response to information request, on the other hand, was described by the refugee hearing officer as follows:
This document was prepared after researching information, and this was prepared by a doc centre researcher after a telephone interview with a representative of Parti dal Rom (phonetic) in Bucharest in September of 1999. [Tribunal record, at p. 903.]
[17] When counsel asked for the name of the representative who was interviewed, the answer was as follows:
Okay. I could tell you that this is a practice of the documentation centre not to mention the name of the person they are interviewing for some reason that I could explain to you, but on request the doc centre could give you the name of that person. Because the person interviewed by the doc centres are well made aware that we might have to give their name away. So I personally believe that it is very sad that they have to retain the names but we could get that name easy if there is a need for it. [Tribunal record, at pp. 903, 904.]
[18] The CRDD’s conclusion on this issue was that it had “no reason to put into doubt the information obtained from reliable sources and therefore gives no probative value to the membership card of the claimant”. In other words, the CRDD preferred the report of an unidentified official of the party in Bucharest in preference to the evidence of newspaper circulating in the Dej area as to the identity of the President of the party in Dej.
[19] While the issue was characterized before me as the CRDD preferring documentary evidence to the evidence of the claimant, the “documentary” quality of the evidence in the response to information request fell far short of the quality of the evidence from the newspaper. (In fairness to the CRDD, it did not refer to the response to information request as documentary evidence, but its reliance upon it was defended on the basis that it was documentary evidence.) It is clear that the CRDD is entitled to consider documentary evidence and, in fact, is entitled to prefer it to the oral evidence of the claimant. But describing a piece of evidence as documentary evidence does not make it documentary evidence. In most cases, the feature of documentary evidence which gives it probative value is that it is prepared by independent agencies and is published and circulated. This means that the information can be challenged by those who have an interest in doing so because it is in the public domain. When the documentary evidence is simply the response of an individual to a particular inquiry, it does not have the same “circumstantial guarantee of trustworthiness” in the words of the editors of Wigmore on Evidence. It is a report from a person on the scene whose report is not subject to scrutiny, with no opportunity for correction by those who might have a different view. In this case, it was a party official in Bucharest, whose rank and means of knowledge are unknown, commenting on local party officials in another centre.
[20] The decisions of this Court and the Federal Court of Appeal are to the effect that the CRDD has the mandate to assess and weigh the evidence, subject only to a duty, in certain circumstances, to explain why it preferred certain evidence to other evidence. One of those circumstances is when the CRDD prefers the documentary evidence to the sworn testimony of the applicant. Aligolian v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 484 (T.D.) (QL). In general, the CRDD is not obliged to justify every evidentiary choice it makes. But some choices call for explanation because they run counter to the established rules as to the reliability of evidence. Sworn testimony is generally considered to be more reliable than unsworn hearsay evidence. In this case, the only explanation offered was “the Tribunal has no reason to put into doubt the information obtained from reliable sources”. But it did have reason to question the response to information request because it was contradicted by a newspaper in general circulation in the area. To say that it had no reason to doubt the information received is no explanation at all. The failure to do so is an error.
[21] The CRDD also put into question the midnight arrest where Mr. Veres’ wife was manhandled and he was taken away. The only questions which were asked about this incident were in relation to the issue of Mrs. Veres’ miscarriage. No questions were asked about the circumstances of the police’s attendance. The CRDD indicated that it had difficulty accepting Mr. Veres’ story because “In all other cases where the claimant was questioned by police, he received a summons … however, no explanation was given as to why the claimant would not have received a summons for that date.”
[22] Mr. Veres’ personal information form recites the following:
On the evening of June 15th, around midnight to [sic] police officers came knocking on my door, telling me that I have to go to the Police Station with them because they sent me three summons and I never showed up. I would like to mention that I never received any summons so I didn’t want to follow them. [Tribunal record, at p. 96.]
[23] This clearly is an explanation for why the police came calling. The CRDD has not taken into account the evidence before it. But then, curiously, it goes on to say he has not explained the failure to receive the summons. On the one hand, it ignores the absence of the three summons as an explanation for the police’s attendance at his home (hence the credibility issue). But it then goes on to reproach Mr. Veres for not explaining why he did not receive the summons. To meet the reproach, Mr. Veres would have to explain why something did not happen. Whatever he says is bound to be speculative. The CRDD cannot ignore the issue of the summons for one purpose and then rely upon it for another.
[24] But there is a more telling criticism of the CRDD’s position on the point of absence of explanation. The members adopted the procedure of proceeding directly to cross-examination without having the applicant put his case in chief before the Tribunal orally.
PRESIDING MEMBER: Okay if you have no objections, perhaps we can let Mr. Paquin [the Refugee Hearing Officer] start with his questions and then as we usually do, we’ll go by subject. Therefore, once an issue is discussed we should feel free to intervene and then if the issue is completely discussed, then we’ll go on to another area so that we avoid coming back to the same issue two or three different times and giving possibility of error of recall or …. [Tribunal record, at p. 855.]
PRESIDING MEMBER: Okay, so what we’ve done is important because we are not going to ask you to repeat everything that you have written down. However we will ask you questions of clarification, questions of detail so that it can allow us to make a knowledgeable decision on your request for convention refugee status ….
…
PRESIDING MEMBER: All right. If there are no objections, we’ve already indicated some of the issues which have to be addressed. And as we said, if there are no objections, we can let maybe Mr. Paquin start. And we should feel free to intervene always discussing the same issue. Naturally, Mr. Hardy, you will be given the time that you need if there are other issues which you would like to address since you have the burden of proof so. So ….
MR. HARDY: I was wondering if perhaps the Panel would find it helpful if the Claimant led off by discussing his family background, to give more detail on the ethnicity, maybe to start the hearing and then jump into Mr. Paquin’s questions if that would be appropriate.
PRESIDING MEMBER: We feel that Mr. Paquin will take that into account since I identified that ethnicity are issues which have to be explored, so …
MR. HARDY: Sure. [Tribunal record, at pp. 863, 864.]
[25] One would not think it contentious to say that the person who has the onus of proof must be given a fair chance to meet that onus. In court proceedings, whether civil or criminal, the person with the onus of proof in the cause leads their evidence first and is then cross-examined. If there is an omission in the evidence, the party has no one to blame but themselves. They controlled the process by which the evidence was put before the trier of fact. The same is not true where a claimant’s personal information form is taken as read, the claimant is asked not to repeat everything that appears in it and the oral evidence begins with cross-examination. The person with the onus no longer has control of the process and is in the position of not knowing what needs to be said and what doesn’t. In those circumstances, it is unfair to reproach claimants for having failed to provide some piece of evidence unless they have noticed that they are at risk on the issue.
[26] The situation is akin to that in the case of Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 120 F.T.R. 136 (F.C.T.D.), in which this Court found a breach of natural justice in circumstances where the CRDD dissuaded the claimant from giving evidence on a crucial point, and then proceeded to make an adverse finding based on a lack of evidence on that point. The Court concluded [at paragraph 3]:
It is clear that the Board cannot discourage testimony on a point and then rely on the absence of evidence on it in its decision. The Board dissuaded the applicant from pursuing evidence of his work as a seaman. It cannot then rely on the absence of the passport to say he was not a seaman.
[27] See also: Kaur v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 301 (F.C.T.D.).
[28] While these two cases deal with circumstances where the claimant was specifically discouraged from discussing a topic only to have his claim fail later for failure to address the topic, the underlying principle applies equally where the CRDD, as a timesaving measure, determines that the examination in chief consists of taking the personal information form as read into the record. It is clear that the CRDD is the master of its procedure. It is entitled to take economy of time into account in devising its procedures. It can equally direct which evidence it wishes to hear from the mouth of the witness and which it waives hearing. But when it says it does not need to hear from the witness, it cannot subsequently complain that it has not heard from the witness. This is the principle underlying the decisions in Sivaraj and Kaur, supra. The only difference between this case and Sivaraj and Kaur is that in those cases, the waiver was specific and in this case, it was general.
[29] Does this mean that the CRDD is precluded from drawing conclusions on the lack of evidence or explanation on a point unless it has asked a specific question about the point in issue? Is it not sufficient for the CRDD to raise the transaction as an issue without having to probe every element upon which it might later seek to rely? In my view, the circumstances will dictate the extent to which the CRDD must ask specific questions. In this case, the only questions asked about the transaction in question (the midnight arrest) were in relation to Mrs. Veres’ miscarriage. Could Mr. Veres fairly conclude from that discussion that a question remained about his failure to account for not having received three summons? In my view, he could not. The test, which could be formulated in any number of ways, is essentially about fairness. Would the interaction which occurred fairly put the claimant on notice that the absence of further explanation would be prejudicial to his/her cause?
[30] Nothing in this would require the CRDD to put contradictions or inconsistencies which appear in the evidence before it to the claimants as a condition of being able to rely upon such defects to impeach credibility. This is not a collateral attack upon the principle set out in Tanase v. Canada (Minister of Citizenship and Immigration) (2000), 3 Imm. L.R. (3d) 308 (F.C.T.D.) (Muldoon J.) and Matarage v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 460 (T.D.) (QL) (Lutfy J.) and the cases cited therein which hold that the CRDD is not obliged to confront the claimant with inconsistencies or contradictions. The point I am making is directed to the absence of evidence, not to the adequacy of the evidence.
[31] The point is perhaps best made by example. On the facts of this case, it would have been open to the CRDD to say “We do not believe that Mr. Veres was arrested at his home at midnight as he says he was because the documentary evidence shows that the police no longer use secret police tactics such as midnight arrests” (assuming that this was the case). But they cannot say “Mr. Veres’ failure to explain why he did not receive three summons, when he received all the others, leads us to believe that the police did not arrest him at home as he says.” They cannot say this because they have dispensed with hearing his evidence in chief and as a result, cannot complain if there is a gap in the evidence. However, if the question is asked and the information is not provided, then the CRDD is clearly entitled to deal with the issue in the ordinary course.
[32] The distinction drawn may seem Jesuitical but it is, in my view, substantive. The basis of the distinction is not the likelihood that if the applicant told his story, he would supply the missing explanation. The basis of the distinction is the fairness of bypassing the claimant’s opportunity to tell his story and then reproaching him for not providing enough information. However remote the likelihood that the claimant would anticipate the CRDD’s preoccupation in the telling of his story, at least he would have the opportunity to attempt to do so before being subject to the discipline of cross-examination. Once cross-examination begins, the agenda is dictated by the questioner, not by the witness. The price of setting the agenda is to accept the responsibility for the items which are missed.
[33] The structure imposed by this reasoning is that a gap or omission in the evidence cannot be held against a claimant who has not given evidence in chief. If the CRDD wishes to deal with the issue, it must put the question to the claimant in cross-examination.
[34] This result is not affected by the failure of counsel to object to the procedure chosen by the CRDD. If counsel does not object, then counsel cannot raise the absence of examination in chief itself as a ground of judicial review. But the failure to object does not change the fact that the CRDD has set the agenda for the evidence and is bound by the agenda it has set.
[35] The absence of objection precludes putting the practice of foregoing examination in chief in issue. It may well raise issues of fairness to the witness apart from the question of gaps in the evidence. That matter will have to be dealt with if and when it is raised on a proper record.
[36] One other ground was raised in the applicants’ material. It was that the members of the panel hearing the Veres’ claim interjected themselves into the process to such an extent that it created a reasonable apprehension of bias. A reading of the transcript shows that the members were active in the cross-examination of Mr. and Mrs. Veres. The case law is to the effect that the CRDD is entitled to cross-examine the applicants, and may even do so vigourously if the occasion demands it. Mahendran v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 30 (F.C.A.). Having carefully reviewed the transcript of the evidence, I am unable to say that the interventions by the CRDD members were such as to lead to a reasonable apprehension of bias.
[37] The grounds of review are set out in subsection 18.1(4) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7. One of those grounds is that the Tribunal based its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it. I regret to say that I believe this was the case here. There were elements of the applicants’ testimony which could legitimately arouse the CRDD’s suspicions. However, the omission from consideration of relevant evidence, the misstatement of evidence, the failure to explain surprising conclusions as to the evidence to be preferred, and the unjustified conclusions drawn from the absence of evidence, all lead to the conclusion that the CRDD based its decision on errors of fact, made without regard to the material before it.
[38] For that reason, the decision of the CRDD must be set aside and the matter remitted to a differently constituted panel for reconsideration.
ORDER
The decision of the CRDD made April 4, 2000, the reasons for which are dated March 24, 2000 is hereby set aside and the matter remitted for reconsideration by a differently constituted panel.