Date: 20030326
Docket: IMM-5419-01
Neutral Citation: 2003 FCT 345
BETWEEN:
WAHIBA CHALAL
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLANCHARD J.:
[1] This is an application for judicial review of a decision by members Nycole and Sylvie Roy of the Convention Refugee Determination Division (CRDD) dated November 8, 2001, determining that the applicant is not a Convention refugee.
[2] The applicant is asking the Court to set aside the decision and to grant her refugee status. In the alternative, she is asking the Court to order that the matter be remitted for rehearing by a differently constituted panel.
[3] The applicant, a 46-year old single woman and an Algerian citizen, describes herself as a moderate Muslim: she does not in any way agree with the statements made by Islamic extremists or fundamentalists in Algeria and rejects their ideology. She also refuses to submit to the standards of conduct that the extremists try to impose on Algerian women, such as wearing the veil.
[4] In her Personal Information Form (PIF), the applicant described numerous situations that arose in Algeria during the period 1991-1992 as well as two incidents that affected her personally: in December 1991, she found her car ransacked and damaged, and in January 1992, while driving in Bab-Le-Oued with her window down, she felt a hand grab her neck; when she accelerated, the attacker let go.
[5] Since those incidents, the applicant claims that she has become obsessed with fear of being attacked, she is afraid to sleep at night, keeps an eye on doors and windows and has an excessive fear of going to work. In addition, the applicant's parents were the victims of two robberies while her father was alive. Each time, the police were unable to trace those responsible, and the applicant testified that she does not know whether terrorists or crooks committed the offences.
[6] After the applicant's father died in 1996, her mother went to live with one of her sisters in France in 1997. Three of the applicant's sisters and her brother-in-law immigrated to Canada. The family she has remaining in Algeria are a brother with whom she does not get along very well and a cousin with whom she is in frequent contact by telephone.
[7] After finishing her secondary studies, the applicant completed her training to become a midwife in 1979, which required three years of study and apprenticeship. She worked at the Mustapha Hospital in Algiers until she left for the United Arab Emirates (UAE) in 1992. She left Algeria in 1992 at the beginning of the civil war, at the behest of her mother who thought she was an easy target for Islamic fundamentalists.
[8] The applicant worked in the UAE as a nurse and then as a teacher until her contract ended in June 2000. She testified that every year since 1992 she has attended family reunions in either France or Brussels. In 1999, she spent a month and a half in Canada on vacation. She has never returned to Algeria since her departure in 1992.
[9] When the applicant's UAE work permit was cancelled, her residency visa was automatically cancelled in accordance with the existing law. She then left for Canada, where she claimed refugee status one month later, on August 15, 2000. She alleges a well-founded fear of persecution based on religion, political opinion and membership in a particular social group, namely, single women in Algeria.
[10] The applicant claims that, as a single woman, it would be impossible for her to return to live in Algeria without fearing for her life and without receiving protection of the state against flagrant violations of human rights.
The Decision of the CRDD
[11] At the hearing on October 15, 2001, the CRDD heard testimony from the applicant and from her brother-in-law, who is a journalist. The panel did not grant him expert witness status and decided that his testimony could have been biased, since he was the applicant's brother-in-law.
[12] In its reasons dated October 22, 2001, the CRDD first found it implausible that the applicant would be put on file and questioned upon her arrival in Algiers. In fact, she had obtained a passport in 1993 and had renewed it without difficulty in April 1998. If the applicant had not encountered any difficulty obtaining and renewing a passport, there was no reason for her to be put on file. The CRDD found that the applicant's renewal of her passport in 1998 demonstrated the existence of state protection.
[13] At the hearing, the applicant was asked to explain why she had not claimed refugee status sooner if she did not intend to return to Algeria, since she had left Algeria in 1992 and had never returned. The applicant stated that it was probably because she had a stable life and job in the UAE, that a number of refugee claimants had been refused in Europe, that thousands were living without documents and that the 1998 strike staged by Africans in a Paris church might have influenced her. The CRDD found that her response made no mention of any fear of persecution, and that the applicant's attitude was not that of a person who claims to fear for her life.
[14] In response to the applicant's allegation that she feared the Islamic extremists because she was a single woman, the CRDD noted that both the document Country Reports on Human Rights Practices - Algeria - February 2001 and the Report on Algeria prepared by the Immigration Counsellor of the Canadian Embassy in Algeria stated that, with the exception of the Kabylie region, the entire Algerian population was a victim of acts committed by these extremists. They targeted the government as well as civilians, Muslims and non-Muslims. The CRDD concluded that the violence perpetrated by the Islamic extremists is widespread, and that the fear felt by the applicant is the fear felt by all citizens as a result of the prevailing civil war.
[15] In addition, the CRDD noted that theReport on Algeria stated that "proportionately, women in Algeria tend to pursue studies to a higher level than men." The CRDD also noted that the Country Reports on Human Rights Practices - Algeria - February 2001 mainly detailed the marital violence that women are victims of-violence that is more prevalent in rural regions than in urban areas -and the few resources that exist for these victims. The CRDD did not consider that this applied to the applicant and found that "We have before us an educated, articulate woman who, according to her testimony, made the choice to live alone. It was always possible for her to find work in her country."
[16] The CRDD noted that the reports made little reference to dress, except for the Report on Algeria, which stated that "In cities, young women in public seem to dress as they please, for in Algeria and Blida, a more conservative city 50 km from Algiers that has been badly touched in the past by terrorism, one sees the full range from traditional Islamic dress, with heads and faces covered, to modern western clothes."
[17] The CRDD noted that the documentation also makes mention of the serious problems of housing and the lack of jobs in Algeria, but concluded that these two points to which the applicant had referred did not make her eligible for refugee status.
[18] The CRDD decided to give more weight to the analyses published in February 2001 (Country Reports on Human Rights Practices - Algeria - February 2001) and in May 2001 (Report on Algeria) than to the report relied on by counsel for the applicant, entitled Shadow Report on Algeria. The CRDD noted that, although the latter report had been published in January 1999, it described events that occurred between 1992 and 1997, and that a refugee claim must be analysed at the time it is heard.
[19] For all these reasons, the CRDD denied the applicant's claim and concluded that she was not a Convention refugee. She had not shown that there was a serious possibility that she would be persecuted should she return to Algeria.
The Issues
[20] The first issue raised in this application for judicial review is whether the CRDD breached a principle of natural justice by not giving the applicant and her counsel sufficient time to familiarize themselves with the Report on Algeria and by attempting to limit the scope of the testimony of both the applicant and her brother-in-law.
[21] This application also raises the issue of whether it was reasonable for the CRDD to conclude, in light of all the documentary evidence, that single women who refuse to comply with Islamic traditions are not targeted by the Islamic extremists in Algeria.
Analysis
[22] After thoroughly reviewing the submissions by the parties, the evidence before the CRDD and the transcript of the hearing, I would grant this application for judicial review. In my view, the CRDD breached the principles of natural justice by basing its decision almost entirely on the Report on Algeria without giving the applicant and her counsel the opportunity of adequately responding to the allegations contained in the document.
[23] The powers and obligations of the CRDD are found in sections 68 and 69.1(1) to 69.1(5) of the Immigration Act, R.S.C.,1985, c. I-2 and subsequent amendments thereto (the Act). More particularly, under section 69.1(5)(a)(i) of the Act, at the hearing into a person's claim to be a Convention refugee, the Refugee Division must give:
(i) the person a reasonable opportunity to present evidence, question witnesses and make representations;
. . .
[24] Moreover, this Court has held many times that procedural fairness requires that disclosure be made to the applicant within a reasonable period of time prior to the hearing to allow counsel to be well informed about the allegations against the applicant and to make full answer and defence: Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630 (F.C.T.D.) at paragraph 22; De Yanex v. Canada (Secretary of State), [1994] F.C.J. No. 217 (QL) (F.C.T.D.) at paragraph 6; Pal v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1301 (QL) (F.C.T.D.) at paragraph 8.
[25] The applicant states that she was taken by surprise when the Refugee Claims Officer (the Officer) filed the Report on Algeria shortly before the hearing was to begin and informed both her and her counsel that they would have a half-hour to review it. This 33-page document, which was filed in its English version, although a French version was available, formed the basis of the discussion throughout the hearing and became an integral part of the CRDD's decision. The applicant submits that the CRDD prevented her from filing documents of a public nature in order to adequately respond to the allegations in the document and to prepare her witnesses accordingly.
[26] The applicant also contends that the CRDD ignored documentary evidence that was specific, accurate and consistent concerning the massacres and killings that continue to occur in Algeria, especially of women and children. The panel referred only to the positive aspects of the Algerian political and social situation in the documentation and almost exclusively to the unfavourable aspects of the refugee claim in the Report on Algeria. However, the panel ignored all the other documents which described very widespread persecution in Algeria and a lack of state protection.
[27] The applicant argues that the Report on Algeria was written by an employee of Citizenship and Immigration Canada (CIC) in an obvious attempt to contradict the statements contained in documents published by international and non-governmental organizations denouncing the persecution in Algeria. According to the applicant, by sponsoring the writing of such a report to guide the CRDD in its decision-making, the Minister compromised the authority and the independence of the panel to render a just, objective and fair decision, independent of its ultimate authority and based on all the evidence. I do not agree with these submissions. In any event, whatever allegedly motivated the preparation of the Report on Algeria is not, in my view, material to this case.
[28] In addition, the applicant submits that by concluding that the situation in Algeria has become calmer in the past two years and that Algerians are leaving the country for economic reasons and not because of persecution, the author of the report is making a gratuitous and biased comment that completely ignores the fact that the situation in Algeria has clearly deteriorated.
[29] The respondent submits that in light of all the documentary evidence in this case, it was reasonable for the CRDD to conclude that the applicant's fear was not objectively well-founded.
[30] The respondent states that four reports describing the situation of women in Algeria were submitted into evidence before the CRDD. The Shadow Report on Algeria, published in January 1999, generally supports the applicant's submissions by stating that women living alone who do not comply with the dictates of the extremists are victims of violence. However, that report describes the situation in Algeria from 1992 to 1997 and does not discuss the current situation. There is also the report prepared on July 20, 2000, by the Research Branch of the Immigration and Refugee Board, following a meeting with Jean-Michel Salgon, who is an expert in Algerian armed groups. That report maintains that terrorism in Algeria is essentially rural; the terrorists attack "[TRANSLATION] villagers and individuals at random."
[31] The respondent also submits that theCountry Reports on Human Rights Practices - Algeria - February 2001, published in February 2001, states that violence by armed groups and terrorists is widespread, and that several hundred civilians were killed in 2000 by terrorists. The report states that a number of terrorist groups kidnapped young women and raped them. Lastly, the Report on Algeria, which was written in May 2001 after a six-day fact-finding visit to Algeria from January 20 to 26, 2001, describes discrimination against women, but does not find that women are targeted by the extremists. According to that report, violence by extremists is widespread and is more prevalent in remote regions than in urban regions. It is directed at civilians in general, including women. The report also says that, in cities, women dress as they please. The author concludes by asserting that "it is difficult to imagine a refugee claim from an Algerian woman that could succeed solely on the basis of being a woman."
[32] The respondent maintains that it was reasonable for the CRDD to give more weight to the latter two reports because they are more recent, and less weight to the first report because it described events occurring between1992 and 1997. Relying on the two most recent reports, the CRDD concluded that the violence perpetrated by Islamic extremists is widespread and does not specifically target single women like the applicant. The respondent submits that this conclusion is entirely reasonable and that intervention by this Court is not warranted.
[33] The respondent contends that the applicant, who was represented by counsel at the hearing before the CRDD, did not object to the last-minute filing of the Report on Algeria and did not request an adjournment. In doing so, she waived her right to plead a breach of procedural fairness.
[34] The jurisprudence of this Court has established that it may be inferred that a party has accepted a breach of natural justice if he or she failed to object to such a breach as soon as it was possible, practically speaking, to do so. The decision most often cited on this issue is Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85, in which the Federal Court of Appeal dealt with the quality of the interpretation before the CRDD. More precisely, Mr. Justice Stone answered the following certified question in the affirmative:
3. Where it is reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of interpretation before the CRDD as a condition of being able to raise the quality of interpretation as a ground of judicial review? [The answer is YES]
[35] In my view, that decision is distinguishable from this case. In fact, in cases relating to the quality of interpretation or translation, it is clear that where the interpreter has difficulty speaking the applicant's language or being understood by him or her, the issue must be raised at the first opportunity, where it is reasonable to expect an applicant to do so, otherwise the smooth conduct of the proceeding will be seriously compromised. This reasoning would also apply in cases where there is an appearance of bias by the CRDD.
[36] On the other hand, in cases dealing with the late disclosure of documents to the applicant, the absence of any objection on that point would not compromise the smooth conduct of the hearing. In such cases, the issue of whether it is reasonable to expect that an objection be made at the first opportunity is a question of fact, which must be determined in each case. Although in some of this Court's decisions, the applicant objected at the hearing to the late disclosure of documents and requested an adjournment, it would be untrue to contend that such a step is essential for the injured party to plead a breach of the principles of natural justice. Each case will have to be assessed in accordance with its own particular circumstances: Nakhuda v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 716 (QL) (F.C.T.D) at paragraph 10.
[37] In Noormohamed v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 926 (QL) (F.C.T.D.), the claimant requested disclosure of a document which was not provided to him until an hour prior to the hearing. The 80-page document was an important part of the CRDD's decision. However, applicant's counsel did not object to it being admitted at the hearing and did not request an adjournment, and the CRDD did not grant one. In setting aside the decision of the CRDD, Mr. Justice MacKay stated at paragraphs 16-18 of his reasons:
_16_____But both of those considerations - the consideration of introducing documentary evidence on one's own behalf and the opportunity to testify in relation to the documentary evidence presented by the other side - assume that one has an understanding of what the other side has presented in terms of documents and, in my view, that simply was not so in the carriage of this case.__It was not, in fact, provided in time to permit counsel for the Applicants to consider and to make appropriate submissions on the documentary evidence or to introduce, by questions in examination, any oral testimony that might tend to counter it, to elaborate upon it or to explain the perspective of the Applicants in relation to it. Here, the request in advance of the hearing for disclosure of documentary evidence was made and it was not met with any reasonable time provided for review of that evidence in advance of the hearing.
_Here, the Hearing Tribunal, apparently, itself, had the documentary evidence in advance and had read it._The Applicant had not.
_Here, the evidence was relied upon both by the Hearing Officer at the time -- and it is true that there was an interjection questioning one aspect of the evidence upon which he relied, but I note that the interjector, one of the Applicants, was cautioned by the Board not to interrupt, after it had been done. In any event, the evidence was also relied upon by the Board in coming to its conclusions, and, I believe, in a way that was central to its conclusions about discrimination as opposed to persecution.
[38] The only difference that I have noted between that case and the one before us is that, in the first case, counsel for the applicant had specifically requested that all documentary evidence be provided to him prior to the hearing. In my view, that is not a significant difference.
[39] In Chen v. Canada (Minister of Employment and Immigration), [2001] F.C.J. No. 1787 (QL) (F.C.T.D.), which is very similar to this case, MacKay J. stated the following at paragraphs 16-18 of his reasons:
In Iyonmana v. Canada (Minister of Citizenship and Immigration), (5 April 2000), IMM-3389-99 (T.D.), [2000] F.C.J. No. 478), the Court set aside a decision where the panel relied on IRB-generated documentation that "effectively gutted the applicant's claim", and the applicant had not been provided with an opportunity to make oral submissions about the documentation. In the case at bar the report was presented to Ms. Chen, but only during cross-examination. While she was given an opportunity to respond, that does not meet the standard which prior disclosure would have assured.
In Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630 (T.D.), and in Khan v. Minister of Citizenship and Immigration, 2001 FCT 639 (T.D.), [2001] F.C.J. No. 980, where documentary evidence was relied upon to discredit evidence of the claimants at refugee hearings, but the documents had not been disclosed in advance, the Court allowed applications for judicial review and set aside the negative decisions of the panels. In both cases, counsel for the applicant had requested disclosure in advance of the hearing of documents to be relied upon before the panel.
That was not requested in advance in this case and here the respondent urges that there is no evidence that counsel representing the applicant had objected to reference to the first Response to Information Request when it was introduced at the hearing. I am not persuaded that should discount the obligation to provide disclosure of documents in advance of the hearing, particularly where the document not disclosed is relied upon to find the applicant's testimony not credible, and the document is subsequently found, by a later report, presumably available to the panel in advance of its decision, to contradict the conclusion drawn by the panel in regard to a key element of the applicant's testimony.(Emphasis added.)
[40] In this case, it appears from the evidence that the hearing was delayed by half an hour because the Officer wanted to file the Report on Algeria, a 33-page document, in its English version. She informed the applicant, who is Francophone, and her counsel, that they would have half an hour to review it.
[41] The first page of the document states that its purpose was "to better inform the policies and decisions of the Department of Citizenship and Immigration (CIC)" and "to provide the Immigration and Refugee Board with material that might be of assistance to its decision-making responsibilities." It was obvious that the Officer was going to use this report to directly contradict information contained in the public documents submitted by the applicant. From my reading of the transcript, it also seems clear to me that the CRDD members had the said report in their possession in its French version for consultation, and had read it in detail, because they made reference to it throughout the hearing. [Transcript, Certified Tribunal Record at pages 443, 435, 438-440, 446-447]. The applicant had no prior knowledge of this report and nothing seems to indicate that it would have been otherwise available to her.
[42] I note that during the hearing counsel for the applicant expressed concern about the weight being given to the report. Later, in his submissions, he expressed dissatisfaction that he had been unable to adequately prepare a response to the allegations in the report [Transcript, Certified Tribunal Record at pages 445, 497, 520-522]. However, apparently none of this elicited any reaction at all on the part of the CRDD. In Yao v. Canada (Minister of Employment and Immigration) (1995), 91 F.T.R. 212, Mr. Justice Gibson stated at paragraph 15 of his reasons:
I am satisfied that the Noormohamed decision and the decisions that follow it can be distinguished on the facts before me. As in Cheung, once again, counsel here did not appear to be taken by surprise and made no objection. When no notice of production of documents was received reasonably in advance of the hearing before the CRDD, counsel in this matter did not inquire as to whether documents would be produced at the hearing that he might wish to review and consider in advance of the hearing. When documents were introduced, he did not object, nor did he request an adjournment to allow time for preparation. When, at the close of the hearing, he requested time to prepare written argument, he did not cite as a reason that he needed time to consider, and to respond to, documentary evidence that he had not had any opportunity to review. If he had done any of these things, and he had not been granted reasonable relief, I would conclude differently but, in the absence of any expression of concern on his part, I conclude that he cannot now come forward and succeed on a claim of denial of fairness. (Emphasis added.)
[43] It is clear that the applicant and her lawyer did not have enough time to carefully read a 33-page document, assimilate its contents, adquately respond to it and prepare their witnesses accordingly in the time that was given to them. However, the failure to object or to request an adjournment at the hearing should not, in my view, prejudice the applicant in light of the particular circumstances of this case, where counsel actually expressed his concerns.
[44] In my view, the decision of Mr. Justice Cullen in Ousman v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 714 (QL) (F.C.T.D.) at paragraphs 13-14 is very much on point:
In the case at bar, there was not a lack of disclosure per se, in that the hearing was adjourned for fifteen minutes to permit the RHO to speak with the applicant. However, it is unreasonable to expect that the applicant could have comprehended the volume of material that was presented to him in such a short time. Although the hearing was set peremptorily, it would not have imposed a great hardship for the Board to adjourned once again and permit the applicant adequate time to consider the documentary evidence. This is not a case where there has been extraordinary delay on the part of the applicant. Alternatively, the Board could have permitted the applicant to make written submissions concerning the documentary evidence after the conclusion of the hearing. Either alternative would have permitted the applicant opportunity to meet his case.
It is obvious that the Board had read the documentary evidence in advance of the hearing and chose to rely on the evidence in reaching its decision. The applicant had no opportunity to tailor his submissions to meet the concerns that were raised by the documentary evidence. As such, there was a breach of the principles of natural justice. (Emphasis added.)
[45] In this case, it was impossible for the applicant to respond to the allegations in the Report on Algeria because the report was only given to her at the beginning of the hearing.Under such circumstances, where the CRDD based its decision in large part on a piece of documentary evidence, it is essential that that evidence be disclosed to the claimant within a reasonable time, so that he or she can assess it and respond to it. Therefore, I am of the view that the applicant did not have a just and fair hearing.
[46] In addition, a reading of the transcript and of the CRDD's decision clearly shows that that report formed, in a way, the backdrop for the decision. In my view, the reviewable error (failure to disclose the document in question to the applicant within a reasonable time before the hearing) is a procedural error that had a decisive impact on the outcome of the application. This conclusion is supported by the Supreme Court of Canada in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, where Mr. Justice Le Dain, writing for the Court, stated the following at page 661:
. . . I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
[47] Although there are some cases where this Court has refused to exercise its discretion despite an error of law on a substantive matter (Yassine v. Canada (Minister of Citizenship and Immigration (1995), 27 Imm L.R. (2d) 135 (F.C.A.), rarely has this remedy been denied on the ground that the error resulted from a denial of the right to full and complete disclosure and a fair hearing. In Yassine, supra, the Federal Court of Appeal concluded that, despite an error of law on a substantive matter, it would be futile to allow the application because, in any event, the applicant had been found to be not credible. In the case before me, the applicant's claim depended essentially on the CRDD's assessment of the Report on Algeria. The CRDD made no finding on the applicant's credibility.
[48] In my view, the fact that in this case disclosure of the document in question did not occur until the beginning of the hearing clearly shows that it was not done in a timely manner. In my view, this constitutes a denial of the right to a fair hearing and renders the CRDD decision invalid. Therefore, I can only conclude that the matter must be remitted for reconsideration by a differently constituted panel.
[49] Having concluded that the ground of the lack of a fair hearing is sufficient to dispose of this matter, I will not consider the second ground.
[50] For all these reasons, I would allow the application for judicial review and would remit the matter for reconsideration by a differently constituted panel.
[51] These reasons have been given without a related order for the moment. The parties will have seven days from the date of service of these reasons to serve and file submissions with respect to certification of a question. An additional three days beginning on the date of service of the submissions is granted to the opposing party to permit either party to serve and file submissions in reply. Thereafter, an order allowing the application for judicial review will be made, as stated above in these reasons.
"Edmond P. Blanchard"
Judge
Ottawa, Ontario
March 26, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-5419-01
STYLE OF CAUSE: Wahiba Chalal v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 20, 2002
REASONS FOR ORDER BY: Blanchard J.
APPEARANCES:
Paul-Émile Chiasson FOR THE APPLICANT
Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Paul-Émile Chiasson FOR THE APPLICANT
502 - 202 Elgin
Ottawa, Ontario K2P 1L5
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario K1A 0H8