TB9-16005

RAD File / Dossier de la SAR : TB9-16005 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 21, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Michael F Loebach Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This is an appeal of a May 15, 2019 decision of a three-member panel1 of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) denying the Appellant's claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA). [2] The Appellant, an ethnic Palestinian, was born in the United Arab Emirates (UAE) in 1990 and lived there all his life. When he lost his employment, the UAE government cancelled his residency permit. Consequently, he left the UAE on XXXX XXXX XXXX 2018, and travelled to the US. He entered Canada irregularly the next day and claimed refugee status. [3] He claims that he fears persecution in the UAE on the basis of his status as a stateless Palestinian. He also claims that if he is forced to travel to the Gaza Strip in the Occupied Palestinian Territories (OPT), he fears persecution on political grounds, as an opponent to Hamas. While he has never lived in the OPT, he claims a connection based on the fact that he visited twice, his parents were from there, he has relatives living there, and his family owns an apartment there. [4] For the reasons that follow I allow this appeal. REQUEST FOR THE ADMISSION OF NEW EVIDENCE AND A HEARING [5] The Appellant has included in his Appellant's record an affidavit sworn by him on July 5, 2019. I need not consider the admissibility of this affidavit in view of my finding below. For the same reason, I do not need to consider his request for a hearing under subsection 110(6). DETERMINATIVE ISSUE [6] The determinative issue in this case is bias. STANDARD OF REVIEW [7] In my review of the RPD's decision, I will apply a standard of correctness.2 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.3 ANALYSIS [8] The RPD found as follows: i) the Occupied Palestinian Territories was not a country of former habitual residence (CFHR) of the Appellant; ii) the UAE was the Appellant's sole CFHR; iii) the mistreatment he faced in the UAE in the past did not amount to persecution; nor did he face a serious possibility of persecution there in the future; iv) the residency law in the UAE did not operate in a manner that discriminated against the Appellant by virtue of his status as a stateless Palestinian; v) the RPD was not biased in its assessment of whether or not the OPT represented a CFHR (finding i) above). [9] The Appellant argues, first, that the RPD erred in its findings i) and finding v). Breach of fundamental fairness [10] The Appellant made a number of arguments to the effect that the RPD breached fundamental fairness and was biased in its handling of the issue. I need not consider them all because I agree with his argument that the RPD prejudged the issue of whether the OPT was a CFHR-before it gave the Appellant the chance to argue his case-thereby violating the principles of fundamental fairness. [11] The RPD stated the following at the start of the hearing: "...[R]egarding countries of former habitual residence, the panel will explore the United Arab Emirates and the Occupied Palestinian Territory."4 After the RPD stated that it had finished its questioning of the Appellant-and before the Appellant's counsel had the opportunity to examine him or to make his submissions on the claim-his counsel asked for a mid-hearing conference. During the conference, the Appellant's counsel asked the RPD why it had not asked questions of the Appellant about Gaza as a possible CFHR and wondered whether the issue was "on the table."5 One member stated, "it is being considered as one" and another member agreed with the statement.6 [12] However, the exchange did not end there. When the Appellant's counsel sought further clarification on the issue from the RPD, one of its members stated: "as a panel we have decided that Gaza, Palestine is not a country of former habitual residence because [the Appellant] only went twice."7 This led the Appellant's counsel to express puzzlement, given the RPD's comments at the start of the hearing: "I thought I heard you say at the beginning that [the OPT] was a country of former habitual residence."8 In reply, a member stated: "No. I said that we were considering both [the UAE and the OPT as CFHRs] but based on [the Appellant's] testimony confirming what he wrote in his documents we have decided that it is not." Another member stated that the RPD said at the outset that it was considering whether OTP was a CFHR,9 but went on to say-relying on his colleague's earlier comments-that "considering the documents and after hearing testimony from the claimant [we have decided] that it is not."10 [13] The fact that the RPD stated that it had an open mind as to whether the OPT could be a CFHR at the outset of the hearing, but then stated at the mid-hearing conference that it (or some of its members) had decided that it was not a CFHR based in its having considered the Appellant's documents and testimony, is curious. It seems clear that its members (or some of them) must have decided on the matter sometime between the start of the hearing and the mid-hearing conference-such as during a break. If so, then not only did the members not have the benefit of the Appellant's testimony in reply to his counsel's questions or his counsel's final submissions when they made their decision on the point, they also did not have the benefit of the Appellant's answers to their own questions during the ten minutes from when the break ended to when the mid-hearing conference was held.11 [14] In its finding on the issue of bias-which was raised by the Appellant's counsel in post-hearing written submissions-the RPD held, first, that it did not identify the OPT as a CFHR at the start; instead, it identified it as a possible CFHR location; second, merely because it limited its questioning on the issue does not amount to bias-it questioned the Appellant as it saw fit; and third, that it carefully considered all of the evidence and afforded the Appellant an opportunity to be questioned on this issue. The RPD relied on the test for bias as handed down by the Supreme Court of Canada in the Committee for Justice and Liberty case.12 [15] The RPD's findings are not convincing. First, while the Appellant may indeed have misunderstood the RPD's statement that it would consider whether the OPT was a CFHR-instead of considering that it was-nothing turns on this. Either way, the fact remains that the RPD, mid-way through the hearing and before hearing the Appellant's counsel question him or reading his counsel's submissions, decided on the matter. Second, while the Appellant restates at appeal his argument that the RPD's decision not to question him on the OPT as a CFHR amounts to bias, I need not consider this argument. My finding that the RPD decided the question mid-hearing, thereby prejudging it, is determinative of the matter. Third, while I have no doubt that the RPD listened the Appellant's answers to questions put to him by his counsel and read his counsel's submissions, it is clear did so after deciding the issue of whether the OPT was a CFHR. This may hardly be said to rectify or obviate its prejudgment in the matter. [16] Based on my review of the transcript, I fail to see how the RPD's mid-hearing statements that it had decided that the OPT is not a CFHR could be seen as anything other than a prejudgment of the issue. It is clear that the panel-or at least some of its members-had arrived at a decision on the issue without the benefit of hearing the counsel's questioning of the Appellant or reading his submissions on the issue. To my mind, this is a clear case of the RPD prejudging the issue and a failure of a fundamental principal of natural justice, i.e. the right of claimants to be heard, or the principle of audi alteram partem. [17] As the RPD correctly noted, the test for a reasonable apprehension of bias may be found in the Supreme Court's Committee for Justice and Liberty case: ...what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly.13 [18] I find that in the circumstances of this case where so fundamental a principle as audi alteram partem was disregarded so clearly and blatantly, the test for bias has been met. No informed person, viewing the matter realistically and practically-and having thought the matter through-would conclude otherwise. [19] The question then becomes, in what circumstances may a breach of procedural fairness be overlooked? In the recent Haile case, the Federal Court considered the issue in the context of a refugee determination. The Court held that the test was not: Had the breach of procedural fairness not occurred, would there have been a different outcome for the applicants?14 Rather the test for overlooking a breach of procedural fairness was whether the Court was "able to say that there is no doubt that [the breach] had no material effect on the decision...."15 [20] In the circumstances of this case, because I am unable to say that there is no doubt that the RPD's prejudgment that the OPT was not a CFHR had no material effect on its decision, I must return the matter to a differently constituted panel of the RPD for reconsideration. CONCLUSION [21] Pursuant to paragraph 111(1)(c) of the IRPA, I return the matter to a differently constituted panel of the RPD in order that the claim may be reassessed. (signed) James Sloan James Sloan September 21, 2020 Date 1 The Appellant had been notified in advance of the hearing that the claim had been designated as a three-member panel. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 3 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 4 Exhibit P-2, Appellant's Record, at p. 12. 5 Ibid., at p. 34. 6 Ibid. 7 Ibid., at p. 35. 8 Ibid. 9 "[We are] not considering it to be [a CFHR]; it's considering it whether...whether it is an issue at the outset of the hearing...." (ibid.). 10 Ibid. 11 Recording of hearing, at min 59. 12 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. 13 Ibid., at p. 394. 14 Haile v. Canada (Citizenship and Immigration), 2019 FC 538 (CanLII), at para 66, relying on Iqbal v Canada (Minister of Citizenship & Immigration), 2005 FC 1388 at para 18 and Nagulesan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1382 (CanLII), at para 70. 15 Ibid., at para 72. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-16005 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français