A-66-91
Jegathas Sivaguru (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: S/VAGURU V. CANADA (MINISTER OF
EMPLOYMENT AND IMM/GRAT/O,% (C.A.)
Court of Appeal, Heald, Hugessen and Stone
JJ.A.—Toronto, January 15; Ottawa, January 27,
1992.
Immigration — Refugee status — Refugee Division Board
Member requesting information proprio motu from documenta
tion centre — Using material to cross-examine claimant on
questions to which consistent answers given upon examination
by claimant's counsel, Refugee Hearing Officer — Require
ment that parties be notified and given opportunity to make
representations — Board Member trapping claimant — Proper
method to reveal misgivings, furnish factual material to both
parties — Decision set aside for reasonable apprehension of
bias.
Judicial review — Immigration — Member of Refugee Divi
sion seeking out information not raised at hearing — Cross-
examining claimant thereon — Immigration Act conferring on
Division broad powers to take notice of facts — Powers given
for purposes of hearing — Hearing to be fair — Test for bias
what informed person, viewing matter realistically and practi
cally, and having thought matter through, would conclude —
Reasonable apprehension of bias herein.
This was an appeal from a determination by the Refugee
Division of the Immigration and Refugee Board that the appel
lant was not a Convention refugee.
The appellant is a Tamil of Sri Lankan nationality. At the
hearing, he testified about his connection, in Sri Lanka, with a
Tamil political organization, the LTTE. He testified that he car
ried out publicity and public information work for the LTTE
from 1979 to 1983, but that he left the organization when he
learned that it had begun to engage in acts of violence. During
an adjournment in the proceedings, the hearing Member who,
in the result, wrote the panel's reasons, sent a request for infor
mation to the Board's documentation centre. He received and
reviewed the material before the hearing resumed. The infor
mation contained reports of deadly attacks attributed to the
LTTE and committed as early as 1979. After the appellant had
been examined by his own counsel and by the Refugee Hear-
ing Officer, the Member cross-examined the appellant on these
reports.
Held, the appeal should be allowed.
While the Act provides, in subsections 68(3) and 68(4), that
the Division is not bound by legal rules of evidence, and that it
may take notice of any information which is within its special
ized knowledge, subsection 68(5) requires that the parties be
notified and given a reasonable opportunity to make represen
tations on any material other than facts which may be judi
cially noticed. The Board's broad powers are conferred for the
purpose of conducting hearings, and they must be exercised
against the overall requirement that the hearing be fair. Fair
ness includes impartiality on the part of the hearing panel. A
Member's questioning can indicate a state of mind or attitude
inimical to impartiality. The power to take notice of facts pro
vided by the Act recognizes the difficulty of getting at the full
story of claimants from distant lands. It does not, however,
permit a Member to embark upon a quest for evidence in the
manner adopted in this case, which could only subvert the
Board's function as an impartial tribunal. The Member was not
simply clarifying issues raised by the parties, since the topic of
his questions had been covered by counsel for both parties
without any inconsistency being revealed. His object, it seems,
was to trap the claimant. The member could have stated his
misgivings at the hearing, and have had the research material
placed before both parties. The situation herein met the test for
a reasonable apprehension of bias laid down in Committee for
Justice and Liberty et al. v. National Energy Board et al.: that
an informed person, viewing the matter realistically and practi-
cally—and having thought the matter through—would con
clude that it is more likely than not that the panel would not
decide fairly.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. 1-2, ss. 67 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 18), 68 (as am.
idem), 69.1 (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68
D.L.R. (3d) 716; 9 N.R. 115.
CONSIDERED:
Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985),
52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d)
193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64
N.R. 1; 14 O.A.C. 79; Yusuf v. Canada (Minister of
Employment and Immigration), [1992] I F.C. 629 (C.A.).
REFERRED TO:
Mahendran v. Canada (Minister of Employment & Immi
gration) (1991), 14 Imm. L.R. (2d) 30 (F.C.A.);
Rajaratnam v. Canada (Minister of Employment and
Immigration), A-824-90, Stone J.A., judgment dated
5/12/91, F.C.A., not yet reported.
COUNSEL:
Raoul Boulakia for appellant.
Marie-Louise Wcislo for respondent.
SOLICITORS:
Raoul Boulakia, Toronto, for appellant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
STONE IA.: The issues raised on this appeal pertain
both to regularity of procedures which were adopted
at the hearing into the claim by the Convention Refu
gee Determination Division of the Immigration and
Refugee Board and the decision itself. The procedu
ral issues are of some importance. In view of the con
clusion I have arrived at in respect of those issues, I
am relieved of the need to consider the merits of the
decision.
The appeal is from a decision rendered September
11, 1990, in which the appellant, a citizen of Sri
Lanka, was determined not to be a Convention refu
gee within the meaning of the Immigration Act,
R.S.C., 1985, c. I-2, as amended. The appellant made
the claim for refugee status shortly after arriving in
Canada on May 10, 1989.
To place the procedural objections in their proper
setting, it is necessary to explain how they came to
arise. The hearing into the claim was heard at Van-
couver, B.C. on September 21 and November 16,
1989, before a panel of the Board consisting of Pre
siding Member Edith Nee and Board Member
Charles Groos. At the opening of the hearing, both
sides presented documents of which the Board agreed
to "take notice" rather than require that they be
proven in a formal way. This was followed by direct
examination of the appellant by his legal counsel, Mr.
Bhatti.
In the course of that examination, the appellant tes
tified to being a member or supporter of a Tamil
organization known as the L I - 1'E, between 1979 and
1983. His role, he said, was in organizing meetings
and propagating the policies of the L FIE to the gen
eral public, the main one being that the Tamil people
should enjoy equality with the Sinhalese majority, be
able to live peacefully and enjoy the freedom every
body else enjoyed. He made it clear throughout the
direct examination, the questioning by the Refugee
Hearing Officer and the questioning by members of
the tribunal that he was unaware of any violence
engaged in by the L Yl'E between 1979 and 1983.
Thus, in the course of his direct examination he testi
fied, at page 8 of the transcript: 1
Q. Now let's clarify what time period you're speaking of
when you were propagating this information?
A. Beginning '79, 'til 1983, they were following a peaceful
method without violence.
Q. Now what was the structure of the LTTE at that time?
A. Under the leadership of Prabaharan, P-r-a-b-a-h-a-r-a-n,
it was well organized and they were performing without
any violence.
Q. Were there different branches of the group?
A. There were groups such as EROS, E-R-O-S and PLOTE,
P-L-O-T-E and some others.
Q. What umhm ... were you associated with any particular
branch of the LTTE?
A. I was particularly involved under the leadership of
Prabaharan, explaining his policies.
Q. Did you take part in any violent activities?
A. No.
Q. Umhm ... did you ever promote the use of violence?
A. Never.
He testified, at page 9 of the transcript, 2 that after
1983 the LFIE's policies changed:
Q. Why propagate the cause of the LTTE, why not some
other group?
1 Appeal Book, Vol. 2, at p. 136.
2 /bid., at p. 137.
A. Because they were—their policies were mainly of peace
ful nature and there was every indication that they would
obtain freedom for the Tamils.
Q. Alright. In your opinion did the LTTE's policies change
at some point with respect to violence?
A. After 1983 it gradually changed to a serious situation
leaning toward violence.
Q. And you use the word propagate information, what do
you mean by that?
A. To inform the other groups and the general Tamil popu
lation that the LTTE is on the right foot, and they were
implementing their policies in a peaceful manner.
He further testified, at pages 10 - 11 of the transcript: 3
Q. Alright. You mentioned that your involvement lasted
until '83, what changed, if anything, in '83?
A. They started carrying arms and it took a turn for the
worse by way of violence which I did not approve and
which I couldn't have a part in it.
Q. Are you speaking of the LTTE generally now or are you
speaking of the LTTE's activities in the village that you
were in?
A. In General.
The Refugee Hearing Officer then questioned the
appellant on these previous answers. At pages 51-52
of the transcript, 4 the appellant testified:
Q. And you indicated that in 1983 that the policy of the
LTTE changed to ah ... to where they started to carry
weapons and advocate violence as a means of achieving
the rights which they were seeking?
A. Yes.
Q. Was this a sudden shift in policy or did it happen over a
period of time?
A. It was a gradual process.
Q. How did you become aware of it?
A. They started killing people, that gave me the clue.
Q. When was this exactly?
A. In 1983, the LTTE attacked the police station at C-h-a -v-
a -k-a-c-h-c-h-e-r-i.
Q. Was this late in the year or what time of year was this?
3 Ibid., at pp. 138-139.
4 Ibid., at pp. 179-180.
A. I am not sure.
Q. Before this attack on the police station, were you aware
that they had begun to carry arms and advocate vio
lence?
A. No. I don't know.
Q. How do you know it was the LTTE that make that
attack?
A. It was common knowledge.
Q. So in what way did you break off your association with
the LTTE?
A. Because I opposed their sudden—their gradual twist to
carrying arms and resorting to violence. I moved away
from them.
Before the Refugee Hearing Officer could conclude
his questioning, the hearing was adjourned until Nov-
ember 16, 1989, at 9:00 a.m.
To understand what next occurred one must turn to
the reasons for determination dated September 11,
1990, which were prepared by Board Member Groos
and concurred in by the Presiding Member. At pages
14-15 of those reasons, 5 the following narrative
appears:
By the conclusion of the September 21 proceedings I was very
concerned about the claimant's testimony which had portrayed
the LTTE as a non violent Tamil political organization from
1979 until 1983. This was, to my mind, inconsistent with the
impression I had as a result of information I had acquired in
the course of my duties as a member exercising the specialized
jurisdiction of the Division. However, this was a general
impression only and not one based upon specific facts which I
could give the claimant notice of which would be sufficiently
particular to comply with ss. 68(5) of the Act.
There then follows a recitation of the reasons which
led the Board Member to take the course of action he
describes at pages 17-18 of the reasons: 6
I then faced the alternative of either requesting information
from the Board's documentation centre myself or directing that
the RHO do so. I normally prefer the latter course. However,
in the instant case this course would only have delayed any
reply by the time necessary for him to reiterate my request,
possibly causing it to arrive after the resumption date, without
benefitting anyone. I therefore sent the request for information
dated September 25, 1989 (which is part of exhibit 9) directly
to the documentation centre myself.
5 Appeal Book, Vol. 3, at pp. 398-399.
6 Ibid., at p. 401.
The centre's response to my request dated November 15, 1989
was received by the Division at Vancouver that day. I saw it
for the first time at about 4:30 p.m. after the conclusion of pro
ceedings that day. Upon a brief perusal of it I was immediately
aware that it conflicted with the claimant's testimony, how
ever, I was unable to arrange for it to be copied until the next
morning while the resumed hearing was underway.
The letter of request, in fact, is not to be found in the
record.
The following day, November 16, 1989, at 9:00
a.m., the hearing resumed. The Refugee Hearing
Officer continued his questioning of the appellant,
which consumed most of the hearing time that morn
ing. This was followed immediately by questioning
of the appellant by the Board Member Groos. Early
on in this questioning the Board Member engaged the
appellant as follows, at pages 34-35 of the transcript: 7
Q. I know you've answered this question before but just so
my mind is set on it, when did you first start working for
the LTTE?
A. In 1979.
Q. Could you give us a month?
A. Not exactly, early '79.
Q. Does that mean the first three months or the first six
months?
A. First three months of that year.
Q. And again, just to clarify—clarify things and help my
memory. When did you stop work with them in 1983?
A. January of '83.
Q. Was all your work for the LTTE from the period starting
in 1979 until January, 1983 in the Jaffna area?
A. Yes.
A little further on, at pages 35-37 of the transcript, 8
Board Member Groos put the following questions to
the appellant about violent activities which the L 17'h
had engaged in between 1979 and 1983:
Q. What about violent activities in 1979?
A. They were starting was—they initially, they always
believed in peaceful solutions and arriving at solving
problems through negotiation.
7 Ibid., at pp. 322-323.
8 Ibid., at pp. 323-325.
Q. But do you recall the LTTE conducting any violent
activities in 1979?
A. No, I don't recall.
Q. Uhm ... I have it in my mind, I may be wrong, that the
LTTE from its inception, was a violent organization that
committed violent acts, including bank robberies and
shootings of policemen as early as 1979.
A. As far as 1 can recall the LTTE was not up to any of
these actions but there are several other groups that I
know were involved in some of the incidents that has
been mentioned.
Q. So you don't recall the LTTE being involved in such
violent activities until when?
A. As far as I can recall, they got themselves involved in
such activities after 1983.
Q. Do, you recall the names of the LTTE leaders in the
period starting in 1979 when you joined until 1983?
A. Prabaharan, P-r-a-b-a-h-a-r-a-n,; Kittu, K-i-t-t-u and
Mathia, M-a-t-h-i-a.
Q. Is Prabaharan the leader of the whole LTTE?
A. Yes.
Q. And who's Kittu?
A. These two names are the second and third in command.
Q. Were they involved in the LTTE as the top three leaders
from the time that you joined?
A. Yes.
Q. 1 have it in my mind that Prabaharan is famous for, in
once [sic] incident, personally killing eight or nine Sri
Lankan policemen in the Jaffna area in 1979 or 1980 and
possibly 1981.
A. I don't know about that.
Q. I also have it in my mind that in the period 1979, 1980
and 1981, that the LTTE was conducting a substantial
number of bank robberies in the Jaffna area?
A. I cannot say anything about that, I am not sure.
Q. I also have it in my mind that from a very early stage the
LTTE would murder any Tamil who openly opposed
them, even from the period 1979 on?
A. Yes, that's true.
The Board Member had not completed his question
ing by the time the hearing broke for lunch.
Upon resumption of the hearing at 1:30 p.m., the
appellant's counsel requested and was granted a short
adjournment because, as he put it, the appellant had
"related a few things to me about the case" during the
break. At 2:00 p.m., when the hearing again resumed,
the Presiding Member asked counsel: "Do you have
anything", to which he replied: "No, not at this time".
Counsel was then invited to proceed with re-exami
nation but, before he could do so, the following
exchange 9 took place between Board Member Groos
and counsel:
MR. GROOS:
I think counsel before you start on that I should tell you that
this morning at noon I received—sorry, last night I received
a massive response to an information request which was
only photocopied at noon. There is a massive lot of material
here. I have only read in part ....
PRESIDING MEMBER:
Could you give me a copy please.
MR. GROOS:
I'm sorry.
My request dated September 25th, 1989 is attached and
there is a response dated 15 November which 1 received at
4:30 yesterday and had photocopied this morning. I have not
read all this material but I think you should be aware that the
first article, which is the article from the Illustrated Weekly
of India, October 25, 1987 contains the interview with Mr.
Kittu, the claimant has described and it is at odds with much
of what your client has said.
MR. BHATTI:
Before you continue, there is something that—this is a bit of
a difficult issue, the reason for which I took the break or
asked for the break relates to partially to what you've given
me here and I am going to ask my client now to comment on
some of the answers that he's given to the questions
which—well at least partly from the subject matter of this
article. Certainly all I wanted to indicate that this point is I
think I know what's you're trying to tell me and
ah ... please continue if you have something else to say.
MR. GROOS:
The essence of it is that his answers really are in respect of
bank raids and the murder of policemen by the LTTE in the
period prior to 1983 was not consistent with the material
which is now before you.
In the course of the appellant's re-examination,
which then followed, he testified: 1 0
BY MR.BHATTI:
9 Ibid., at pp. 333-334.
10 Ibid., at pp. 335-337.
Q. Mr. Sivaguru, I think you know what we're talking
about, it's something that you and I discussed at lunch
today and it involves the answers that you gave in terms
of not knowing anything about the LTTE being involved
in violence prior to 1983. Tell me what you told me at
lunch time?
A. When I went to lunch I admitted to my counsel Mr.
Bhatti, that to the questions that was put to me regarding
the LTTE's violent behaviour, I did tell him that I was,
through fear, did not admit having had any knowledge of
their violence.
Q. Are you saying that you did know something about the
violence?
A. Yes, I was aware of it.
Q. Mr. Groos mentioned some specific examples, one of
them was Prabaharan allegedly killing nine policemen,
did you know about that?
A. Yes.
Q. Mr. Groos also mentioned bank robberies, were you
aware that there was violence involving bank robberies
prior to '83?
A. Yes.
Q. Why did you answer that you didn't know these things
or that they weren't a violent organization?
A. I was—my greatest fear was that if I admitted knowing
the violence committed by the LTTE, that I will be
implicated along with them as being either a terrorist or
being a person given to violence, besides that, when I
first—when I came for the first hearing in September of
this year, I heard from another source that Mr. Charles
Groos is a very hard or dangerous man to deal with and
so I feared that.
Q. What about the rest of what you told us, is that—have
you said other things out of fear that weren't the truth?
A. No.
Q. Are you sure?
A. I am sure.
Q. Then why don't you tell us that you did know about
what the LTTE was doing from '79 to '83 when you
were involved?
A. I'm aware that during that period a person named K-u-t-
t-y was—who spoke out against the LTTE was killed
and a cousin of his who is a driver, a bus driver with the
Sri Lankan Transport Board, was also killed along with
his family because they opposed the LTTE.
Q. You've indicated that you know about some of
Prabaharan's activities and the bank robberies, how did
you feel about this, how did you feel about being
involved in a group that engaged in these types of activi
ties?
A. Even though their motive was peaceful solution to the
Tamil problem, they did engage in violence of this
nature which sometimes was brought out of proportion
but I do not, at any time, agree to what they did.
The appellant later explained that he had been
advised by a Tamil, whom he had met either while
travelling or at the Toronto airport, not to tell the
truth because to do so would mean the "very danger
ous Board" which included "a very hard or dangerous
man"—Board Member Groos—would classify him
as a terrorist and not allow him to remain in Canada.
He also testified that he had been absolutely truthful
until Board Member Groos began to question him.
Before the hearing terminated, the parties agreed
and the Board requested that appellant's counsel file
a written submission or, because of the new evidence,
seek to re-open the case, by December 15, 1989, that
the Refugee Hearing Officer file a written reply by
January 5, 1990, and that appellant's counsel file any
rebuttal by January 12, 1990. Counsel for the appel
lant did in fact file his submissions on January 9,
1990 after which the Refugee Hearing Officer filed a
short submission. No rebuttal was filed. By letter of
June 19, 1990, the Board's Deputy Registrar wrote to
Mr. Bhatti informing him that he had "until July 6,
1990... to adduce further evidence together with
any submissions by way of argument of the facts and
law in respect to such evidence you deem appropri
ate". Mr. Bhatti did not respond.
Board Member Groos included in his written rea
sons a lengthy explanation of why he had thought it
necessary and proper to have requested the evidence
contained in Exhibit 8 and to have utilized it in the
manner it was utilized at the resumed hearing of Nov-
ember 16, 1989. This explanation appears at pages
15-17 of the reasons, 11 where he stated:
Ibid., at pp. 399-401.
Subsection 69.1(1) of the Act requires that the Division con
duct "hearings into" the claims which have been referred to it.
This implies that it is empowered to acquire and adduce evi
dence of substantial relevance where such evidence may not
otherwise be adduced.
Whether members of the Division should, while conducting a
hearing into a claim, seek evidence on their own motion is
affected by the emphasis which the Act places on the duty to
speedily determine each claim.
The Division may rely upon the RHO to assume the responsi
bility for adducing at the hearing all the reasonably available
relevant evidence which is necessary to provide a full and
proper hearing. However, ss. 68(2) of the Act requires that the
hearing be conducted as informally and expeditiously as the
circumstances and considerations of fairness permit, and with
out any adjournment which would unreasonably impede the
proceedings contrary to ss. 69(6) of the Act. Subsection
69.1(9) requires that the Division determine whether the claim
ant is a Convention refugee as soon as possible after the com
pletion of the hearing.
I first considered whether taking any active part in respect to
having evidence adduced was consistent with a full and proper
hearing. It might be unusual for a judge to do so, especially in
respect to evidence which, if it existed, clearly had the poten
tial for doing substantial damage to the claimant's personal
credibility. This is frequently determinative of claims where
the claimant is the only witness.
However, I am not a judge and the Division is not a court
which tries cases; I am a member of a quasi judicial inferior
federal administrative tribunal which, pursuant to ss. 69.1(1) of
the Act, conducts "hearings into" claims which are referred to
it. Although the Minister may participate at any hearing to the
limited extent of presenting evidence, she may not otherwise
oppose a claim unless she forms the opinion required by para
graph 69.1(5)(b) of the Act that matters involving the exclu
sion or cessation clauses were raised by the claim.
The Minister, however, rarely participates in any hearings con
ducted by the Division. She had not given any notice of inten
tion to participate in the instant case. Furthermore, there did
not appear to be any substantial possibility that either form of
participation would occur unless some unforseen factor
prompted her.
In my opinion, the public interest requires that the Division
take steps to ensure that the provisions of the Act respecting
the determination of refugee status in proceedings properly
brought before it, over which ss. 67(2) of the Act grants it sole
and exclusive jurisdiction, are administered in a manner con
sistent with the objectives of the Act. The objectives set out in
s. 3 of the Act make it clear that this also requires that steps be
taken to ensure that they are not utilized either fraudulently or
in any other improper way which results in claimants who are
not Convention refugees being determined to be Convention
refugees. This also requires that steps be taken to ensure that
they are utilized effectively by genuine Convention refugees.
It was necessary, therefore, on behalf of the public's interest in
seeing the enactments of Canada administered properly, that
expeditious efficacious steps be taken to ensure that reasonably
available evidence whic h appeared likely to be highly relevant,
regardless of whether it countered or confirmed the allegations
of the claimant, be addraced at the hearing. I would take the
same steps to ensure that evidence which I reasonably believed
would advance a claimant's allegations be adduced where nec
essary.
The appellant submits that the manner in which
Board Member Groos gathered, adduced and utilized
the evidence was highly irregular and showed either
that he was biased agaiinst the appellant or that a rea
sonable apprehension of bias exists. The respondent
contends that the procedures adopted were proper
having regard to the fact that, from the experience
and knowledge gained as a member of the tribunal,
Board Member Groos had some doubt from the testi
mony he heard on September 21, 1989, that the
appellant was telling the whole truth and that he was
endeavouring to resolve this doubt. In any event, says
the respondent, if the appellant was prejudiced by the
actions of Board Member Groos, he had ample
opportunity to counteract it before his claim was
determined by the Board. on September 11, 1990.
To put the matter in proper perspective, it is neces
sary to recite the provisions of the Act which have a
bearing on the procedural issues. They are found in
sections 67 [as am. by R.S.C., 1985 (4th Supp.), c.
28, s. 18], 68 [as am. idem] and 69.1 [as enacted
idem] :
67. (1) The Refugee Division has, in respect of proceedings
under section 69.1 and 69.2, sole and exclusive jurisdiction to
hear and determine all questions of law and fact, including
questions of jurisdiction.
(2) The Refugee Division, and each member thereof, has all
the powers and authority of a commissioner appointed under
Part I of the Inquiries Act and, without restricting the general
ity of the foregoing, may, for the purposes of a hearing,
(a) issue a summons to any person requiring that person to
appear at the time and place mentioned therein to testify
with respect to all matters within that person's knowledge
relative to the subject-matter of the hearing and to bring and
produce any document, book or paper that the person has or
controls relative to that subject-matter;
(b) administer oaths and examine any person on oath;
(c) issue commissions or requests to take evidence in
Canada; and
(d) do any other thing necessary to provide a full and proper
hearing.
68. (1) The Refugee Division shall sit at such times and at
such places in Canada as are considered necessary by the
Chairman for the proper conduct of its business.
(2) The Refugee Division shall deal with all proceedings
before it as informally and expeditiously as the circumstances
and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or tech
nical rules of evidence and, in any proceedings before it, it
may receive and base a decision on evidence adduced in the
proceedings and considered credible or trustworthy in the cir
cumstances of the case.
(4) The Refugee Division may, in any proceedings before it,
take notice of any facts that may be judicially noticed and, sub
ject to subsection (5), of any other generally recognized facts
and any information or opinion that is within its specialized
knowledge.
(5) Before the Refugee Division takes notice of any facts,
information or opinion, other than facts that may be judicially
noticed, in any proceedings, the Division shall notify the Min
ister, if present at the proceedings, and the person who is the
subject of the proceedings of its intention and afford them a
reasonable opportunity to make representations with respect
thereto.
69.1 (1) Subject to subsection (2), where a person's claim to
be a Convention refugee is referred to the Refugee Division
pursuant to subsection 46.02(2) or 46.03(5), the Division shall
as soon as practicable commence a hearing into the claim.
(2) Where a person's claim to be a Convention refugee is
referred to the Refugee Division pursuant to subsection
46.02(2) or 46.03(5) and a conditional removal order is made
against, or a conditional departure notice is issued to, that per
son, a time for the commencement of the hearing by the Divi
sion into the claim shall be set within ten days after the conclu
sion of the inquiry.
(3) The Refugee Division shall notify the claimant and the
Minister in writing of the time and place set for the hearing
into the claim.
(4) A hearing into a claim shall be held in the presence of
the claimant.
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to pre
sent evidence, cross-examine witnesses and make represen
tations; and
(b) shall afford the Minister a reasonable opportunity to pre
sent evidence and, if the Minister notifies the Refugee Divi
sion that the Minister is of the opinion that matters involv
ing section E or F of Article 1 of the Convention or
subsection 2(2) of this Act are raised by the claim, to cross-
examine witnesses and make representations.
(6) If a claimant or a claimant's counsel or agent fails to
appear at the time and place set by the Refugee Division for
the hearing into the claim or, in the opinion of the Division, is
otherwise in default in the prosecution of the claim, the Divi
sion may, after giving the claimant a reasonable opportunity to
be heard, declare the claim to have been abandoned.
(7) Subject to subsection (8), two members constitute a quo
rum of the Refugee Division for the purposes of a hearing
under this section.
(8) One member of the Refugee Division may hear and
determine a claim under this section if the claimant so requests
or consents thereto, and the provisions of this Part apply in
respect of a member so acting as they apply in respect of the
Refugee Division and the disposition of the claim by the
member shall be deemed to be the disposition of the Refugee
Division.
(9) The Refugee Division shall determine whether or not the
claimant is a Convention refugee and shall render its decision
as soon as possible after completion of the hearing and send a
written notice of the decision to the claimant and the Minister.
(10) In the event of a split decision, the decision favourable
to the claimant shall be deemed to be the decision of the Refu
gee Division.
(11) The Refugee Division may give written reasons for its
decision on a claim, except that
(a) if the decision is against the claimant, the Division shall
give written reasons with the decision; and
(b) if the Minister or the claimant requests written reasons
within ten days after the day on which the Minister or claim
ant is notified of the decision, the Division shall forthwith
give written reasons.
(12) If the Refugee Division determines that a claimant is
not a Convention refugee and does not have a credible basis
for the claim to be a Convention refugee, the Refugee Division
shall so indicate in its decision on the claim.
It is clear from these provisions that the Board
does not possess the powers of a court. Its members
are not judges. They are not bound "by any legal or
technical rules of evidence" and are required to deal
with all proceedings "as informally and expeditiously
as the circumstances and the considerations of fair-
ness permit". The Board is also required to conduct a
"hearing into the claim", as is made manifest by the
provisions of section 69.1; the powers conferred by
subsection 67(2) are "for the purposes of a hearing".
Although these powers are stated in broad terms, and
especially so in paragraphs (c) and (d) thereof, they
must be exercised against the overall requirement that
the hearing be a fair and proper one.
An essential requirement for such a hearing, in, my
view, is that the Board act with impartiality. The
impartiality required of judges, as it was explained by
LeDain J. in Valente v. The Queen et al., [1985] 2
S.C.R. 673, extends, it seems to me, to a Board
member. At page 685, his Lordship stated:
Impartiality refers to a state of mind or attitude of the tribunal
in relation to the issues and the parties in a particular case. The
word "impartial" as Howland C.J.O. noted, connotes absence
of bias, actual or perceived.
In three recent cases before this Court, decisions of
the Board were challenged on the ground, inter alia,
that the manner in which a member of the Board
intervened in examining the claimant at the hearing
was excessive and improper. I refer to Mahendran v.
Canada (Minister of Employment & Immigration)
(1991), 14 Imm. L.R. (2d) 30 (F.C.A.); Yusuf v.
Canada (Minister of Employment and Immigration),
[1992] 1 F.C. 629 (C.A.); Rajaratnam v. Canada
(Minister of Employment and Immigration) (Court
File No. A-824-90, Stone J.A., judgment dated
December 5, 1991 (not yet reported)). The challenge
in two of these cases was rejected. In the third, Yusuf,
at pages 637-638, Hugessen J.A. found:
In my opinion, these sexist, unwarranted and highly irrele
vant observations by a member of the Refugee Division are
capable of giving the impression that their originator was
biased. The day is past when women who dared to penetrate
the male sanctum of the courts of justice were all too often met
with condescension, a tone of inherent superiority and insult
ing "compliments". A judge who indulges in that now loses his
cloak of impartiality. The decision cannot stand.
This illustrates, I think, the sort of case in which the
questioning may reveal bias, actual or perceived. The
questioning by the Board member there indicated, as
LeDain J. put it in Valente, "a state of mind or atti
tude of the tribunal in relation to the issues and the
parties".
For a "hearing" to be worthy of the description, the
Board must at all times be willing to give the evi
dence adduced the dispassionate and impartial con
sideration it requires in order to arrive at the truth. I
have no doubt that this is not a particularly easy task
and that, in some circumstances, it must be difficult
indeed. Claimants coming before the Board from dis
tant lands oftentimes have nothing to relate but the
personal circumstances which have led them to make
a claim for refugee status. The difficulty in getting at
the full story is perhaps recognized by the nature of
the powers which are conferred by subsections 67(2)
and 68(4) of the Act. The flexible provisions of the
latter subsection permit the Board to take judicial
notice of facts, and to take notice of other facts, infor
mation and opinion within its specialized knowledge
provided it does so in the manner authorized by the
statute.
With respect, I do not read the Act as permitting a
member of the Board to embark upon a quest for evi
dence in the manner which was adopted in this case.
Surely, that method of proceeding could only subvert
the Board's function as an impartial tribunal regard
less of the legitimate concern which appears to have
motivated Board Member Groos—that the appellant
was not speaking the whole truth. Even so pure a
motive cannot possibly justify the Board Member in
secretly initiating a search for evidence which might
support an impression he has formed from evidence
already adduced. Also, the tenor of the questions he
put to the appellant just before the lunch break on
November 16, 1989, strongly suggests that, while he
had not read all of this fresh material, he had paid
enough attention to the particular article to enable
him to utilize it in his examination with devastating
effect. As the ground covered by him had already
been explored by appellant's counsel and by the Ref
ugee Hearing Officer and the answers in both exami
nations were consistent, it cannot be said that Board
Member Groos was here merely attempting to clarify
or even reconcile inconsistent testimony. His whole
object, it seems, was to set a trap. The appellant fell
into that trap a few moments later when Board
Member Groos revealed the contradicting evidence
which had resulted from the research he had silently
initiated. This procedure, in my opinion, opens the
most well-meaning Board member to a charge of
bias.
A fair reading of the record before me leads me to
the regretful conclusion that Board Member Groos
misconceived his position. Other means were availa
ble by which he could have satisfied his legitimate
concern. One might have been to have openly
revealed his misgivings at the hearing where a course
of action, known to all concerned, could have been
decided upon and initiated. The Board could then
have either directed the Refugee Hearing Officer to
forward a request to the documentation centre or
have asked its own Registrar to submit a written
request with copies to both parties and to promptly
transmit any response received from the Centre to the
parties.
In my opinion, a reasonable apprehension of bias
existed in this case. It meets the test laid down by de
Grandpré J., in Committee for Justice and Liberty et
al. v. National Energy Board et al., [1978] 1 S.C.R.
369, at page 394. An informed person, viewing the
matter realistically and practically—and having
thought the matter through—would so conclude. That
being so, the decision under attack cannot stand.
Despite these procedural irregularities, the respon
dent contends that the decision should be allowed to
stand. Three separate submissions are made. The first
is that evidence that the LTTE was advocating and
engaging in violence was, in fact, disclosed by the
documents of which the appellant asked the Board to
take notice at the outset of the hearing on September
21, 1989. Those documents consisted of a "Report of
a Fact-Finding Mission to Sri Lanka" of September
1988 undertaken by the British and Danish Refugee
Council from July 30 to August 12, 1988, and docu
ments entitled "Overview on Sri Lanka" and "Sri
Lanka Country Profile" drawn from the Board's doc
umentation centre in Ottawa. This last document
does, indeed, suggest that "a number of Tamil mili
tant groups ... began engaging in bank robberies and
attacks on police and military targets, particularly in
the northern province" following the elections of July
1977 which were also followed by riots. However, I
find this information to be of a very general nature
which does not specifically implicate the LTTE in
any of the violence it describes. On the other hand, as
Board Member Groos himself pointed out at the hear
ing of November 16, 1989, the very first article he
had received from the documentation centre on Nov-
ember 15, 1989, contained information which was
"at odds with much of what your client has said" in
that it was inconsistent with the appellant's testimony
"in respect of bank raids and the murder of policemen
by the LI'I'h in the period prior to 1983".
Secondly, the respondent contends that the appel
lant was not without sin, so to speak, because he had
himself declined the opportunity of correcting his
earlier untruthful evidence upon the resumption of
the hearing at 2:00 p.m. on November 16, 1989. In
my view, this argument cannot advance the respon
dent's position. That the appellant had not told the
truth is manifest and that he should have done so is
equally manifest, but no matter how much of a liar he
turned out to be, he was entitled to be heard by a tri
bunal which was and appeared to be free of bias.
Finally, I cannot see how the irregular procedure
adopted in this case could be cured by the apparent
readiness of the Board to allow the appellant to re
open his case in order to receive further evidence.
That readiness, if I may say so, had a ring of unreal-
ity about it. Having only recently admitted to uttering
false testimony, the appellant could hardly be
expected to adduce new evidence with a view to con
tradicting that admission.
For the foregoing reasons, I would allow this
appeal, set aside the decision dated September 11,
1990, and would refer the matter back for re-hearing
and re-determination by a differently constituted
panel of the Refugee Division.
HEALD J.A.: I agree.
HUGESSEN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.