A-114-87
Ashok Kumar (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: KUMAR V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Mahoney, Stone and MacGuigan
JJ.—Toronto, November 3 and 5, 1987.
Judicial review — Applications to review — Immigration
Appeal Board finding applicant not Convention refugee —
Denied fair hearing — Chairman's questions intrusive,
intimidating and interfering with orderly presentation of case
— Denied opportunity to respond to additional evidence, to
have been filed by respondent, upon which respondent's case
partially based — Breaches of natural justice — Application
allowed — Matter referred back for rehearing — Respondent
to call deported applicant as witness and to pay expenses if
chooses to appear.
Immigration — Refugee status — Hindu from Punjab —
Minister and Immigration Appeal Board denying refugee
status — Application to review — Deported as Department
considering application without merit — Application allowed
— Denials of natural justice — Not afforded fair hearing —
Intrusive and intimidating questioning by Board Chairman —
Not afforded opportunity to respond to additional evidence —
Respondent to call applicant as witness at rehearing and pay
expenses.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Appeal Board Rules (Convention
Refugees), 1981, SOR/81-420, r. 24.
COUNSEL:
No one appearing for applicant.
Beverley J. Wilton for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant is a Hindu from
the Punjab. He entered Canada as a visitor and
claimed to be a Convention refugee. The Minister
determined he was not. He applied to the Immi
gration Appeal Board for a redetermination. The
Board determined he was not a Convention
refugee. The applicant applied under section 28 of
the Federal Court Act [R.S.C. 1970 (2nd Supp.),
c. 10] to set aside that decision. He did not appear
at the hearing of his application because he had
been deported. Counsel for the respondent advised
the Court that the deportation order had been
executed because the Minister's department con
sidered that the section 28 application was frivol
ous and without merit. The Department was
wrong. It is clear on the face of the record that the
applicant was not afforded a fair hearing by the
Board. He was denied natural justice.
It is necessary to recite passages from the tran
script. The cast of characters are Mr. J. A. Taylor,
counsel for the applicant, Mr. J. D. Taylor, coun
sel for the Minister and Mr. J. Weisdorf, presiding
member of the Board, as well as the witnesses. An
interpreter was employed.
The examination in chief of the applicant began
at page 2 of the transcript. The tone of the hearing
was set almost immediately.
Q. Further, you indicated that you are here—
THE CHAIRMAN: I don't care what he indicated; I want to hear
today what he's indicating.
MR. J.A. TAYLOR: All right, sir.
Q. What is your political opinion; can you give us a run-down
on what your political feelings are in relation to the Punjab in
India?
THE CHAIRMAN: He never claimed political status—fear for
political reasons.
MR. J.A. TAYLOR: I believe he did, sir, in—
THE CHAIRMAN: He did? Okay, go ahead. I'm sorry, I stand
corrected; that's what he said.
MR. J.A. TAYLOR: I may be wrong, but he mentions about
wanting a united India, and that he didn't believe in the
concept of Kalistan.
THE CHAIRMAN: Who cares? (Transcript p. 2, 1. 24 to p. 3, 1.
15.)
The applicant went on to describe an incident of
24 Hindus recently reported taken from a bus in
the Punjab and murdered by Sikh terrorists. The
Chairman again intervened.
THE CHAIRMAN: Do you have any idea what would happen to
you if you returned to the Punjab?
A. I will be murdered there.
THE CHAIRMAN: Really? You'll be one of the twenty-four
people that got killed. (Transcript p. 4, 1. 25 to 1. 29.)
The applicant next described events in his home
district. He told of a friend who had, two months
before the Board's hearing, been taken from a
cinema and murdered by two motorcyclists. The
Chairman's intervention on that evidence conclud
ed:
THE CHAIRMAN: Did they identify themselves?
THE WITNESS: The police doesn't take any action against them.
THE CHAIRMAN: Listen to my question. Did these two guys in
the motorcycle identify themselves?
THE WITNESS: Those persons ran away.
THE CHAIRMAN: So, the answer is they didn't identify them
selves; is that correct?
THE WITNESS: They were Sikh terrorists, and they ran away.
THE CHAIRMAN: How do you know that?
THE WITNESS: All my friends there, who were there, say this.
THE CHAIRMAN: So, that makes it true. Go ahead. (Transcript
p. 6, 1. 20 to p. 7, 1. 7.)
The examination in chief ended at the top of page
12 and cross-examination was introduced on the
following note:
THE CHAIRMAN: Thank you.
Do you want to ask any questions?
MR. J.D. TAYLOR: Not as many as I respond [sic] generally, but
I do have several.
THE CHAIRMAN: Are you sure?
MR. J.D. TAYLOR: Just t0 cover certain bases for approximately
ten minutes maximum.
THE CHAIRMAN: I don't know why you want to ask any
questions. This is one of the most ridiculous cases I have ever
heard in my life. (Transcript p. 12, I. 12 to 1. 23.)
Following his own cross-examination, the appli
cant called another witness, a Hindu also from the
Punjab, now a Canadian citizen. The examination
in chief began at the last line on page 24. At page
26, line 27, the Chairman again took over. The
following exchange occurred after the witness had
testified that he would not return to the Punjab
because it would not be safe and his friends could
not guarantee his safety.
THE CHAIRMAN: Can they guarantee your safety in New York
City?
THE WITNESS: If you compare to Punjab situation, yes.
THE CHAIRMAN: Or Detroit where there was 600 murders last
year?
THE WITNESS: I haven't tried a few times (sic); I never have
any problem.
THE CHAIRMAN: Did you have any problems when you were
last in the Punjab?
THE WITNESS: That's right.
THE CHAIRMAN: What problems did you have?
THE WITNESS: Well, I didn't have any problem in particular,
but there was a risk involved that anything can happen to you
while you are there, because they don't give any reasons—
couple of guys might come on motorcycle or jeep and—
THE CHAIRMAN: Let me make my point, Mr. Taylor, the
articles which have been filed—the newspaper articles—said
there were 600 murders in the Punjab last year. There were 600
murders in Detroit last year. Why would you be safer in North
America than you would be in the Punjab? (Transcript p. 28, I.
9 to p. 29, I. 5,)
All of the foregoing passages occurred during
examination in chief. I cannot escape the conclu
sion that the intrusive and intimidating character
of the Chairman's interventions interfered signifi
cantly with the applicant's presentation of his case.
During the course of the respondent's argument,
a question arose as to the accuracy of statistical
data relied on by the respondent as to the propor
tions of the Punjab's population of Sikhs and
Hindus. It appears that the representations were
not supported at all by evidence on the record. The
respondent offered further documentary evidence
which was not immediately available.
THE CHAIRMAN: I'll give you a chance to file that after you
give a copy of that documentation to your friend. We won't
make any decision until you send it to him, he has a chance to
reply to it, either in personal [sic] or in writing as he sees fit.
Does that sound fair?
MR. J.D. TAYLOR: Yes.
THE CHAIRMAN: We will reserve on the decision. (Transcript
p. 33,1. 17 to 1. 27.)
The respondent was then permitted to make the
point he said was supported by the missing evi-
Bence. The hearing concluded on the following
note:
THE CHAIRMAN: We'll reserve until after he [sic] receives that
information and your submissions—both Counsels submis-
sions—in regard to that information. (Transcript p. 35, 1. 16 to
I. 18.)
The hearing was conducted in Toronto February
9, 1987. The Board's decision, dated seven days
later, February 16, was signed February 23. The
additional documentation is not on the record.
Both the applicant and his counsel lived in
London, Ontario.
I am impelled to the inference that the addition
al evidence, upon which the respondent was
allowed partially to base his case, was never sub
mitted or, at the very least, given the pertinent
dates and distances, that the applicant was not
afforded a reasonable opportunity to make submis
sions concerning it. The evidence cannot be said to
have been clearly irrelevant. The respondent con
sidered it was.
In my opinion both the latter failure and the
Chairman's gross interference with the orderly
presentation of the applicant's case were denials of
natural justice which require that this section 28
application be allowed, that the decision of the
Board be set aside and that the matter be referred
back for rehearing. I do not consider it necessary
to pursue the question of bias in the legal sense of
that term but I would direct that the matter be
heard by a differently constituted panel.
This decision will be entirely ineffectual unless
the applicant is afforded a genuine opportunity to
present his case at the rehearing. I would accord
ingly further order the respondent to call the appli
cant as a witness at the rehearing by serving a
summons issued under rule 24 of the Immigration
Appeal Board Rules (Convention Refugees), 1981
[SOR/81-420]. Since he is not now in Canada, the
applicant does not have to answer that summons
but, if he chooses to do so, the respondent will,
under rule 24, have both the obligation and au
thority to pay his expenses. Finally, I would direct
the Deputy Attorney General of Canada, as an
officer of the Court, to report in writing to the
Registry of the Court on or before February 29,
1988, as to the action taken by the respondent and
the Board to give effect to the judgment herein
and I would reserve the jurisdiction of the Court
arising out of this application to make such further
and other orders as may appear desirable to ensure
that the judgment is effectual.
STONE J.: I agree.
MACGUIGAN J.: 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.