Monday, 5 November 2012

Immigration Officer's Academic Writing Did Not Cause a Reasonable Apprehension of Bias

The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the applicant's place of origin, Saint Vincent, as an example. He had also argued that Canada's immigration policy could lead to a break down in social cohesion.

Neither of these comments were sufficient to raise a reasonable apprehension of bias, held Noël J.:
[35]           In one of his publications, Mr. Gallagher illustrated his proposition that the refugee system, in its current state, has given rise to “anomalous decision-making” as it is too generous in conferring refugee status. References were made to Saint Vincent as an example among a number of other countries that produced refugees. Mr. Gallagher’s critical scholarly comments about the refugee system were not specifically targeting Saint Vincent citizens making refugee claims but are to be considered as a broader, more general evaluation of the refugee system’s processing of refugee claims originating from a number of countries. In light of this, it is not appropriate to consider that a reasonable person would have reasons to believe that the decision-maker had specifically predetermined the Applicant’s case because of the scholarly comments made.

[36]           As for the second publication, which addresses mass immigration to Canada, Mr. Gallagher’s writing focused on his views that allowing mass immigration will eventually threaten Canada’s social cohesion. This academic article discusses a societal question that is unrelated to the case at bar. Therefore, it cannot be said that because of such written views, Mr. Gallagher had predetermined the Applicant’s case. A reasonable person could not come to such conclusion.

[37]           It is not because a person has expressed prior views through academic work on a subject matter that such a person should be disqualified as a decision-maker. To the contrary, having had such experience may be a valuable asset and may help in making such persons better decision-makers.
This conclusion seems correct. Administrative decision-makers should be encouraged to write, not discouraged. If light can be shined on decision-making processes by decision-makers, the legal system will be a better place. Of course, they should be encouraged to exercise caution in their writings, but they should not be forced to down quills because some general comments risk being construed as specific to individuals who appear before them.

In any event, the decision at issue was ultimately struck down because key evidence about state treatment of homosexuals in the applicant's place of origin was not taken into account:
[45]           In the case at bar, the RPD failed to address the documentary evidence that states that as of 2009, there are reported cases of men apprehended by the police for committing homosexual acts. Such evidence is important as it may explain the Applicant’s objective fear of returning to Saint Vincent. The RPD’s finding “that there is no indication that the Saint Vincent government is “policing” the law against homosexuality” is therefore erroneous. The RPD was under a duty to comment on the relevant documentary evidence and explain why in the specific case such risk does not exist.
The decision-maker also failed to explain why the applicant would not face persecution if she were to return to her place of origin:
[54]           It was an obligation upon the RPD to specifically discuss why the Applicant, as a homosexual living in a place where it has been demonstrated that homosexuals are harassed, would not be subjected to persecution as she cannot live her sexual orientation openly. Although the facts in Sadeghi-Pari, above differ from the case at bar as the Applicant in the said case had effectively been apprehended for homosexual acts, it remains that the RPD should have discussed why the Applicant does not face such a risk. The Applicant had specifically expressed that one of the triggering events that caused her to leave Saint Vincent was, in addition of her fear of Mr. Clarke, the fact that she had to live a closeted life as a homosexual.
 The decision was struck down and remitted to a differently constituted panel for reassessment.

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