Abdulhakim Ali Sheikh v. Minister of Employment and Immigration

REASONS FOR JUDGMENT

Application for review of determination by immigration adjudicator that applicant failed to establish credible basis for his claim justifying full hearing into status as Convention refugee. Applicant, an Arab and a Muslim, was citizen of Uganda. Fled to Kenya from Uganda in1979 and again in 1986. Came to Canada in 1989. Adjudicator rejecting applicant's reasons for his belief that he would be persecuted if returned to Uganda. Solicitor appointed to act on applicant's behalf falling asleep during course of proceedings before adjudicator. Applicant seeking new hearing with new counsel.

PHELD: Application dismissed. Adjudicator accepted extrinsic facts presented by applicant concerning events that had occurred in Uganda but rejected inferences drawn by applicant from facts. Resultant determination that there was no credible or trustworthy evidence upon which second level panel would find Convention refugee status not in error. Behaviour of applicant's counsel was problematic and could have been attacked upon evidence that presentation before adjudicator was affected by such behaviour. Reliance upon brief references in adjudicator's reasons to counsel's condition insufficient evidence of the degree of the problem.

MacGUIGAN J.:-- This section 28 application, for which leave under subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, ("the Act") was granted by a judge of this Court, seeks to review and set aside an August 11, 1989 decision of an immigration adjudicator and a member of the Refugee Determination Division ("the panel" or "the first-level panel"), which held that the applicant had failed to establish a credible basis for his claim such that the Refugee Division, in full hearing ("the second-level panel"), might classify him as a Convention refugee.

The relevant provisions of the Act are as follows:

2(1)       "Convention refugee" means any person who

(a)        by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

(i)         is outside the country of his nationality and is unable, or by reason of that fear, is unwilling to avail himself of the protection of that country…

(1)        Where an inquiry is continued or a hearing is held before an adjudicator and a member of the Refugee Division,

(c)        if either the adjudicator or the member or both determine that the claimant is so eligible, they shall determine whether the claimant has a credible basis for the claim.

(2)        The burden of proving that a claimant is eligible to have the claim determined by the Refugee Division and that the claimant has a credible basis for the claim rests on the claimant.

46.01(6)            If the adjudicator or the member of the Refugee Division, after considering the evidence adduced at the inquiry or hearing, including evidence regarding

(a)        the record with respect to human rights of the country that the claimant left, or outside of which the claimant remains, by reason of fear of persecution, and

(b)        the disposition under this Act or the regulations of claims to be Convention refugees made by other persons who alleged fear of persecution in that country,

is of the opinion that there is any credible or trustworthy evidence on which the Refugee Division might determine the claimant to be a Convention refugee, the adjudicator or member shall determine that the claimant has a credible basis for the claim.

The applicant is a citizen of Uganda. As both an Arab and a Muslim, he is a member of minority groups in that country. He allegedly lived in Uganda from his birth in 1965 to 1979, fled in 1979 with his family to Kenya, where he remained until his return to Uganda in 1984-85, and went back to live in Kenya from 1986 to 1989, from where he came to Canada in 1989. He and his family allegedly lived illegally in Kenya both times.

One set of issues revolves around the determination of a credible basis for his claim by the first-level panel, another around the conduct of his designated counsel.

There can be no doubt that a first-level panel errs in law in applying the test mandated for a full Refugee Division hearing rather than the lower threshold provided for a level one hearing: Lee v. Minister of Employment and Immigration, no. A-401-89, decided by this Court February 22, 1990. But this Court has not yet decided what must be the standard for a first-level panel. Certainly the Court's decision in Sloley v. Minister of Employment and Immigration, no. A-364-89, also decided February 22, 1990, cannot be taken to mean that a first-level panel is forbidden to assess and weigh the oral and documentary evidence, but only that it must not do so in the manner appropriate to a full Refugee Division hearing. It would be hard to imagine a tribunal with jurisdiction to make findings of fact which would not have the competence to assess and weight the evidence presented before it.

Much of the difficulty counsel have experienced in interpreting subsections 46(1) and 46.01(6) of the Act arises from the reasons for decision of Greenberg J. of the Québec Superior Court in Noor v. Minister of Employment and Immigration of Canada, (1989) R.J.Q. 967, reversed on more general grounds by the Québec Court of Appeal without adverting to this particular issue: File 500-09-000435-892, decided February 26, 1990. On the jurisdiction of the level-one tribunal, Greenberg J. wrote (at 978-9):

We agree that they should have acted as a "threshold tribunal"; in French: "un tribunal d'accès" or "tribunal de triage", whereas in fact they functioned and rule(d) as if they were the tribunal at the second level pursuant to Section 70, 71 and 71.1 of the Act. They, in fact, ruled on the merits of Petitioner's claim for recognition of his status as a Convention refugee.

This Court also finds that they misconstrued the meaning of the concept of "credible basis"; in French: "un minimum de fondement". That is a new concept in Canadian law and is not to be confused or confounded with that of a "prima facie case" or the well-known "Shephard Test" for committing a person to trial at his preliminary inquiry or for ordering his extradition at an extradition hearing (25).

That new test, credible basis, is met if the adjudicator or the member is of the opinion that there is, in the words of subsection 46.01(6) of the Act, "any" credible or trustworthy evidence on which the Refugee Division "might" (Note: not "will" or "would" or "should" or "could", but "might") determine a claimant to be a Convention refugee. If so, the adjudicator or the member "shall" determine that the claimant has a credible basis for the claim.

The requirement is not that a claimant necessarily be credible, but that there be any credible or trustworthy evidence relative to the elements of the definition of Convention refugee which might lead to the conclusion that the claimant is a Convention refugee.

Hence, the first hearing procedure, in our view, was intended by Parliament to be a screening-out process for the most obvious cases of abuse, to weed out these who are manifestly and clearly "bogus" refugees. A good example of such bogus cases was the large number of Turkish nationals who in 1987-88 claimed Convention refugee status under the prior system, where it was quite obvious that they were would-be immigrants seeking to jump the line and mainly, if not solely, wishing to improve their economic condition. A claim can only be found to have "no credible basis" at the first level if it lacks any evidentiary basis.

(25) États-Unis d'Amérique c. Shephard, (1977) 2 R.C.S. 1067.

With respect, I believe this to be a mistaken view of subsection 46.01(6). It would have been easy enough for Parliament to omit the words "credible or trustworthy" if it wished to ensure that a matter proceeded automatically to the second level if there was any evidence on which the second-level tribunal might determine the claimant to be a Convention refugee. But it did not omit these words, and therefore in my view required the first-level panel to make its own assessment of the credibility of the evidence before it. (I find no linguistic warrant for distinguishing the words "credible" and "trustworthy". That it is its own assessment that is required and not a guess as to what judgment a second-level tribunal would make on credibility is evident, first of all, from the word order in the subsection. The second-level tribunal is mentioned only in the subsequent relative clause. It is the first-level panel which has to be "of the opinion that there is any credible or trustworthy evidence." The same conclusion, it seems to me also flows from subsection 46(4), which reads as follows:

(4)        The adjudicator and the member of the Refugee Division may base their decisions with respect to the matters referred to in paragraphs (1)(b) and (c) on evidence adduced at the inquiry or hearing and considered credible or trustworthy in the circumstances of the case.

It is the first-level tribunal which must base its decision on evidence which in the circumstances of the case, is considered credible or trustworthy, evidently by it.

The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is not credible evidence on which the second-level tribunal could allow his claim.

I would add that in my view, even without disbelieving every word an applicant has uttered, a first level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.

The foregoing analysis is, I believe, sufficient to dispose of the applicant's argument with respect to the panel's finding that he lacked credibility as a witness, if that was what the panel here found. In fact, it is not clear from the reasons of the panel in the case at bar that it did find the applicant lacking in credibility, and so his counsel argued his case on this ground in the alternative.

The applicant testified that he and his family finally left Uganda for Kenya after they came to think that Uganda's National Resistance Army seized and killed his father, and then tried to coerce him into joining the army, saying that rebel forces had killed his father and that he should join the army to get revenge on these rebel forces.

Here it was not the bare facts as such that were in issue but rather the conclusions that could reasonably be drawn from them. The panel said (Record of Inquiry, August 11, 1989):

Regarding the army conscription, I'm directed to the Encyclopedia of the Third World, that is Exhibit p-5, and under the section defense, there is a quote, and I quote; it states that "enlistment in the army is entirely voluntary." Now you have testified that the army asked you to join after your father's death.

The circumstances to say the least is (sic) highly unusual. In our opinion, military service, compulsory or otherwise, is a practice recognized internationally and does not per se constitute persecution.

Now the circumstances in which you were asked to join the army, show by your testimony that no violence was applied on you, as a matter of fact you had testified that you were asked to join politely by the authorities.

There is no evidence of persecution in this matter. In 1986, the documentary evidence show that Mr. Museveni and his forces were still fighting to gain control over the totality of the country, and it might well be possible that he tried to recruit as many people as possible to join his army.

But the country is stable now and there is no evidence in front of us to indicate that the conditions of 86 prevail today, and why you have a fear of being recruited by the army today.

Now Mr. Sheikl (sic), the question remains why the army would want to persecute you. The evidence before us shows that after your father's death the soldiers came. They did not arrest you.

When the soldiers came before, to take your father to identify the trucks they did not arrest you. There is no indication of mistreatment of you. Your fear that you will be killed by the authorities is in our opinion mere conjecture, and not plausible.

Now you believed it was a trick to kill you, that is why the soldiers wanted to join you… join the army. Now it makes no sense to us why the army wanted to kill you in the first place, and if they want to kill you why they would take this approach to recruit you, and then eliminate you.

Now there is no evidence to support who killed your father. There are no reports concerning his death, no eye witnesses, the behaviour of the government authorities contradicts the claim that these troops, the government troops intended to kill you.

So again I direct you again to the definition of the Immigration Act, section 48.01(6), and it is the opinion of the board member and I that there is not any credible basis for your claim that the refugee division might determine you to be a convention refugee.

As I interpret the panel's reasoning, it accepted the extrinsic facts as presented by the applicant but found the inferences he drew from those facts to be "mere conjecture, and not plausible." In my view, what the first-level tribunal thereby incorporated in the evidence was the inferences as well as the facts. It was not necessary for the panel to take the position it did with respect to the inferences, but since it chose to integrate facts and inferences, I find myself unable to say that it erred in so doing, and in the result there was in its opinion no credible or trustworthy evidence on the basis of which a second level panel could have come to a conclusion favourable to the applicant.

I should also add that I do not interpret the panel's reference to the absence of past persecution as amounting to a requirement of past persecution to establish the objective element of his claim, viz. that his fear was well founded, rather the panel was merely noting an absence of relevant evidence.

With respect to the conduct at the hearing of the applicant's counsel, who was designated for him in accordance with the Regulations, the argument was made that he fell asleep on three occasions during the hearing, twice during cross-examination and once during the reading of the decision. (The applicant was represented by new counsel before this Court) It goes almost without saying that such conduct must be a matter of particular concern for a Court where a counsel is not of the applicant's choosing but designated. In Strickland v. Washington (1984), 466 U.S. 668, the U.S. Supreme Court held that a criminal defendant was entitled to reasonably effective assistance from his counsel. Justice O'Connor said for the majority (at 693):

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland was adopted by the Ontario Court of Appeal in R.v. Garofoli (1988), 41 C.C.C. (3d) 97 at 152.

The applicant argued that in the peculiar case of a sleeping counsel, it is not necessary that the person affected show that any prejudice has resulted: Javor v. United States of America (1984), 724 F. 2d 831 (9^th Circ.). Circuit Judge Ferguson held as follows for the Court (at 833):

(1)        Today we conclude that when an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary.

I would be prepared to adopt such a holding, but I would emphasize that in any case where it was applied it would have to be based on a very precise factual foundation. In Javor, for example the appellate court had the advantage of just such a factual finding by a United States magistrate. After a hearing, the magistrate found (at 832):

that petitioner's trial counsel was asleep or dozing, and not alert to proceedings, during a substantial part of the trial of petitioner and his two co-defendants; that by treason thereof petitioner was not assisted by counsel at a substantial portion of the trial, including some occasions when evidence relevant to the prosecution case against defendant and very likely to his defense was being elicited and the participation of trail counsel (to observe witnesses, listen to testimony, consider the posing of objections, prepare cross-examination of witnesses, consider the preparation of rebuttal evidence, and prepare argument on such evidence) was proper; that such conduct was not usual or customary by defense counsel, but was on the contrary, rare, if ever.

Given the possibility that a judgment of this kind could found either an action in negligence by the aggrieved client or disciplinary proceedings by the relevant law society, to say nothing of the general loss of reputation on the part of such a sleeping counsel, a Court would want to be sure that its conclusion was warranted before so pronouncing.

In the case at bar there are a number of references to the problem in the proceedings. One instance occurred on July 13, 1989 (at 22):

ADJUDICATOR: And I find it extremely awkward, but I need… it appears that counsel is falling asleep if I can use the vernacular.

COUNSEL: I'm alright, go ahead.

ADJUDICATOR: It's just that it…you would recognize…that your client will ill-served if…

COUNSEL: Yeah, alright.

ADJUDICATOR: I would, I would have preferred to be more tactful…but I just…just there was no other way for me to express this.

There was an earlier, more oblique reference, on July 13 (at 10):

It appears that it is about two thirty and some members at this inquiry are…appeared to be tired, so maybe we can recess for a few minutes. This inquiry is recessed.

Another reference occurred on July 26, 1989:

ADJUDICATOR: Excuse me I'm sorry I think counsel appears to be dozing off. Are you alright Mr…

COUNSEL: Fine, perfect.

A final occasion was during the reading of the decision on August 11, 1989.

PERSON CONCERNED: He wants to remind you, he was wondering if for his lawyer is attentive to what you are saying.

ADJUDICATOR: Yes, Mr. ….appears, is attentive, alright.

This is certainly enough evidence to establish that there was a problem, but not the exact dimensions of the problem. The Adjudicator was alert, even if the counsel was not, and appears to have intervened relatively quickly on each occasion, thus possibly reducing the scope of the problem. In any event, it was open to the applicant to have filed an affidavit setting out that the presentation of his cause was substantially affected by his counsel's dereliction. There could then have been cross examination on the affidavit, if necessary, or counter-affidavits. It was the applicant's choice as to how to proceed. He has chosen not to adduce any evidence on the issue, but to rely on four brief references in the proceedings, references from which only the existence but not the dimensions of the problem can be deduced. He cannot therefore be surprised that a Court does not find in his favour on the evidence before it.

In the result the section 28 application must be dismissed.