A-1116-90
Sarah Mohamed (Abshir) Yusuf (Appellant)
v.
Minister of Employment and Immigration of
Canada (Respondent)
INDEXED AS: YI/SOF Y. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATIoN (CA.)
Court of Appeal, Marceau, Hugessen and MacGuigan
JJ.A.—Montréal, October 16; Ottawa, October 24,
1991.
Judicial review — Refugee Division of Immigration and Ref
ugee Board manifesting sexist attitude in cross-examination of
claimant — Sexism, condescension toward women unaccept
able in quasi-judicial proceeding — Giving rise to reasonable
apprehension of bias.
Immigration — Refugee status — Application based on
brother's, own dissident activity, religion — Refugee Division
denying application on ground applicant's testimony as to sub
jective fear of persecution not credible — Definition of refugee
comprising both subjective fear and objective foundation —
Whether status may be refused for want of subjective fear
where objective danger of persecution — Decision set aside
where reasonable apprehension of bias resulting from panel
members' sexist, irrelevant remarks.
This was an appeal from a decision of the Refugee Division
of the Immigration and Refugee Board rejecting the appellant's
claim to refugee status.
The appellant, a Somalian national, testified at the hearing
that her brother had participated in an attempted coup d'état
against the regime of Siad Barré, at that time president of
Somalia. The brother later became president in exile of the
Front Démocratique pour le Salut de la Somalie. The appellant
had engaged in some dissident activity herself. She also
claimed to have been subject to persecution by reason of her
religion, Islam. The Division held that, although there was
objectively danger of persecution given the existing state of
civil rights in Somalia, the claimant's testimony as to her sub
jective fear of persecution was not credible. Two-thirds of the
transcript of the hearing was taken up with the members' ques
tions to the appellant, questions which the Court herein charac
terizes as "injudicious" in both content and tone. The members
addressed the claimant as "my dear lady" and described her as
"a tiny little woman".
Held, the appeal should be allowed.
The definition of Convention refugee comprises both a sub
jective and an objective element; that is, a person is not entitled
to refugee status because he subjectively fears persecution
unless he also demonstrates that fear to be objectively well
founded. The reverse, however, is doubtful: a person who is
objectively in danger of persecution should not be denied sta
tus because, whether out of courage or because of mental inca
pacity, that person is said not to be subjectively afraid. Here,
the Division did not fall into such an error; rather, because it
considered the claimant not to be a credible witness, it did not
accept her testimony as to the danger of persecution for her
personally should she return to her home country.
While there can be no doubt that the members of the Divi
sion have the right to cross-examine witnesses, the panel made
harassing remarks and asked unfair questions, thus going
beyond what would be permitted even of opposing counsel in
an adversarial proceeding. While that, by itself, might not suf
fice to support a finding of bias on the part of the Division,
some of the remarks made by panel members were sexist,
unwarranted, and irrelevant. These were such as to create an
impression of bias on the part of their originator. Sexist atti
tudes, and condescension toward women in general, are unac
ceptable in judicial proceedings in Canada today. Such atti
tudes on the part of a decision-maker give rise to a reasonable
apprehension of bias.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Mahendran v. Canada (Minister of Employment and
Immigration), A-628-90, F.C.A., Heald J.A., judgment
dated 21/6/91, not yet reported.
COUNSEL:
Daniel Payette for appellant.
Normand Lemyre for respondent.
SOLICITORS:
Payette, Bélanger, Fiore, Montréal, for appel
lant.
Deputy Attorney General of Canada, for respon
dent.
The following is the English version of the reasons
for judgment rendered by
HUGESSEN J.A.: This is an appeal from a decision
by the Refugee Division of the Immigration and Ref
ugee Board, which dismissed the appellant's claim.
The appellant is a Somali national who is now
thirty years old. She says she fled her native country
because she feared being persecuted by the regime of
Siad Barré then in power. Her elder brother had been
an active participant in a failed coup d'état against
the regime, and after fleeing the country became a
militant in and then president of the Front Démocra-
tique pour le Salut de la Somalie (FDSS). The appel
lant's fear of persecution derives not only from her
connection with her brother but also from her own
political opinions and the fact she is a Muslim.
In the disputed decision the Refugee Division,
after summarizing the evidence in outline, said the
following:
[TRANSLATION] After analysing all the evidence, both docu
mentary and testimonial, we conclude that the plaintiff is not a
Convention refugee for the following reasons.
Even if there is objectively no doubt as to the existence of
her fear regarding the human rights situation in Somalia, we
feel that the plaintiff's evidence as a whole intended to estab
lish the subjective nature of her fear is not credible, primarily
for four reasons: hoer manner of testifying, half-truths, contra
dictions without satisfactory explanations and major improba
bilities. [Appeal Book, at pages 80-81.]
The Refugee Division then gave examples of
passages in the appellant's testimony which, in its
opinion, lessened her credibility and concluded:
[TRANSLATION] For all these reasons, we find it difficult to
attach any credence to the plaintiff's testimony. The Refugee
Division accordingly finds that the plaintiff is not a Conven
tion refugee as defined in s. 2(1) of the Immigration Act.
[Appeal Book, at page 84.]
To begin with, the appellant is objecting to this
decision on a ground of pure law: as the Refugee
Division concluded that "there is objectively no
doubt as to the existence of her fear", it simply could
not find that the appellant did not have a subjective
fear. For my part, I admit that I would find some
merit in this challenge if the Division had actually
concluded that the subjective fear did not exist while
the objective fear was established beyond any doubt.
It is true, of course, that the definition of a Conven
tion refugee has always been interpreted as including
a subjective and an objective aspect. The value of this
dichotomy lies in the fact that a person may often
subjectively fear persecution while that fear is not
supported by fact, that is, it is objectively groundless.
However, the reverse is much more doubtful. I find it
hard to see in what circumstances it could be said that
a person who, we must not forget, is by definition
claiming refugee status could be right in fearing per
secution and still be rejected because it is said that
fear does not actually exist in his conscience. The
definition of a refugee is certainly not designed to
exclude brave or simply stupid persons in favour of
those who are more timid or more intelligent. Moreo
ver, I am loath to believe that a refugee status claim
could be dismissed solely on the ground that as the
claimant is a young child or a person suffering from a
mental disability, he or she was incapable of exper
iencing fear the reasons for which clearly exist in
objective terms.
In any case, did the Refugee Division really con
clude that an objective fear exists? In the circum
stances of the case at bar I believe it did not and I feel
that, appearances to the contrary, the Division did not
make the error it is alleged to have made. It will be
recalled that in the passage cited above, the Division
clearly said it was persuaded of the objective aspect
but at once added an important qualification: "regard-
ing the human rights situation in Somalia". In light of
its subsequent observations, and especially the exam
ples it gave in support of its conclusion that the
appellant was not credible, I consider that the Divi
sion meant that the appellant's fear was not valid
even though serious human rights abuses were being
committed in Somalia. In other words, the Division
did not believe that the appellant had any reason to
fear persecution if she returned to her country. From
the evidence, this conclusion was based on the fact
that the Division considered that the appellant was
not a believable witness.
The importance of the Division's conclusion
regarding the appellant's credibility in the subject
decision is thus apparent. The appellant tried to chal
lenge this conclusion directly but with very little suc-
cess: if the Division erred in refusing to believe the
appellant, this is not an error on the basis of which
this Court can intervene.
However, the appellant made a third challenge to
the decision. It concerns the actual behaviour of
members of the Division at the hearing. It is in two
parts. To begin with, the appellant maintained that
members of the Division engaged in a cross-exami
nation that went beyond the permissible limits and
that denied the appellant the fair and equitable hear
ing to which she is entitled. Second, she maintained
that one of the members of the Division made com
ments about her that created an impression of bias. In
my opinion, this two-fold challenge is valid.
There is no doubt that the members of the Refugee
Division have the right to cross-examine the wit
nesses they hear. 1
It appeared that the members in the instant case
were fully aware of their right [Appendix, at page
54]:
[TRANSLATION] BY THE MEMBER (to presiding member)
— Mr. Chairman, if I might say something, as you know
cross-examination is allowed in this tribunal. This is in
fact the only way or resource we have to decide on the
credibility of certain individuals and goodness knows we
hear all kinds of tales.
However, there are limits. The transcript of the
hearing before the Division is seventy-seven pages
long, including the frontispiece. The first eleven
pages are taken up with preliminary matters and the
filing of various exhibits. Then, from page 12 to page
22, the appellant answers the questions of her coun
sel. There are several interruptions by members of the
Division, but they are all for the purpose of clarifying
the answers given. From page 23 to the end, how
ever, nearly all the questions are asked by members
of the Division. It was quite clearly a cross-examina
tion in which the two members took turns. The tone
and content of the questions are hardly judicious. The
following are some examples, not necessarily the
worst [Appendix, at pages 26-27]:
Mahendran v. Canada (Minister of Employment and Immi
gration), A-628-90, F.C.A., Heald J.A., judgment dated
21/6/91, not yet reported.
[TRANSLATION] Q. When you left prison, you went
home ... where was that? Was it with your
parents or your husband?
A. When I said that I went home, it was to my father and
mother's home.
Q. When did your father die?
A. In 1977.
Q. Then how could you have gone to your father's home
when he had died in 1989? When you came out of prison
A. But my mother was still there, that did not prevent it
being still my father's home.
— An odd play on words.
A. I'm sorry.
[My emphasis.]
The fact of describing the house occupied by her
late father and still occupied by his widow as "my
father's home" is neither odd nor a play on words.
[Appendix at page 27.]
[TRANSLATION] Q. You have six brothers?
A. Yes.
Q. Couldn't you have gone to live near your little brothers
in the U.S.?
A. I chose to come to Canada.
[My emphasis.]
It should be noted that at no time was it established
that any of the appellant's brothers was younger than
her. The adjective "little" was thus purely gratuitous.
[Appendix, at page 34.]
[TRANSLATION] — We asked you how you were treated. We did
not ask about anybody else, we are talking
about you, your claim is being considered. No
one else, madam. You have seventeen years'
schooling. You understand our questions.
Please tell us at once if you do not understand.
[Appendix, at page 35.]
Q. What clothing did they tear off your back?
A. This type of boubou (phonetic rendering) which I am
wearing at the moment.
Q. Of boubou? The long dress?
A. Yes, that's right.
Q. Wasn't it actually your veil?—because they objected to
your wearing a veil. I would have thought it would have
been the veil they would have torn first.
A. They cut with scissors, even our veils.
— Just a moment ago I asked what clothing and you said it
was your boubou. Then you went on to say ... because I
am giving you ideas .. .
A. It was all the clothing I was wearing.
Q. Now you are saying all the clothing? Does this mean
you were stripped naked?
A. They cut the sleeves of my dress with scissors.
Q. But not the veil?
A. Yes, even the veil.
[My emphasis.]
[Appendix, at page 51.]
[TRANSLATION] BY THE MEMBER (to the claimant)
— I am going to put to you a question which you have not
yet answered on several occasions. I asked you if you
had obtained Kenyan citizenship and you did not
answer.
A. No.
BY THE PRESIDING MEMBER (to the claimant)
Q. Do you also have Saudi Arabian citizenship?
A. No.
Q. So, how ... explain to me how the Saudi Arabian gov
ernment was giving you a grant for a six-year period of
study? That is quite costly. The governments ... I can't
quite understand how these governments were so gener
ous to you .. .
BY THE MEMBER (to the claimant)
Q. What did you do that was so special for them?
A. Well, I just went to the Molhaq Institute to file my diplo
mas and an application. So, three months later, I was
accepted by the Saudi government and that is also how I
was able to obtain my visa.
[My emphasis.]
Despite what the member said in the first question,
this was the first time that the possibility that the
appellant had obtained Kenyan citizenship was men
tioned. Further, the documentary evidence confirmed
that the Saudi Arabian government offers grants to
students in certain African countries (see Appeal
Book, at page 73).
[Appendix, at page 56.]
[TRANSLATION] BY THE MEMBER (to the claimant)
Q. You want us to believe that students in Saudi Arabia
must leave their country during the holidays. Are you
really telling us that? Foreign students must leave during
the holidays? Are you really telling us that?
A. When you say all students, it's mostly the girls, female
students, who are in Saudi Arabia who cannot remain
during the Saudi Arabian holidays.
Q. So now you are telling us that it is girls who cannot
remain? Is that what you are also saying?
Q. Yes, it is for the whole year, it is a boarding school, and
there are people who look after our health, there are peo
ple who handle supplies, but when the school year is
over we are taken directly to the airport and sent home.
If, for example ... you have a sponsor who is in Saudi
Arabia, you can stay. I didn't have one.
Q. Why do they do that? Are they afraid you will go astray
during the holidays? What happens?
A. It's .. .
— It's a very long story.
A. It is a Saudi institution, I don't know.
[My emphasis.]
Quite apart from the ungracious comments of the
member, there is nothing surprising in the witness'
statement as such that Saudi Arabia, a Muslim coun
try, requires female foreign students to leave the
country during the school holidays.
So far the examples given indicate a rather injudi
cious approach by members of the Division. They
ventured to make harassing comments to the witness
and put unfair questions to her. Even cross-examin
ing counsel in an adversary proceeding would be
barred from going on in this way. It may be that their
actions would not by themselves suffice to indicate
an appearance of bias in the members of the Division,
but they colour another aspect of the case which I
must now consider.
It will be recalled that the appellant is a woman
and was testifying alone in support of her claim to
refugee status. The importance of the assessment by
the Division members of the appellant's credibility in
the final decision will also be recalled.
Near the start of his cross-examination ôf the
appellant one of the members had the following
exchange with her [Appendix, at pages 33-34]:
[TRANSLATION] Q. Did they beat you at the first interrogation or
at the end?
A. They never touched [me]. They insulted me .. .
— You said a moment ago they slapped you. They touched
you, my dear lady.
[My emphasis.]
This is an outmoded form of address, clearly sexist
and completely unacceptable in the Canada of the
present day.
A little further on there is the following exchange
[Appendix, at page 401:
[TRANSLATION] Q. It did not occur to you to go home where
you would be safe?
A. You could hear gunshots everywhere, in all parts of the
town.
— All the more reason for you to take shelter somewhere
and not to go out with demonstrators.
A. Everybody was there. So I wanted to be with these peo
ple who were there to defend their rights.
— But you were a tiny little woman. You could not make
much of a defence.
[My emphasis.]
According to her passport filed at the hearing, the
appellant is 1.70 metres high and is of normal stature:
so why describe her as a "tiny little" woman if not to
insult and denigrate her?
Finally, right at the end of the hearing, the same
member once again spoke to the appellant as follows
[Appendix, at page 74]:
— As to that, it was translated for you ... the interpreter
here is very competent, he translated that same thing to
you. He translated this morning. You were given a good
twenty minutes if not more. You would have an opportu
nity again to say so, my dear lady.
[My emphasis.]
In my opinion, these sexist, unwarranted and
highly irrelevant observations by a member of the
Refugee Division are capable of giving the impres
sion that their originator was biased. The day is past
when women who dared to penetrate the male sanc
tum of the courts of justice were all too often met
with condescension, a tone of inherent superiority
and insulting "compliments". A judge who indulges
in that now loses his cloak of impartiality. The deci
sion cannot stand.
I would allow the appeal, set aside the subject
decision and refer the matter back for a re-hearing
before another quorum of the Refugee Division.
MARCEAU J.A.: I concur
MACGUIGAN J.A.: I concur.
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.