Thoughts of a Federal Court Judge
Speaking notes on the occasion of the 2013 Integrated National Training Seminar - Immigration and Refugee Board, the Honourable Luc Martineau - January 9, 2013
Hello and thank you for inviting me to this national training seminar. I am not a professional lecturer or speaker, so please bear with me. I think the last time a Federal Court judge participated in such an activity—excluding the participation of Justice Hughes yesterday—was in 2008. Justice O’Reilly was part of a learned panel at the time and addressed the following subject: “Hallmarks of a Properly Analysed Decision”, which is still relevant in 2013.
I was asked to pick up the torch and to address how Board members can benefit from the teachings of a Federal Court judge in the daily course of their duties, and I was also asked to speak in French, as institutional bilingualism is alive and well at the Board. Therefore, I will make my presentation exclusively in French. If time allows, I will also be happy to answer any question you may have in any official language.
Let me begin by saying that I will not have time to comment on the impressive body of case law in immigration or refugee matters. It is also too early to address the possible impact of the new amendments to the Immigration and Refugee Protection Act. In my presentation today, which is entitled “Thoughts of a Federal Court Judge”, I will stay as general as possible. This is not intended to be critical, but constructive. I will not provide you with any magic formulas or legal opinions. At the very most, a few helpful tips.
First, we must describe our role in simpler terms.
As an analogy, the entire Canadian immigration and refugee system can be compared to the human body. Federal Court judges are a little bit like doctors. However, as highly specialized internal organs, the various divisions of the Board are in a better position to prevent disease by being effective filters. This could be called “judicial deference” in the vernacular. I do not have the most recent data at hand, and even though this does not reflect the Court’s opinion, from an institutional perspective, it is clear that between 2005 and 2010, about 85% of applications for judicial review were dismissed at the leave stage. That being said, I note that, in 2012, more than 13,000 application for judicial review records were opened in immigration matters, including refugee matters. Without giving my personal opinion, others may suggest that, overall, the Canadian immigration and refugee system works and is generally in good health.
Another introductory observation.
We all know that you are dedicated to your work as Board members and that you operate in an environment that is constantly changing. You hear many cases and react very quickly. This can be very stressful. Therefore, if we work from the foundation up, I would say that the Board must first continue to train good and better decision-makers. Your participation in this training seminar, the choice of speakers and the abundance of subjects is a true testament to this. With this view, I believe that by developing your skills with respect to hearing cases and writing decisions, you will not only be better at performing your duties, but others will see it too. Eventually, it will increase our shared confidence in the Canadian immigration and refugee system.
For a lot of people, justice is first and foremost about enforcing the law or even acting fairly and in accordance with the applicable law in a given case. On this point, I believe that the best way to become a good decision-maker, beyond good listening skills, is to decide, or, should I say, to make a decision. You must run the risk of being wrong. The New Testament contains a famous example of this.
When Jesus of Nazareth was brought before Pontius Pilate by his accusers because he was calling himself a king, he replied to the Roman governor: “For this I was born, and for this I have come into the world, to bear witness to the truth”. And the fearful governor said the following: “What is truth?”
In your work as Board members, whether it is a refugee claimant claiming to have been beaten by the police or a foreigner sponsored by a Canadian spouse claiming that the marriage was entered into in good faith and not for the purpose of becoming a Canadian resident, the problem is still the same: the truth! Many of you are on the front line. That is the case for the Protection Division and the Immigration Division. Yes, rulings, choices, you cannot retreat before the scope of the task, or put off until tomorrow what needs to be done today. But the truth is not easy to determine; it assumes that we believe the person putting it forth, but on the basis of what objective evidence, if any?
Remember that we are not here to carry out a microscopic examination of the evidence and all your grounds for rejection. However, it is always frustrating for a reviewing judge to not know whether or not you believed the refugee claimant or the person whose rights are affected by a removal order.
Based on all of the case law, judges grant you the right to err given that it does not affect your general reasoning. As I have already said, a lot of applications for judicial review in immigration and refugee matters are decided at the leave stage, after review of the parties’ written submissions. To obtain leave, the applicant must merely demonstrate to the Court that he or she has “an arguable case”, which is rendered in French as “une cause raisonnement défendable”. At that stage, the judge does not generally have access to the whole record, including transcripts, which is why the quality of the decision made by the Board member is so important.
That said, always take the bull by the horns and avoid giving the impression that your decision relies on secondary elements. In terms of the quality of a decision, in judicial review, the “transparency” and “intelligibility” of the decision-maker’s reasons is addressed first. It is preferable that these qualities emerge in the review of the reasons themselves rather than in the personal analysis, by the Federal Court judge, of the documents and transcripts.
I say “preferable” and not “obligatory” because the reviewing judge has some discretion to make up for, on a case-by-case basis I would stress, the inadequacy of the reasons; as long as the rest of the reasoning in the decision and the evidence in the record enables the Federal Court judge to conclude that the Board’s finding constitutes an acceptable outcome in respect of the evidence and law.
Be brief, but complete in your reasons.
Avoid unnecessary or dangerous shortcuts. Do not listen to the siren song of easiness, which increases the risks of judicial review. This can happen when the Board member fails to assess the personal situation of the refugee claimant. Some leaves are granted when this type of criticism is made and some decisions are set aside when the Board member merely carries out a “generic” analysis. The refugee claimant must be sure that the Board member truly focused on his or her account.
With this in mind, without giving a legal opinion, the use of “templates”—“matrices” in French—when writing reasons for a decision seems problematic and dangerous to me if they become the cornerstone of the Board’s findings of fact. All forms of plagiarism of excerpts from previous decisions will appear suspicious and may even become a ground for judicial intervention in some cases. In each case, an individualized assessment of the objective conditions in effect at the time the decision is rendered still seems eminently preferable. Also, by basing the rejection of a refugee claim exclusively on the presumption of state protection or an internal flight alternative, do not forget that the refugee claimant cannot be personally reheard, with specific exceptions.
Throughout the entire process, the ambiguous nature of a Board member’s findings of fact on whether to allow or reject a refugee claimant’s allegations of persecution could cause all sorts of practical problems when the time comes to assess the pre-removal risk, especially since allegations contained in Personal Information Forms are generally accepted as fact.
For the average person and even for the reviewing judge, it must be clear, in all cases, that justice was served. Justice that is deemed acceptable by the public requires more than impartiality and independence from the decision-maker. In my view, when I hear an application for judicial review, I expect, and assume at the same time, that the Board member has inquired about and is already familiar with the general conditions of the country concerned, the customs and culture of its inhabitants and the decisions rendered in similar cases.
In short, I expect Board members to be proactive and aware of the most recent developments in immigration and refugee matters, including certain key judgments, but most importantly, I expect Board members to, for a moment, put themselves in the shoes of the person who is present at a hearing before the Board, with his or her fears and past. Therefore, arrive well prepared for the hearing, but, and I stress here, remain open‑minded. If you do this situational and role-playing exercise, it will be easier for you to hear the case and write your decision.
Ask all of your questions, and give the person being questioned time to tell his or her story and to provide you with clarifications. Of course, do not arrive at the hearing with a preconceived idea or opinion of the outcome. Always think before you speak. Otherwise, it could be very difficult in the heat of the moment to not let one or two unfortunate comments slip, which you will soon regret and which could haunt you long afterward, especially if the matter is brought to the attention of the Federal Court.
Modulate your interventions. Do not get sidetracked by unnecessary discussions with witnesses or their counsel. Be insistent, but not aggressive, which of course includes your attitude towards counsel at the hearing. Like I said earlier, there are a higher number of leaves for judicial review that are dismissed than leaves for judicial review that are allowed. That being said, most of us, if not all of us, will hesitate to, at a preliminary stage I mean, dismiss a leave when an applicant makes serious accusations about the conduct of a Board member at a hearing.
Remember that, in principle, you are not allowed to defend yourself personally before the Court. The transcripts will speak for themselves and will be your primary reinforcement, as well as your Achilles heel. You have already been told this, but please remember that the words used at a hearing or in a decision are always very important. However, the same word used by two different interlocutors often leads to confusion.
Misunderstandings occur if you have not taken the time to ask that yet so simple question: what did you mean sir or madam, when you said this or that? In the past, decisions by the Board were set aside because the member put forward his or her own western point of view, forgetting that there are taboos in certain cultures and that some words are not used or are offensive in some societies.
I am thinking of the case where a Muslim woman, overwhelmed with shame, living in a patriarchal society and not wanting to use the word “rape”, used all sorts of very colourful expressions before the Board member to try to make him understand that she had indeed been raped by police officers in her country. That being said, beyond respecting the principles of natural justice, the decision must also appear reasonable, at minimum, to the Federal Court judge who is hearing an application for judicial review. Note that I said “reasonable”, not “correct”.
In fact, the correctness standard applies only in exceptional circumstances. It could apply to a question of law that is of utmost importance for the legal system and that is outside the specialized area of expertise of the administrative decision-maker. And then there are the issues of the interpretation of the Charter or the Constitution. On this point, questions of law that are certified by the Federal Court for the purpose of an appeal must be of general importance. They must transcend the particular interests of the parties, be determinative in the case and must not have already been addressed in the case law. This is still the best way Parliament has found to solve consistency problems in the case law of the Federal Court, which is, perhaps, not always constant. So, again, what is a “reasonable” decision? If a book was called “Administrative Law 101 for Dummies”, it would simply say that a reasonable decision is first and foremost a reasoned decision, the conclusion of which relies on the evidence and is justifiable in law.
One must be able to, upon review of the decision, with the help of the Board’s complete record if necessary—when a Federal Court judge has allowed an application for judicial review—understand the process followed by the Board member. Some decisions may be more reasoned than others, but that does not make them better. Always remember that it is the quality of the analysis that matters most, and not the quantity of the paragraphs in a decision.
As you know, Parliament has recently made significant amendments to the Act, including the creation of a level of appeal for decisions by the Protection Division in some cases. I cannot tell you today if it is preferable or not for Board members with the Protection Division to continue to write the same type of reasoned decisions. However, by eliminating, in some cases, the possibility of a pre-removal risk assessment, judges must now determine whether a stay should be granted in cases where stays were automatic before, often in the absence of the immediate accessibility of a complete record. It therefore seems important to know from the front-line decision-maker what was accepted or rejected on the facts.
Remember, you are the conductor.
Therefore, determine what is important and let the claimant know at the start of the hearing what is truly in dispute and what is actually of concern to you. In the reasons for your decision, begin with the essential allegations, and then review the key aspects of the evidence, and follow a logical presentation. Avoid confusing several distinct questions of law and always clearly set out your findings of fact and law. For example, remember that sections 96 and 97 of the Immigration and Refugee Protection Act require a separate evaluation of the grounds of persecution under the Convention and the personalized risk of the refugee claimant. Decisions may have been set aside because these concepts were not properly understood or applied, which rendered the conclusions unreasonable.
Even though you are assumed to have reviewed all of the documentary evidence on a given country, when it may seem contradictory, it is without a doubt more prudent to mention the real or perceived contradictions and explain why you are attaching more weight to the accepted elements. Otherwise, in judicial review, some will be quick to criticize you for selectively reviewing the evidence. I am sure that other people have already told you this, but the act of judging is eminently personal.
Candidly and clearly explain your reasoning using a familiar style with which you are comfortable. If virtues must be discussed, let us use the word “candour”. Of course, avoid, to the extent possible, qualifying adjectives or adverbs like “too much” or “not enough” to describe an individual’s personal situation or conduct. In fact, their unnecessary use might result in some real or perceived prejudices, for example, “the woman was not beaten hard enough by her abusive husband”, or even, “the claimant was tortured by police for only two days”.
These types of unnecessary, or even clearly inappropriate, comments often appear throughout oral decisions. Always remember that perception counts and that some will be quick to accuse you of being prejudiced or biased, even if that is not the case. The risk increases when an oral decision is rendered in haste and without adequate control of its content. The ability to render oral decisions may greatly help increase the Board’s efficiency, but it is a practice that presents certain risks. The art of rendering an oral decision is taught and learned, which implies that training was given. It is with a lot of practice that the art is completely mastered. With time, some assurance is certainly acquired, but one must always remain alert and vigilant.
Even an experienced person will tell you that he or she will not render an oral decision without preparation and verification. One should certainly not improvise at a hearing or deviate from the presentation plan. Also, it may be preferable to wait a few hours before making an oral decision or, if possible and the circumstances warrant it, render a written decision a few days later instead. Another virtue that we take for granted, but that seems equally important, is the virtue of distance, which I relate to that of courage.
You are all independent.
You have no personal agenda other than to do justice. You must render and you often render decisions that will be picked up by the media and that will receive many comments from the outside world. Some will be popular with the public and others will not be. Do not keep personal statistics and always act according to the evidence in the record and according to your profound conscience. For example, in refugee matters, that could mean giving the refugee claimant the benefit of the doubt in the absence of evidence to the contrary or internal contradictions in the claimant’s account.
However, this does not mean showing wilful blindness. If you systematically find yourself on either end of the spectrum because of the very high number of rejected or allowed claims, ask yourself why, and if there could be broader pattern of a “closed mind”. For example, are your decisions the subject of the same types of allegations or criticisms related to some conduct on your part more often than those of your colleagues?
Maybe there is a problem. Look around you. You be the judge.
A good decision is one that, beyond its strict legality, seems fair and reasonable under the circumstances. The adjudicative function involves a critical and rational analysis of the evidence and the different points of law argued before you, but that does not prevent you from showing some humanity in your understanding of the personal situation of the individual who appears before you.
I am not talking about compassion or pity here, but simply acknowledging the dignity of others, which does not prevent any decision from relying on the regular application of the law and the respect for the Rule of Law, even if the final outcome is not favourable to a party. That is the virtue of proximity. Beyond these general principles, it is very difficult, and even impossible, to tell you what makes a “good” or “bad” decision. Like I said, I do not like qualifiers. I will only tell you that it is on the quality of your decisions that the Board will ultimately be judged. I remind you that the Board’s mission is to make well-reasoned decisions on immigration and refugee matters efficiently, fairly and in accordance with the law. You must therefore continue to set high standards for yourselves and avoid any work practice that could eventually damage the Board’s excellent reputation.
Because most of the Board’s decisions can impact the life and safety of those who appear before it, one is entitled to expect the highest standards of justice. However, holding a new hearing is onerous on the whole system because the process must be started again before another Board member. As administrative decision-makers, you have an essential role in our society of law. It is a big responsibility, but one that is very rewarding for Board members. Therefore, good luck in the next year, which already looks to be full of mutual satisfaction and challenges!
Thank you for your attention.
The Honourable Luc Martineau
Justice of the Federal Court
January 9, 2013