Ithibu v. Canada (Minister of Citizenship and Immigration)

Ithibu v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-04-03
Neutral citation
2001 FCT 288
File numbers
IMM-2429-00
Decision Content
Date: 20010403
Docket: IMM-2429-00
Neutral Citation: 2001 FCT 288
BETWEEN:
JOSEPH ITHIBU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision rendered on April 10, 2000, wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant, a 25 year-old citizen of Kenya, claims a well-founded fear of persecution in his country because of his political activities and his sexual orientation.
[3] In March 1994, the applicant registered at the University of Nairobi in a four year Bachelor of Commerce program. He left the university in July 1998 without having finished his studies.
[4] In September 1997, the applicant allegedly became a member of the University of Nairobi Education Student Organization ["UNESO"] until June 15, 1998. As a student leader, he supposedly participated in several student demonstrations concerning student affairs as well as general political issues.
[5] The following year, on March 23, 1998, the applicant allegedly organized another student demonstration to protest against new university entrance requirements and tuition fees. This demonstration which began peacefully became very destructive because of student and police violence.
[6] It was also alleged by the applicant that he was a member of a gay group called the Nairobi Independent People Movement. At the hearing, the applicant described the members of this group as being wealthy and influential business people. He organized meetings with this group and members of UNESO in the hope of getting some funding for the student group.
[7] On June 13, 1998, the applicant organized a get-together party with members of the two groups. That evening he was seen publicly kissing his friend William, by his student colleagues. Because of this, he was asked to resign from his post in UNESO on June 15, 1998.
[8] As a result of his sexual orientation being known, the applicant alleged that he was attacked on campus on his way back to the university hostel. He escaped with bruises.
[9] On July 4, 1998, the applicant was arrested at his home. Police ransacked the house, took all the applicant's personal papers and told his parents that the reasons for the arrest was the applicant's participation in the disturbances of March 23, 1998. They also informed his parents of his sexual orientations.
[10] The applicant was taken to the police station where he alleged he was beaten and tortured. He refused to sign a document linking him to the events of March 23, 1998. A police informer friend of his told him that the police were planning a frame-up with some street boys and intended to accuse him in Court of having sodomized them while they were in jail. The applicant gave him his friend William's phone number. William bailed him out on July 7.
[11] The applicant contends that he lived with his friend William until his departure from the country on August 28, 1998.
NOTICE OF CONSTITUTIONAL QUESTION
[12] The applicant filed on February 19, 2001, an affidavit of service of the notice of constitutional question which was served on February 16, 2001, on the Minister of Justice of every provinces, except for the province of Manitoba, and on the respondent's counsel.
[13] In the notice of constitutional question, the applicant indicates his intention to question the constitutional validity of the hearing practices and the new hearing model before the Board in Montréal and their validity under sections 7, 12 and 15 of the Charter and the respondent's international obligations.
PRELIMINARY ISSUE
[14] 1. Was the notice of constitutional question served in a proper manner and can the issues raised be considered by the Court?
ISSUES
[15] 2. Was the Board biased and was the applicant's right to a fair hearing infringed?
3. Did the Board err in its appreciation of the applicant's credibility?
4. Did the Board err by failing to consider the objective situation prevailing in Kenya?
5. Would the applicant's deportation violate his rights under section 7 and 12 of the Charter and article 3 of the Convention against Torture?
ANALYSIS
Preliminary Issue
1. Was the notice of constitutional question served in a proper manner and can the issues raised in the notice of constitutional question be considered by the Court?
[16] The affidavit of service stated that the notice of constitutional question was served to the Minister of Justice of each province rather than to the Attorney General of each province.
[17] However, it has to be noted that the notice of constitutional question itself was addressed to Morris Rosenberg, Deputy Attorney General of Canada and to Attorneys general of the provinces.
[18] The affidavit of service of Mr. Stewart Istvanffy indicates that he served by fax the Minister of Justice of every provinces, except the province of Manitoba, and that he also served the solicitor for the respondent.
[19] Section 57 of the Federal Court Act states:
57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, don't la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2).
[20] The question is whether the notice of constitutional question was improperly served since it was served on the Ministers of Justice instead of the Attorneys General of the provinces.
[21] Usually, the Minister of Justice is ex-officio the Attorney General. However, they are two distinct legal entities. It should be noted that there is not always a Minister of Justice in some provinces. For example in Ontario, British Columbia and Prince Edward Island, there is no Minister of Justice, only an Attorney General. Therefore, I do not know how the applicant's solicitor can have sworn that he served the Minister of Justice since that person does not exist.
[22] In Eaton v. Brant County Board of Education, [1997] 1 S.C.R.241, the Supreme Court examined section 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 which is similar to section 57(1) of the Federal Court Act. The Supreme Court stated:
In view of the purpose of s. 109 of the Courts of Justice Act, I am inclined to agree with the opinion of the New Brunswick Court of Appeal in D.N. v. New Brunswick (Minister of Health & Community Services), supra, and Arbout J.A. dissenting in Mandelbaum, supra, that the provision is mandatory and failure to give the notice invalidates a decision made in its absence without a showing of prejudice. It seems to me that the absence of notice is in itself prejudicial to public interest. I am not reassured that the Attorney General will invariably be in a position to explain after the fact what steps might have been taken if timely notice had been given. As a result, there is a risk that in some cases a statutory provision may fall by default.
There is, of course, room for interpretation of s. 109 and there may be cases in which the failure to serve a written notice is not fatal either because the Attorney General consents to the issue's being dealt with or there had been a de facto notice which is the equivalent of a written notice. It is not, however, necessary to express a final opinion on these question in that I am satisfied that under either strand of authority the decision of the Court of Appeal is invalid. No notice or any equivalent was given in this case and in fact the Attorney General and the courts have no reason to believe that the Act was under attack. Clearly, s. 109 was not complied with and the Attorney General was seriously prejudiced by the absence of notice.
[23] Therefore, if there has been a de facto notice which is the equivalent of a written notice, the failure to serve a written notice may not be fatal. In this case, I would be ready to consider that the fact that the notice was served on Ministers of Justice instead of the Attorneys General of the provinces is not fatal. Once the Minister of Justice is served, it can be said that the Attorney General has knowledge of the notice and was served.
[24] However, I do not know how the Attorneys General for Ontario, British Columbia and Prince Edward Island could have had knowledge of the notice since there is no Minister of Justice for theses provinces and the applicant's solicitor has sworn that he served the Ministers of Justice for these provinces. If the solicitor has made a mistake in his affidavit (which he probably did) and really served the Attorney General, the error might not be fatal either. Even if he addressed the notice to the Minister of Justice of those provinces, the notice probably was received by the Attorneys General. My concerns are more on the fact that I am not sure if the Attorneys General were really served. Right now, I am presuming that they were served but I am not sure that presumptions are sufficient in this instance.
[25] Furthermore, the fact that there is no evidence that the Attorney General of Manitoba was served with the notice is a serious issue.
[26] There is two strands of decisions in the jurisprudence regarding the failure to give proper notice. In Eaton v. Brant County Board of Education, supra, the Supreme Court explained:
While this Court has not yet addressed the issue of the legal effect of the absence of notice, it has been addressed by other courts. The results are conflicting, One strand of decision favours the view that in the absence of notice the decision is ipso facto invalid, while the other strand holds that a decision in the absence of notice is voidable upon a showing of prejudice.
[27] In Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 (C.A.), the Federal Court of Appeal stated:
As to the question of the attorneys general not demonstrating prejudice, whether subsection 57(1) is mandatory has not conclusively been decided by the Supreme Court of Canada. However, except in limited circumstances which are not applicable here, I think the weight of judicial authority is in favour of the provision being mandatory.[...]
[...]
I think theses comments suggest that the requirement to give notice in accordance with subsection 57(1) is mandatory (except in limited circumstances, i.e. where the attorneys general consent or where there has been de facto notice) and that the presence or absence of prejudice is irrelevant.
[28] In light of the above jurisprudence, if the notice was not served on the Attorney General of Manitoba the error should be considered fatal.
[29] There is, however, the issue that the notice might not have been necessary at all. Section 57(1) provides for a notice where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court.
[30] The applicant intends to question the constitutional validity of the hearing practices and the new hearing model before the Board. He also intends to raise the question of administrative bias in the context of the hearing of African refugee claims by Jeannine Beaubien-Duque and Michel Goulet. The applicant will also raise the fact that his own deportation would be in violation of the Charter and of the minimal international norms. These concerns cannot be said to questions the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province or of regulations thereunder.
[31] However, the applicant intends to ask that the Charter be interpreted so as to include article 3 of the United Nation Convention against Torture, as a fundamental guarantee of a free and democratic society.
[32] This last issue might be said to question the constitutional validity, applicability or operability of an Act of Parliament.
[33] In Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.) Rothstein J. held:
In an effort to get around section 57, counsel argues that section 14 must only be "construed" with a view to paragraph 2(b) of the Charter and that this is different than questioning the validity, applicability or operability of the section.
While there may be circumstances where an argument relating to the construction of a statute does not involve the question of its validity, applicability or operability, I cannot appreciate such a distinction in this case based upon the arguments made. Counsel argues that the information in question here contributes to "core values" thereby creating a prima facie right of access and that in these circumstances the exemption in section 14 is narrowed by paragraph 2(b) of the Charter. This argument if accepted would, to my mind, result in the inapplicability or inoperability of the exemption under section 14 or at least the limiting or narrowing of the applicability or operability of the exemption when documents relating to core values are at issue. If it does not result in limiting or narrowing of the applicability or operability of the exemption then "construing" section 14 in light of the Charter serves no useful purpose.
With respect to the Charter arguments, therefore I conclude:
1. The Charter challenge necessarily involves a challenge to section 14 of the Access to Information Act.
2. To the extent section 14 was found to contravene paragraph 2(b) of the Charter the result would be its inapplicability or inoperability or at least a limitation on its applicability or operability. Such a determination requires notice in accordance with section 7 of the Federal Court Act which was not given.
[34] In Re Canada (Commr. of the Royal Cdn. Mounted Police), [1993] 2 F.C. 251 (T.D), affirmed without comment on this point [1994] 3 F.C. 562 (C.A)., MacKay J. stated:
As I understand the Supreme Court's practice, a constitutional question under the Charter is treated the same as any other constitutional question, and a constitutional question is stated under Rule 32 only when the constitutional validity, or the constitutional applicability of a statute or of regulations is raised or the inoperability of a statute or regulation is urged. A question is not stated under the Rule where there is not an attack on the validity, applicability or inoperability of legislation and where all the Court is being asked to construe a law in light of a section of the Charter (Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1989] 2 S.C.R. 1110).
[...]
At the end of the hearing I reserved decision in relation to the query raised in order to give the matter brief consideration, with arrangements that counsel would be advised through the Registry if, in my opinion, I considered section 57 applicable in this case, in which event counsel for Mr. Jensen would give notice to provincial (and territorial) attorneys general and an opportunity would be provided for any of them interested in intervening to have the record and a transcript of proceedings in this matter and to be heard before the Court reached judgment in the stated case. After brief consideration, the Registry was directed to advise counsel that I concluded section 57 was not applicable in this case.
That conclusion is based on reasons underlying the submission made jointly for the original parties to this case. Here the Court is asked to construe the RCMP Act in a manner consistent with the Charter, a Charter argument which was not supported by all counsel, and there was no direct request for the Court to rule on the validity, applicability or operability, in a constitutional sense, of the Act. In those circumstances, in my view, section 57 does not apply and notice is not required to be provided to all attorneys general. I note that this judgment includes no ruling of the sort described in section 57 in relation to the statute of Parliament here in issue, the RCMP Act.
[35] In the case at bar, the applicant asked that the Charter be construed as including article 3 of the United Nation Convention Against Torture. Whether this issue questions the constitutional operability of an Act of Parliament is not clear.
[36] In favour of the position that it raises a constitutional question is that the applicant seems to seek an interpretation of the Charter that would have the effect to make a constitutional guarantee out of article 3 of the Convention against Torture. However, the Convention Against Torture was ratified by Canada and is applicable to our domestic law. Therefore, article 3 can be considered even if it is not guaranteed under the Charter. I believe that the applicant wants to give more weight on article 3 by bringing it under the scope of the Charter and having it considered a constitutional guarantee. If this is so, then I think a notice of constitutional question might be necessary since it questions the operability of the Charter.
2. Was the Board biased and was the applicant's right to a fair hearing infringed?
[37] The applicant contends that the Board was biased and had already taken its decision before coming into the room. The applicant alleges that more often than not, negative statements on the credibility or the plausibility of an applicant's testimony and the cross-cultural misunderstandings or bias are tightly related. According to the applicant, he was subjected to attack during the entire hearing and his counsel and him were constantly interrupted. The Board members' bias was verbalised on numerous occasions when they said "That's you answer, that's all" and "That's your answer, sir". The applicant claims that this demonstrated the Board members' pre-existing bias and lack of open mind.
[38] The applicant also submits that the Board's finding that he was not credible because he named African authors when asked to name some authors he studied in English literature demonstrates the worst type of ignorance and cultural bias. It also showed a closed mind. The manner in which the Board questioned the applicant on this point and the radical conclusions reached do not respect the right to equality guaranteed by section 15 of the Charter.
[39] The applicant alleges that in Montréal, the hearing practices and the new hearing model violates the right to a fair hearing and constitutes administrative bias. According to the applicant, the Board will ask the lawyer of the refugee claimant, in a systematic manner, to permit the refugee hearing officer to ask their questions first, violating the natural order of evidence when the refugee claimant has the burden of proof. The Board members systematically say to refugee claimant that they should not repeat the story presented in the PIF, this although they are guaranteed the right to an oral hearing. The presentation of the evidence is interrupted often by the Board. The applicant contends that these practices do not respect the right to be heard and infringe sections 7, 15 and 27 of the Charter.
[40] In Cota v. Canada (M.C.I.), [1999] F.C.J. No. 872 (T.D.), Teitelbaum J. indicated :
The Supreme Court of Canada has held that the process of determining refugee claims must proceed in accordance with the rules of fundamental justice set out in s.7 of the Charter: Singh v. Canada (M.E.I.) (1985), 14 C.R.R. 13 (S.C.C,).
[41] In Committee for Justice and Liberty v. National Energy Board_, [1987] 1 S.C.R. 369 at p. 394, the test applicable in order to determine the existence of a reasonable apprehension of bias was stated as follows:
... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude."
[42] In R. v. R.D.S., [1997] 3 S.C.R. 484, it was held by Cory J.:
Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.
[43] The respondent notes that the applicant did not ask the Board members to recuse themselves during the hearing. The respondent submits that it is an essential condition for an applicant arguing an apprehension of bias to show that he asked the Board members to recuse themselves as soon as reasonably practicable, failing which his arguments will be rejected.
[44] In Khakh v. Canada (M.E.I.), [1994] 1 F.C. 548 (T.D.), Nadon J. reviewed the jurisprudence relating to the issue of the time when a reasonable apprehension of bias should be raised and concluded:
From the above authorities, one can conclude that a reasonable apprehension of bias should be raised at the first opportunity. The question that flows from this is: "When is the first opportunity?" Halsbury's Laws of England, to which reference is made by Marceau J.A. in In re Human Rights Tribunal, states that there is no waiver unless the party entitled to make the objection is fully aware of the nature of the disqualification and has an adequate opportunity to make the objection.
Mullan states that the Court will imply a waiver where a party or its representative knows of the facts that give rise to an apprehension of bias and, notwithstanding, does not object. However, Mullan qualifies his statement by adding that the party or its representative must be "fully cognisant of the right to take objection".
Craig states that the courts have become more reluctant to infer waiver where a party is not aware of its right to object.
In Regina v. Nailsworth Licensing Justice. Ex parte Bird (1953), 1 W.L.R. 1046 (Q.B. Div.), Lord Goddard C.J. made the following remarks at page 1048:
The solicitor did not take his objection then and it seems clear that he decided to let the matter go on, taking the view that this was a heaven-sent opportunity of getting the order quashed if the committee found in favour of the application. That would be sufficient ground for refusing this application...
In West Region Tribal Council v. Booth et al. (1992), 55 F.T.R. 28, Muldoon J. of this Court held that a party had waived its right to raise reasonable apprehension of bias as it had not raised the objection at the first opportunity. Muldoon J. wrote [at page 46]:
A nullity a initio can be perceived and declared almost at any later time for it never was of any effect, and demonstrably so. However, when one alleges a denial of natural justice by means of alleged prejudice, one should- nay, must so allege promptly, for effluxion of time can render such allegation not objectively demonstrable at all. The allegation of prejudice should not be secretly harboured, but made public immediately, thereby hoping to catch the tribunal "red handed", so to speak, in its prejudice and misconduct. So it is that the posture of waiting to discover whether one wins the contention before the adjudicator, prepared to make no allegation of prejudice if one does win, and complaining of alleged prejudice as a means of trying to avoid confirmed loss, is abusive and to be discouraged.
[45] In Nartey v. M.E.I. (1994), 74 F.T.R. 74, Denault J. stated:
In addition, neither the applicant nor his counsel raised the issue of a reasonable apprehension of bias during the course of the hearing. In Abdalrithah v. M.E.I. (1988), 40 F.T.R. 306 (T.D), I held that:
Moreover, even if the facts had shown a probability of bias on the officer's part, which is not the case, the failure of the applicant's attorney to raise this issue forthwith leads to a presumption that he had given up on invoking the reasonable apprehension of bias.
I believe this principle still applies, notwithstanding the recent judgment of my colleague, Nadon J., in Khakh v. M.E.I. (November 4, 1993), 70 F.T.R. 26, Court file no. T-315-93. In his decision, Nadon J., canvassed the jurisprudence and literature on the issue of whether the failure to raise the issue of bias during the hearing is fatal to a later determination of the question. He found that a failure to raise the issue does not constitute waiver if the applicant or his counsel was unaware of the right to object on the ground of a reasonable apprehension of bias or of the facts giving rise to the disqualification (in that instance the applicant was unrepresented)...
[46] In the case at bar, the applicant did not ask the Board members to recuse themselves at the first opportunity which was when the applicant was of the view that the Board's methods raised an apprehension of bias. However, before the Board, the applicant's counsel did comment the fact that the Board asked questions at the hearing and did ask that the Board refrain to interrupt the applicant during the testimony.
[47] The applicant also alleges that the Board's conclusion regarding the possibility of studying African authors in English literature courses raises a reasonable apprehension of bias. This issue could only be raised by the applicant after the Board's decision was rendered. Since an accumulation of incidents can also give rise to an apprehension of bias, I am ready to accept that the applicant raised the issue at the earliest practicable opportunity. I wish to add however, that this case is a borderline case and that had it not been for the issue pertaining to the English literature courses, I would have concluded that the applicant had waived his right to complain.
[48] Therefore, I will proceed to the evaluation of the apprehension of bias raised by the applicant.
[49] As was stated in Khakh, supra, mere suspicion of bias on the part of a party is insufficient to ground a claim for judicial review based on bias.
[50] The applicant argues that he was subjected to attack during the entire hearing and his lawyer and him were constantly interrupted during the testimony. Furthermore the applicant argues that the Board's interrogation was narrowly focussed, biased and constantly seeking to contradict the applicant even on points where there was no serious reason not to believe him.
[51] On the issue of questioning by a Board in a refugee hearing, Teitelbaum J. held in Osuji v. Canada (M.C.I.) (1999), 169 F.T.R. 120 (T.D.):
The applicant relies on a number of cases in support of his position. Namely, he relies on Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14 (F.C.A.) where Justice Mahoney, writing for the Federal Court of Appeal held that intrusive and intimidating interventions interfered significantly with the presentation of the applicant's case. [...]
[...]
The applicant also relied on Sivaguru v. Canada (M.E.I.), [1992] 2 F.C. 374 (F.C.A.), on Mahendran v. Canada (M.E.I.) (1991) 14 Imm. L.R. (2d) 30 (F.C.A.), and on Iossifov v. Canada (M.E.I.) (1993), 71 F.T.R. 28 (F.C.T.D.).
In Iossifov, supra, the Court considered whether the applicant was provided a full opportunity to properly present his case. In concluding that the decision could not stand Justice McKeown remarked at pages 29-30:
The Board continually and repeatedly prevented the applicant from presenting his evidence relevant to persecution prior to 1990 in an organized fashion.
...
It is also no answer to say that the Board allowed the applicant to put into evidence all evidence relating to past persecution when it is clear from the transcript that the Board members were not interested, constantly interrupted and prevented counsel from proceeding in an orderly fashion.
[...]
In Mahendran, supra, another case invoked by the applicant, the Federal Court of Appeal considered that applicant's allegations that his right to a fair hearing had been violated and that the circumstances raised an apprehension of bias as he was aggressively cross-examined by members of the Board. The Court dismissed the appeal and disposed of the question of natural justice as follows at pages 32-33:
I have no hesitation in expressing my concern at the lengthy nature of the interventions of Board member Groos. I think it would have been preferable for him to have left the main burden of questioning the appellant to the Refugee Hearing Officer. However, having said this, I hasten to add that members of this Tribunal are enabled, pursuant to subsection 67(2) of the Immigration Act, to "administer oaths and examine any person on oath," and: " ... do any other thing necessary to provide a full and proper hearing." If Board member Groos, as seems evident from the transcript, had problems with the appellant's testimony at the conclusion of the examinations conducted by the appellant's counsel and by the Refugee Hearing Officer, he was entitled to conduct his own questioning of the appellant in the proper discharge of his duties as he perceived them. On this basis, it is necessary to assess the nature of this questioning in order to determine whether there is merit in the objections to that questioning by counsel for the appellant, as set forth supra. After carefully reviewing the transcript, I must respectfully disagree with counsel's criticisms of the questioning by Mr. Groos. I would characterize his questioning as being an energetic exercise in attempting to clear up some inconsistencies in the evidence. It also discloses some frustration at being unable to get a clear picture of the general purport of the evidence being given. I am also unable to conclude from this record that Board member Groos has demonstrated a reasonable apprehension of bias.
In the present case, despite Counsel's arguments, I must find that the circumstances do not raise a bias or a reasonable apprehension of bias. I read and reread the transcript of the hearing and I note that the Board played an active role in examining the applicant. I have also noted that the Board did ask the same question on a few occasions. The applicant submits that the Board interrupted her examination by her then Counsel. The transcript shows that the Board members did intervene frequently during Counsel's examination. However, I am not persuaded that the Board's conduct amounts to a breach of natural justice in that the applicant was denied the opportunity to fully present her case or that the Board's questioning raised an apprehension of bias.
In my view, the foregoing cases relied upon by the applicant must be distinguished on their facts. For example, the presiding member in the case at bar did not aggressively and significantly intervene as did the member in the case of Kumar; the manner in which the presiding member in the present case questioned the applicant was not an attempt at entrapment as was the case in Sivaguru; and it cannot be said that the presiding member in the present case was "not interested, constantly interrupted and prevented Counsel from proceeding in an orderly fashion" as with Iossifov.
I am persuaded that the present case is rather similar to the Mahendran case where the Federal Court of Appeal indicated that the questioning was an attempt to clear up inconsistencies in the evidence which disclosed the Board's frustration at being unable to get a clear picture of the general purport of the evidence. In the present case, the Board appeared to merely attempt to clarify or to reconcile the inconsistent testimony.
While the foregoing cases provide precedents regarding questions of apprehension of bias and fair hearing, the circumstances of this case must be determined in light of the test enunciated in National Energy Board cited in Sivaguru, supra. After reading the transcript, I am of the view that an informed person, viewing the matter realistically and practically and having thought the matter through would not conclude that the Board will make a biassed decision.
[52] Therefore, it seems that an energetic questioning by a Board member and frequent interruptions will not necessary give rise to a reasonable apprehension of bias, especially if the intervention is to clarify a claimant's testimony.
[53] I have carefully reviewed the transcript. I cannot find that the Board constantly interrupted the applicant and that the Board did not let the applicant present his case. The Board rarely interrupted the applicant during his examination by counsel and when the Board did interrupt it was to clarify some issue and understand the applicant better or to have the applicant speak louder. In some instance, the Board even asked counsel permission to intervene. The Board asked the applicant more questions when his counsel was finished examining him but the questions were clarifying questions.
[54] The Board cannot be faulted for these few interruptions and the applicant's allegations that he was constantly interrupted are an exaggeration of what really occurred at the hearing. In the case at bar, it cannot even be said that the Board frequently interrupted the applicant as was the case in Osuji, supra.
[55] The applicant also contends that the Board's new procedures which consist of asking the claimant's lawyer to permit the refugee hearing officer to ask his questions first raise a reasonable apprehension of bias.
[56] At page 10 of the transcript, the following exchange took place between the Presiding Member and the applicant's counsel:
Presiding Member: Maitre Istvanffy, il you agree, unless you have your own specific preliminary questions, would you accept that Madame Setton opens with a few clarifying questions?
Counsel : I would prefer to question first. Madame Setton proposed to me focussing on the question of being gay first. I don't know if the panel agrees with that or not.
---- Well I have no objections. It certainly is an important point in the claimant's story. It seems to be quite as important as his student activities at the university, so it's certainly a point that has to be dealt with. I agree that it should be dealt with ... could be dealt with first.
Presiding Member: Do you agree with that also? It's fine with you?
Counsel: Yes. Yeah, it's okay.
Presiding Member: Okay. So, if you, Madame Setton, you agreed with Maitre Istvanffy that he would start on that, or did you have ...?
RCO: He would start on that.
Presiding Member: Yeah?
RCO: Yes
Presiding Member: Okay. So ...
RCO: It was a suggestion. It was not ...
– Well, I think we ...
RCO: ... a formal agreement.
[57] I am not sure if the Presiding Member was saying that the RCO should start with her full examination of the applicant or if she was asking if the RCO could ask some questions as preliminary matters. It seems, in light of the transcript, that the Board was asking if the RCO could ask a few clarifying questions as preliminary questions.
[58] Nevertheless, Teitelbaum J. has explained in Cruz v. Canada (M.C.I.), [1999] F.C.J. No. 1266 (T.D.):
The Panel made no reviewable error by allowing the refugee hearing officer to begin his cross-examination first, or by hearing a number of claims in the same half day. Subsections 68(2) and 68(3) of the Immigration Act clearly state that the Panel is master of its own procedure and is not bound by any legal rules of evidence:
68(2) The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
68 (2) Dans la mesure où les circonstances et l'équité le permettent, la section du statut fonctionne sans formalisme et avec célérité.
(3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision.
In Morante del Moral v. M.C.I. (June 4,1998), IMM-2062-97 (F.C.T.D.), my colleague Mr. Justice Dubé dealt with the same issue and dismissed the applicant's arguments:
Counsel who represented the applicants at the hearing of this application for judicial review challenges the panel's decision on the ground that it showed bias against these applicants in particular and all applicants from Mexico in general. He pointed out to the Court that the hearing lasted only 30 to 45 minutes, which was a short period of time, and that the panel showed no interest in the explanations the applicants tried to provide about the dangerous situation in Mexico.
Counsel further submits that the panel's [TRANSLATION] "standard practice" is to deal with the cases of Mexican claimants, who are [TRANSLATION] "presumed to be economic refugees", as quickly as possible. The panel apparently heard three or four other claims by Mexicans that same afternoon. He also questions the panel's order that the refugee hearing officer begin her examination first, which he considers an unfair procedure intended to arrive at a quick negative response. He submits that the panel based its decision on two insignificant contradictions and completely disregarded the situation in Mexico in general, and the principal applicant's well-founded fear in particular.
Counsel for the applicants did not however object to the proceedings and did not raise any issue of apprehension of bias on the part of the panel's members.
It is well established that a panel is the master of its own procedure and is not bound by the formal rules of a court. The applicants had every opportunity to prove the merits of their case. Moreover, subsections 68(2) et 68(3) of the Immigration Act (the Act) are very clear on this point:
68 (2) The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
As can be seen from the transcript of the testimony at the hearing, the presiding member opened the hearing, summarized the facts and started to question the principal applicant. The refugee hearing officer and counsel for the applicants also participated. Toward the end of the hearing, the presiding member granted counsel the right to speak and he presented his arguments.
The courts have clearly established that a party reasonably apprehensive of bias on the