Date: 19980821
Docket: IMM-5202-97
BETWEEN:
MORTEZA ASNA ASHARI
TURKAN YILDIZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicants seek to have a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") set aside on the ground that there existed bias or a reasonable apprehension of bias. The argument is based on two grounds: (1) the Board did not give the Minister notice that it was going to consider the exclusion of the male applicant pursuant to Article 1E of the Convention; (2) the Board's post-hearing conduct indicated a bias in favour of the respondent.
[2] The first argument relies on the relevant legislative provisions, section 69.1 of the Immigration Act, R.S.C. 1985, c. I-2, and subsections 9(2) and 9(3) of the Convention Refugee Determination Rules, SOR/93-45, and on the decision in Kone v. Ministre de l'Emploi et de l'Immigration (1994), 79 F.T.R. 63.
[3] Section 69.1 of the Immigration Act provides that where a person claims to be a Convention refugee and is entitled to have the claim determined by the Board, the Minister is entitled to be notified of the date, time and place of the hearing, and to be provided with the relevant materials on which the claim is based, if she so requests.1 Subsection 69.1(5) provides that the Minister is to be given a reasonable opportunity to present evidence and, if section E or F of Article I of the Convention is involved, to question the person making the claim as well as the other witnesses that make representations.
[4] The Convention Refugee Determination Rules, subsections 9(2) and (3), provide for the giving of notice to the Minister when a section E or F of Article 1 issue is raised:
| (2) Where, before the commencement of a hearing, the refugee hearing officer or the Refugee Division is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary. |
| (3) Where, during a hearing, the refugee hearing officer or a member is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer or the member shall so inform the presiding member and, if the presiding member so directs, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary. [Underlining added] |
[5] Articles 1E and 1F of the Convention state:
| E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. |
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: |
| (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; |
| (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; |
| (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
[6] Thus, under Article 1E, persons who claim to be Convention refugees can be denied protection in Canada, if they have found refuge in a third country and have been given all of the rights of a national of that country. Under Article 1F, they can be denied protection if they have engaged in reprehensible conduct which disentitles them to international protection.
[7] The Kone decision, on which the applicants rely, relates to Article 1F(a). In that case, the Board had waited until all the evidence had been presented before informing the applicant that there was an issue as to whether or not he might be excluded from protection pursuant to Article 1F(a). The Board had not informed the Minister that this issue was being raised. The Board had vigorously "cross-examined" the applicant when he was giving his evidence. Counsel for the applicant asked the Board to recuse itself and to have the Minister participate in a rehearing with respect to the exclusion issue. The Board refused and did not refer to the exclusion provision when giving its reasons dismissing the applicant's claim on the merits.
[8] In reviewing the Board's decision, Mr. Justice Nadon noted that in Ramirez v. Minister of Employment and Immigration (1992), 135 N.R. 390 (F.C.A.), the Court of Appeal had stated that in an Article 1F(a) exclusion case the burden of proving the facts leading to exclusion was on the Minister. He also noted Mr. Waldman's endorsement of this conclusion insofar as sections E and F of Article 1 of the Convention are concerned.2 Mr. Justice Nadon then focused on the conduct of the Board members and the nature of their questioning of the applicant. He concluded that the nature of that questioning was such that the Board had taken on the role of prosecutor, that it "tried through its questions to determine or prove that the applicant had committed a "crime",3 and that "the tribunal played the roles of both judge and Minister's representative".4 Reference was made to the decision in Mahenchan v. Minister of Employment and Immigration (1991), 134 N.R. 316 (F.C.A.), for the conclusion that energetic examination of an applicant by a Board member does not in itself constitute reason for a court to intervene. Mr. Justice Nadon nevertheless concluded that the questioning in the case before him had not been designed solely to clarify answers but took on the nature of a cross-examination to determine whether the exclusion clause might be brought into play.
[9] I can not interpret the reasons in the Kone decision as being based on the fact that there had been no notice given to the Minister. The focus of that decision was on the nature of the questioning that the Board undertook. It was that conduct that led to a finding that bias or a reasonable apprehension of bias existed.
[10] The Federal Court of Appeal decision in Arica v. The Minister of Employment and Immigration (1995), 82 N.R. 392, is also relevant. In that case, the Minister had given notice that a section 1F(a) exclusion would be in issue. The Court of Appeal commented on the Board's decision making authority in the absence of participation by the Minister. It referred to the Convention Refugee Determination Division Rules 9(2) and 9(3), noting that when an Article 1F exclusion issue arises before the commencement of the hearing, the Minister shall be given notice, and that when it arises during the hearing, the presiding member of the Board has a discretion as to whether or not notice will be given. The Court held that the non-participation of the Minister did not alter the Board's authority. The Court held, at pages 396-7, that the Board had authority with or without that participation of the Minister to "make a determination with respect to the exclusion clause based on the evidence presented":
| ... The fact that the Minister does not participate in the hearing, either because he does not wish to do so or because he is not entitled to notice under rule 9(3), does not alter the right of the Board to render a determination on the issue of exclusion: see Fletes v. Canada (Secretary of State) (1994), 83 F.T.R. 49 (T.D.); and Gutierrez et al. v. Minister of Employment and Immigration (1994), 84 F.T.R. 227 (T.D.). [Underlining added] |
[11] Counsel for the applicants seeks to distinguish Arica on the ground that the Minister had notice of the 1F(a) issue in that case and, therefore, the Board could not be said to have usurped the Minister's function, as it had done in Kone. As noted, I am not persuaded that the Kone case hinged on the failure to give notice to the Minister. It hinged on the manner in which the Board had questioned the applicant. The requirements that the Minister, pursuant to Rule 9(2), must be given notice, and that the Minister, pursuant to Rule 9(3), might be given notice, are designed to protect the Minister's interests, as are the provisions of section 69.1 of the Act. If notice in the present case should have been given pursuant to Rule 9(2), the Minister could seek to set the decision aside. The applicants, however, can not rely on such a procedural defect when they suffered no prejudice therefrom.
[12] There is no argument made that the applicants did not receive adequate notice that a section 1E exclusion would be in issue. Notice was given at the beginning of the hearing. The hearing took place on three days scheduled many months apart. There is no credible argument that the manner in which the Board questioned the applicants during the hearing demonstrated bias or raised a reasonable apprehension of bias. The Board questioned the applicants to seek clarification of whether the male applicant, an Iranian national, had obtained Turkish citizenship consequent on his marriage to a Turkish woman. The applicants' argument is based solely on the fact that notice to the Minister was not given. This is not sufficient to demonstrate bias or raise a reasonable apprehension thereof.
[13] I turn then to the applicants' argument that the Board's post-hearing conduct was such as to create a reasonable apprehension of bias. This argument is based on two assertions: the Board accepted late filed submissions from respondent's counsel, without giving the applicants' counsel an opportunity to make submissions with respect to that filing; there had been ex parte communications between the RCO and the presiding Board member.
[14] The record does not support those assertions. The hearing of the applicants' claim took place on three days: November 15, 1996; May 7, 1997; August 5, 1997. At the end of the hearing on August 5, 1997, arrangements were made for the filing of written submissions: the Refugee Claims Officer was given until August 22, 1997 to file his; counsel for the applicants was to reply by September 5, 1997. The RCO's submissions were late, being filed on August 25, 1997. A post-hearing conference was then convened on September 3, 1997. At that conference, the presiding Board member indicated that although the submissions had been filed in the registry, as it was the practice of the registry to accept all documents that are submitted to it, "The panel has not seen these submissions; they have been held at my direction until a ruling [is] made on their acceptability". The presiding Board member went on to indicate that the Board had a liberal policy with respect to the enforcement of deadlines, that the delay in the instant case was not great, the submissions being filed on the next business day after the day on which they were due, and that the late-filed submissions would be accepted and considered by the Board. The deadline for the filing of submissions by counsel for the applicants was extended to September 30, 1997.
[15] With respect to the assertion that there were ex parte communications between the RCO and the presiding Board member, she stated "there was no discussion as to the merits of this case between the RCO and any panel members". She explained that the communication to which counsel for the applicants referred had been a direction to the RCO that his application for an extension of time should be made in writing through the registrar.
[16] For the reasons given the within application will be dismissed. As discussed at the end of the hearing of the application, counsel for the applicants will have seven days from the date of these reasons within which to make submissions, if any, as to the possible certification of a question.
Judge
OTTAWA, ONTARIO
August 21, 1998
__________________ 1 69.1 (1) Subject to subsection (2), where a person's claim to be a Convention refugee is referred to the Refugee Division pursuant to section 46.02 or 46.03, the Division shall, as soon as practicable, commence a hearing into the claim.
(2) Where a person's claim to be a Convention refugee is referred to the Refugee Division pursuant to section 46.02 or 46.03, the Division shall, if the Minister so requests in writing at the time of the referral, provide the Minister with the information referred to in subsection 46.03(2) and, as soon as is practicable after the expiration of the period referred to in subsection (7.1), commence a hearing into the claim.
(3) The Refugee Division shall notify the person who claims to be a Convention refugee and the Minister in writing of the time and place set for the hearing into the claim.
(4) [Repealed 1992, c. 49, s. 60.]
(5) At the hearing into a person's claim to be a Convention refugee, the Refugee Division ( a) shall give (i) the person a reasonable opportunity to present evidence, question witnesses and make representations, and contd ...
... contd (ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations; and ( b) may, if it considers it appropriate to do so, give the Minister a reasonable opportunity to question the person making the claim and any other witnesses and to make representation concerning the claim. [Underlining added]
2 Waldman, Immigration Law and Practice (1993), vol. 1, p. 8.188.