Date: 20010924
Docket: IMM-40-01
Neutral Citation: 2001 FCT 1044
BETWEEN:
EVGHENII ANATOL GURSCHII
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application is for the judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated December 11, 2000, wherein the Board decided that the applicant is not a Convention refugee.
Facts
[2] The applicant is a 26 year old citizen from Tiraspol, Moldova, who claims to be a citizen of the Republic of Transdneister. He alleges a well-founded fear of persecution based upon his political beliefs and his racial origin being a "Ukrainian Cossack" and a member of the "Black Sea Cossack Army" who supported the attempt to separate the breakaway Republic of Transdneister from the Republic of Moldova.
[3] The Board denied his application on the ground that it did not believe the essential elements of the applicant's testimony and determined as well that he is a person who is excluded under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees due to his membership in an organization repeatedly involved in crimes against humanity in a widespread or systematic fashion.
Issue
[4] The central issue is whether the conduct of the Presiding Member, Calvin Quong, demonstrated actual bias or, alternatively, raised a reasonable apprehension of bias.
The Applicant's Submissions
[5] After the Board hearing, the applicant filed submissions including a motion that the Presiding Member recuse himself on the following grounds:
... on the grounds of actual or apprehended bias due to his aggressive interventionist questioning of the applicant, his suggestion that the applicant knew more than he was telling the Board members, his refusal to require the Minister to provide an adequate and detailed summary of his proposed expert's testimony, his intervention and clear loss of impartiality during the cross examination of the Minister's expert, his refusal to grant an adjournment following the expert's testimony to enable counsel for the applicant to properly prepare to cross examine and finally his refusal to grant applicant's counsel an adequate extension of time to reply to the Minister's written submissions which were filed well out of time.
The Respondent's Submissions
[6] The respondent points out that the hearings were very lengthy, lasting six days over a period of more than one year from October 5, 1998 to October 15, 1999.
[7] The respondent submits that the Presiding Member did not demonstrate, through his actions or words, anything that would create a reasonable apprehension of bias. The Presiding Member showed considerable patience over the unusual length of the proceedings. Extensions of time were granted to both parties, although one was refused to the applicant for filing submissions outside the prescribed time-limit. The applicant did, in fact, file his submissions within the time-limit. There is no basis for the applicant's assertion that the Presiding Member was "hostile" or acted as a "prosecutor".
[8] In fact, the applicant did not raise the issue of bias in the course of the lengthy proceedings but only subsequently in his written submissions filed after the hearings. The Presiding Member attempted to deal with procedural issues as fairly as possible for an expeditious hearing. At times, he was firm in retaining the aggressiveness of the applicant's counsel in the course of his cross-examination of a Minister's expert witness.
[9] The Presiding Member was fully conscious of the fact that generally these hearings are not adversarial except when the Minister intervenes to seek an exclusion under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. His main concern was to ensure that the evidence of the expert witness be heard in the course of a tele-conference. He became frustrated at times with the long and persistent cross-examination. That by itself does not demonstrate a reasonable apprehension of bias. Finally, the failure to raise an objection with respect of bias in the course of a hearing creates a presumption that the objection has been waived.
Analysis
[10] At the judicial review hearing, the parties referred to several decisions of this Court in support of their respective positions regarding the issue of bias. It is not necessary to review all these decisions. It is sufficient to apply the well-known test of a reasonable apprehension of bias set out by de Grandpré J. in Committee for Justice and Liberty et al. v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394-395:
[...] 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. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude...
[11] Both counsels reviewed at length selective portions of the transcript of the hearings before the Board. In my view, an informed person viewing the whole matter realistically and practically and having thought the matter through, cannot conclude that the Presiding Member was biassed in any way. The overall course of questioning, remarks, and attitude of the Presiding Member does not support an allegation of bias, actual or perceived. As a practical matter, he had to make comments which may have sounded imperative but his duty was to ensure that the hearings be conducted in a fair and expeditious manner. After all, the applicant cannot complain that he was not heard after six long hearings over a period of one year, where his solicitor did much of the questioning and talking. The burden of showing bias falls upon the person who alleges it.
[12] Moreover, when a person alleges a denial of natural justice or a bias on the part of a tribunal, he must do so in the course of the actual hearing and in the presence of the person accused of bias. It is not sufficient, after six long hearings over a period of one year, to raise the matter only by way of a written submission. Failure to raise an objection at the proper time creates a presumption that the objection has been waived and the applicant, in this case, has not reversed that presumption.
Disposition
[13] Neither party has raised the advisability of certifying a question of general importance in this matter. Neither did I.
[14] The application for judicial review is dismissed.
OTTAWA, Ontario
September 24, 2001
Judge