Docket: IMM-5676-03
Toronto, Ontario, May 27th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ELDIFONSO BARAGONA BAUTISTA
(a.k.a. ELDIFONSO BAUTISTA BARAGONA)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered from the bench and subsequently written for precision and clarification)
[1] The applicant claimed refugee status in Canada in 1999 as a result of alleged persecution by members of the Honduran armed forces. The application was dismissed and the applicant subsequently returned to Honduras. On his return, he submits that he was subject to a severe attack from the same individuals and as a result, he retuned to Canada and made a second refugee claim in November 2001.
[2] At the second the hearing, the PIF, the POE and the country materials from the first hearing but not the Board's negative decision were entered as an exhibit. The Board Member nonetheless during the hearing read the negative decision with respect to the first refugee claim, which had not been entered as an exhibit. After counsel's objection he entered the negative decision as an exhibit, then after reflection withdrew it as an exhibit.
[3] On request of counsel to recuse himself in light of these actions, he refused to do so, proceeded to hear the case and denied the claim on the basis of lack of credibility. His reasons do not refer to the first negative decision, the entering and withdrawal of the negative first decision nor the request and denial for recusal.
[4] There is no transcript of the Board's proceedings as the tapes were found to be blank due to mechanical troubles.
[5] In order to determine whether there was a reasonable apprehension of bias created under the circumstances of this case the test to be applied is found in Committee for Justice and Liberty v. Canada (National Energy Board), [1978]1 S.C.R. 369, namely, 'what would an informed person, viewing the matter realistically and practically - having thought the matter through - conclude?'
[6] In this instance there are three issues of concern:
i) both the first and second hearing turned on the issue of credibility;
ii) there is no transcript of the second hearing;
iii) the decision of the Board does not refer to the request for recusal nor provide any explanation why it was refused.
[7] In light of the cumulative effect of these three issues there is no doubt that a reasonable apprehension of bias would be found, when applying the test set out above.
[8] Accordingly I have no choice but to allow the application and order a new hearing before a differently constituted panel.
ORDER
THIS COURT ORDERS that:
1. The application is allowed.
2. The decision of the Board of May 30th, 2003 is set aside
3. The matter is referred back for a hearing before a differently constituted panel.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5676-03
STYLE OF CAUSE: ELDIFONSO BARAGONA BAUTISTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MAY 27, 2004
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
APPEARANCES BY: Ms. Linda Martschenko
For the Applicant
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Linda Martschenko
Barrister and Solicitor
Windsor, ON
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040527
Docket: IMM-5676-03
BETWEEN:
ELDIFONSO BARAGONA BAUTISTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER