Cuevas Cornejo v. Canada (Minister of Citizenship and Immigration), 2006 FC 1184

 

 

 

Date: 20061004

Docket: IMM-7725-05

Citation: 2006 FC 1184

Toronto, Ontario, October 4, 2006

PRESENT:     The Honourable Mr. Justice Campbell

 

BETWEEN:

ROGELIO IVAN CUEVAS CORNEJO

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

[1]               The present Application concerns the conduct of a Refugee Protection Division (PRD) Member in the delivery of oral reasons rejecting the Applicant’s claim for protection on the ground of political opinion in Mexico.

 

[2]               During the hearing of the claim, at the end of submissions, the Member commenced to deliver oral reasons and at the very outset stated that the Applicant’s claim for protection would be dismissed “in large part” because of a negative credibility finding.  The Member stated that the negative credibility finding was based “largely because of the addition of” a specific piece of evidence given in oral testimony which did not appear in the Applicant’s Personal Information Form (PIF).   The Member went on to say that the Applicant had 18 months to amend the PIF to include the evidence, and did not do so.  At this point Counsel for the Applicant interjected to advise the Member that she was mistaken; an amended PIF had been filed, and, as a result, stated that “I would suggest that these reasons are void and the determination is void as well because you just stated that it’s largely based on this” (Tribunal Decision, pp.1-2). 

 

[3]               As a result, Counsel asked the Member to recuse herself.  This key exchange followed:

PRESIDING MEMBER:  Thank you, I will continue with my decision, and be informed of that amendment to the Personal Information Form.

MS. SILCOFF:  At this point I would have to make a motion that it would be improper to continue the reasons based on a fundamental misapprehension of the evidence.

PRESIDING MEMBER:  You may make that motion but I have an alternative finding to credibility.

MS. SILCOFF:  I would suggest that that would give—raise a reasonable apprehension of bias to—after I point out the grave error in the reason for rejection to then say there is a different basis for the claim and that in my client’s mind that would give rise to an apprehension of bias—

PRSIDING MEMBER:  Thank you.  I’ll take that—

MS. SILCOFF:--of having (indiscernible)—

PRESIDING MEMBER:--under advisement.

MS. SILCOFF:--at any rate.

PRESIDING MEMBER:  I have considered whether there is an apprehension of bias having the evidence been brought to me at this point.  It has now been taken into consideration and I will now continue with my decision without being affected by my former understanding, or that prior reasoning on my credibility finding.

 

(Tribunal Decision, p.3)

 

 

[4]               The Member then proceeded to dismiss the Applicant’s claim for reasons presumably of minor importance compared to the erroneous negative credibility finding which “largely” constituted her initial reasons for doing so.

 

[5]               In my opinion, the Member’s conduct exhibits a clear case of denial of natural justice.

 

[6]               I agree with Counsel for the Applicant that an apprehension of bias arises by the Member apparently attempting to rectify an irrevocable error which was fundamental to the decision being rendered.  That is, the Member’s conduct following Counsel’s objection gives the appearance that the Member possessed a personal and partial interest in ensuring that the Applicant’s claim would be dismissed, regardless of the fundamental error.  In my view, this conduct taints the whole proceeding and renders the decision a nullity (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at para.25).

 

[7]               As a result, I find that the decision is patently unreasonable.

 

 

 

 

 

 

 

 

ORDER

 

Accordingly, I set aside the decision under review and refer the matter back to a differently constituted panel for redetermination.

 

“Douglas R. Campbell”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-7725-05

                                                           

 

 

STYLE OF CAUSE:                          ROGELIO IVAN CUEVAS CORNEJO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                    Toronto, Ontario

 

 

DATE OF HEARING:                      October 4, 2006

 

 

REASONS FOR ORDER:               CAMPBELL, J.

 

 

DATED:                                             October  4, 2006

 

 

 

APPEARANCES:

 

Maureen Silcoff                                                                                    FOR APPLICANT

 

Leanne Briscoe                                                                                     FOR RESPONDENT

 

SOLICITORS OF RECORD:

 

Maureen Silcoff                                                                                    FOR APPLICANT

Barrister and Solicitor

Toronto, Ontario

 

John H. Sims, Q.C.                                                                              FOR RESPONDENT

Deputy Attorney General of Canada