Date:
20130131
Docket:
IMM-4408-12
Citation:
2013 FC 108
Ottawa, Ontario,
January 31, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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GALINA TEPORDEI
VITALIE TEPORDEI
DORINA TEPORDEI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review stems from a decision of the Immigration and Refugee Board
[Board] refusing to reopen the Applicants’ refugee claim. The principal
argument advanced is that there had been either actual bias or a reasonable
apprehension of bias exhibited by a Board Member at the refugee hearing.
[2]
Justice
Zinn had issued a stay of deportation based in part on the bias claim being a
serious issue which the Board had not addressed in its reopening decision. This
Court has now had the benefit of a complete record and a more fulsome record
than was before Justice Zinn.
II. FACTS
[3]
The
Applicants, citizens of Moldova, made a refugee claim. The claim was heard on
June 1, 2010 by the Member but adjourned pending written submissions from the
Applicants. There were some sharp exchanges between counsel and the Member on
such issues as counsel’s failure to file documents prior to the hearing and a
possible extension of time for filing post-hearing submissions.
[4]
On
the day the submissions were due, June 17, 2010, the Applicants filed a request
for a de novo hearing (or alternatively an interpretation audit) on the
grounds of interpretation errors. On June 23, 2010, the Applicants were
informed that the request for a de novo hearing was denied.
[5]
On
June 25, 2010, the Applicants’ counsel requested the Board’s Co-ordinating
Member’s intervention. Counsel also indicated his intention to file a formal
complaint against the Member who heard the case and requested that the Member
not be permitted to decide the case or be assigned to any other case involving
the Applicants’ counsel. That same day the Member denied the refugee claim on
the basis of the adverse credibility of the adult Applicants.
[6]
Two
weeks later the Co-ordinating Member informed counsel that the Member was functus,
that he had properly denied the application for a de novo hearing.
Counsel was informed that he could make an application for judicial review and
apply to reopen the decision in accordance with Rule 55 of the Board’s Rules
[the Rules].
[7]
The
Applicants filed an Application for Leave and Judicial Review of the refugee
decision in August 2010. The issue of bias/reasonable apprehension of bias was
not raised. Leave was denied by this Court on December 21, 2010.
[8]
No
application to reopen the refugee decision was filed until two (2) years later
when the Applicants were served with a Direction to Report for Removal. The
issue of bias was then raised along with the issue of interpreter’s error and
rejection of certain documents submitted at the hearing.
[9]
The
Rules under which a matter may be reopened require that an application to
reopen must be filed without delay and can be granted where there is a failure
to observe a principle of natural justice.
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44. (1) Unless these
Rules provide otherwise, an application must be made in writing and without
delay. The Division may allow a party to make an application orally at a
proceeding if the party with reasonable effort could not have made a written
application before the proceeding.
[…]
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44. (1) Sauf indication
contraire des présentes règles, toute demande est faite sans délai par écrit.
La Section peut permettre que la demande soit faite oralement pendant une
procédure si la partie n’aurait pu, malgré des efforts raisonnables, le faire
par écrit avant la procédure.
[…]
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55. (1) A claimant or
the Minister may make an application to the Division to reopen a claim for
refugee protection that has been decided or abandoned.
(2)
The application must be made under rule 44.
(3)
A claimant who makes an application must include the claimant’s contact
information in the application and provide a copy of the application to the
Minister.
(4)
The Division must allow the application if it is established that there was a
failure to observe a principle of natural justice.
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55. (1) Le demandeur
d’asile ou le ministre peut demander à la Section de rouvrir toute demande
d’asile qui a fait l’objet d’une décision ou d’un désistement.
(2)
La demande est faite selon la règle 44.
(3)
Si la demande est faite par le demandeur d’asile, celui-ci y indique ses
coordonnées et en transmet une copie au ministre.
(4)
La Section accueille la demande sur preuve du manquement à un principe de
justice naturelle.
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Refugee
Protection Division Rules, SOR/2002-228
[10]
The
Board’s reasons for rejecting the Application to Reopen are brief. The Board
dismissed this application because all the issues had already been decided by the
Board and the conduct of an immigration consultant (a matter raised by the
Applicants) in respect of an H & C application was not within the Board’s
jurisdiction. The Board also noted that an Application for Leave and Judicial
Review had been dismissed. It concluded that there was no breach of natural
justice.
III. ANALYSIS
[11]
Neither
party addresses the standard of review. In written submissions the Applicants
implicitly suggest that the standard is reasonableness while in oral argument
it was accepted that the standard is correctness.
The crucial issue is the Board’s
decision that there was no breach of natural justice by the Board. The usual
standard for the issue of breach of natural justice is correctness. The issue
is not one to which the Board can claim deference especially as it is sitting
in judgment of itself.
[12]
I
conclude that the standard of review is correctness. However, the result would
be the same if the standard was reasonableness.
[13]
The
Board was correct on the facts that the issues raised had already been dealt
with. It was legally correct in finding that there had been no breach of
natural justice.
[14]
Having
examined the transcript, I can find no basis to conclude that there was bias or
a reasonable apprehension thereof. The exchanges were sharp, the Member
obviously had a history with counsel but neither of these matters are
sufficient to ground the Applicants’ claim in this regard.
[15]
Bias
or reasonable apprehension is a matter which ought to be raised as soon as
possible. The Applicants did raise the issue with the Board on June 25, 2010;
the day of the refugee decision. The Applicants had full opportunity to raise
the bias issue in their first Leave Application to this Court – they did not.
This fact alone would be sufficient basis to deny a reopening on bias grounds.
Any issues of procedural fairness had to be raised in the Application for Leave
and the denial of leave foreclosed raising the issue again.
[16]
Further,
the Board’s Rules require that an application such as one to reopen must be filed
without delay. In this case, the Applicants waited two years over which
time they engaged the services of an immigration consultant for another
immigration matter only to return to counsel when they were to be deported and
a reopening was the “last best” chance.
IV. CONCLUSION
[17]
The
Board could have dismissed the reopening application on the basis of delay
alone. When delay is factored into the absence of any real basis for a bias
allegation, there is absolutely no basis upon which to reopen this case. The
Board was correct in its decision.
[18]
This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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