[1] This is an application for judicial review pursuant to s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The applicants challenge the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "panel"), dated November 29, 2002, which refused the applicants request that the member, W.L. Bertie Wilson recuse himself.

FACTS

[2] The primary applicant is a 40 year old woman Tamil woman from Sri Lanka who claims to have a well-founded fear of persecution, primarily from the Sri Lankan Army (SLA), on the basis of race and membership in a particular social group. The applicant is the designated representative for the claims of her two children, aged 10 and 4 years. In 2000, the applicants fled Sri Lanka and came to Canada, where they claimed refugee status.

[3] The hearing before the Board occurred over two days. The first day of the hearing occurred in February 2002 before a two-member panel. At that time, the applicants left their identity documents with the Board for verification. In March 2002, the Board informed the applicants that it had found two of their four identity documents to be fraudulent. The Board accepted the applicants' request that the hearing be reopened so that they might lead new evidence regarding their documents and identity.

[4] The second day of the hearing occurred in October 2002. On the day before it was scheduled to begin, the Board informed the applicants that one member of the panel would be unavailable to attend. The applicants agreed to proceed with a one-member panel. At the second day of the hearing, the Member stated he considered photographs tendered by the applicants not to be probative as to their identity and engaged in extensive questioning of the witnesses called by the applicants. No formal objection was raised by the applicants' counsel to this behaviour during the hearing. However, one month later on October 6, 2002 counsel for the applicants submitted a written motion in which he requested that the Member remove himself due to an alleged reasonable apprehension of bias which he exhibited during the second day of the hearing.

[5] The Member refused the motion in a decision dated November 29, 2002.

[6] The applicants sought leave to seek judicial review of the dismissal of his motion on January 3, 2003 and leave was granted on September 3, 2003. This application is the subject of these proceedings.

[7] The applicants' refugee claims were rejected by the same Member in January 2003.

[8] The applicants also sought leave to seek judicial review of the rejection of refugee claim on June 3, 2003 but the leave application was dismissed on October 3, 2003. (File IMM-4204-03)

ISSUES

[9] The applicants in this matter alleges reasonable apprehension of bias by the Tribunal. Consequently there are three issues before the Court:

i. Did the action of Tribunal member W. L. Wilson on August 28, 2002 give rise to a reasonable apprehension of bias, so that the member should have recused himself?

ii. Did the failure of the applicants not to raise the issue of reasonable apprehension of bias before October 6, 2002 amount to waiver?

iii. Is the issue res judicata by virtue of the dismissal of the leave application for judicial review on October 3, 2003 given that the issue of reasonable apprehension of bias and failure to recuse himself was also raised in that application?

DECISION

[10] In respect of issue (i) it is well established law that refugee claimants are entitled to a fair hearing:

The concept of natural Justice by which tribunals such as the Convention Refugee Determination Division are bound includes the fundamental right to a fair hearing. In order for a hearing to be considered fair, there cannot exist even the appearance of prejudice to the right of a claimant to make full presentation of all the facts before the board. Such a claimant is entitled to have his case decided by a board whose collective mind is free and ready to hear all the evidence to be submitted by the claimant. A mere suggestion that a claimant has been denied his basic right to a full and fair hearing is justification for an order setting aside the tribunal's decision and returning the matter for rehearing and re-determination. Zheng v. Canada (M.E.I..) 28 IMM.L.R. (2d) Page 191.

Thiara v. Canada (M.C.I.) (1997) 127 F.T.R. 209

[11] Obviously there can't be a fair hearing if there is an apprehension of bias. The test for reasonable apprehension of bias is clearly laid out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 69 where Justice de Grandpré stated:

...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....[T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through -conclude.

In the case at bar there are two exchanges between counsel and the presiding member regarding pictures that counsel is trying to introduce to establish that the children of the applicant come from northern Sri Lanka.

[12] The two exchanges in issue are:

First exchange (Tribunal record p.278):

COUNSEL: I'm going to show you some photographs. You may be able to identify them. Could you identify? If you don't know straight away say you don't know. Before I show I want to put on record, Member, that I have originals with me if you want to see.

PRESIDING MEMBER: That you have what?

COUNSEL: Originals of the photographs. What I have used is a colour photocopy. C-7. Now, you are looking at page 1 of those photographs. You may know the person or you don't know, it doesn't matter. What I want is can you identify the place if you could?

WITNESS #2: Yes, she has taken this photo in Unavil at her house and the first photo she is with her mother and elder son.

PRESIDING MEMBER: Counsel, I don't doubt that he'll be able to tell who those people and where it is. There's only one problem with that whole situation, is that there is no date line on these pages. They could have been taken any time?

COUNSEL: Yes, at any time, but surely after the children were born. I'm only asking the claimant (sic) is whether he could identify the place.

PRESIDING MEMBER: If you want to pursue that, Counsel, but I have to say these don't prove anything to me because even if the children are shown in these pictures it doesn't do anything in terms of his proving what was said about the documents. For instance, anybody could be at this particular place at any point in time. It doesn't say anything at all, that it shows that the pictures were taken after they were born. They could have been born in Canada and still be at this residence at the time this picture was taken, but if you want to pursue the line go ahead.

COUNSEL: I don't know why, Chair, you mentioned that it doesn't say anything at all because they say pictures speak thousand words. If you want to stretch the imagination to the level of, you know, saying that sure they could be born in Canada and be there on that date (inaudible), then I don't think I could prove anything or I could disprove anything, but it seems to me that you know you have closed your mind on that issue. Then I think in interest of time I should not pursue that line. I will drop the question of the pictures then.

Second Exchange (Tribunal record p. 303):

COUNSEL: Okay. Do you remember when that picture was taken?

WITNESS #1: No.

COUNSEL: Okay. Fourth - page 4.

PRESIDING MEMBER: Counsel, I keep - let us stop this right here. The pictures are not going to tell me anything that I don't need by going on to page 4. (Inaudible). Okay? If you turn to page 4 it's not going to tell me anything that I don't already know.

COUNSEL: Okay, Chairman, before you listen to that if you make the decision then I have to abide to that, yes.

PRESIDING MEMBER: Question?

RCO: Can I ask a question about the pictures or you don't want?

PRESIDING MEMBER: There's nothing about the pictures that is going to tell me anything.

[13] In denying the motion to recuse himself by reason of the exchanges about the pictures the presiding member gave the following reasons:

THE ISSUE

The vexed question giving rise to counsel's Motion would appear to be the panel's stance at the re-opened hearing that certain photographs introduced by counsel would not serve a useful purpose (since counsel claims that such a pronouncement was indicative of a closed mind to the detriment of his client). This observation and comment regarding the usefulness or otherwise of the photographs (as counsel well knows) was made against the background of any factual indicator as to when the photographs may have been taken. Absent a date imprint on the photographs, I thought, it would be virtually impossible for the photographs to be of any probative value in establishing the residency of the claimants in northern Sri Lanka at times material to their claims. Nevertheless, counsel persisted and was, ultimately, allowed to use the photographs in the manner he wished.

DETERMINATION

The records will indicate that counsel and his clients were given a fair chance over a period of four hours to address the single issue of identity arising from the doubts raised about the residency of the claimants. As earlier noted, the re-opened hearing was held on August 28, 2002 and counsel's submissions was due on October 7, 2002, following his receipt of the observations of the Refugee Protection Officer (RPO) due September 16, 2002. I do not find it reasonable that counsel would wait until October 6, 2002 (five and a half weeks after the hearing and nearly three weeks after receipt of the RPO's observations) to voice his complaint. Apart from the fact that counsel is experienced and competent, I am not persuaded that he needed that much time to consult with other legal practitioners. Indeed, as counsel rightly states, it would have been most appropriate to raise his objection on the day of the hearing. His reason for the delay would even have been seen to be plausible and reasonable if his objection and Motion had been filed within a few days.

Given that the panel does not find that there are good grounds for the objection by the counsel and in view of the inordinate length of time taken by counsel to file his objection, the Motion to Recuse is denied.

[14] While I have no doubt that the presiding member made a fair and honest assessment of the probative values of the photos I find his questions during the proceedings very troublesome. The use of expressions such as " there is nothing about the pictures that is going to tell me anything" and "If you want to pursue that, Counsel, but I have to say these don't prove anything to me because even if the children are shown in these pictures it doesn't do anything in terms of his proving what was said about the documents" do not meet the test set out in Committee for Justice and Liberty v. National Energy Board, supra. An informed person viewing the matter realistically and practically and having thought the matter through would have to conclude that the presiding member had closed his mind on the issue. He certainly would not conclude on the basis of these exchanges that there would be a fair weighing of the probative value of the photos. Thus, I find there were grounds for a reasonable apprehension of bias.

[15] With respect to issue (ii) the law is clear that allegation of apprehension of bias should be raised at the earliest opportunity. See Jackson v. MCI , 2002 FCT 89.

[16] In Re Human Right Tribunal and Atomic Energy of Canada Ltd., [1986] 1 C.F. 103, MacGuigan J. Put it very comprehensively when he stated:

At common law, even an implied waiver of objection to an adjudicator at the initial stages is sufficient to invalidate a later objection: Re Thompson and Local 1026 of International Union of Mine, Mill and Smelter Workers et al. (1962), 35 D.L.R. (2d) 333 (Man. C.A.); Rex v. Byles and others; Ex parte Hollidge (1912), 108 L.T. 270 (Eng. K.B.D.); Regina v. Nailsworth Licensing Justices. Ex parte Bird, [1953] 1 W.L.R. 1046 h (Eng. Q;B.D.); Bateman v. McKay et al., [1976] 4 W.W.R. 129 (Sask. Q.B.). The principle is stated as follows in Halsbury's, Laws of England (4th ed.), volume 1, paragraph 71, page 87:

The right to impugn proceedings tainted by the participation of an adjudicator disqualified by interest or likelihood of bias may be lost by express or implied waiver of the right to object. There is no waiver or acquiescence unless the party entitled to object to an adjudicator's participation was made fully aware of , the nature of the disqualification and had an adequate opportunity of objecting. Once these conditions are present, a party will be deemed to have acquiesced in the participation of a disqualified adjudicator unless he has objected at the earliest practicable opportunity.

[17] The incident giving rise to the apprehension of bias occurred on August 28, 2002. applicants' counsel during the hearing merely stated:

it seems to me that you know that you have closed you mind on that issue (Tribunal record page 279)

However he did not pursue the point or brought a motion asking for recusal of the presiding member. Instead he participated in the hearing until its conclusion.

[18] Applicants' counsel only brought the formal motion on October 6, 2002 after having checked the case law and having sought the view of other counsel. While this may have been prudent it did not amount to raising the issue at the earliest opportunity. By his failure to raise the issue formally at the August 28 hearing and by proceeding with the hearing applicants' counsel can be held to have impliedly waived of any assertion of his right to raise the issue of apprehension of bias.

[19] As was stated by Muldoon J in Kostyshyn v. West Region Tribal Council, [1992] F.C.J. No.731:

A nullity ab initio can be perceived and declared almost at any later time for it never was of any effect, and demonstrably so. However when one alleges a denial of natural justice by means of alleged prejudice, one should -nay, must - so allege promptly, for effluxion of time can render such allegation not objectively demonstrable at all. The allegation of prejudice should not be secretly harboured, but made public immediately, thereby hoping to catch the tribunal "red handed", so to speak, in its prejudice and misconduct. So it is that the posture of waiting to discover whether one wins the contention before the adjudicator, prepared to make no allegation of prejudice if one does win, and complaining of alleged prejudice as a means of trying to avoid a confirmed loss, is abusive and to be discouraged.

[20] By failing to raise the issue on August 28, 2003, and proceeding with the hearing, I find that the applicants waived his right to raise the issue of apprehension of bias. Given this finding the application cannot succeed.

[21] In light of my finding in the preceding paragraph there is no need to consider issue (iii).

"K. Finckenstein"

J.F.C.

Toronto, Ontario

November 20, 2003

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-191-03

STYLE OF CAUSE: SUMATHY RANGANATHAN

SINTHUJAN RANGANATHAN

AHAJAN RANGANATHAN

Applicants

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: NOVEMBER 18, 2003

REASONS FOR ORDER BY: von FINCKENSTEIN J.

DATED: NOVEMBER 20, 2003

APPEARANCES BY: Mr. Kumar S. Sriskanda

FOR APPLICANTS

Mr. Jeremiah A. Eastman

FOR RESPONDENT

SOLICITORS OF RECORD: Kumar S. Sriskanda

Barrister & Solicitor

Scarborough, Ontario

FOR APPLICANTS

Morris Rosenberg

Deputy Attorney General of Canada

FOR RESPONDENT

FEDERAL COURT

TRIAL DIVISION

Date: 20031120

Docket: IMM-191-03

BETWEEN:

SUMATHY RANGANATHAN

SINTHUJAN RANGANATHAN

AHAJAN RANGANATHAN

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

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Ranganathan v. Canada (Minister of Citizenship and Immigration), 2003 FC 1367

Citations2003 FC 1367

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