Date: 19990624
Docket: IMM-4473-98
BETWEEN:
ZENG PING LIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks review of the decision of the Immigration and Refugee Board (Convention Refugee Determination Division)("the Board") dated August 4th, 1998, wherein it was determined that the applicant as citizen of China is not a Convention refugee.
[2] The issue is whether the Board erred in its consideration of a motion by counsel at the outset of the hearing to remove panel member Saddiqui on the basis of reasonable apprehension of bias. The Board misapplied the test on determining that reasonable apprehension of bias and there are sub-issues, which I have considered, which cumulatively require me to determine that the Board erred in its consideration of the motion.
[3] At a pre-hearing conference counsel for the applicant informed the panel she wished to make a formal motion to remove one of the panel members. At the hearing the applicant's counsel was informed that she would be given two to three minutes to make her submissions on the motion. While the Board is entitled to restrict time for argument, I think in light of the serious allegation, i.e. reasonable apprehension of bias, that for this motion two or three minutes may be too restrictive. I would not view this error as a reviewable error, but it is relevant to the approach of the Board.
[4] The Board's findings on the motion are set out at page 975 where member Luciuk states:
| ... I've had an opportunity to take a look at the Motion material that was presented by Lewis and Associates and to consider Ms. Sturdy's request that the panel be reconstituted. The Motion materials seem to deal primarily with procedural questions. I don't see how a reasonable person would feel there's any bias on the part of Ms. Siddiqui towards this claimant, although there seems to be some disagreement between the firm of Lewis and Associates and Ms. Siddiqui. I have worked with my colleague in dozens of hearings and consistently I've found her to be a person of great professional and personal integrity. I'm going to dismiss this motion and we're going to proceed. |
[5] In my view, the Board did not apply the proper test which is whether a reasonable person would perceive there was a reasonable apprehension of bias on the part of the member. The Board member cites the test properly but then gives as a primary reason that he found the member was a person of great professional and personal integrity. It is not the member of the Board's view that is important, but more importantly, the question of whether the person has integrity does not assist in determining whether there was a reasonable apprehension of bias.
[6] This latter question is not addressed directly by the Board. The Board incorrectly characterized the dispute between the member and the law firm of the applicant's counsel related to an earlier case as being related to "procedural questions". In my view a direction to counsel to proceed with her submissions in the absence of one of two board members at the hearing in the earlier case does not qualify as a procedural problem. It goes to the fundamental right to be heard. The Board does not seem to give the concerns of the applicant with respect to the earlier dispute between the member and the applicant counsel's firm the importance they deserve when the Board labels the dispute as one concerned about procedural issues.
[7] The Board did not err in refusing to consider as evidence the letter from another law firm on the question of bias. It is not relevant to the bias decision.
[8] For the above reasons the Board erred in its consideration of the motion by counsel on the subject of removing a panel member on the question of a reasonable apprehension of bias. The application for judicial review is allowed. The matter is returned to the Convention Refugee Determination Division for redetermination by a differently constituted panel. The decision dated August 4, 1998, is set aside.
"W.P. McKeown"
Judge
TORONTO, ONTARIO
June 24, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4473-98
| STYLE OF CAUSE: ZENG PING LIU |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, JUNE 23, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: THURSDAY, JUNE 24, 1999
APPEARANCES: Ms. Sturdy
For the Applicant
Ms. Marissa Beata Bielski
For the Respondent
SOLICITORS OF RECORD: Lewis & Associates
Barristers & Solicitors
290 Gerrard Street East
Toronto, Ontario
M5A 2G4
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990624
Docket: IMM-4473-98
Between:
ZENG PING LIU
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER