Date: 20040714
Citation: 2004 FC 988
BETWEEN:
ANTAL ROBERT DAKO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Before the conclusion of Antal Robert Dako's evidence the Member of the Immigration and Refugee Board ("IRB") directed that he would hear submissions on the issue of credibility only. Dako contends that this ruling raises a reasonable apprehension of bias. He seeks judicial review of the decision to deny him refugee status.
[2] For the reasons to follow, I have concluded that, in all of the circumstances, the IRB's conduct did not constitute a reasonable apprehension of bias or otherwise entitle Dako to succeed in this judicial review.
Background
[3] Dako, a citizen of Hungary, claimed that he had a well founded fear of persecution and that he was in need of protection. He said that he feared his sister's husband who was involved in illegal business. He also claimed that the police would not protect him adequately.
[4] The cause of Dako's troubles is his objection to his sister's marriage. As a result, he claimed that, he was beaten by some of his brother-in-law's associates.
[5] At the beginning of the IRB hearing, the Member outlined the issues to be addressed. The evidence put in by Dako was disjointed and difficult to understand.
[6] Part way through the hearing the Member asked whether there were any other areas to explore. He then said that after a fifteen minute break he would hear submissions on credibility only and would not require the RPO to ask any further questions.
[7] Upon returning from the break, counsel for Dako made a motion to have the Member disqualify himself. The basis of the motion was that counsel had intended to cover other areas and the Member's conclusions had prevented counsel from proceeding as she had planned. Counsel alleged that the Member's conduct gave rise to a reasonable application of bias.
[8] The motion was dismissed, counsel was allowed to question Dako on the matters which counsel considered relevant.
[9] In the subsequent written reasons of the Member on the bias issue, the Member concluded that the situation was similar to that in Sheikh v. M.E.I. [1990] 3 F.C. 238 (C.A.). The Court of Appeal held that "... a general finding of lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony".
[10] The Member concluded that he had the authority to order submissions on the determinative issue of credibility after hearing the essentials of a claimants case. As a result, no reasonable apprehension of bias arises.
Analysis
[11] Both parties say that the issue is whether there is a reasonable apprehension of bias. The applicant says that the IRB can only close off argument on other issues where it makes it clear that the other issues are resolved in an applicant's favour. The IRB did not make it clear that the issues were resolved in the applicant's favour. Therefore the IRB had made a predetermination on the other issues and had closed off further debate.
[12] The applicant relies on Djama v. Canada (Minister of Employment and Immigration) [1992] F.C.J. 531 in which the Court of Appeal held that a panel must take account of facts supporting a claimant even when the panel doubts some of the claimant's circumstances.
[13] The issue in this case is one of failure to take account of relevant facts and issues rather than one of reasonable apprehension of bias.
[14] It is important to note that the Member decided to proceed to the credibility issue after asking where there were any other areas to explore. The Member assumed consent by counsel because there was no response to the Member's question.
[15] If there is any problem with the Member's conduct of the proceeding it was only in assuming that silence constituted consent. It is not unusual in proceedings, even in Court, for a judge to indicate that unless shown otherwise, the case raises only certain issues, other issues having fallen to the side.
[16] After counsel had made his objection, the Member permitted the other areas to be canvassed. There is nothing in the record to suggest that the Member had closed his mind to the other issues raised by counsel.
[17] Taken as a whole there is insufficient evidence to conclude that there should be a reasonable apprehension of bias.
[18] There is no basis for concluding that the Member failed to properly consider the issues raised. Although the Member did not address such issues as nexus and state protection, he was not required to do so. The case turned principally on credibility; an issue which affected all aspects of the applicant's case.
[19] Therefore, this application is dismissed. The parties agree that there is no question to be certified.
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5899-03
STYLE OF CAUSE: ANTAL ROBERT DAKO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 13, 2004
REASONS FOR ORDER BY: PHELAN, J.
APPEARANCES BY:
Clifford Luyt For the Applicant
Ladan Shahrooz For the Respondent
SOLICITORS OF RECORD:
Patricia Ritter
Toronto, ON For the Applicant
Morris Rosenberg
Toronto, ON
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040713
Docket: IMM-5899-03
BETWEEN:
ANTAL ROBERT DAKO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER