IMM-1808-96
MONTRÉAL, QUEBEC, THIS 21st DAY OF APRIL 1997
PRESENT: THE HONOURABLE MR. JUSTICE NADON
BETWEEN: MOURAD BOUROUISA,
Applicant,
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
Application for judicial review of the decision of Aimable Ndejuru and Corinne Côté-Lévesque, members of the Immigration and Refugee Board, dated May 2, 1996, in file no. M95-01017, pursuant to section 82.1 of the Immigration Act.
O R D E R
The application for judicial review is dismissed.
Marc Nadon
Judge
Certified true translation
C. Delon, LL.L.
IMM-1808-96
BETWEEN:
MOURAD BOUROUISA,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
NADON J:
This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the tribunal") determining that the applicant is not a Convention refugee. The decision which the applicant is seeking to have reviewed was made by members Aimable Ndejuru and Corinne Côté-Lévesque on May 2, 1996.
The applicant's main argument is that the decision should be set aside on the ground that members Ndejuru and Côté-Lévesque had also heard his brother's claim and had made a negative decision in that claim. The applicant added that the negative decision concerning his brother was in large part the result of a finding by the members that his brother was not credible. Accordingly, the applicant submits that members Ndejuru and Côté-Lévesque should not have heard his claim since there was a reasonable apprehension of bias on their part.
In my opinion, having regard to the evidence before me, that argument cannot succeed. It is clear from the transcript of the hearing dated November 15, 1995, that the applicant and his counsel were fully aware at the beginning of the hearing that members Ndejuru and Côté-Lévesque had heard the applicant's brother's claim. It was imperative that the applicant raise his apprehension of bias at that time. He did not do so. As Professor Garant states in the third edition of his text Droit administratif, 1991, vol. 2, at p. 292:
[translation]
| If one of the parties to a proceeding is aware at the time of the hearing of a situation that gave rise to a reasonable apprehension of bias, that party must raise it; otherwise he or she will be presumed to have waived it, and it will then be presumed that the party had no apprehension that the tribunal was biased. |
The principle stated by Professor Garant is consistent with the decisions of this Court. In Abdalrithah v. M.E.I. (1988), 40 F.T.R. 306, my colleague Denault J. stated:
| Moreover, even if the facts had shown a probability of bias on the part of the officer, which is not the case, the failure of the applicant's attorney to raise this issue forthwith leads to a presumption that he had given up on invoking the reasonable apprehension of bias. |
Accordingly, the applicant cannot now complain that the members should not have heard his refugee claim.
With respect to the other arguments made by the applicant, I see nothing in them that would justify my intervention. The tribunal rejected the applicant's claim for a number of reasons, including his lack of credibility, the fact that he did not claim refugee status during the three months he spent in the United States and the fact that he did not seem to have a sincere fear of persecution since he had left Algeria one year after obtaining his passport. The applicant was unable to demonstrate that the tribunal erred in finding as it did.
Accordingly, notwithstanding the very able argument made by Ms. Azzuolo, the applicant's application will be dismissed.
Marc Nadon
Judge
MONTRÉAL, Quebec
April 22, 1997
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court file No. IMM-1808-96
between
MOURAD BOUROUISA,
Applicant,
" and "
| MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Respondent.
REASONS FOR ORDER
| FEDERAL COURT OF CANADA |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| COURT FILE NO: IMM-1808-96 |
| STYLE OF CAUSE: MOURAD BOUROUISA, |
| Applicant, |
| AND: |
| MINISTER OF CITIZENSHIP AND IMMIGRATION, |
| Respondent. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: April 21, 1997 |
| REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NADON |
| DATE OF REASONS FOR ORDER: April 22, 1997 |
| APPEARANCES: Lisa Azzuolo for the applicant |
| Annie Van Der Meerschen for the respondent |
| SOLICITORS OF RECORD: |
| Lisa Azzuolo for the applicant |
| Montréal, Quebec |
| Annie Van Der Meerschen for the respondent |
| Department of Justice Canada |
| Montréal, Quebec |