Immigration Board Member Displayed Bias

On July 29, 2010, the Federal Court of Appeal released its decision in Heron Bay Investments Ltd. v. Her Majesty the Queen, 2010 FCA 2003. The case involved a claim of a reasonable apprehension of bias against the Tax Court judge.  The Federal Court of Appeal agreed, noting that the Tax Court judge “seemed to fall into the habit of taking over the questioning” and that he “adopted a position in position to [the applicant] on a critical issue in the case”, giving rise to a reasonable apprehension of bias.

The decision was an application of the principles articulated in the Supreme Court of Canada decision Broullard Also Known as Chatel v. The Queen, [1985] 1 S.C.R. 39. These include that a judge may ask questions of a witness where clarification is necessary, that a judge may not intervene to the extent that there appears to be a reasonable apprehension of bias, and that if a judge loses patience to the detriment of a party then a new trial will be ordered.

These principles also apply to immigration proceedings at the Immigration and Refugee Board.

In Guillen Morales v. Canada (Minister of Citizenship and Immigration), 2006 FC 485, the issue involved a Member who was trying to clarify how many threats the applicant had received. After several vague answers, the Member said:

Sir, we are talking of you, o.k. Now, do not tell me that you do not know, not the exact number, but how many threats maybe you received since 1995 and the … the day you left definitely your country? Are we talking of hundreds or dozens or what?

The Court found that this line of questioning by the Member was not problematic, and that if there is a valid reason for a presiding member to intervene, then the presiding member must be tactful and show some deference in addressing the claimant and formulating the questions.  Frequent interruptions alone do not necessarily give rise to a reasonable apprehension of bias.  An expression of momentary impatience does not change this, nor does a sarcastic comment or an ill-chosen or insensitive phrase when a witness is refusing to give evidence.

In Guemache v. Canada (Minister of Citizenship and Immigration), 2004 FC 870, the issue involved the following exchanges and statements:

Chairperson: I don’t put anybody in jail, I don’t condemn anyone to death, so rest assured, that’s already settled.

Chairperson: You see, I speak quite loudly – not in an attempt to intimidate you, Sir, but so that you understand me . . .

ChairpersonQ.             Okay. And what happened?

R.             I came out to go take the bus, on my way, the distance . . . between the police station . . . the bus stop was . . . is a little bit far from . . . the police station. I was walking on my way and suddenly a car stopped, four people got out from . . . the vehicle, they came toward me, they insulted me, they hit me on the head, they told me that I was . . . what do you call it, a informant for the police.

Q.             And these people, did you know them?

A.             No.

Q.             Had you seen them before?

A.             No.

Q.             Did they say anything to you other than that you were a police informant?

A.             They said to me “You must stop doing this work.”

Q.             Did they . . .

A.             “And don’t think that we’ll . . .we’ll leave you in peace, we’ll get you.

BY THE CHAIRPERSON (addressing the claimant)

Q.             Why did . . . why didn’t they kill you right away, Sir?

A.             I don’t know, maybe I was . . . I was lucky.

. . .

BY THE COUNSELOR (addressing the Chairperson)

Q.             And can I ask a question?

A.             Yes, yes, yes.

BY THE COUNSELOR (addressing the claimant)

Q.             Why did you stay home?

BY THE CHAIRPERSON

Excellent question.

So, Sir, if you gave your passport to your brother on February 7, 8 or 10, 2002, to get a visa, can you explain to me how your brother gave this to someone, then, at some point, the visa was issued on January 28, 2002. So, if it’s a genuine visa, then, there’s like a problem, Sir. How can you give a passport to your brother without a visa on February 7, 8 or 10 and have a visa in your passport dated January 28, 2002

. . .

BY THE CHAIRPERSON (addressing the claimant)

Q.             Sir, does . . . “internal asylum” ring a bell?

The Court ruled that the Member completely overstepped his boundaries, and that the applicant was denied the ability to present his case.  It described the member’s comments as  “gratuitous and uncalled for”.

The distinction between these two cases, and what council should be watching for if they become suspicious during a hearing, appears to be whether or not an Immigration and Refugee Board member is interested in hearing a witness’s evidence, or whether the member has visibly adopted a position and is being confrontational with someone as a method of establishing this position.  This dividing line reflects Canada’s adversarial, as opposed to inquisitorial, system.


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