Date: 20050909
Docket: IMM-9001-04
Citation: 2005 FC 1227
Ottawa, Ontario, September 9, 2005
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
Fah OULD EL BACHIR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is an application for judicial review of a decision by Board member Richard Quirion of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 4, 2004, dismissing the application to reopen the refugee claim.
[2] As a remedy, the applicant is asking this Court to set aside the decision.
2. Factual background
[3] The applicant is a citizen of Mauritania. On March 18, 2004, the Board's first panel dismissed his refugee claim. He brought an application for leave and for judicial review against that decision on April 14, 2004, which was dismissed on August 31, 2004.
[4] On May, 2004, the applicant filed with the Board an application to reopen in accordance with section 55 of the Refugee Protection Division Rules, SOR/2002-228 (the Rules). That application was dismissed on October 4, 2004.
[5] On January 31, 2005, leave was granted to bring this application for judicial review.
3. Impugned decision
[6] Mr. Quirion, in his decision dated October 4, 2004, held that Mr. Osmane, from the Board's first panel, who denied the applicant's refugee claim, had given the applicant all the latitude necessary for him to file into evidence all of the facts relevant to his refugee claim and raise all of his points before the panel. Further, the member agreed to separate his file from his wife's. The only refusal the applicant faced from the member was the member's refusal to recuse himself from the file of the applicant, who feared bias based on the fact that the member had decided his wife's claim. Member Quirion determined that, because the applicant had not established a breach of natural justice at the hearing of his refugee claim, he did not have jurisdiction to allow his application to reopen.
4. Issues
[7] Was the Board's discretion exercised in good faith, uninfluenced by irrelevant considerations and not arbitrarily or illegally, when it dismissed the application to reopen the hearing?
5. Analysis
[8] In this case, the initial decision dismissing the applicant's refugee claim was dated March 18, 2004. The Federal Court dismissed the application for leave and for judicial review against this decision on August 31, 2004. The Court did not agree with the applicant's arguments
against the initial decision, which are the same as those that were raised in the application to reopen which is the subject of the application for judicial review in this case. In my opinion, the Court dismissed the application for leave because it determined that the points raised by the applicant were unfounded. The Federal Court has therefore, without question, made a final determination on these issues. Accordingly, the respondent argues that there is res judicata between the parties with respect to the arguments raised by the applicant in this application for judicial review, which are identical to those raised before this Court in the application for judicial review against the Board's initial decision.
[9] Notwithstanding my determination regarding the principle of res judicata, the decision challenged by the application for judicial review is the one by Member Quirion and not the decision by this Court dismissing the application for leave. I will therefore consider whether Member Quirion erred in dismissing the application to reopen the hearing. In my opinion, the Board is functus officio in this case. Its decision was final and it cannot reopen a hearing or reconsider a matter unless there is evidence that there was a failure to observe a principle of natural justice during the hearing of this matter. I am now going to embark on that exercise.
[10] The applicant claims that he fears bias based on the fact that Member Osmane, who heard his refugee claim, also heard and decided the claim of his common law spouse when the two claims had been separated by the panel. The applicant claims that the Board breached the principles of natural justice by relying on information relating to that other claim to make its decision without advising the applicant.
[11] The case law is consistent that the Board cannot reopen a matter, once it has made its final decision, unless it finds that there was a breach of the rules of natural justice when it made its decision: Canada (Minister of Employment and Immigration) v. Nabiye, [1989] 3 F.C. 424. that principle is indeed established under subsection 55(4) of the Rules.
| 55. Factor (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. |
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55. Élément à considérer (4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle. |
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[12] The Board's power to allow or deny an application to reopen is discretionary: Plese v. Canada (Minister of Employment and Immigration), [1977] 2 F.C. 567; Canada v. Levac, [1992] 3 F.C. 463. Accordingly, only the lawfulness of the decision and not the merits of the decision are subject to the Court's judicial review: Koutsouveli v. Canada (Minister of Employment and Immigration) (1988), 21 F.T.R. 271; Dawkins v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 639.
[13] It is recognized in the case law that this Court cannot intervene in a discretionary decision by the Board unless the discretion was exercised in bad faith, influenced by irrelevant considerations or arbitrarily or illegally: Hilario v. Canada (Minister of Employment and Immigration), [1978] 1 F.C. 697.
A. The allegation of bias
[14] With respect to the applicant's allegation that the hearing of both claims before the same member was contrary to the principle of the separation of claims as granted by the Board, it is settled in the case law that the mere fact that a decision-maker has already participated in an earlier decision involving either of the interested parties does not in itself create a reasonable apprehension of bias.
[15] The allegation of bias raised by the applicant appears to be based on the fact that the decision-maker denied his common law spouse's refugee claim. I cannot agree with this argument. The evidence establishes that the applicant knew that Member Osmane was to hear his spouse's refugee claim as of September 2, 2003, the date of his second hearing on his own refugee claim. It was not until December 16, 2003, that he asked Mr. Osmane to recuse himself. I agree with the respondent's submissions to the effect that an allegation of bias must be raised at the first opportunity, failing which it will be dismissed. In this case, it is my opinion that the applicant waived the right to raise an apprehension of bias on Mr. Osmane's part since he did not do so when he became aware of the facts on which the apprehension was based.
[16] It is my opinion that the applicant did not establish that a ". . . an informed person, viewing the matter realistically and practically - and having thought the matter through . . . [w]ould think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly" according to the requirement set out by the Supreme Court in Committee for Justice and Liberty v. National energy Board [1978] 1 S.C.R. 369, at page 394. Accordingly, the applicant did not raise a reasonable apprehension of bias by Mr. Osmane.
B. Conditions for reopening application
[17] In this case, the applicant argues that the Board breached the rules of natural justice by mentioning in the impugned decision the decision on the claim of the applicant's spouse. These matters had been separated and, according to the applicant, it was an error to refer to his spouses's case in the impugned case.
[18] The Board referred to the spouse's claim as follows in the impugned decision:
WHEREAS in the case before the panel, a review of the application and of the entire case file did not lead the panel to such a conclusion; the member responsible for the case rendered a decision, complying with the legal process and the rules of natural justice throughout the entire proceeding. The applicant was duly summoned, and the member heard him and gave him all the leeway he needed to explain himself. The panel agreed to separate his claim from that of his spouse; however, the member refused to recuse himself from the claim made by the applicant, who feared the appearance of bias because the member had rendered a decision in the claim made by the applicant's spouse. The member then reserved the decision and finally made a determination in the refugee protection claim. [Emphasis added.]
[19] The applicant argues that this matter was not filed into evidence during the hearing and that the Board did not obtain his common law spouse's permission to refer to her claim. Further, the applicant argues that the same error was made by the Board in its initial decision on the claim.
[20] The respondent argues that the Board's discretionary power was correctly exercised in this case. The respondent points out that, moreover, the applicant advanced the same arguments in the context of the application for judicial review of the decision on the refugee claim as those set forth in this case. There is no basis for challenging the decision dismissing his refugee claim since that is not the decision subject to the judicial review in this case. The doctrine of res judicata applies with regard to that decision: Ndjobo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 934 (QL). The respondent alleges that the information relating to the other case was indeed provided by the applicant himself.
[21] Having reviewed the record, I am of the opinion that the decision by the Board being challenged in this case refers to the claim by the applicant's spouse for the sole purpose of setting out the manners in which natural justice had been respected, which inter alia was done by separating the claims. It appears to me that the Board's initial decision was not in fact tainted by a failure to observe the principles of natural justice. The claims of the applicant and his spouse had been separated in order to address the spouse's membership in a particular social group, women. Neither is there any evidence to support the applicant's claims to the effect that the request for recusal was improperly dismissed.
[22] In the initial decision on the claim, the Board only referred to the claim by the applicant's spouse in response to an argument that the applicant raised, i.e. his allegation that he feared persecution in Mauritania based on his relationship with a married woman, his spouse, with whom he has lived since April 2001. On that point, the Board determines as follows:
In fact, the panel, of its own initiative, separated the claimant's case from that of the woman (MA2-06525), which is based mainly on her membership in a particular social group, that of women. The panel determined that this woman was not credible and rejected her claim. Considering all of the problems with the claimant's testimony, the panel cannot believe that the claimant's last allegation has any credible basis either.
[23] In my opinion, it its clear from this passage that the Board first mentioned the claim of the applicant's spouse in order to respond to an argument that the applicant himself advanced in the context of his refugee claim. As the respondent points out, even if it violated natural justice, which I do not find, that reference had no impact on the decision to dismiss the applicant's claim since it was because he lacked credibility that the claim was denied: Mobil Oil Canada Ltd. v. Canada -Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (QL).
6. Conclusion
[24] In light of all of the foregoing, I find that there is no basis for this Court's intervention. The application for judicial review will be dismissed.
[25] The applicant proposes the certification of the following questions in the judgment to be rendered on the application for judicial review:
1. When two matters are separated and heard by the same member, can that member refer to the first matter (testimonial evidence, decision, PIF) in the second claim when it has not been filed or put into the record of the second claim?
2. When two claims are separated, in order to respect the principle of procedural fairness and natural justice, may the same member hear the two refugee claims concurrently?
[26] Having considered the written submissions of the parties, I am not satisfied that the questions raised are worthy of certification. They do not satisfy the test established for that purpose in that they are not question of general importance, they do not transcend the interests of the parties and, specifically, they are not questions raising serious considerations with regard to the facts at issue: Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (QL); Zazai v. Canada (Minister of Citizenship and Immigration), [2004] FCA 89.
ORDER
THE COURT ORDERS as follows:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Edmond P. Blanchard"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9001-04
STYLE OF CAUSE: Fah Ould El Bachir v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 28, 2005
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Blanchard
DATE OF REASONS: September 9, 2005
APPEARANCES:
Marie-José L'Écuyer FOR THE APPLICANT
Martine Valois FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marie-José L'Écuyer FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec