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The Court of Appeal dismissed a motion to review the refusal of an extension of time to appeal, finding no error and no basis to disturb the motion judge’s decision.
The RAD allowed the appeal, set aside the RPD determination and remitted the matter to a differently constituted RPD panel because the original panel exhibited antagonistic tone, interruptions, inappropriate handling of interpretation and conduct creating an appearance of bias, thereby breaching procedural fairness and depriving the appellant of a meaningful opportunity to present his credibility and risk evidence.
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The appeal is allowed because the RPD member's conduct produced a reasonable appearance of bias and procedural unfairness and the credibility rejection was tainted by those procedural defects; the proper remedy is to set aside the RPD decision and refer the refugee protection claims for a de novo hearing by a different member with directions to apply Guideline 4 and consider updated evidence regarding the appellant's relationship and protection in Lebanon and Tunisia.
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The RAD set aside the RPD determination because the RPD member's conduct gave rise to an appearance of bias and denied the appellant a fair hearing; because procedural unfairness was dispositive and no new evidence was before the RAD, the matter is referred to the RPD for re-hearing by a different member under s.111(2) IRPA and the merits were not remitted by the RAD.
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The RAD held that the documents submitted on appeal were inadmissible under s.110(4) IRPA but, independently, the RPD hearing displayed an appearance of bias and procedural unfairness (including issues with remote telephone interpreting and questioning approach); accordingly the RPD decision was set aside and the claim remitted to the RPD for a de novo hearing before a different member with directions that the interpreter be physically present in the hearing room.
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The RPD did not give rise to a reasonable apprehension of bias and correctly concluded, on a balance of probabilities after weighing documentary and testimonial evidence, that the appellant failed to establish his identity because key identity documents were altered or fabricated and his explanations were unsatisfactory; therefore the refugee protection claim was properly rejected.
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Section 15(2) can be read to authorize orders for technical or expert assistance necessary to bring seized digital material 'before' the judge for purposes of a s.15(1) sending hearing, but the application judge erred in appointing an FBI 'clean team' because using an entity closely associated with an adversary offends the appearance of fairness; absent unique, justified expertise or prohibitive cost differential, an independent reviewer should be used; therefore the order authorizing the FBI team is set aside and the matter remitted for further directions.
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Federal Court judicial review of a refugee claim was dismissed. The Court found no reasonable apprehension of bias and no reviewable error in the credibility findings.
Judicial review of an RPD decision vacating refugee protection was dismissed. The Court found no binding pre-hearing agreement, no bias, and no breach of fairness.
The RAD, on independent review with deference to credibility findings, found the RPD did not err: the appellant's numerous contradictions and omissions, implausible explanations, and failure to claim protection in Mexico fatally undermined credibility such that he failed to prove on a balance of probabilities that he faces a risk under s.97 IRPA; no reasonable apprehension of bias was shown; appeal dismissed and RPD decision confirmed.
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