Koky et al. v. Canada (Minister of Citizenship and Immigration), 2015 FC 562

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: April 09, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 562;(2015), 479 F.T.R. 265 (FC)

Koky v. Can. (M.C.I.) (2015), 479 F.T.R. 265 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.028

Zoltan Koky, Milada Kokyova, Zoltan Koky (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7966-13)

Zlatica Kokyova (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8082-13; 2015 FC 562)

Indexed As: Koky et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

April 29, 2015.

Summary:

The principal applicant, his wife and their two minor children (the applicants), citizens of Slovakia, sought protection under ss. 96 and 97 of the Immigration and Refugee Protection Act. They all relied on the Personal Information Form of the principal applicant. The claims of the family were scheduled to be heard together. The wife was unable to proceed owing to illness. The principal applicant requested an adjournment, which the panel member (Member) of the Refugee Protection Division refused. The Member then disjoined the wife's claim. The principal applicant refused to testify in the wife's absence. The Member immediately commenced abandonment proceedings (Refugee Protection Division Rules, rule 65(1)(a)), and declared the claims of the principal applicant and the children were abandoned. In a second decision, the Member rejected the claim of the wife. The applicants applied for judicial review of both decisions, on the grounds that: (1) the Member breached the principles of procedural fairness and natural justice by refusing an adjournment and proceeding with the hearing; and (2) there was a reasonable apprehension of bias or actual bias.

The Federal Court dismissed the applications on both grounds. "In summary, while the Applicants disagree with the procedure adopted by the Member, his procedural decisions were within his jurisdiction and were not unfair in the circumstances, nor did they result in a denial of natural justice. Further, the facts and the circumstances of these matters do not meet the high threshold that is required to establish a reasonable apprehension of bias."

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See second Aliens - Topic 1327.1 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See first Aliens - Topic 1327.1 ].

Aliens - Topic 1321.3

Admission - Refugees - Convention Refugee Determination Division Rules - [See first Aliens - Topic 1327.1 ].

Aliens - Topic 1326

Admission - Refugee protection, Convention refugees and persons in need of protection - Procedure - [See first Aliens - Topic 1327.1 ].

Aliens - Topic 1327.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Abandonment of refugee claim - The principal applicant, his wife and their two minor children (the applicants) sought refugee protection - The claims were scheduled to be heard together - The wife was unable to proceed owing to illness - The principal applicant requested an adjournment, which the panel member (Member) of the Refugee Protection Division refused - The Member then disjoined the wife's claim - The principal applicant refused to testify in the wife's absence - The Member immediately commenced abandonment proceedings (Refugee Protection Division Rules, rule 65(1)(a)), and declared the claims of the principal applicant and the children were abandoned - In a second decision, the Member rejected the claim of the wife - The Federal Court, in dismissing the judicial review application, found no breach of procedural fairness or natural justice - The Member had the jurisdiction to disjoin the wife's claim, and did not act unfairly in proceeding as he did - And, by disjoining the wife's claim, the hearing for the other applicants could have proceeded while the wife's claim was preserved - With respect to the finding of abandonment, the Member also had the jurisdiction to declare the claim abandoned - The principal applicant, by continuing to refuse to testify when faced with the risk of an abandonment finding, not only failed to demonstrate his intent to continue with the proceedings, but in fact demonstrated the opposite - See paragraphs 36 to 45.

Aliens - Topic 1327.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Abandonment of refugee claim - The principal applicant, his wife and their two minor children (the applicants) sought refugee protection - The claims were scheduled to be heard together - The wife was unable to proceed owing to illness - The principal applicant requested an adjournment, which the panel member (Member) of the Refugee Protection Division refused - The Member then disjoined the wife's claim - The principal applicant refused to testify in the wife's absence - The Member immediately commenced abandonment proceedings (Refugee Protection Division Rules, rule 65(1)(a)), and declared the claims of the principal applicant and the children were abandoned - In a second decision, the Member rejected the claim of the wife - On judicial review, the applicants alleged bias, asserting that the Member pursued a single-minded outcome at any cost - The Federal Court, in dismissing the application, held that the applicants had failed to demonstrate how the Member acted in a biased manner - Nor had they established that they were not given the opportunity to be heard by a disinterested and impartial tribunal and were, thereby, denied natural justice - Also, the applicants provided no authority for the proposition that they were entitled to written reasons on the dismissal of their oral motion to have the Member recuse himself - In any event, reading the transcript and the decision in whole, the reasons for the Member's actions were clearly explained and did not support an allegation of apprehension of bias - See paragraphs 46 to 81.

Aliens - Topic 4088

Practice - Hearings - Constitution of board - Bias - [See second Aliens - Topic 1327.1 ].

Cases Noticed:

Juste v. Canada (Minister of Citizenship and Immigration), 2008 FC 670, refd to. [para. 9].

Olson v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 300; 2007 FC 458, refd to. [para. 9].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 9].

Wu v. Canada (Minister of Citizenship and Immigration) (2013), 438 F.T.R. 30; 2013 FC 838, refd to. [para. 9].

Etienne v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 469 F.T.R. 40; 2014 FC 1128, refd to. [para. 9].

Lambie v. Canada (Attorney General) et al. (2011), 385 F.T.R. 55; 2011 FC 104, refd to. [para. 9].

Kaur et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 321; 2010 FC 442, refd to. [para. 9].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 9].

Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60; 2005 FCA 113, refd to. [para. 9].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 18].

Elkebti v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 982 (F.C.), refd to. [para. 21].

Jones v. Minister of National Revenue (2004), 248 F.T.R. 275; 2004 FC 382, refd to. [para. 21].

Julien v. Canada (Minister of Public Safety and Emergency Preparedness), [2015] F.T.R. Uned. 57; 2015 FC 150, refd to. [para. 38].

Badalyan et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 358; 2010 FC 561, refd to. [para. 38].

Benitez v. Canada (Minister of Citizenship and Immigration) (2006), 290 F.T.R. 161; 2006 FC 461, refd to. [para. 38].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R 560; 93 N.R. 81, refd to. [para. 38].

Cruz Telez v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 1; 2013 FC 102, refd to. [para. 39].

Javadi v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 138; 2012 FC 278, refd to. [para. 39].

Wagg v. Minister of National Revenue (Customs and Excise) (2003), 308 N.R. 67; 2003 FCA 303, refd to. [para. 39].

Fritzner v. Canada (Minister of Citizenship and Immigration) (2010), 366 F.T.R. 160; 2010 FC 351, refd to. [para. 39].

Julien v. Canada (Minister of Citizenship and Immigration) - see Fritzner v. Canada (Minister of Citizenship and Immigration).

Zhu et al. v. Canada (Minister of Citizenship and Immigration) (2013), 442 F.T.R. 237; 2013 FC 1139, refd to. [para. 48].

Elmahi v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. B16; 2004 FC 1472, refd to. [para. 50].

Grenier v. Canada (Attorney General) (2013), 428 F.T.R. 244; 2013 FC 208, refd to. [para. 76].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 162(1), sect. 162(2), sect. 165 [para. 37]; sect. 168 [para. 6].

Immigration and Refugee Protection Act Regulations (Can.), Refugee Protection Division Rules, SOR/2012-256, rule 56 [para. 36]; rule 65 [para. 40]; rule 69, rule 70 [para. 36].

Refugee Protection Division Rules - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

George J. Kubes, for the applicants;

Sybil Thompson, for the respondent.

Solicitors of Record:

George J. Kubes, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

These applications for judicial review were heard at Toronto, Ontario, on April 9, 2015, before Strickland, J., of the Federal Court, who delivered the following judgment and reasons, dated April 29, 2015, at Ottawa, Ontario.