Kozak et al. v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Décary, Evans and Sharlow, JJ.A.
• Citation: 2006 FCA 124,(2006), 349 N.R. 309 (FCA)
• Date: 22 November 2005

Kozak v. Can. (M.C.I.) (2006), 349 N.R. 309 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. AP.017

Kozak Geza, Csepregi Attila, Kozak Geza (minor) and Csepregi Szilvia (appellants) v. The Minister of Citizenship and Immigration (respondent)

Smajda Sandor, Smajda Zsolt, Smajda Sandor, Gyulavics Timea, Smajda Claudia and Smajda Jozef (appellants) v. The Minister of Citizenship and Immigration (respondent)

(A-419-04; A-420-04; 2006 FCA 124)

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

Federal Court of Appeal

Décary, Evans and Sharlow, JJ.A.

March 27, 2006.

Summary:

In 1998, the Immigration and Refugee Board (IRB) decided to produce a precedent, coined a "lead case", out of concern for growing numbers of Roma refugee claimants from Hungary. The stated purpose of the exercise was to establish a base line of legal and factual issues to promote consistency in subsequent claim decisions. Two sets of Hun­garian refugee claimants (the applicants) agreed to participate in the lead case process on the advice of their counsel. However, after having their claims rejected, they ap­plied for judicial review challenging the jurisdiction of the board to conduct such an exercise. The applicants also alleged that a perception of bias existed on the part of the board when the lead case idea was conceived and conducted and that the motive was to in­crease the rejection rate of claims by Hun­garian Roma by creating a well reasoned and well documented rejection precedent which would be promoted to be followed by other panels of the IRB.

The Federal Court, in a decision reported 257 F.T.R. 114, dismissed the application, with costs in favour of the applicants. The applicants appealed on the merits.

The Federal Court of Appeal allowed the appeals, set aside the order of the ap­pli­ca­tions judge, except for the award of costs, allowed the applications for judicial review, set aside the decisions of the IRB and re­mitted the matters to the IRB, differently constituted, for redetermination. The court held that, regardless of whether the IRB had jurisdiction to use the lead case process, the IRB's decisions on these applications would be set aside on the gro­und of reasonable ap­pre­hension of bias. The court awarded the ap­plicants/appellants costs of the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - [See Aliens - Topic 4088 ].

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal - Bias - Waiver or consent - [See Aliens - Topic 4088 ].

Administrative Law - Topic 3349

Judicial review - Practice - Costs - [See Aliens - Topic 4105 ].

Aliens - Topic 1844

Exclusion and expulsion - Immigration and Refugee Board - Jurisdiction - Lead cases - [See Aliens - Topic 4088 ].

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - In 1998, the Immigration and Refugee Board (IRB) decided to produce a pre­cedent, coined a "lead case", out of con­cern for growing numbers of Roma refugee claimants from Hungary - The stated pur­pose of the exercise was to estab­lish a base line of legal and factual issues to promote consistency in subsequent claim decisions - Two sets of Hungarian refugee claimants (the applicants) agreed to par­ticipate in the lead case process on the advice of their coun­sel - However, after having their claims rejected, they applied for judicial review alleging that the "lead case" proce­dure gave rise to a reasonable apprehension of bias - An applications judge dismissed the application where the applicants had in­sufficient evidence to substantiate their argument of apprehension of bias - The ap­pli­cants appealed - The Federal Court of Ap­peal, reviewing the applications judge's decision on a standard of correctness, al­lowed the appeal and remitted the cases for redetermination by the IRB - The court re­viewed the applic­able test for bias and held that despite the absence of one single fact which on its own would establish bias, the entire factual matrix of this case gave rise to a reason­able apprehension of bias - The court held that in the circumstances, it could not be said that the applicants/appel­lants had waived their right to judicial re­view by not complaining of bias earlier in the process - See paragraphs 1 to 68.

Aliens - Topic 4105

Practice - Costs - For special reasons - In 1998, the Immigration and Refugee Board (IRB) decided to produce a precedent, coined a "lead case", out of concern for grow­ing numbers of Roma refugee claim­ants from Hungary - The stated purpose of the exercise was to establish a base line of legal and factual issues to promote consis­tency in subsequent claim decisions - Two sets of Hungarian refugee claimants (the ap­plicants) agreed to participate in the lead case process on the advice of their counsel - However, after having their claims re­jected, they applied for judicial review, raising jurisdictional and bias issues - The applications judge dismissed the applica­tion with costs in favour of the applicants - The court stated that given the novel and recognized contentious nature of the lead case at the time it was brought, the appli­cants should not be responsible to finance a judicial review testing the lead case con­cept - The Federal Court of Appeal refused to disturb the costs award - See paragraphs 69 and 70.

Cases Noticed:

Polgari et al. v. Canada (Minister of Citi­zenship and Immigration), [2001] F.T.R. Uned. 401; 2001 FCT 626, refd to. [para. 41].

Sarkozi v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 402; 2001 FCT 649, refd to. [para. 41].

Balogh et al. v. Canada (Minister of Citi­zenship and Immigration) (2002), 221 F.T.R. 203; 2002 FCT 809, refd to. [para. 41].

Mohacsi v. Canada (Minister of Citizen­ship and Immigration), [2003] 4 F.C. 771; 231 F.T.R. 276; 2003 FCT 429, refd to. [para. 41].

Racz v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 759; 2004 FC 1293, refd to. [para. 41].

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 51].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 53].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. C-2, sect. 65(3) [para. 49].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 159(1) [para. 49].

Authors and Works Noticed:

Canada, Immigration and Refugee Board, Policy on the Use of Jurisprudential Guides, Policy No. 2003-01 (March 21, 2003), generally [para. 9].

European Roma Rights Centre, Roma Rights Quarterly (1999), generally [para. 34].

Counsel:

Rocco Galati, for the appellants;

John Loncar and Gordon Lee, for the re­spondent.

Solicitors of Record:

Galati, Rodrigues, Azevedo & Associates, Toronto, Ontario, for the appellants;

John H. Sims, Q.C., Deputy Attorney Gen­eral of Canada, for the respondent.

These appeals were heard at Toronto, On­tario, on November 22, 2005, before Décary, Evans and Sharlow, JJ.A., of the Federal Court of Appeal. Evans, J.A., deliv­ered the following judgment for the court at Ottawa, Ontario, on March 27, 2006.