Date: 20040513
Docket: IMM-2391-03
Citation: 2004 FC 695
BETWEEN:
ARCHIL IANVARASHVILI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J:
[1] Mr. Ianvarashvili would rather live in Canada than in Georgia. He came here in 1998 and claimed refugee status. His claim was dismissed and he was deported the following year. After one unsuccessful attempt to come back, he again showed up at Dorval Airport in 2001, thanks to a false passport, and again claimed to be a refugee. His claim was heard under the former Immigration Act, R.S.C. 1985, ch. I-12, as amended. The two-member panel found that he was not a Convention refugee and did not have a credible basis for his claim. This is a judicial review of that decision.
[2] The grounds he alleges in support of his application can be broken down into the following categories. One of the members of the panel which decided his case had an appearance of bias. The panel was patently wrong in rejecting his claim with respect to politics, religion and state protection. Finally, he is no longer a citizen of Georgia. I will deal with each of these points in turn.
BIAS
[3] The panel of the Convention Refugee Determination Division of the Immigration and Refugee Board which heard Mr. Ianvarashvili comprised two members. The presiding member was Rocco Famigliatti, and the other member was Louise Robic. Mr. Ianvarashvili does not claim that Ms. Robic was actually biased, but asserts that there is an appearance of partiality on her part because she was a member of a panel which determined that his friend, Zurab Mgdedeladze, was not a Convention refugee. The two of them had travelled to Canada together, and their stories are intertwined to a large extent.
[4] The standard against which to test an allegation of apparent bias was set out by de Grandpré J., in dissent, in Committee for Justice and Liberty v. Canada (National Energy Board) [1978] 1 S.C.R. 369, at page 394:
..."what would an informed person, viewing the matter realistically and practically - and thinking the matter through - conclude?..."
...
...The grounds for his apprehension must ... be substantial...
[5] The panel dismissed this objection when it was raised at the hearing. It said that each case turned on its own facts, and that, in any event, Mr. Ianvarashvili's case differed somewhat from Mr. Mgdedeladze's in that one of the bases of the former's claim is that his mother was a Jewish activist, which caused him problems with ultranationalists. Reliance was placed on Committee for Justice, supra. The panel was right.
[6] Panel members develop expertise with respect to certain countries and certain issues and are bound to come across cases with similar fact patterns, and similar legal issues. Pinard J. held that the fact that one panel member had refused the refugee claim of the applicant's daughter did not create any apprehension of bias: Gonzales v. Canada (Secretary of State) (1993), 72 F.T.R. 26. He relied upon the decision of the Federal Court of Appeal in Arthur v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 94. MacGuigan J.A., speaking for the Court, held that no apprehension of bias was created by the participation of an immigration adjudicator in a credible-basis hearing on a refugee claim after his earlier participation in a detention review hearing for the same claimant.
[7] Indeed, in Borissotcheva v. Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 494 (Q.L.) and Borissotchev v. Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 495 (Q.L.), von Finckenstein J. dismissed an appeal by the father from a decision of a Citizenship judge, but granted the appeal with respect to his daughter. Each case is judged on its own facts.
[8] In Arthur, supra, MacGuigan J.A. considered the decision of Jackett P., as he then was, in Nord-Deutsche Versicherungs Gesellschaft v. Her Majesty the Queen, et al, [1968] 1 Ex.C.R. 443, where the Attorney General unsuccessfully argued that judges who sat on an appeal relating to some of the questions in issue were debarred by natural justice from sitting on a subsequent trial. In that case, Jackett P. adopted the words of Hyde J. in Regina v. Barthe (1963), 45 DLR (2d) 612 where he said:
The ability to judge a case only on the legal evidence adduced is an essential part of the judicial process.
It would be quite wrong to assume that a judge would apply personal knowledge derived from a recollection of the evidence taken in an earlier case. It is not reasonable to apprehend that there is a "real likelihood that a judge will be so derelict in his duty as to decide one case in whole or in part on the evidence heard in an earlier case."
[9] If one were to go one step further and suggest that an adjudicator who erred in law in one case will make the same error again, there would still be no basis whatsoever for asserting bias. While adjudicators should be consistent in their application of the law, an adjudicator can realize even without correction by an appellate court, or by way of judicial review, that he or she was wrong in an earlier decision. Only months after rendering a landmark decision while on the Federal Court of Appeal, Le Dain J.A. said:
... I am now of the view that I was wrong in the conclusion which I reached in the Domestic Converters case (Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd. et al. [1982] 1 F.C. 406 at para. 18
POLITICS, RELIGION AND STATE PROTECTION
[10] Apparently, on his return to Georgia after his first deportation from Canada, Mr. Ianvarashvili was jailed for a few weeks and accused of being a traitor. However, he resolved this problem with a little bribery.
[11] His politics were vague. He even had trouble remembering the name of his party.
[12] Although a Christian, Mr. Ianvarashvili's mother was Jewish. The panel was criticized for not referring to the fact that a witness, currently living in Montreal, attested to that fact. There is no basis for such criticism. The religion of his mother, who is dead, was not in issue. What was in issue was that this had drawn the ire of one Sasha, part of a group of ultranationalists, who allegedly made Mr. Ianvarashvili's life difficult. He says that the police would not assist him as they considered Sasha and his ilk to be national heroes. The panel preferred country reports. There is no systematic anti-semitism in Georgia. Although there are indications of some isolated incidents, such as the desecration of a cemetery, the panel was not wrong in concluding that Mr. Ianvarashvili was not a Convention refugee on that ground. Unfortunately, there are low lifes in every community who prey on minorities. There have been incidents of desecration of Jewish cemeteries in this country, and more recently the fire-bombing of a Jewish elementary school.
[13] Furthermore, Mr. Ianvarashvili gave no air of fearing persecution. He worked in Europe for many months before his second trip to Canada. Although a failure to seek refugee status at the first available opportunity, in the first potential country of refuge, is not fatal, it is a factor to take into consideration: Cruz v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1247 (Q.L.).
STATELESS PERSON
[14] Mr. Ianvarashvili says he renounced his Georgian citizenship in 1999. Yet he claimed to be a Georgian citizen when he returned here in 2001. He is not to be believed. He then said he lost his Georgian citizenship by operation of law, by failing to register. His lawyer had some documents in Georgian, with English translation, which were shown at the hearing but not formally filed as exhibits. Although he undertook to do so, Mr. Ianvarashvili's lawyer, who is not the lawyer acting for him on this judicial review, never filed them. The panel found the information contradictory. The burden of proof on Mr. Ianvarashvili was not overcome. Had the panel thought there was any possible merit to this claim, far better proof of Georgian law would have been necessary.
[15] In any event, Georgia is Mr. Ianvarashvili's habitual place of residence. A person is not to be considered refugee solely by virtue of statelessness: Thabet v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 21 (FCA).
[16] The panel gave no appearance of bias, and was not patently unreasonable in any of its findings. The application for judicial review will therefore be dismissed.
[17] The parties have until May 20, 2004, to propose a question for certification which would allow an appeal to the Federal Court of Appeal.
"Sean Harrington"
Judge
Ottawa, Ontario
May 13, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2391-03
STYLE OF CAUSE: ARCHIL IANVARASHVILI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MAY 5, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: MAY 13, 2004
APPEARANCES:
Michel Le Brun FOR APPLICANT
Michel Pépin FOR RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada