Date: 19981023
Docket: IMM-5124-97
BETWEEN:
JOSEFINA PONCE DE LEON
CECILIA PONCE DE LEON
DANIEL ALEJANDRO PONCE DE LEON
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[delivered from the Bench at Toronto, Ontario
on Wednesday, October 21, 1998, as edited]
ROTHSTEIN J.
[1] The panel of the Immigration and Refugee Board found the applicants' story to be implausible and lacking in credibility and rejected their refugee claims. The issue raised in the judicial review is reasonable apprehension of bias.
[2] The panel received three anonymous letters that contained information that was highly prejudicial to the applicants. At the second hearing, after two letters had been received, counsel for the applicants made a motion that the panel disregard the letters and that it recuse itself. The panel ruled not to admit the letters because they were anonymous, prejudicial, and constituted heresay. The panel ruled not to recuse itself. At the third hearing the applicants were not represented by counsel and there was no discussion of the third letter and the panel made no ruling with respect to it.
[3] The applicants say the panel is obliged to disclose how it received the anonymous letters and its failure to do so creates an apprehension of bias and unfairness. There is no evidence before me of impropriety with respect to the receipt of the letters. What is important for fairness is that the panel ensure the parties know that the anonymous letters were received and that they be disclosed to the parties. This was done in the present case. The applicants say the letters were disclosed to their counsel and not to them personally, but that is of no consequence. The panel is entitled to deal with counsel of record.
[4] The applicants say the panel should have recused itself because it read the letters. However, as pointed out by Reed J. in Johnpillai v. Canada (Secretary of State) (1995), 93 F.T.R. 288 at 292 (F.C.T.D.), judges and tribunals routinely rule on the admissibility of evidence and do not feel the need to recuse themselves. There was no obligation on the panel to recuse itself in this case because it read anonymous letters that were prejudicial to the applicants.
[5] The applicants then argue that there were similarities between the contents of the prejudicial letters and the panel's reasons. The issue here is only whether the panel relied on the two letters it ruled not to admit. I think if a panel excludes evidence and then relies upon that evidence in making its decision, it will have erred by basing its decision on evidence not before it. Although some allegations in the letters, in a very general sense, touched on the same issues as the panel dealt with in its reasons, each and every factual finding was supported by evidence before the panel. No factual findings by the panel could only have come from the letters. Nor were the panel's reasons parallel to wording in the letters so as to betray a reliance on them. The panel concluded that the applicants were not telling the truth and the letters also accused the applicants of lying, but this does not necessarily imply that the panel was relying on the letters.
[6] The panel's conduct does not raise a reasonable apprehension of bias. Nor does it disclose any other unfairness or legal error. The judicial review must be dismissed.
"Marshall Rothstein"
Judge
TORONTO, ONTARIO
October 23, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5124-97
| STYLE OF CAUSE: JOSEFINA PONCE DE LEON |
CECILIA PONCE DE LEON
DANIEL ALEJANDRO
PONCE DE LEON
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, OCTOBER 21, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: FRIDAY, OCTOBER 23, 1998
APPEARANCES: Mr. Adelso Mancia Carpio
For the Applicants
Mr. Jeremiah Eastman
For the Respondent
SOLICITORS OF RECORD: Mancia and Mancia
| Barristers & Solicitors |
| Suite 701, Box 79 |
390 Bay Street
Toronto, Ontario
M5H 2Y2
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981023
Docket: IMM-5124-97
Between:
JOSEFINA PONCE DE LEON
CECILIA PONCE DE LEON
DANIEL ALEJANDRO PONCE DE LEON
Applicants
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER