Ashari v. Canada ( Minister of Citizenship and Immigration )
A-525-98
Décary J.A.
26/10/99
5 pp.
Appeal from trial judgment ((1998), 158 F.T.R. 268) certifying question: whether Convention Refugee Determination Division of Immigration and Refugee Board demonstrating reasonable apprehension of bias in considering issue of exclusion (Convention, Art. 1 (E), (F) when Minister neither notified issue of exclusion to be considered nor taking part in proceeding-Appellants arguing Board compromising non-adversarial nature of proceedings before it in assuming itself onus of proving exclusion-Submitting such onus on Minister-Premises of argument unsound-(1) Argument Board may not determine issue of exclusion in absence of Minister rejected in Arica v. Minister of Employment and Immigration (1995), 182 N.R. 392 (F.C.A.)-Where neither Immigration Act nor Convention Refugee Determination Division Rules requiring Minister's participation in proceedings before Board, Board neither biased nor demonstrating reasonable apprehension of bias merely by holding inquiry in Minister's absence-(2) Argument government cannot satisfy burden of proof if Minister not participating in proceeding false-Onus of proof should not be confused with standard of proof-No reason, in principle, why Board could not be satisfied, on basis of evidence filed by hearing officer and claimant, that claimant falling within exclusion clause-Appeal dismissed-Immigration Act, R.S.C., 1985, c. I-2-Convention Refugee Determination Division Rules, SOR/93-45.