Nartey v. Canada ( Minister of Employment and Immigration )
A-83-93
Denault J.
20/1/94
5 pp.
Application for judicial review of decision of Convention Refugee Determination Division (CRDD) of Immigration and Refugee Board applicant not Convention refugee -- Applicant, citizen of Ghana, organizing volunteers to do communal labour in surrounding villages and supporting Armed Forces Revolutionary Council while student -- Applicant sent to Libya under false pretenses and informed he would be remaining in Libya for military training -- Applicant transferred to Libyan jail when military intercepted letter criticizing government -- In 1991, applicant escaped to Canada -- Counsel for applicant argued reasonable apprehension of bias on part of CRDD members -- No evidence of partiality -- Test to decide if decision reviewable on basis of reasonable apprehension of bias because of applicant's ethnicity: whether reasonably informed bystander could reasonably perceive bias on part of adjudicator: Newfoundland Telephone Co. v. Newfoundland (Board of Commissionners of Public Utilities), [1992] 1 S.C.R. 623 -- Reasonable bystander might conclude reasonable apprehension of bias where member of CRDD, born in Ghana, who had been member of clan now having close ties to governing authorities in Ghana called upon to decide claim of member of rival clan-Although Newfoundland Telephone further requiring adoption of flexible approach according to role and function of tribunal at issue, decision must be based on evidence before it -- Desirable tribunal's composition reflecting composition of Canadian society and immigrant community -- As result, members will hear claims of applicants from same country of origin or same ethnicity as themselves and members will draw upon their knowledge and experience of country of origin to enhance understanding of applicant's claim -- No evidence more likely than not member of CRDD would draw upon his knowledge and experience of Ghana to render unfair decision -- Applicant nor his counsel raised issue of reasonable apprehension of bias during course of hearing -- Failure to raise issue not constituting waiver if applicant or his counsel unaware of right to object on ground of reasonable apprehension of bias -- However, affidavit herein to effect known in Ghanaian community that member of CRDD biased against Ghanaian refugee claimants -- If so, then counsel aware of situation which might have disqualified member and should have objected to his presence at hearing -- Application denied.