Kone v. Canada ( Minister of Employment and Immigration )
IMM-561-93
Nadon J.
11/5/94
14 pp.
Application for judicial review of Refugee Division decision rejecting applicant's claim as had not established reasonable fear of persecution if he returned to Mali-Applicant alleged, inter alia, Tribunal had exhibited patent indications of bias and failed to observe several principles of procedural fairness-At end of hearing on August 10, 1992, Tribunal, on its own initiative, invoked possibility of applying exclusion clause set out in Immigration Act, s. 2(1)-Burden of establishing claimant excluded resting on Minister-If Minister fails to notify Tribunal of intention to invoke Convention, section F of Article 1 and to seek to exclude claimant, Tribunal not bound to permit Minister to cross-examine applicant or any other witness or to make representations-In case at bar, Minister did not inform Tribunal of intention to invoke exclusion clause-During hearing, Tribunal identified certain information which, in its opinion, could bring exclusion clause into play-While applicant was testifying, Tribunal seemed to believe applicant was possibly personally responsible for unfair competition in which agricultural farm belonging to wife of President of Mali was engaged-It also seemed to believe applicant was possibly responsible for other "crimes", given his close association with régime of former President-It tried, perhaps unconsciously, to take upon itself role belonging to Minister and representative, i.e., of establishing applicant should have been excluded because he had done something or had committed crime falling within exclusion in section F of Article 1 of the Convention-Purpose of a great many of questions asked by members of the Tribunal was to determine whether anything would bring exclusion clause into play-Tribunal usurped function belonging to Minister and his representative in relation to exclusion clause-Application allowed-Immigration Act, R.S.C., 1985, c. I-2, s. 2(1).