[1993] 1 F.C. 94
A-991-90
Gertrude Arthur (Applicant)
v.
Minister of Employment and Immigration (Respondent)
Indexed as: Arthur v. Canada (Minister of Employment and Immigration) (C.A.)
Court of Appeal, MacGuigan and Linden JJ.A. and Gray D.J.—Toronto, October 21; Ottawa, November 2, 1992.
Citizenship and Immigration — Immigration practice — Participation of immigration adjudicator at credible basis hearing on refugee claim after earlier participation at claimant's detention review hearing not, per se, giving rise to reasonable apprehension of bias — No predisposition by adjudicator as to claimant's credibility amounting to prejudgment of second hearing.
Judicial review — Reasonable apprehension of bias — Participation of immigration adjudicator in refugee claim credible basis hearing claim after earlier participation at claimant's detention review hearing not, per se, giving rise to reasonable apprehension of bias — Other factors indicating predisposition by adjudicator as to issue to be decided on second hearing might do so — Important considerations: relationship of issues at two hearings and finality of second decision — No predisposition by adjudicator as to claimant's credibility amounting to prejudgment of second hearing.
The immigration adjudicator at a detention review hearing made a negative decision as to the applicant's credibility and concluded that she should remain in detention to ensure her presence at the resumption of the inquiry. The same adjudicator later participated, despite the reasonable apprehension of bias objection raised by the applicant, in the credible basis hearing on the applicant's refugee claim. The adjudicator and the member of the Refugee Division found that the claim to refugee status lacked a credible basis. The principal issue in this section 28 application was whether the participation of the adjudicator in the credible basis hearing after his earlier participation at the claimant's detention review hearing gave rise to a reasonable apprehension of bias.
Held, the application should be dismissed.
The most accurate statement of the law would appear to be that the mere fact of a second hearing before the same adjudicator, without more, does not give rise to reasonable apprehension of bias, but that the presence of other factors indicating a predisposition by the adjudicator as to the issue to be decided on the second hearing may do so. A consideration of major significance is the relationship of the issues on the two hearings, and another is the finality of the second decision.
On the facts of the instant case, the Court was unable to detect any predisposition by the adjudicator on the applicant's general credibility such as to amount to prejudgment of the result of the second hearing.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8).
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; MacBain v. Lederman, [1985] 1 F.C. 856; (1985), 22 D.L.R. (4th) 119; 16 Admin. L.R. 109; 6 C.H.R.R. D/3064; 85 CLLC 17,023; 18 C.R.R. 165; 62 N.R. 117 (C.A.); Nord-Deutsche Versicherungs Gesellschaft et al. v. The Queen et al., [1968] 1 Ex. C.R. 443; Re Vance and Hardit Corp. et al. (1985), 53 O.R. (2d) 183; 18 Admin. L.R. 111; 12 O.A.C. 223 (Div. Ct.); Fogel v. Min. of Manpower & Immigration, [1975] F.C. 121; (1975), 7 N.R. 172 (C.A.); Tomko v. N.S. Labour Relations Board; Canatom Mon-Max; Labourers' International Union of North America, Local 1115; and the Attorney General of N.S. (1974), 9 N.S.R. (2d) 277 (S.C.); affd on this point sub nom. Tomko v. Labour Relations Board (N.S.) et al., [1977] 1 S.C.R. 112; (1975), 14 N.S.R. (2d) 191; 69 D.L.R. (3d) 250; 76 C.L.L.C. 14,005; 10 N.R. 35 (English); 7 N.R. 317 (French); Re Kinaschuk and Weiser (1983), 3 D.L.R. (4th) 521 (B.C.S.C.); Pursley v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 211 (F.C.T.D.); Re Rosario, [1985] C.S. 290; (1984), 10 Admin. L.R. 90 (Que. S.C.); Re Klydel Holdings Inc. et al. and Ontario Municipal Board et al. (1979), 10 O.M.B.R. 203 (Ont. Div. Ct.).
DISTINGUISHED:
Re Hart and the Queen (1981), 60 C.C.C. (2d) 474 (Ont. H.C.J.).
REFERRED TO:
Huziak v. Andrychuck J.M.C. (1977), 1 C.R. (3d) 132 (Sask. Q.B.).
AUTHORS CITED
Mullan, David. “Administrative Law” 1 C.E.D. (Ont. 3rd), §54, title 3.
APPLICATION under section 28 of the Federal Court Act attacking the decision of a credible basis tribunal on a refugee claim on the basis that the adjudicator had previously participated in claimant's detention review hearing thus giving rise to a reasonable apprehension of bias. Application dismissed.
COUNSEL:
Daniel L. Winbaum for applicant.
Leigh A. Taylor for respondent.
SOLICITORS:
Gordner, Klein, Windsor, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
MacGuigan J.A.: The principal issue in this section 28 [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 8)] application is whether 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 refugee claimant from Ghana, gives rise to a reasonable apprehension of bias.
It was argued by the applicant that the adjudicator clearly made a prior negative decision as to the applicant's credibility which carried over into his later decision at the credible basis hearing.
On the other hand, when the matter was raised by counsel for the applicant at the beginning of the credible basis hearing, the adjudicator refused to disqualify himself for the reasons that his previous decision was as to “a completely different issue” and that he and the member of the Refugee Board were “required to render our decision based on evidence presented to us at this inquiry” (Appeal Book I, at page 16).
I
The decision as to detention was made in the following words by the adjudicator at the hearing on June 5, 1990 (Appeal Book I, at pages 10-11):
adjudicator: Thank you. Ms. Arthur I now must make my decision as to whether or not you should remain in detention or whether or not I can be satisfied that you could be released. I must form my opinion on two factors only, they being whether or not you pose a danger to the public or whether or not you would appear for the resumption of your inquiry. There has been no suggestion that you pose a danger to the public therefore, my decision deals strictly with whether or not you would be likely to appear. According to your circumstances as outlined to me, it appears that you came to Canada and attempted to enter the United States in a fraudulent manner, that is in a manner misrepresenting your identity. Having purchased false documents in your home country in order to get into the United States. It appears that Canada was merely a stepping stone in order for you to attempt to illegally enter the United States. Your counsel has suggested that it is not uncommon for people from your country whether or not that is true I don't know, however, I have to gauge this with respect to our laws and how we conduct ourselves here in Canada. By attempting to enter both Canada and the United States in this manner, you do not appear to me to be a person who could necessarily be trusted if I were to release you, that you would return for your inquiry. As a result of these proceedings you could possibly find yourself removed from Canada and it appears that you do not have any desire to return home since you chose to flee your country in this manner. Mr. Bourgeois, has stated you apparently have no identification of your own, you have no funds, you apparently have a relative, a cousin in Toronto, who may be able to assist you however, as advised by your counsel he appears to be able to offer you not much more than accommodation. This, in my view, is insufficient in order to satisfy me that you would return to this inquiry. I would require the minimum both a cash and a performance bond cosigned by a Canadian citizen or a permanent resident of Canada, someone who could and would exercise some control over you before I would consider your release from detention. It appears there is no one available to post such a bond for you at the present time and I am therefore, satisfied that your continued detention is required in order to ensure your presence for the resumption of your inquiry. Since this inquiry is adjourned for some two weeks from now, the law requires that an Adjudicator review your detention at least once during every seven days of your detention, therefore, within a week from today either myself or another Adjudicator will review your detention and either of us can consider at that time whether or not there is any bondsperson able or willing to assist you and make an assessment whether or not a bond can be issued on your behalf at that time. Until such time I will order your continued detention.
g. arthur: I want to know if I can say anything?
adjudicator: Sure.
g. arthur: This morning I talked to my cousin and he indicated to me that he would come down and pay the money and sign all the documents necessary.
adjudicator: I would suggest that your cousin get in touch with Mr. Bourgeois and should he be able to offer assistance, we would again, review your detention and consider your release. Until then this inquiry stands in adjournment.
The claimant was in fact released from detention on June 14, 1990, before the beginning of her credible basis hearing on June 19, 1990, apparently in accordance with terms of release established by the same adjudicator, since the case presenting officer makes the statement to the adjudicator that “Ms. Arthur was released from detention on the 14th of June, sir, in accordance with the posting of bonds as you have set out with terms of release” (Appeal Book I, at page 13).
The relevant part of the adjudicator's decision at the credible basis hearing, with which the member of the Refugee Division concurred, is as follows (Appeal Book II, at pages 211-214):
Your counsel submits that your claim base upon political opinion is not so much your own but rather views prescribed upon you by the Ghanian government or that you are identified with others who hold views opposite to the Ghanian government, in your case with your ex-husband Danny Achampong.…
In any event, amidst all of this objective documentary evidence we must also assess your own particular circumstances and testimony. We have learned that you were informally married to Danny Achampong, who was a sergeant in the Ghanian army, that you lived with him for some years at the army base in Accra, which is the capital of Ghana.…
In any event there appears to have been no attempt by the military or government of Ghana to search you out in order to find Danny Achampong prior to the attempted smuggling incident you later refer to. Life appears to have continued on with you and your mother travelling back and forth to Togo and the Ivory coast, both conducting your trading business without any trouble. What appears to be some eight months later, as a result of a failed attempt to smuggle goods back across the border without paying duty from the Ivory Coast, you and your mother were stopped, your goods were seized and your names and addresses were taken, all this part of normal procedure. At this time an army officer who recognized you from living with Danny at Burma Camp (sic) asked you where Danny was, to which you replied I don't know. You then stated that he accused you of lying, thereafter you were allowed to leave and then went home. According to your personal information form, you state that as a result of this incident you became certain that the Danny Achampong mentioned in the radio report was the same Danny you had lived with, however, in your testimony that it was only after your mother was arrested that you then realized your Danny and the one wanted were the same. Some three days after this incident that occurred at the border, you testified that you went to Accra and you spoke on the phone to your cousin in Canada whom you've identified as Richard and that you told him of this incident along with asking him on behalf of his mother to send some money. One week after the border incident while you were at the market the military came and arrested your mother at home, this for not paying the duty at the border. Again, you mentioned that this was normal procedure. Your youngest sister followed your mother to the barracks and she brought you back a message from your mother that they wanted you to tell where Danny Achampong is, you stated that you then realized Danny is the same Achampong involved in the coup attempt. You later testified that your mother also sent the message for you to leave, which you did, taking 400,000 cedes (sic) of Ghanian currency which you and your mother had in savings, along with the 4,000 cedes (sic) you had from the market. You then said that you went by taxi right away by Accra and that you left your children in the care of your youngest sister. You went directly to your friend Evelyn in Accra who took you to a connectioneer, as you call them, who took the 400,000 cedes (sic) you had, arranged for documents and travel for you to go to Canada the next day. You knew you were coming to Canada but did not call Richard to let him know because you were afraid to use the phone at the post office, with all the government people working there, neither did you appear to have your friend Evelyn attempt to call him in order for him to make arrangements for your arrival in Canada. In any event, this connectioneer gave you false documents, a lassez passe (sic), a U.S. resident alien green card and some sort of employment identification and that he took your own passport. He then placed you on the plane and instructed you to stay on the plane in Nigeria, get off in Amsterdam and wait and then reboard on an airplane to come to Canada, you just simply were to show your identification documents. You were apparently able to pass customs inspection through three countries, Nigeria, Amsterdam and Canada despite an inability to speak any other language except your native tongue and also by just simply showing your false documents. You've also testified that no one else accompanied you or assisted you on your journey and that one [sic] one asked you any questions upon your entry to the various countries. When you arrived in Toronto you testified that you lined up in front of a girl dressed in a skirt and a blouse, which we take to be a customs officer, you stated that you gave her your documents, that she asked you no questions, simply looked at you and your identification and let you go. You stated that you did not know English and that you were shaking mostly and looking down and that you don't remember to [sic] clearly exactly what happened. We find this to be rather incredible, it does not appear reasonable that a person could pass through three different border inspections without being asked a single question, especially when arriving in Canada, you supposedly just handed identification to the customs officer, none of it apparently pertaining to any sort of status in Canada and appearing nervous, this without raising the suspicion of the Customs Officer. You then stated that you just wandered around the airport hoping to meet someone you asked to help you and just by chance you met a Black man with a familiar tribal mark on his face, whom you asked to help you. In response to your counsel's questioning you testified that he replied to you that if he lived here he would help you but that he does not and he is just here to meet someone. According to your testimony, apparently the person he was to meet did not show up so he left the airport and you left with him. You testified that he said he was going to America but that you did not know what or where that was but that you went with him anyway, fell asleep in his car and didn't awaken until he woke you asking for your papers, attempting to cross into the United States. This version of your story differs somewhat when Mr. Peters was asking about the same events. You told Mr. Peters when you asked this same Black man for help that he said to just wait that he was looking for someone, that he went away and then came back and got into his car. You said he did not say that he was from the United States, that he didn't say anything at the airport but said in his car that he would help you. You stated that you had your cousin's phone number yet made no attempt to phone him yourself from the airport, nor ask the Black man who assisted you to make the call for you. In fact, you did not even ask him to contact or take you to Richard's, you just thought he would take you home and then that you would find Richard after. It does not appear to have been a genuine attempt at that time to contact your cousin Richard. You would have us believe that by circumstance you met this man at the airport, the airport in Toronto a very big and busy place at the best of times, that he offered to help you and instantly happens to take you to the United States for which country, as luck would have it, you happen to have false documentation for. However, the U.S. Immigration Officials discovered the false identification, refused your admission to the United States, whereupon you were sent back to Canada, placed in detention and subsequently have made your claim to convention refugee status at this inquiry. These events as you have described in different versions do not appear to us to be reasonable. It does seem more likely that this was an unsuccessful attempt to illegally enter the United States, that being the intent all along. It appears more likely that no attempt was made to contact your cousin Richard when you arrived in Canada because the arrangements apparently were already in place for you to get to the United States and it is most likely that Richard had no intention to implicate himself should you be unsuccessful in your attempt as it turned out to be.
Ms. Martschenko would have us believe that you are not well educated, with little ability to read or write, a trusting individual caught up in circumstances out of your control who in addition was tired from your travels. The evidence suggests that you are a person who although not highly schooled, is quite capable of managing your own affairs. You are experienced in travel and trade outside your own country, particularly the neighbouring countries of Togo and the Ivory Coast, granted within a limited area. You were quite able to make arrangements to get to Canada and as it appears to us to arrange for an attempted entry into the United States with the false documentation you had purchased. It appears that your story is woven around some factual circumstances which have transpired in your native country of Ghana. It also appears to us, although you may not have been too sure about certain dates, that at other times you were vague as to when certain events happened which tended to lessen the credibility of your story. We agree with Ms. Martschenko that credibility is a crucial aspect in this particular case and Miss Arthur we have found you not to be a credible witness and as well we find that there is no credible or trustworthy evidence adduced at this inquiry upon which the Refugee Division might determine you to be a convention refugee and have determined that your claim does not have a credible basis.
II
It was common ground that the applicable principle of law as to the reasonable apprehension of bias was that stated by de Granpré J. in dissent in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at pages 394-395, and adopted by this Court in MacBain v. Lederman, [1985] 1 F.C. 856 [at page 867]:
“[W]hat would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”
… The grounds for his apprehension must… be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.
Where the double participation in decision-making has been on the part of a judge, the principle has not seemed to pose any great difficulty. In Nord-Deutsche Versicherungs Gesellschaft et al. v. The Queen et al., [1968] 1 Ex. C.R. 443, where the Attorney General argued that all of the judges who sat on an appeal relating to some of the principal questions in issue were debarred by natural justice from sitting on the subsequent trial, Jackett P. said (at pages 457-458):
In my view the correct view of the matter is that which, as I understand it, was adopted by Hyde J. in Barthe v. The Queen [(1964) 41 C.R. 47], when he said that “The ability to judge a case only on the legal evidence adduced is an essential part of the judicial process”. In my view, there can be no apprehension of bias on the part of a judge merely because he has, in the course of his judicial duty, expressed his conclusion as to the proper findings on the evidence before him. It is his duty, if the same issues of fact arise for determination in another case, to reach his conclusions with regard thereto on the evidence adduced in that case after giving full consideration to the submissions with regard thereto made on behalf of the parties in that case. It would be quite wrong for a judge in such a case to have regard to “personal knowledge” derived from “a recollection of the evidence” taken in the earlier cause. 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.
If I may be permitted to say so, it seems to me that the real apprehension is that the judge who hears a case in which the same issues of fact arise as have recently been decided in the same court can hardly ignore the existence of the earlier decision for he cannot be unconscious of the possibility of apparently conflicting decisions creating an atmosphere of lack of confidence in the administration of justice. I should have thought, however, that a judge who participates in both of two such matters is more likely to appreciate and explain different results flowing from different bodies of evidence or differences in presentation and argument than a judge who had no part in the earlier case. I do not say this to indicate that I have a view that the same judge should always try two such cases, but to indicate that, in my view, it is not necessarily prejudicial to the party who assumes the burden of producing a result in the second case that is apparently in conflict with the earlier decision.
Similarly, an Ontario Divisional Court in Re Vance and Hardit Corp. et al. (1985), 53 O.R. (2d) 183, held that a litigant had no right to refuse to proceed before a particular judge simply because that judge had decided a prior case against him. These decisions undoubtedly justify the practice in this Court that a judge who has allowed a leave-to-appeal application in a Convention refugee case may also sit on the appeal.
Nord-Deutsche was extended by this Court to administrative hearings in Fogel v. Min. of Manpower & Immigration, [1975] F.C. 121 (C.A.) per Thurlow J.A. Similar results regarding administrative proceedings were reached in Tomko v. N.S. Labour Relations Board; Canatom Mon-Max; Labourers' International Union of North America, Local 1115; and the Attorney General of N.S. (1974), 9 N.S.R. (2d) 277 (S.C.) (per MacKeigan C.J.N.S.), upheld on this point by the Supreme Court of Canada, [1977] 1 S.C.R. 112 at page 127 and in Re Kinaschuk and Weiser (1983), 3 D.L.R. (4th) 521 (B.C.S.C.) (per Robinson L.J.S.C.).
Professor David Mullan, “Administrative Law”, 1 C.E.D. (Ont. 3rd), 54, title 3, at pages 3-130 and 3-131 puts the law this way:
The continuing nature of the responsibilities of most statutory decision-makers will mean that in many instances there will be dealing with the same persons on more than one occasion and also the same or related issues. To do this does not of itself give grounds for allegations of a reasonable apprehension of bias.
Hence in Pursley v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 211 (F.C.T.D.), where a refugee claimant sought an order of prohibition to prevent an adjudicator who had sat on his detention review hearing from sitting on a further hearing to determine the question of whether the applicant was in Canada illegally, Muldoon J. denied the relief sought. The adjudicator had already, in the course of his reasons for denying bail, stated as a fact that the claimant had entered the country illegally, but Muldoon J. found on the facts that “an absolutely unbiased adjudicator could not honestly avoid the prima facie conclusion to the effect that the applicant really did enter Canada illegally” (at page 220), given that he had been deported from Canada fewer than three weeks earlier and could accordingly return only with ministerial permission.
Hannan J. came to a similar conclusion in Re Rosario, [1985] C.S. 290 (Que. S.C.) where a refugee claimant who was detained in custody brought a writ of a habeas corpus after the same adjudicator refused a second time to release him. There being no evidence of self-interest on the part of the adjudicator, the Court refused to conclude that the adjudicator was subject to reasonable apprehension of bias from the simple fact of his having previously adjudicated the matter.
However, there are circumstances in which a second participation by an adjudicator can give rise to a reasonable apprehension of bias. Muldoon J. raised this possibility in Pursley (at page 218):
If Mr. Kyba [the adjudicator] had based his reasons for declining to grant bail solely upon an allegation of his own invention that the applicant had entered Canada illegally, then such an assertion springing unprovoked from the adjudicator himself might well, in the circumstances, give pause to that notional, reasonable and right-minded person upon which the test [in Committee for Justice and Liberty] is predicated.
Re Hart and the Queen (1981), 60 C.C.C. (2d) 474 (Ont. H.C.J.) is particularly instructive in this regard. There the accused moved to prohibit a provincial court judge from hearing certain charges under the Criminal Code [R.S.C. 1970, c. C-34] against him as a result of expressions uttered by the judge on a previous charge against him. The two charges were closely related: the first charge was dismissed by the judge because of what he considered to be an unacceptable delay between the apprehension of the accused and the administering of a breathalyzer test; the second was for driving an automobile while the accused's ability was impaired by alcohol. Hughes J. wrote (at page 475):
It is clear that the evidence against the accused was overwhelming, and that he made a very poor impression on the learned Judge. At the outset of his reasons relating to the second charge, he said:
The next point I wish to cover is the matter of credibility because I think it is quite important in this case. The Court has no difficulty whatsoever in accepting the evidence of the two officers and the evidence of Wendy Hough. In fact, when it comes to your evidence, Mr. Hart, I can tell you without any equivocation in my mind that I do not accept your evidence. As far as I am concerned you were evasive in the witness-box and you were not telling the truth, and when I feel that way I tell an accused because I think he has the right to know.
If he had stopped there, there could be nothing of any consequence to impugn the proceedings but he continued:
The whole evidence I have before me indicates that you were not telling the truth and you have no respect for the oath, and indeed if you had, the evidence would have been a great deal different than it was today.
Hughes J. went on to cite and reflect on Huziak v. Andrychuck J.M.C. (1977), 1 C.R. (3d) 132 (Sask. Q.B.), at pages 135-136 as follows [at pages 475-476]:
The fact that a judge disbelieves a witness in one case does not necessarily mean that he will disbelieve the same witness if he appears in another case. Nor does it follow that the learned judge will believe an informant in one case and therefore believe the informants in all the other cases. Each case stands alone. Besides, there is no evidence that the witnesses who appeared in one case will also appear in another case.
No doubt can be cast upon the wisdom and propriety of those remarks. If there could, it would be impossible to carry on the administration of justice as we know it. The fatal words of course in this case were “you have no respect for the oath”, particularly in the situation which confronted the learned Judge compelling him to proceed to consider other charges of an even more serious nature against Hart.
Unfortunately, the learned Judge made a statement of general application as to the accused's respect for an oath which would be fatal in my view, to any further proceedings against the accused before him.
The most accurate statement of the law would thus appear to be that the mere fact of a second hearing before the same adjudicator, without more, does not give rise to reasonable apprehension of bias, but that the presence of other factors indicating a predisposition by the adjudicator as to the issue to be decided on the second hearing may do so. Obviously one consideration of major significance will be the relationship of the issues on the two hearings, and also the finality of the second decision. If, for instance, both decisions are of an interlocutory character, such as two decisions on detention (as in Rosario), it may be of little significance that the matter in issue is the same, but where the second decision is a final one as to a claimant's right to remain in the country, the avoidance of a reasonable apprehension of bias may require greater distinction in the issues before the tribunal on the two occasions.
In the case at bar, the applicant argued that the adjudicator made a negative decision on the applicant's credibility at the first hearing and that that was also the issue before the credible basis hearing. In other words the argument is that even though on their face the issues in the two hearings are distinguishable, the adjudicator's dicta in the first hearing indicate (as in the Hart case) that he had formed a view on the overall question of credibility.
In my opinion, that argument is not sustainable on the facts. As I see it, as in the Pursley case, an absolutely unbiased adjudicator could not honestly avoid the prima facie conclusion that the applicant attempted to enter the United States fraudulently and had made use of false documents to enter Canada. In fact, these facts were admitted by the claimant's counsel at the first hearing, who rather argued that her actions were excusable (Appeal Book I, at page 10). However, it seems to me that the adjudicator was careful to limit his conclusions to the issue at hand and found merely that (Appeal Book I, at page 11):
By attempting to enter both Canada and the United States in this manner, you do not appear to me to be a person who could necessarily be trusted if I were to release you, that you would return for your inquiry. [Emphasis added.]
Not only was this conclusion limited to the matter at hand, but the adjudicator went on to anticipate the applicant's release on a bond, a release which in fact occurred about a week later. I am unable to detect any predisposition by the adjudicator on the applicant's general credibility such as to amount to prejudgment of the result of the second hearing. My conclusion is therefore the same as that of the Ontario Divisional Court in Re Klydel Holdings Inc. et al. and Ontario Municipal Board et al. (1979), 10 O.M.B.R. 203, at page 204 (per Osler J.) that “[n]o overt conclusions appear in the reasons given for the first decision to justify a reasonable apprehension of bias”.
III
The applicant also argued, but did not emphasize, that the tribunal erred by making findings for which there was no evidence, but the two examples given were of peripheral importance, at best. As to the rest of the evidence, I have not been persuaded that the tribunal misinterpreted it, nor have I found any indication that the tribunal erred in its interpretation and application of the credible basis test.
The application must therefore be dismissed.
Linden J.A.: I agree.
Gray D.J.: I agree.