Waruiru v. Canada ( Secretary of State )
IMM-2070-94
Gibson J.
14/11/94
10 pp.
Application for judicial review of CRDD determination applicants not Convention refugees-Applicants members of Kikuyu tribe from Rift Valley, Kenya-Principal applicant posted outside Kenya since 1973 as cook to Kenyan Ambassador or High Commissioner-High Commissioner in Ottawa learning voted against Government party-Subjecting applicant to verbal abuse, change to more onerous working hours, accusation of plotting to kill High Commissioner, refusal to pay applicant's medical bills, termination of employment in 1993-Applicant claiming Convention refugee status-Alleging risk being killed, having land, property taken by members of politically dominant tribe who engage in such conduct without fear of prosecution-CRDD finding more than mere possibility of persecution if applicants returned to Rift Valley, but applicants having internal flight alternative (IFA) to Nairobi-At time of CRDD hearing, question of IFA to be expressly raised at hearing: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); burden on Minister to prove IFA: Bindra v. Canada (Minister of Employment & Immigration) (1992), 18 Imm. L.R. (2d) 114 (F.C.A.)-During CRDD hearing presiding member expressly, though not by name, raising issue of IFA in questioning of applicant-In response, applicants' counsel indicating no follow-up questions-Two weeks later, refugee hearing officer providing additional documentary material on Kenyan country conditions that, in context of request would have reflected on possibility of IFA-On same day, Federal Court of Appeal releasing decision in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) wherein held onus on Minister, Board to warn if IFA going to be raised, but onus on applicant to establish Convention refugee claim-Refugee claimant may waive notice: Kaler v. Minister of Employment and Immigration (1994), 73 F.T.R. 217 (F.C.T.D.)-Notice of IFA issue given to applicants during hearing-Counsel's conduct amounting to waiver of any earlier or more formal notice-Agreed to arrangements to allow submissions to be made-At time of submissions, applicant's counsel not aware of Thirunavukkarasu and of view onus on Minister or refugee hearing officer to prove IFA-No breach of duty to act fairly-Adequate notice of IFA issue given-Reasonable opportunity to address issues on basis of all material before CRDD provided-In interest of fairness and in spirit of non-adversarial process, preferable had refugee hearing officer advised applicants' counsel of Thirunavukkarasu decision, impact on issue, matter counsel would address in written submissions-Failure to do so not breach of duty to act fairly-CRDD's conclusion IFA available reasonably open to it on basis of material before it-Not purely speculative finding.