Date: 19980604
Docket: IMM-4253-97
OTTAWA, ONTARIO, THIS 4th DAY OF JUNE 1998
Present: MR. JUSTICE J.E. DUBÉ
Between:
Igor KUSLITSKY
Maria QOSLITZQI
Boris CHARNOV
Tatiana PROSKURINA,
Applicants,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is allowed.
Judge
Certified true translation
C. Delon, LL.L.
Date: 19980604
Docket: IMM-4253-97
Between:
Igor KUSLITSKY
Maria QOSLITZQI
Boris CHARNOV
Tatiana PROSKURINA,
Applicants,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J.
[1] The applicant and his wife are citizens of Israel who, without the assistance of counsel, claimed refugee status in the Convention Refugee Determination Division ("the Refugee Division" or "the Tribunal") alleging fear by reason of their nationality. In this case, the husband is of Jewish nationality while his wife contends that she is of Russian nationality and the Orthodox religion. The applicants essentially based their allegation of persecution on the fact that the wife is recognized in Israel as being of Russian nationality.
[2] The Tribunal concluded that the applicants were not credible on the ground that they [translation] "lied on such a fundamental point of their claim" as the wife's nationality. The Tribunal wanted to see her Israeli identity card and she replied that she had lost that document when there was a fire at their home. According to the Tribunal, the female claimant consented to confirmation of her nationality being obtained from the Israeli Consulate in Montreal.
[3] The Tribunal received a reply from the Consulate shortly after the hearing, indicating that the wife is of Jewish nationality. Based on that document, a copy of which was sent to the applicants, the Tribunal decided in their absence that they were not Convention refugees.
[4] Counsel for the applicants submits that the Tribunal should have notified the applicants to attend to confront them with the reply from the Israeli Consulate, particularly since they were not represented by counsel before the Tribunal and their consent to such a procedure was not clear and apparent.
[5] In fact, the transcript of the testimony at the hearing shows that the applicants' consent was fragile and obscure, to say the least. The following passages, which appear at pages 171 and 215, should be considered:
[translation]
| BY THE HEARING OFFICER (to person concerned No. 2) |
|
| - So madam, in this form, you are authorizing the tribunal to disclose ... no, you are asking the Consulate General of Israel to disclose, you are authorizing the tribunal to ask the Consulate to disclose what is written on your teudad-zheut. |
|
| Q. Do you give that authorization? |
|
| Q. Pardon? Why not, are you saying yes? |
|
| BY THE INTERPRETER (to the hearing officer) |
|
| - Why not, she says. Yes, she says. |
|
| A. I'm looking for the place where they sign. |
|
| - At the bottom, maybe, no. |
|
| BY THE PRESIDING MEMBER (to the persons concerned) |
|
| - So, we will wait for the reply from the Consulate of Israel, and we'll allow until August 27, 1997 for that. After that date, we will take the case under reserve and the decision will be communicated to you as soon as possible. |
|
[6] It seems clear to me that the procedure followed by the Tribunal is not acceptable, in that it does not meet the requirements of the Immigration Act ("the Act") and of natural justice. In this case, it is plain that the information requested from the Israeli Consulate and obtained in the absence of the parties concerned could not have been considered to be final and conclusive. The Tribunal ought to have reopened the hearing to enable the applicants to consider and refute the new evidence, or even to cross-examine the author of the document in question.
[7] In Lawal v. Canada,1 Mr. Justice Hugessen of the Federal Court of Appeal referred to sections 67 and 68 of the Act governing the jurisdiction and powers of the Refugee Division, and the procedure to be followed by that Tribunal. He concluded that the Refugee Division is not bound by any legal or technical rules of evidence and may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case, under subsection 68(3). Under paragraph 67(2)(d), the Refugee Division has the power to institute inquiries, but only "for the purposes of a hearing". At page 411, he said:
| While it is possible, as argued by counsel for the Minister, that subsection 67(2) gives to the Board the power to institute inquiries on its own, it is clear that such powers may only be exercised "for the purposes of a hearing". More specifically, the power given by paragraph 67(2)(d) and relied on by counsel may only be invoked if "necessary to provide a full and proper hearing". [Emphasis added] |
|
[8] Subsection 68(5) of the Act also provides that the Refugee Division must inform the Minister, if present at the proceedings, and "the person who is the subject of the proceedings", of its intention to take notice of any facts, information or opinion, and "afford them a reasonable opportunity to make representations with respect thereto". As Hugessen J.A. said at page 411: "A consideration of the scheme of sections 67 to 69.1 inclusive makes it abundantly clear that the Board is only to proceed to the determination of refugee claims by way of hearing".
[9] As the same judge said in Anesse Gracielome,2 the applicants must be confronted with a document that contradicts them. At page 3, he said:
| It is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. |
|
[10] In Sajid Khan,3 dealing with events subsequent to the hearing, Madam Justice Tremblay-Lamer reached the following conclusion, which I adopt without hesitation:
| Accordingly, it was clear that at the time it made its decision the Refugee Division took into account a fact which occurred subsequent to the hearing. I agree with the applicant that the panel could not take this new documentary evidence into account without causing the hearing to be reopened and allowing the applicant to comment on this evidence, pursuant to s. 68(5) of the Act and Lawal v. M.E.I., 13 Imm.L.R. (2d) 163 (F.C.A.). It therefore erred on this point. |
|
[11] In the circumstances, it seems plain to me that absent formal consent between the parties to this procedure being adopted, the Refugee Division quite simply could not obtain a document after the hearing and base its decision on that document without first affording the applicants an opportunity to make representations or cross-examine the author. That procedure amounted to a denial of natural justice.
[12] Accordingly, the application is allowed and the matter is referred back to a different panel of the Refugee Division.
[13] In my opinion, there is no question of general importance to be certified.
O T T A W A, Ontario
June 4, 1998
Judge
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-4253-97
STYLE OF CAUSE: Igor KUSLITSKY et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 22, 1998
REASONS FOR ORDER OF Dubé J.
DATED: June 4, 1998
APPEARANCES:
Michelle Langelier FOR THE APPLICANTS
Ian Hicks FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANTS
George Thomson FOR THE RESPONDENTS
Deputy Attorney General of Canada
__________________
1 [1991] 2 F.C. 404.
2 A-507-88, May 30, 1989.
3 IMM-1433-94, February 27, 1995.
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