Date: 20040609
Docket: IMM-4709-03
Citation: 2004 FC 834
Toronto, Ontario, June 9th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
GYORGY MOLNAR, GYORGYNE MOLNAR
NIKOLETT MOLNAR, MARK MOLNAR, MARTIN MOLNAR,
ROLAND MOLNAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench:Citations Added )
[1] Two issues arise in this application for judicial review of the decision of the Refugee Protection Division, Immigration and Refugee Board (the "Board"), reasons dated May 26, 2003:
1. Did the Board err in law in assessing the applicants' claim pursuant to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") and the Regulations and Rules enacted pursuant to it, rather than in assessing their claims under the previous Act and Regulations?
2. Does the manner in which the Board member conducted the hearing demonstrate a reasonable apprehension of bias?
[2] With regards to the first issue, the applicants urge that the submission of their PIF constitutes "substantive evidence" as contemplated by section 191 of IRPA and therefore once this was "filed" their claims for refugee protection that remained pending upon the coming into force of IRPA should have been considered under the former Act.
[3] Section 191 of IRPA states as follows:
| 191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.
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191. Les demandes et procédures présentées ou introduites, à l'entrée en vigueur du présent article, devant la Section du statut de réfugié sont, dès lors que des éléments de preuve de fond ont été présentés, mais pour lesquelles aucune décision n'a été prise, continuées sous le régime de l'ancienne loi, par la Section de la protection des réfugiés de la Commission.
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[4] This Court has recently considered the same argument put forward by the applicants in the present case and found it without merit. In Isufi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1208 (F.C.) (QL), Justice Tremblay-Lamer held that the filing of a PIF does not constitute "substantive evidence adduced in the proceeding" for the purpose of section 191, since evidence is only "adduced" when it is identified on the record and entered as an exhibit at the hearing. In reaching this result, the Court relied on the decision of Aquino v. Canada (Minister of Employment and Immigration) (1992), 144 N.R. 315 (F.C.A.).
[5] The finding in Isufi, supra, has subsequently been adopted in relation to section 191 IRPA by several Justices of this Court in the following decisions: Tothi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 104 (F.C.)(QL), Borcsok v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 552 (F.C.)(QL) and Ambrus v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 764 (F.C.)(QL). And for the opposite scenario, where oral hearings before the Board were held prior to the coming into force of IRPA and substantive evidence had been adduced at such hearings, the Court has held that the Board correctly continued the hearing under the former Act pursuant to section 191 of IRPA: Nagy v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 500 (F.C.)(QL).
[6] I agree with the reasoning set out in this jurisprudence and find that the receipt or filing of the applicants' PIF at a time when the former Act was in force does not constitute the adducing of substantive evidence in the proceeding for the purposes of section 191 of IRPA. Therefore, there was no error in the Board hearing the applicants' claim under the provisions of IRPA.
[7] With respect to the second issue raised by the applicants, there is absolutely no indication of a reasonable apprehension of bias, either from the Board's reasons or the transcript of hearing. The applicants' argument rests on the allegation of sarcastic behaviour of the Board member in relation to one question posed at the hearing. Mr. Molnar attests that the Board member questioned him as to why the applicants had not reported the threatening incidents to the police. Mr. Molnar attests that the Board member asked him in a "derisive tone" what kind of protection he expected from the police, and when Mr. Molnar responded that he expected full-time protection, the Board member laughed and then called a recess.
[8] I do not find that this exchange raises a reasonable apprehension of bias. The transcript does not indicate that any laughter followed the Board member's remark or that any derisive comments were made by him at this point in the hearing, as alleged by the applicants. Rather the transcript reveals that the member expressed concern about a headache the principal applicant had complained of and called a break to allow him to get some fresh air. A reasonable person, viewing the matter realistically and practically, would not conclude that the decision-maker would not decide the applicants' claim fairly: Saleh v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 317 and de Freitas v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 52 (C.A.)(QL). In the present case, the transcript of the hearing and the reasons for decision do not reveal any comments or views from the Board member that would suggest to a reasonable person that he had prejudged the applicants' claims or that his mind was clouded by improper or biased considerations.
[9] The applicants have asked that I certify a question of general importance as to the meaning of the terms "application, proceeding or matter" in IRPA s.191. For the reasons expressed by Russell J.in Borcsok, supra, I decline to certify this question.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4709-03
STYLE OF CAUSE: GYORGY MOLNAR, GYORGYNE MOLNAR
NIKOLETT MOLNAR, MARK MOLNAR, MARTIN MOLNAR, ROLAND MOLNAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 9, 2004
REASONS FOR ORDER
AND ORDER: MOSLEY J.
DATED: JUNE 9, 2004
APPEARANCES:
SOLICITORS OF RECORD:
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Wennie Lee
Barrister & Solicitor
Pickering, Ontario
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FOR THE APPLICANTS
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Morris Rosenberg
Deputy Attorney General of Canada
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FOR THE RESPONDENT
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FEDERAL COURT
Date: 20040609
Docket: IMM-4709-03
BETWEEN:
GYORGY MOLNAR, GYORGYNE MOLNAR
NIKOLETT MOLNAR, MARK MOLNAR, MARTIN MOLNAR, ROLAND MOLNAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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