Date: 20030221
Docket: IMM-1043-02
Ottawa, Ontario, February 21, 2003
Before: Pinard J.
Between:
Jidong DUAN,
residing and domiciled at 7120, rue Shelly
in the city and district of Montréal H2A 2Y8
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
having his place of business at Complexe Guy-Favreau
200 boulevard René-Lévesque ouest,
Tour Est, 9e étage, Montréal,
district of Montréal H2Z 1X4
Defendant
ORDER
The application for judicial review of a decision by the Immigration and Refugee Board Refugee Division on January 25, 2002, that the plaintiff is not a Convention refugee, is dismissed.
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"Yvon Pinard"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030221
Docket: IMM-1043-02
Neutral citation: 2003 FCT 188
Between:
Jidong DUAN,
residing and domiciled at 7120, rue Shelly
in the city and district of Montréal H2A 2Y8
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
having his place of business at Complexe Guy-Favreau
200 boulevard René-Lévesque ouest,
Tour Est, 9e étage, Montréal,
district of Montréal H2Z 1X4
Defendant
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the IRB") on January 25, 2002, that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The plaintiff Jidong Duan is a citizen of China. She alleged a fear of persecution for her alleged political opinions.
[3] The hearing before the IRB took place in two stages, on August 28, 2000, and December 19, 2001. After the first session, counsel for the plaintiff alleged that the taping was incomplete and that the recording equipment was not working when the refugee claims officer ("the RCO") objected to his request that the claimant be allowed to familiarize herself with two additional exhibits, Exhibit A-7 (reply to a request for information, plaintiff's work permit) and Exhibit A-8 (reply to a request for information, copy of plaintiff's passport).
[4] The IRB rejected the plaintiff's claim based on the latter's lack of credibility.
[5] First, the plaintiff submitted that the IRB erred when it said that she agreed from the start of the first hearing to be heard before a panel of one member. I find this argument to be without merit. There is no requirement in the Act that the plaintiff's consent be expressly obtained at the start of the hearing.
[6] The relevant provisions of the Act are the following:
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69.1 (7) Subject to subsection (8), two members constitute a quorum of the Refugee Division for the purposes of a hearing under this section.
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69.1 (7) Le quorum de la section du statut lors d'une audience tenue dans le cadre du présent article est constitué de deux membres.
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(8) One member of the Refugee Division may hear and determine a claim under this section if the person making the claim consents thereto, and the provisions of this Part apply in respect of a member so acting as they apply in respect of the Refugee Division, and the disposition of the claim by the member shall be deemed to be the disposition of the Refugee Division.
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(8) Si l'intéressé y consent, son cas peut être jugé par un seul membre de la section du statut; le cas échéant, les dispositions de la présente partie relatives à la section s'appliquent à ce membre et la décision de celui-ci vaut décision de la section.
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[7] The plaintiff clearly indicated her consent to proceeding before a single member. The fact that the confirmation of the consent only appears on page 20 of the transcript does not adversely affect its validity. If the plaintiff did not wish to consent, she could certainly have indicated this earlier at the hearing.
[8] Second, the plaintiff contended that a large part of the hearing was not recorded, which caused her harm, since the unrecorded portion showed that she did not have an opportunity to review Exhibits A-7 and A-8 before they were filed at the hearing and that the IRB then objected that her testimony contradicted those two exhibits. This second argument cannot stand either. In my opinion, the dismissal by the IRB of the submission by counsel for the plaintiff in this regard was fully explained and was not unreasonable. Neither the panel's notes nor those of the RCO supported the interpretation of the facts presented by counsel for the plaintiff: the IRB did not indicate any unusual interruption of the recording between the time when Exhibits A-7 and A-8 were filed and the rest of the hearing; finally, the panel took into account the fact that at the start of the second session the plaintiff gave a negative reply when asked if she wished to add or correct anything in her earlier deposition, when she had examined the content of the two exhibits.
[9] Finally, to the extent that the assessment of the plaintiff's credibility is in question I find no argument, either in the plaintiff's written memorandum or in the oral argument by her counsel, that would allow me to find based on the evidence that there was any manifest, overriding error of fact. In the circumstances, it is not this Court's function to substitute its own assessment of the facts for that of a specialized tribunal such as the IRB.
[10] For all these reasons, the application for judicial review is dismissed.
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"Yvon Pinard"
Judge
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OTTAWA, ONTARIO
February 21, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-1043-02
STYLE OF CAUSE: Jidong DUAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 9, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: February 21, 2003
APPEARANCES:
Luc R. Desmarais FOR THE PLAINTIFF
Claudia Gagnon FOR THE DEFENDANT
SOLICITORS OF RECORD:
Luc R. Desmarais FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
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