Date: 20051124
Docket: IMM-3411-05
Citation: 2005 FC 1589
Ottawa, Ontario, November 24, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
GUY DEFFO
(ALIAS FRANKLIN TUEKAM)
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel) dated May 18, 2005. In that decision, the panel allowed the respondent's refugee claim and determined that he was a "Convention refugee" within the meaning of section 96 of the Act.
ISSUES
[2] Did the panel err in law in failing to notify the applicant of the hearings of November 19, 2004 and March 16, 2005, despite the fact that the applicant had sent the panel notices of intention to intervene within the meaning of subsection 25(1) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules) and paragraph 170(e) of the Act?
[3] Did the panel err in fact and in law in finding that the evidence filed established the identity of the claimant?
[4] For the following reasons, the Court answers the first question in the affirmative. It is unnecessary to answer the second question.
BACKGROUND
[5] The respondent is a citizen of Cameroon. He alleges that he was a member of the Union of Democratic Forces of Cameroon, an opposition party.
[6] Beginning in December 2002, he was the victim of harassment and pressure from the Cameroon police and Muslim fundamentalists because of his political activities.
[7] The respondent arrived in Canada on October 1, 2003, with a false French passport that was not in his name, and he returned to France to an unknown address after his arrival.
[8] He claimed refugee status on October 17, 2003, in Montréal, under the name of Guy Deffo, alleging that he had grown up in an orphanage and had never known his parents.
[9] The applicant filed in the record some exhibits purporting to show that the respondent had actually arrived on October 21, 2003, with a study visa in the name of Franklin Tuekam. The documents indicate that Franklin Tuekam was born on the same day as the respondent, and that the photo and the signature are identical. In both photographs, the subject is wearing the same striped clothing.
[10] The applicant alleges that the actual identity of the respondent is Franklin Tuekam and not Guy Deffo, and that the identity card in the name of Guy Deffo presented by the respondent is a counterfeit. The applicant further alleges that the father of Franklin Tuekam is named Charles Deffo and that Charles Deffo had made a financial undertaking in favour of his son for studies at the Marsan College in Quebec. Franklin Tuekam gave the Marsan College a copy of his national card and under the photo there is a signature similar to the signature of Guy Deffo appearing on his Personal Information Form (PIF).
[11] The respondent states that he is not Franklin Tuekam, that he does not know Franklin Tuekam, and that he is indeed Guy Deffo.
[12] On April 15, 2004, Jean-Denis Saint-Pierre, the counsel representing the Minister (CRM), sent the panel a notice of intervention pursuant to subsection 25(1) of the Rules.
[13] The CRM received a notice to appear for the first hearing, which was first scheduled for April 20, 2004, then rescheduled for October 27, 2004.
[14] On October 25, 2004, the CRM's supervisor applied to the panel for a postponement, because the CRM had to go to Ottawa for operational reasons on October 27, 2004.
[15] The panel dismissed this application for a postponement and the respondent's hearing began on October 27, 2004.
[16] There were two more hearing days on November 19, 2004 and March 16, 2005. The applicant alleges that he did not receive any notice to appear for these two hearings. However, an email was sent to an agent of the Department on October 28, 2004, informing her that a hearing was scheduled for November 19, 2004, and asking that she file the originals of certain documents seized by the immigration officers.
[17] The CRM alleges that he was not aware that the respondent's hearing had resumed on November 19, 2004.
[18] It appears that only the respondent and his counsel, Mr. Louski, received the notice to appear for the hearing of March 16, 2005.
[19] On April 18, 2005, the panel allowed the respondent's refugee claim. In his written reasons, dated May 18, 2005, panel member José wa Tshisungu Tshisungu writes that after considering the evidence submitted by the applicant, he had nonetheless determined that the respondent was indeed Guy Deffo and not Franklin Tuekam.
ANALYSIS
1. Did the panel err in law in failing to notify the applicant of the hearings of November 19, 2004 and March 16, 2005, despite the fact that the applicant had sent the panel notices of intention to intervene within the meaning of subsection 25(1) of the Refugee Protection Division Rules and paragraph 170(e) of the Act?
[20] Paragraph 170(e) of the Act provides as follows:
| 170. The Refugee Protection Division, in any proceeding before it, . . .
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170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés : [...]
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| (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;
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e) donne à la personne en cause et au ministre la possibilité de produire des éléments de preuve, d'interroger des témoins et de présenter des observations;
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[21] Section 22 of the Rules provides as follows:
| 22. The Division must notify a party in writing of the date, time and location of a proceeding.
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22. La Section avise les parties par écrit des date, heure et lieu d'une procédure.
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[22] Subsection 25(1) of the Rules provides as follows:
| 25. (1) To intervene in a claim, the Minister must provide
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25. (1) Pour intervenir dans une demande d'asile, le ministre transmet :
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| (a) to the claimant, a copy of a written notice of the Minister's intention to intervene; and
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a) au demandeur d'asile, une copie de l'avis d'intention d'intervenir;
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| (b) to the Division, the original of that notice and a written statement of how and when a copy was provided to the claimant.
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b) à la Section, l'original de cet avis ainsi qu'une déclaration écrite indiquant à quel moment et de quelle façon une copie de l'avis a été transmise au demandeur d'asile.
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[23] The applicant submits that the panel's failure to notify the CRM of the hearings of November 19, 2004 and March 16, 2005, deprived him of his right to question the respondent and make representations as he is entitled to do under paragraph 170(e) of the Act.
[24] The applicant further alleges that this failure amounts to an error in law, and that the standard of review applicable on judicial review is that of correctness.
[25] The respondent replies that the fact that the CRM had not been notified of the two later hearings relates to the internal proceedings of the panel, over which the claimant had no control.
[26] After considering the relevant statutory and regulatory provisions, I find that the panel had a duty to formally notify the CRM of the hearings of November 19, 2004 and March 16, 2005, and that it had no discretionary authority entitling it to dispense with this duty. The English version of paragraph 170(e) of the Act and section 22 of the Rules contain the word "must", which indicates a duty, as opposed to the words "may" or "can", which would be indicative of the existence of a discretionary power.
[27] In failing to notify the applicant after he had filed a notice of intervention in accordance with subsection 25(1) of the Rules, the panel erred in law regarding the application of the Act and the Rules.
[28] The case law provides that errors in law are subject to judicial review in accordance with the standard of correctness, which involves less deference in regard to the panel's decision. In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Mr. Justice Bastarache writes, at paragraph 28:
Although the language and approach of the "preliminary", "collateral" or "jurisdictional" question has been replaced by this pragmatic and functional approach, the focus of the inquiry is still on the particular, individual provision being invoked and interpreted by the tribunal. Some provisions within the same Act may require greater curial deference than others, depending on the factors which will be described in more detail below. To this extent, it is still appropriate and helpful to speak of "jurisdictional questions" which must be answered correctly by the tribunal in order to be acting intra vires. But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown.
[29] Accordingly, in failing to comply with the obligation imposed on it by the Act and the Rules, the panel made an error in law requiring the intervention of the Court.
2. Did the panel err in fact and in law in finding that the evidence filed established the identity of the claimant?
[30] In view of the answer to the preceding question, it is not necessary to answer this question. However, I note an error by the panel in the fourth paragraph of page 1:
The bearer of this name was born on the same date as the claimant, the photograph and the signature were identical, and the claimant's father, whose name is Charles Deffo, does in fact exist. [Emphasis added]
[31] In reality the respondent (claimant before the panel) claims that he was raised in an orphanage and that he does not know his parents.
[32] The respondent's counsel suggested to the Court that if this matter were to be referred for redetermination, it should be before the same panel member. The Court shares the applicant's opinion that a different member should review the matter, given that the member who made the decision has already ruled on the question of identity.
[33] The matter should be reconsidered by a differently constituted panel in the interest of justice and the parties.
[34] The parties have not submitted any questions for certification and none are raised by this case.
ORDER
THE COURT ORDERS that the application for judicial review be allowed. The matter is referred for redetermination by a differently constituted panel. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
K.A. Harvey
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