Mroshaj v. Canada (Minister of Citizenship and Immigration), 2004 FC 1395

Date: 20041012

Dockets: IMM-1457-04

IMM-5633-03

Citation: 2004 FC 1395

Ottawa, Ontario, Tuesday, the 12^th day of October 2004

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                          JANI MROSHAJ

                                                                                                                                   Applicant

                                                                    - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                Respondent

                                       REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                Mr. Mroshaj is a 26 year old citizen of Albania who made a claim for protection under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") on the basis of alleged prosecutory treatment in Albania. His claim was heard on January 13, 2003 by a single member of the Refugee Protection Division ("RPD") of the Immigration and Refugee Board ("IRB"). At that hearing, Mr. Mroshaj was granted permission to provide additional documentation to the RPD within one month of the hearing and he did so.

[2]                Mr. Mroshaj swears that he has been informed by the Halifax Refugee Clinic (which, through a volunteer solicitor, represents him in this proceeding) that the IRB informed the Halifax Refugee Clinic that, "a few weeks after [his] hearing", the member of the RPD who presided at his hearing ("presiding member") was "placed on an extended medical leave".

[3]                On June 23, 2003 (apparently after receiving this advice) Mr. Mroshaj's counsel wrote to the presiding member. This letter is not in evidence. In response, by letter dated June 27, 2003 the co-ordinating member of the IRB, RPD for the Ottawa-Atlantic District ("co-ordinating member") wrote to Mr. Mroshaj's counsel advising that the presiding member was on an extended medical leave and would not be returning until the fall of 2003. The co-ordinating member wrote that "I am in contact with [the presiding member] from time to time, and I will ask her if she is in a position to decide these cases".

[4]                On July 9, 2003, the presiding member signed reasons dismissing Mr. Mroshaj's claim to protection on the basis that his claim was not credible and that Mr. Mroshaj had fabricated allegations of repeated arrest and beatings in order to form the basis of a claim for protection.

[5]                On November 5, 2003, Mr. Mroshaj moved to have his case re-opened before the RPD on the basis that the presiding member was on extended medical leave when she rendered her decision and that "[i]t is not reasonable, nor is it acceptable, for someone who has been deemed unfit for employment to adjudicate a case. In such circumstances a new hearing must be convened". Such request was denied by the co-ordinating member on February 3, 2004.

[6]                These two applications for judicial review respectively challenge the July 9, 2003 decision of the presiding member rejecting Mr. Mroshaj's claim for protection and the February 3, 2004 decision of the co-ordinating member refusing to re-open the case. By order of the Court, the two applications were ordered to be heard together.

THE ISSUES

[7]                In respect of the first decision, the issues raised on Mr. Mroshaj's behalf are as follows:

1.          Did the presiding member exceed her jurisdiction when she made a decision during a time she was unable to comply with her obligation under paragraph 153(1)(h) of the Act?

2.          Did the presiding member exceed her authority when she made a decision more than eight weeks after she was placed on extended sick leave?

[8]                In respect of the second decision, the issues raised are as follows:

3.          Did the co-ordinating member err in assessing the application to re-open pursuant to the "wrong standard for the principles of natural justice?"

4.          Did the co-ordinating member base his decision on unreasonable findings of fact?

5.          Did the co-ordinating member err in his assessment of paragraph 153(1)(h) of the Act?

6.          Did the co-ordinating member err when he reviewed his own decision?

[9]                Mr. Mroshaj also raised two new issues in his reply argument:

7.          At the hearing, did the presiding member err by admitting into evidence a document entitled "Report On Albania"?

8.          Were the principles of procedural fairness violated when the IRB failed to place all of the evidence before the presiding member?

The applicable legislation

[10]            Mr. Mroshaj relies on paragraph 153(1)(h) and section 154 of the Act. In my view, the following provisions of the Act are also relevant: paragraphs 153(1)(a), (d) and (f), subsection 153(3), and section 176.

[11]            Together these provisions are as follows:

ANALYSIS

1. Did the presiding member exceed her jurisdiction by rendering her decision with respect to Mr. Mroshaj "during a time she was unable to comply with her obligation under paragraph 153(1)(h) of the Act?"

[12]            Mr. Mroshaj argues that, while on sick leave, the presiding member was not able to devote the whole of her time to the performance of her duties. He submits that the fact that the presiding member had been placed on sick leave is prima facie proof that she was not able to continue with full-time employment with the IRB. It follows, he says, that a member who is not in compliance with paragraph 153(1)(h) of the Act lacks the authority to render a decision in respect of a refugee claim.

[13]            I reject this submission for the following reasons.

[14]            First, subsection 153(3) of the Act provides that members of the RPD may be appointed on either a full or part-time basis. The obligation to devote the whole of a member's time to the performance of their duties under the Act applies only to full-time members. While Mr. Mroshaj swears that at his hearing he believed the presiding member to be a full-time member of the RPD, Mr. Mroshaj provides no basis for that belief. There is, therefore, no cogent evidence that the presiding member was a full-time member of the RPD so as to attract the obligation to devote the whole of her time to her duties under the Act.

[15]            Second, and more importantly, I do not interpret paragraph 153(1)(h) of the Act to preclude a member of the RPD from being placed on leave for medical, maternity or other reasons. The purpose of the provision is to ensure that if appointed as a full-time member, so as to be in receipt of the remuneration fixed for that position and deemed to be employed in the public service of Canada, the appointee shall act as a full-time member and not engage in other employment or the provision of other services.

2. Did the presiding member exceed her authority when she made the decision at issue more than eight weeks after she was placed on extended sick leave?

[16]            Section 154 of the Act permits a former member of the IRB to make a decision on a matter he or she heard as a member within eight weeks after ceasing to be a member of the IRB. Mr. Mroshaj asserts that an employee who is on leave should be considered to be a former member of the IRB until such time as they are re-employed with the Board. He says that the situation of an employee on an extended medical leave is more analogous to that of a retired member than it is to an active member because an employee on a medical leave does not have any job related duties nor does the employee receive a salary. It follows, Mr. Mroshaj argues, that the presiding member made the decision beyond the eight week time limit and therefore lacked the jurisdiction to make the decision.

[17]            I reject this argument because I do not accept its premise that an "employee" of the IRB who is on medical leave should be considered to be a former member of the IRB.

[18]            Paragraph 153(1)(a) of the Act is express that a member of the IRB continues to hold that office for the term of their appointment, subject only to removal by the Governor in Council for cause. Absence for medical reasons does not terminate the appointment.

[19]            Mr. Mroshaj's submission is also inconsistent with section 176 of the Act which provides that a member may be subject to remedial or disciplinary measures for such things as becoming incapacitated from the proper execution of their office by reason of infirmity. There would be no need for such a provision if, by virtue of becoming incapacitated by reason of infirmity, a member ceased to be a member of the IRB.

[20]            Before leaving this issue, I note that there is no explicit evidence as to how long the presiding member had been on medical leave at the time she made her decision rejecting Mr. Mroshaj's claim.

3. Did the co-ordinating member err in considering the request to re-open the hearing by applying "the wrong standard for the principles of natural justice"?

[21]            Mr. Mroshaj notes that, when considering his request that his hearing be re-opened, the co-ordinating member considered whether there was a failure to observe a principle of natural justice so as to justify re-opening the claim under Rule 55(4) of the Refugee Protection Division Rules, SOR/2002-228. Mr. Mroshaj complains that the co-ordinating member used a "shopping list approach to natural justice" by providing a very limited list of what he considered the principles of natural justice to be. In Mr. Mroshaj's submission, the co-ordinating member considered only the failure to give notice, the competence of counsel, the ability to give evidence without threat or duress, and whether improprieties occurred during the hearing.

[22]            I am satisfied that the co-ordinating member did not err as alleged.

[23]            In his request to re-open the case, Mr. Mroshaj did not raise any concern regarding a specific principle of natural justice. Rather, Mr. Mroshaj dealt solely with the fact that the presiding member was on medical leave when the decision was signed. In his decision not to re-open the case, the co-ordinating member canvassed some specific situations that would give rise to a breach of natural justice, and then concluded with the following general summary:

14.            Finally, there is no evidence before me to suggest there were any improprieties during the hearing such as would amount to a failure to observe a principle of natural justice.

15.            The fact that the Member was on medical leave when she signed the decision in the Applicant's claim, absent any evidence suggesting a lack of mental fitness or competency, is not sufficient to establish that the Member was at any time during the medical leave unfit or incompetent to render well-reasoned decisions with reasons for decision.

16.            Furthermore, there is no evidence before me to suggest that in authorizing her medical leave, the IRB had concluded that Member Noseworthy was unfit or incompetent to render decisions nor is there any evidence to support the contention that she was deemed to be unfit or incompetent.

[24]            The co-ordinating member, in my view, properly and fully dealt with the request to re-open as it was presented to him.

4. Did the co-ordinating member base his decision upon unreasonable findings of fact?

[25]            As noted above, at paragraph 15 of his decision, the co-ordinating member concluded that the fact that the presiding member was on medical leave when she rendered her decision was not sufficient to establish that the presiding member was medically unfit to render a decision.

[26]            Mr. Mroshaj complains that the IRB chose not to call any evidence in response to his application for judicial review and that the co-ordinating member provided no reasons for his conclusion. Mr. Mroshaj asserts that the only evidence before the co-ordinating member was that the presiding member was on an extended medical leave. Mr. Mroshaj says that, in that circumstance, the only reasonable conclusion the co-ordinating member could reach was that the presiding member was medically unfit to perform her duties as a Board member.

[27]            Again, I reject the premise of Mr. Mroshaj's argument. He says that, based on the fact that the presiding member was on an extended medical leave, the only reasonable conclusion is that she was medically unfit to decide his case. In the absence of any evidence as to the nature of the underlying medical condition that lead to the medical leave, it is, in my view, equally open to conclude that the leave reflected a medical condition that would not compromise or impair the ability of a member to consider and write reasons with respect to a case already heard. For example, pregnancy and a number of medical conditions may well preclude the continuation of an active sitting schedule without impacting on the cognitive skills required to properly render a decision. In this regard, it is relevant to note that, until filing his reply argument, Mr. Mroshaj advanced no substantive complaint with respect to the presiding member's decision.

5. Did the co-ordinating member err in his assessment of paragraph 153(1)(h) of the Act?

[28]            The co-ordinating member concluded that the phrase "the whole of their time" as used in paragraph 153(1)(h) of the Act does not suggest that a member's power and authority lapse or are suspended when the member is on medical leave. For the reasons set out under the first sub-heading above, I conclude that the co-ordinating member was correct in his interpretation of paragraph 153(1)(h) of the Act.

6. Did the co-ordinating member err when he reviewed his own decision?

[29]            Mr. Mroshaj asserts that the co-ordinating member decided to ask the presiding member to render her decision while she was on medical leave so that the application to re-open Mr. Mroshaj's case "is a questioning of the decision [of the co-ordinating member] to have the [presiding member] make a decision while on leave." It follows, in the submission of Mr. Mroshaj, that the co-ordinating member erred in reviewing his own decision and the matter should have been reviewed by someone else.

[30]            There is, in my view, no foundation in the evidence for this submission. The record contains no decision made by the co-ordinating member to ask the presiding member to render her decision. The evidence relied upon by Mr. Mroshaj is the co-ordinating member's letter, quoted above at paragraph 3. Mr. Mroshaj swears that, based on the letter, "it is my belief that [the co-ordinating member] asked [the presiding member] to render a decision in this matter".

[31]            It is to be remembered that the letter states that the co-ordinating member will ask the presiding member if she is in a position to decide the case. The conclusion may equally be drawn that it was the presiding member who decided that she would decide the case while on medical leave.

7. Did the presiding member err in admitting the "Report On Albania" document into evidence at the hearing?

[32]            The document in question was a report prepared by an immigration control officer. The report was prepared so as to exclude reference in its body to the sources of the information reported. The sources were listed in an appendix to the report which was not attached to the report when filed as an exhibit. In accepting the document into evidence, the presiding member ruled that:

Typically, when we have research done, for example, by our Research Directorate, although this doesn't come from the Research Directorate - - it is from an Immigration Control Officer - - we don't generally disclose our contacts because we - - well, we would like to keep going back to them for information, and if they are constantly called by counsel, we tend to lose our contacts very quickly.

I don't now if that is why I don't have a list of contacts in this particular document which is from the - - -

BY COUNSEL (to presiding member)

-                The Embassy in Rome.

BY PRESIDING MEMBER (to counsel)

-                I can't say that I - - -

BY COUNSEL (to presiding member)

-                It is my understanding that this document was actually created at the request of the IRB.

BY PRESIDING MEMBER (to counsel)

-                Where do you see that?

BY COUNSEL (to presiding member)

-                It is the first paragraph. It says that the report seeks to address some of the questions posed to the Mission by members of the Immigration and Refugee Board who adjudicate refugee claims made by Albanian citizens in Canada.

BY PRESIDING MEMBER (to counsel)

-                Okay. I mean, I am not aware of how the report came about beyond that. I wasn't involved in it in any way. So I am going to enter the document because I think - - well, it is the most recent document that is before me regarding the situation for the Democratic Party in Albania and there is quite a lot of information in it in terms of who prepared this document and that he spoke to senior representatives of various political parties, embassies, international organizations, NGOs, media, national police, judiciary and other government institutions. It is an on-the-ground report which is very helpful for the panel as well in that several sites were visited on the ground in Albania. So it is actually a very helpful document for the panel. It is quite detailed, quite recent, and there seems to have been a broad range of consultation in preparing it. The fact that the specific names are not mentioned, in my view, is not adequate reason for not entering it. So I will go ahead and enter the document. [underlining added]

[33]            Subsections 170(g) and (h) of the Act provide that:

[34]            The presiding member was not therefore bound by any legal or technical rules of evidence and was entitled to receive and base her decision upon evidence that she considered credible and trustworthy. The fact that the report named the sources of information generally by position and not by name was a factor for the presiding member to consider when deciding the weight to be given to the report.

[35]            Mr. Mroshaj has established no reviewable error committed by the presiding member in accepting the report into evidence.

8. Were the principles of procedural fairness violated when the IRB failed to place all of the evidence before the presiding member?

[36]            The additional documentation provided post-hearing by Mr. Mroshaj is not contained in the tribunal record provided to the Court, nor is it mentioned in the decision of the presiding member. Mr. Mroshaj concludes from this that his post-hearing material was not placed before the presiding member.

[37]            Two issues arise, in my view, from this argument. The first is whether one can infer from the failure of the certified tribunal record to contain the documentation, and the failure of the presiding member to mention the document in her reasons, that the documentation was not provided to the presiding member. Given that the document was referred to by the co-ordinating member in his decision, it is clear that the document was received by the IRB. Given also that the RPD need not cite in its reasons every document in evidence before it, it may well be that the document was before the presiding member when she made her decision, but she felt the document to be of too little relevance to merit mention.

[38]            The second issue is related to the first and arises from the fact that Mr. Mroshaj has not placed the Report on Albania in evidence before the Court or sought leave to do so. The nature and content of the post-hearing submissions are, therefore, unknown to the Court.

[39]            This poses a significant impediment to the Court. In the absence of being able to assess the materiality, if any, of the evidence, the Court cannot draw any inference as to whether it ought to have been mentioned by the presiding member in her reasons, nor can the Court consider whether the post-hearing submissions could have had any impact upon the decision reached by the RPD.

[40]            This gap in the evidence, which was within the power of Mr. Mroshaj to cure or to seek leave to cure, makes it impossible for the Court to be satisfied that there was any breach of natural justice because the documentation may well have been before the presiding member when she rendered her decision, but of so little weight that it need not have been mentioned. Further, even if the documentation was not before the presiding member, in view of the finding that Mr. Mroshaj was not credible, there may well have been no purpose in remitting the matter to the RPD. See: Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.).

[41]            The onus was on Mr. Mroshaj to establish any breach of natural justice and to put the post-hearing documentation in evidence.

CONCLUSION

[42]            For all of these reasons, the application for judicial review will be dismissed.

[43]            Mr. Mroshaj posed certification of the following question:

Can a member of the Refugee Protection Division of the Immigration and Refugee Board make a decision while on extended medical leave?

[44]            Mr. Mroshaj has not satisfied me that the question is one of general importance or that, even if of general importance, the proposed question is supported by a proper evidentiary record. Therefore, no question will be certified.

ORDER

[45]            THE COURT THEREFORE ORDERS THAT:

1.          Each application for judicial review is dismissed.

2.          No question is certified.

"Eleanor R. Dawson"    

                                                                                                                                         Judge                       

                                                        FEDERAL COURT

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS:                             IMM-1457-04 and IMM-5633-03

STYLE OF CAUSE:        Jani Mroshaj v. The Minister of Citizenship and Immigration

PLACE OF HEARING:         Halifax, Nova Scotia

DATE OF HEARING:           September 14, 2004

REASONS FOR ORDER AND ORDER BY

THE HONOURABLE MADAM JUSTICE DAWSON

DATED:                                  October 12, 2004

APPEARANCES:

Joshua J. Judah                          FOR THE APPLICANT

Melissa R. Cameron                              FOR THE RESPONDENT

SOLICITORS OF RECORD:

Halifax Refugee Clinic

Halifax, Nova Scotia                                          FOR THE APPLICANT

Mr. Morris Rosenberg

Deputy Attorney General of Canada                  FOR THE RESPONDENT