Leng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1147

Date: 20040818

Docket: IMM-6129-03

Citation: 2004 FC 1147

Toronto, Ontario, August 18^th, 2004

Present:           The Honourable Mr. Justice von Finckenstein

BETWEEN:

                                                             YING XUAN LENG

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

                                         (Delivered orally from the bench and subsequently

                                                  written for precision and clarification)

[1]                The applicant, a citizen of China, made an application to reopen his claim for refugee status with the Board. The facts are not in dispute:

-            On July 24^th, 2003, he received a Notice of Decision by Board Member V. Bubrin in which this application was dismissed. No written reasons were provided.

-            On July 25^th, 2003, counsel for the applicant requested written reasons from the Board.

-            On September 5^th, 2003, the Board issued an Amended Notice of Decision by a different Board Member, M. Then. This decision restated the conclusion of V. Bubrin that the applicant's application was being dismissed.

-            The Board responded to the applicant's request for Reasons in a letter dated September 11^th, 2003 in which it stated that formal Reasons would not be provided as there was not statutory requirement for them. Nonetheless, it noted that there was an endorsement on the applicant's file dated July 15^th, 2003 by M. Then which stated that there had been no apparent breach of natural justice in the handling of the applicant's case.

[2]                The facts of this case leave it unclear:

-            who made the decision, Member Bubrin or Member Then?

-            then the decision was made (July 16^th, 2003; September 5^th, 2003 or July 15^th, 2003)?

-            on what basis?

[3]                These circumstances would suggest that there has been a violation of the principle "he who hears must decide" (Silion v. Canada (M.C.I.), [1999] F.C.J. No. 1390; Ayatollahi v. Canada (M.C.I.), [2003] F.C.J. No. 340).   

[4]                The application will therefore succeed and the matter will be sent back for reconsideration in a more transparent manner by another member of the Board.

                                                                       ORDER

THIS COURT ORDERS that the decision not to reopen the application is set aside. The matter is referred back to the Board to be decided by a Member other than Member Bubrin or Then.

                                                                                                                           "K. von Finckenstein"                

                                                                                                                                                   J.F.C.                              

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-6129-03

STYLE OF CAUSE:               YING XUAN LENG

                                                                                                                                              Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                          Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       AUGUST 18, 2004

REASONS FOR ORDER

AND ORDER BY:                             von FINCKENSTEIN J.

DATED:                                              AUGUST 18, 2004

APPEARANCES:

Ms. Nadine Tobin

FOR THE APPLICANT

Mr. Martin Anderson

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Lewis & Associates

Toronto, Ontario

                                                            FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE RESPONDENT

                         FEDERAL COURT

Date: 20040818

Docket: IMM-6129-03

BETWEEN:

YING XUAN LENG

                                                                    Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                Respondent

        REASONS FOR ORDER AND ORDER