Borcsok v. Canada (Minister of Citizenship and Immigration), 2004 FC 445

Date: 20040325

Docket: IMM-370-03

Citation: 2004 FC 445

Ottawa, Ontario, this 25^th day of March, 2004

Present:           The Honourable Justice James Russell                                

BETWEEN:

                                                          RICHARD BORCSOK

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision ("Decision") of the Refugee Protection Division of the Immigration and Refugee Board ("Member"), dated December 17, 2002, dismissing the refugee claim of Mr. Richard Borcsok ("Applicant").

BACKGROUND

[2]                The Applicant is a citizen of Hungary. His claim for protection was based on an alleged fear of persecution by reason of his membership in a particular criminal social group.

[3]                The Member was not satisfied that the Applicant was a Convention refugee or a person in need of protection.

[4]                The Applicant notes that his claim was heard before only one Member pursuant to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Applicant's Personal Information Form ("PIF") and his Personal Narrative were filed with the Registry of the Immigration and Refugee Board on March 15, 2002.

[5]                The IRPA came into effect on June 28, 2002.

[6]                On August 21, 2002, the Applicant filed an application pursuant to Rule 44 of the Refugee Protection Division Rules, 2002, requesting that the matter should be heard under the provisions of the Immigration Act, R.S.C. 1985 c. I-2 ("Immigration Act"), and specifically s. 69.1(7) of the Immigration Act, which indicates that two members are required for a quorum. That application was denied.

RELEVANT LEGISLATION

[7]                 The transition provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, stipulate as follows in s. 191:

[8]                 Section 69.1(7) of the Immigration Act stipulates that two members shall hear a claim unless, pursuant to s. 69.1(8), consent is obtained from the claimant:

[9]                Section 163 of IRPA indicates that claims need only be heard before a one member panel:

ISSUES

[10]            The Applicant raises the following issue:

Should the hearing have been conducted under the provisions of the Immigration Act rather than under the provisions of the IRPA?

ARGUMENTS                      

Applicant

[11]            The Applicant submits that, for the purposes of s. 191 of the IRPA, his PIF and Personal Narrative constitute "substantive evidence," and s. 191 necessitates that the matter should have been heard under the provisions of the Immigration Act.

[12]            The Applicant notes that s. 69.1(7) of the Immigration Act stipulates that two members shall hear a claim unless, pursuant to s. 69.1(8), consent is obtained from the claimant.

[13]            The Applicant notes that no consent was obtained from him to have his claim heard by only one panel member.

[14]            The Applicant says that the hearing should have been heard by two panel members under the provisions of the Immigration Act. As a result, the Member erred in rendering the decision under the provisions of the IRPA.

Respondent

[15]            The Respondent submits that the Member acted within his jurisdiction by proceeding alone under the IRPA.

[16]            The Respondent's argument is that no substantive evidence was adduced by the Applicant until September 10, 2002, the date of the hearing. The mere filing of the PIF did not constitute adduced evidence so as to require the Member to proceed under the Immigration Act. Substantive evidence is said to be adduced when it is entered or introduced as evidence at the hearing, which in this case did not occur until September 10, 2002 (Hernandez v. Canada (Minister of Employment and Immigration) (1993), 162 N.R. 391 (F.C.A.) and Martin v. St. Lawrence Cement Co. et al., [1968] 1 O.R. 94 (Ont. C.A.)).

[17]            The Respondent says that the recent decision of Tremblay-Lamer J. in Isufi v. Canada (Minister of Citizenship and Immigration), 2003 F.C. 880 (T.D.) is directly on point and determinative of the issue before the court. In Isufi, supra, Tremblay-Lamer J. held that the filing of a PIF does not constitute evidence adduced in the proceeding. Evidence is only adduced when it is identified on the record and entered as an exhibit at the hearing:

6.       The applicant first argues that the Board acted without jurisdiction by hearing the matter before a single-member panel.

7.       Section 191 of the Act 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.

* * *

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.

8.       The applicant submits that the hearing should have proceeded under the former Immigration Act, R.S.C. 1985, c. I-2 ("Immigration Act") as substantial evidence had been adduced, particularly the applicant's PIF and documentary material, prior to the coming into force of the Act.

9.       According to the applicant, it was necessary that he explicitly consent to a single member panel of the Board pursuant to subsections 69.1(7) and (8) of the Immigration Act. There is no indication in the decision that the applicant consented thereto. As such, the Board acted without jurisdiction by hearing the applicant's claim by a single member panel without his consent. I disagree.

10.      The filing of a PIF does not constitute substantive evidence. In Aquino v. Minister of Employment and Immigration (1992), 144 N.R. 315, the Federal Court of Appeal held that a PIF which was filed but not identified on the record nor entered as an exhibit at the hearing was not considered to be evidence adduced in the proceedings. I recognize that these remarks were made in the context of subsection 68(3) of the Immigration Act but I find that they are equally applicable to subsection 170(h) of the Act as both provisions contain similar wording.

11.       As a result, the applicant's claim had not commenced before the coming into force of the Act and the Board had the jurisdiction to proceed under the Act with a single member panel.

[18]            The Respondent submits that, in the case at bar, the Applicant's PIF was not "adduced" before any particular panel of the Refugee Division. Rather, it was received, as evidenced by the date stamp of March 15, 2002, and as required by Rule 14(2)(b) of the former Convention Refugee Determination Division Rules (the Rules in force at the time the Applicant filed his PIF).

[19]            The Applicant's Notice to Appear sets a hearing date of September 10, 2002, and the Certified Tribunal Record indicates that this was the first and only hearing date. So no hearing ever took place prior to June 28, 2002. The Respondent submits that, clearly, no substantive evidence was adduced prior to June 28, 2002.

[20]            The Respondent's point is that, when read as a whole, s. 191 contemplates situations where a hearing before the Refugee Division was commenced prior to June 28, 2002 and evidence was adduced but the hearing was adjourned to a date after June 28, 2002. This is clearly not the Applicant's situation.

[21]            The Respondent does concede that a Refugee Board member reviewed the Applicant's file on August 1, 2002, in the presence of the Applicant to determine when to schedule a hearing, what the issues might be, and to estimate the length and complexity of the hearing. But this was merely procedural and did not constitute the commencement of the Applicant's hearing before the Refugee Division. The Respondent also submits that it cannot be said that the PIF was adduced before the Member on August 1, 2002, because that would have required identification on the record and entry as an exhibit.

ANALYSIS

[22]               This Application involves an interpretation of the transitional provisions contained in s. 191 of IRPA.

[23]            The Applicant points out that there is some jurisprudential ambiguity concerning the intended meaning of "proceeding" and "matter." That may be true but the section does require that "substantive evidence" be "adduced" and no "decision" made. On the facts of the present case, the only substantive evidence was adduced at the hearing of September 10, 2002.

[24]            Hence, I feel that this matter is squarely covered by Aquino v. Canada (Minister of Employment and Immigration) (1992), 144 N.R. 315 (F.C.A.), Isufi, supra, as referred to by the Respondent. The Member was correct. I believe that the law is clear on this issue and that no question needs to be certified.

                                               ORDER

THIS COURT ORDERS that

1.          This Application is dismissed.

2.          There is no question for certification.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-370-03

STYLE OF CAUSE:                                       RICHARD BORCSOK v. MCI

PLACE OF HEARING:                                             Toronto, Ontraio

DATE OF HEARING:                                               March 9, 2004

REASONS FOR ORDER:                                        The Honourable Justice Russell

DATED:                                                          March 25, 2004

APPEARANCES:

SOLICITORS OF RECORD: