Date: 20001016
Docket: IMM-491-99
BETWEEN:
SMAJDA SANDOR
SMAJDA ZSOLT
GYULAVICS TIMEA
SMAJDA CLAUDIA
SMAJDA JOZEF
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Sandor Smajda, Zsolt Smajda, Timea Gyulavics, Claudia Smajda and Jozef Smajda sought admission into Canada as convention refugees pursuant to section 2(1) of the Immigration Act, R.S.C., 1985 (4th Supp.), c. 28. In a decision dated January 20, 1999, the Immigration and Refugee Board (Refugee Division) (the "Board") rejected their claim on the basis that they did not discharge the burden of showing that they face a reasonable chance or serious possibility of persecution on the grounds of their Roma nationality or their membership in a particular social group, should they be returned to Hungary.
[2] The applicants filed an application for leave and judicial review of the Board's decision. The application for judicial review raises several issues, including a breach of section 7 of the Canadian Charter of Rights and Freedoms and procedural irregularities which allegedly tainted the proceedings before the Board, effectively denying the right to a fair hearing. The Application for Leave and Judicial Review was filed on February 4, 1999. By a Notice of Motion dated August 14, 2000, the applicants now seek an order for a trial of an issue with respect to the issues of a reasonable apprehension of bias and alleged breaches of section 7 of the Charter. These two issues are directly related to the conduct of the hearings before the Board as "lead cases".
[3] The heart of the applicants' argument is that their hearing before the Board should not have been conducted as a "lead case". The written submissions filed by the applicants in connection with this Notice of Motion include the following:
| 12. It is submitted that this is NOT a case where the information as to who decided, at the Board, to convert the Applicants' case into a "lead case", why, how it was done, who was consulted and why, etc., is something that is obtainable and fileable by way of affidavit by the Applicants as it is in the sole possession of the Board and has not been produced nor forwarded.1 |
[4] The authority for converting an application for judicial review into a trial is conferred by section 18.4 of the Federal Court Act, R.S., c. 10 (2nd Supp.), which provides as follows:
| 18.4 (1) Subject to subsection (2), an application or reference to the Trial Division under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
(2) The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
|
18.4 (1) Sous réserve du paragraphe (2), la Section de première instance statue à bref délai et selon une procédure sommaire sur les demandes et les renvois qui
lui sont présentés dans le cadre des articles 18.1 à 18.3.
(2) La Section de première instance peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.
|
[5] In Canada (A.G.) v. MacInnis, [1994] 2 F.C. 464, 113 D.L.R. (4th) 529, 166 N.R. 57 (C.A.), the Federal Court of Appeal considered the requirements for conversion of an application for judicial review to an action. At page 473, the Court said as follows:
| ...On the contrary, it seems to us that the matters complained of by the respondent are entirely related to the procedure followed by the Board. Procedure being a matter well within the expertise of the Court, the issues are not so complex as to require production of documents, discovery, viva voce evidence with cross-examination, and the full panoply of a trial. |
[6] In my opinion, the same reasoning applies here. There is no evidence on the record as to what factors were taken into consideration by the Board in deciding to conduct certain hearings as "lead cases". However, there is evidence that prior to the hearing of the applicant's convention refugee claims, the counsel then representing the applicants agreed to conduct their hearings as "lead cases". This is supported, as well, by the Affidavit of Sandor Smajda dated June 8, 1999, paragraphs 8 and 92.
[7] In my opinion, the conduct of a convention refugee hearing is a matter of procedure. It is well established that, in the absence of a breach of the rules of natural justice, administrative tribunals can control their own procedures; see: Faghihi v. Minister of Citizenship and Immigration, [2000] 1 F.C. 249 (T.D.).
[8] Next, it must be recognized that the application for leave and judicial review in the present case relates to the decision of the Board dated January 20, 1999 and not to any policy, written or otherwise, of the Board. If that decision is flawed by reason of a breach of the rules of natural justice or is otherwise procedurally flawed, those matters can be addressed by the Court hearing the application for judicial review.
[9] The key issue in this matter is whether the applicants were able to show that they met the definition of convention refugee within the meaning of the Immigration Act, supra. The Board has decided that they do not. The Court hearing the application for judicial review may decide there were reviewable errors in the conduct of the hearing and make the appropriate order. I am not persuaded that this is a case which warrants the conversion of the application for judicial review into an action and accordingly, the motion is dismissed.
[10] It is not necessary for me to comment on the other arguments raised by the Applicants concerning alleged bias, waiver and laches. Those are a matters which can be considered by the Court hearing the application for judicial review since they may be relevant to the disposition of that application.
[11] Counsel for the applicants requested that I certify a question for the purposes of appeal, if I dismissed the present Notice of Motion. Counsel for the respondent argued that this Court is without jurisdiction on an interlocutory motion to issue a certified question. I accept the submissions of counsel for the respondent in this regard.
[12] It seems to me that section 83(1) of the Immigration Act, supra, concerning certification of a question for the purposes of an appeal, applies in relation to a decision made under the Immigration Act, supra. The present Notice of Motion is made within the context of the Federal Court Act, supra. Disposition of this Notice of Motion is not a "judgment" which would trigger application of section 83(1) of the Immigration Act, supra.
[13] The Notice of Motion is dismissed, no order as to costs. The application for judicial review will be heard on a date to be set by the judicial administrator.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
October 16, 2000
__________________
1Applicants' Motion Record, p. 57
2Applicants' Motion Record, pp. 46-47.
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