Date: 20001122
Docket: IMM-1047-00
BETWEEN:
ATTILA ALBERT GYAPJAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant, a citizen of Romania and a member of that country's Roma minority, challenges by way of judicial review the decision of the Convention Refugee Determination Division that he did not establish a well-founded fear of persecution and is not a Convention refugee.
[2] In its reasons for decision, the tribunal made a negative finding of credibility concerning the applicant's testimony. The tribunal relied upon some five country evidence documents to support its conclusion that the applicant's evidence was not truthful.
[3] The hearing of this application for judicial review proceeded as scheduled on August 30, 2000.
[4] While this matter was under reserve, it became apparent to the Court that certain country documents, referred to in the tribunal's analysis of the applicant's credibility, were neither reproduced nor mentioned in the indices of documents in the tribunal record.
[5] In a direction to the parties dated September 26, 2000, these issues were raised with counsel with the view of receiving their supplementary representations by telephone conference call on November 6, 2000.
[6] Counsel for the respondent acknowledges that there is no direct or indirect reference in the tribunal record to four of the five documents in issue. Similarly, concerning the same four documents, the available information does not make clear that disclosure was made to the applicant prior to the hearing. None of the four documents was referred to during the hearing.
[7] Although provided with the opportunity to determine from the Immigration and Refugee Board whether the proper tribunal record was filed with the Court in this proceeding, neither party chose to do so.
[8] Even if the transcript of the applicant's testimony, without reference to the documentary evidence, might establish upon review that the tribunal did not err in making its negative finding of credibility, procedural fairness and natural justice dictate, in my view, that the Court be satisfied that the proper tribunal record has been certified and filed. I have serious doubts that the documentary evidence in the record filed in this case is the material which was before the tribunal.
[9] The adjudication of this application for judicial review must be made on the basis of the record placed before the Court. Neither party chose to verify whether an error was made in the transmittal of the tribunal record. If the tribunal was seized of the same record as the one now before me, one can only conclude that its decision was improperly made on the basis of extraneous material not disclosed to the applicant nor made available to the Court for this proceeding.
[10] In these circumstances, the tribunal decision must be quashed and the matter referred for rehearing before a differently constituted panel. Neither party suggested the certification of a serious issue.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
November 22, 2000
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