Avci v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1274

Date: 20021209

Docket: IMM-5795-01

Neutral citation: 2002 FCT 1274

Ottawa, Ontario, this 9th day of December, 2002                                           

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

                                                                      TUNCER AVCI

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of the Convention and Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), rendered November 22, 2001 wherein the applicant was determined not to be a Convention Refugee.

[2]                 The applicant is a 29 year old citizen of Turkey who claimed a well-founded fear of persecution on the basis of his Kurdish ethnicity; his membership in a particular social group, namely his extended family; as well as his political opinion, real or perceived. The applicant's parents and seven siblings live in Toronto, but the applicant's wife and two daughters are in Turkey.

[3]                 The applicant alleges to have been persecuted because of the following incidents:

- Because he is a Kurd, he was treated like a slave during his military service;

- On March 21, 1998, at a protest meeting for the Newroz celebration, which he attended with his uncle, a member of HADEP, the applicant was hit once by the riot police and then escaped;

- On May 1, 1999, while attending the Labour Day parade with his uncle, the applicant and his uncle were taken in custody by the riot police. They were detained overnight and released the next day. The applicant alleges that he was beaten and insulted;

- In the spring of 2000, the applicant was summoned to the police station because the police wanted to know the whereabouts of his brother (who was in Canada) since his draft age for military service had come. The applicant was insulted but not assaulted;

- In the summer of 2000, the applicant had his house searched and was brought to the police station for questioning regarding the assassination of a village official. They found no evidence in the house and the applicant knew nothing of the murder. The applicant was hit twice in the face but was later released. After this incident, he started to get anonymous phone calls threatening him to leave the village or else he would be executed;

[4]                 The applicant therefore left the country and arrived in Toronto on October 18, 2000.

THE CRDD DECISION

[5]                 The CRDD accepted the applicant's Kurdish identity and found the applicant to be a credible witness, but concluded that the applicant would only face discrimination in Turkey, and not persecution. The board did not find that the applicant had established that he had an objective basis on which to fear persecution at the hands of the police.

[6]                 The Board also addressed the applicant's fear of returning to his country and having the authorities find out that he made a refugee claim and be presumed to have maligned Turkey. The CRDD referred to evidence which indicates that Canadian authorities do not indicate that a person being returned to his or her country is a failed refugee claimant.

ISSUES

[7]                 The issues are as follow:

1. When was the Board functus officio? On November 7^th or November 22^nd, 2002?

2. If the Board was functus officio as of November 22, 2002, did it commit a reviewable error of law in failing to consider the applicant's post-hearing submissions and new documentation?

3.Did the CRDD base its finding that the applicant does not face a serious possibility of persecution on unreasonable inferences, or without regard to the material before it?

SUBMISSIONS AND ANALYSIS

[8]                 The first and main issue arises because of a conflict as to when the decision was actually rendered: Was it when the CRDD's two panel members dictated their decision after the hearing on November 7, 2001 or was it on November 22, 2001, when they signed it? The cover page of the official written decision indicates that a decision (In chambers) was made on November 7, 2001 and that the written decision was signed on November 22, 2001.

[9]                 The determination of when the decision was rendered is important because it will assist the Court to ascertain whether the CRDD was under an obligation to consider post-hearing evidence.

[10]            Along with a letter dated November 15, 2001, the applicant's counsel couriered further submissions and two documents relating to country conditions, all of which were forwarded and received by the CRDD on November 20, 2001. The submissions and new documentation are included as part of the Tribunal record but were not referred to in the written decision. The applicant now claims that the Board did not consider the new submissions and evidence in its decision.

[11]            The question arising from the above situation is whether the CRDD was under an obligation to consider the post-hearing submissions and documentation provided by the applicant on November 20, 2001 or whether the CRDD was functus officio at that time.

[12]            The respondent submits that the CRDD's decision was rendered on the day of the hearing, namely on November 7, 2001, and that the CRDD became functus officio therafter. It is argued that the date of decision can be read from the date featured on the cover page of the decision and from the Hearing Information Sheet [page 22 of the tribunal record], dated November 7, 2001 where it indicates the result that the applicant is "not a Convention Refugee" and that "the transcript of decision and reasons only required". This argument is supported by the Immigration and Refugee Board's "Policy on oral decisions and oral reasons" which became effective July 1, 2000 [Tab 13 of the respondent's book of authorities].

[13]            The applicant argues that the CRDD was under a continuous obligation to consider evidence until its decision was signed and that the final determination was only made on November 22, 2001: Vinda v. Canada (Minister of Citizenship and Immigration) (2002), Imm. L.R. (3d) 1; Nadarajah v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 383 (F.C.A.); and Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 511 (F.C.T.D.), (2000) Imm. L.R. (3d) 175 (F.C.A.). In Vinda, supra, Justice Rouleau was presented with a similar situation:

[10] The main focus of the debate in this case concerned the conflict between the date of the Board's dictating its decision on December 6, 2001 and January 30, 2001, the date the Board signed and released its determination. On the cover page it is indicated that the hearing took place on December 6, 2000; the date of dictating the decision is December 6, 2000 (in chambers) and on January 30, 2001 written reasons were signed and released. This is confirmed in page 11 of the Tribunal Record. The applicant was notified by a Notice of Decision (along with the Board's written reasons), which were sent to him on February 1, 2001.

[11] The main issue is whether the Board was under an obligation to consider further evidence provided by the applicant on December 18, 2000 or was the Board functus officio and whether the Board did commit any other reviewable error that would justify the intervention of this Court.

(...)

[20] In my view, the principal question that the Court is called upon to answer in this judicial review is whether the Board was functus officio after dictating its reasons on December 6, 2001 and before signature on January 30, 2001. The Court of Appeal has spoken quite clearly that a Board will be functus officio once its decision has been "rendered" within the meaning of subsection 69.1(9) of the Immigration Act and that a decision will be "rendered" once written reasons are signed: Tambwe-Lubemba (supra). The distinction with the case at bar is obvious. In Isiaku (supra), the Board had rendered an oral decision from the Bench before signing its reasons. In this case the Board reserved its decision at the close of the hearing. [Emphasis added]

[14]            Although it is clear from this case that the CRRD was under a continuous obligation to consider the submissions and evidence filed after the hearing, before it rendered its decision, the above case can be distinguished from the case at bar. For instance, in this case, the CRDD members, in the moments following the hearing, went in chambers and determined that the applicant was not a Convention refugee. The presiding member recorded his reasons for such determination and the other member concurred with the findings. The Tribunal record contains, at pages 238 to 242, the transcript of the oral reasons dictated in chambers on November 7^th, 2002. This transcript is similar to the written decision, save and except a few grammatical corrections. It is also important to note that the transcript indicates that the CRDD panel member concurred with the transcript of the president member's reasons. Therefore, except for minor changes made for grammatical reasons, the written reasons signed by both members on November 22, 2002 are the same as the transcript of the oral decision. Justice Rouleau, in Vinda, supra, at paragraph 22, held the following:

As I see it, there is no way to test whether the written reasons ultimately delivered are the same or similar to the ones that were allegedly recorded. An important factor that should not be overlooked is that, while the respondent's counsel has asserted in her Memorandum of Argument that the Board's reasons were recorded immediately after the hearing, such assertions do not constitute evidence.

[15]            The requirements for rendering a decision are provided in section 69.1(9) of the Act:

69.1(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) is a Convention Refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister.

***

69.1(9) La section du statut rend sa décision sur la revendication du statut de réfugié au sens de la Convention le plus tôt possible après l'audience et la notifie à l'intéressé et au ministre par écrit.

[16]            In my view, this section can be broken down into three elements; the determination, the rendering of the decision and the notice of the decision. The determination to be made by the CRDD panel members is whether the applicant is a Convention Refugee or not. This determination can only be made after the completion of the hearing and as soon as possible. The decision can be rendered orally, in presence of the parties or not. However, a negative decision must be done in writing, as is required by section 69.1(11) of the Act:

69.1(11) The Refugee Division may give written reasons for its decision on a claim, except that

(a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; and

(b) if the Minister or the person making the claim requests written reasons within ten days after the day on which the Minister or the person is notified of the decision, the Division shall forthwith give written reasons.

***

69.1(11) La section du statut n'est tenue de motiver par écrit sa décision que dans les cas suivants_:

a) la décision est défavorable à l'intéressé, auquel cas la transmission des motifs se fait avec sa notification;

b) le ministre ou l'intéressé le demande dans les dix jours suivant la notification, auquel cas la transmission des motifs se fait sans délai.

[17]            The application of these sections and comments triggers the following question: Does the rendering of a decision on the oral or written determination necessitate a signature from the CRDD panel members in order to give it full force of law?

[18]            Section 69.1(9) does not explicitly make that requirement. The objective of this section, aside from the determination, is to render a decision as soon as possible, thus making efficiency a requirement.

[19]            Although the members' clear intention and reasons for the determination were dictated on November 7, 2001, they did not actually sign a decision when they determined that the applicant was not a Convention refugee. Their signatures appear only on the written reasons, of November 22, 2001.

[20]            I am of the view that until the Convention refugee determination is signed, the said decision is not rendered in accordance with the law. I think a distinction is to be made between a signature on the determination and the signature on the written reasons for the determination. The law creates an obligation on the CRDD to issue written reasons in certain circumstances, such as the situation in section 69.1(11). Therefore, in order to make a binding determination in accordance with Section 69.1(9) of the Act, the CRDD panel members must sign the determination with an indication that written reasons will follow.

[21]            In the case at bar, the CRDD panel members made a determination and dictated their reasons on November 7, 2001, however, the members did not sign anything until November 22, 2002. Counsel for the respondent did not refer me to any document which showed signatures of the CRDD panel members nor could I identify any document which would indicate that they rendered a decision on November 7, 2001.

[22]            It seems to me that the word "render" includes a notion of formality and delivery, or transmission. The Black's Law Dictionary,7th ed., defines the verb "render" as follow:

1) To transmit or deliver, 2) (of a judge) to deliver formally "render a judgment" 3) (of a jury) to agree on and report formally "render a verdict" 4) to pay as due "render an account. [Black's Law Dictionary, 7th ed., s.v. "render".]

The signature on a determination is an integral part of that formality and the transmission of that said determination is to the registrar. Moreover, as per Justice Rouleau in Vinda, supra, at paragraph 23: "A decision is meant to be communicated to the interested parties and it then binds the decision-maker."

[23]            On November 7, 2001, the CRDD Board Members heard the case, made the determination and dictated their reasons. Thereafter, it was transcribed, reviewed, finalized and signed on November 22, 2001. It was then transmitted to the registrar. The notions of transmitting, or delivering formally were only applied in respect of the written reasons of November 22, 2001. There was no formal transmission or delivery when the CRDD determined that the applicant was not a Convention refugee on November 7, 2001.

[24]            The CRDD Board members could have signed the determination and transmitted it once it was made to the registrar on November 7, 2001 with written reasons to follow but they did not. Therefore, I conclude that the CRDD was not functus officio until November 22, 2001.

[25]            This leads us into the second issue. Counsel for the applicant, without filing a motion as per Rule 28 of the Convention Refugee Determination Division Rules (SOR/93-45), transmitted by courier on November 20, 2001, to the CRDD registrar, a letter dated November 15, 2001 with the following documents:

-           written submission dated November 15, 2001

-           "Amnesty International's concerns regarding the return of HADEP supporters to Turkey" Amnesty International, November 1, 2001;

-           "Turkey: Endermic torture must end immediately", Amnesty International, November 8, 2001;

[26]            In her affidavit, counsel for the applicant did not give any clarification as to why the letter and attachment dated November 15, 2001 was not forwarded before November 20, 2001. Furthermore, no explanation was given as to why the Amnesty International document dated November 1, 2002 could not be made available at the hearing on November 7, 2002.

[27]            The tribunal record contains the letter dated November 15, 2001, the written submissions and the two documents further submitted. However, the written reasons do not refer to these documents. The respondent alleges that there is no proof that the new evidence did in fact make it before the panel members before they took their decision. Justice Simpson, in Vairavanathan v. Canada (Minister of Citizenship and Immigration) (1996) 34 Imm. L.R. (2d) 307, at paragraph 6, and Justice Dubé, in Ahmad v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1740, at paragraph 6, both held that there was a duty on counsel to obtain a confirmation from the relevant panel members that the submissions have actually been received. The jurisprudence of this Court is that if the CRDD panel members did look at it, they should have said so in the written decision. In Barakat v. Canada (Secretary of State), [1994] F.C.J. No. 601, Reed J. stated: "While an opening phrase in the reasons for decision acknowledges the receipt of this material, there is no analysis of it or reference to in the reasons for decision.". Implicitly, this creates a requirement for the CRDD to mention the receipt of the material and to, at least, refer to it in its reasons.

[28]            The additional written submissions appear to be a repeat of the oral arguments presented to the CRDD panel at the hearing. In reference to the new documentation, the Amnesty International document seems to be of some importance since it informs that HADEP supporters can be arrested and tortured.

[29]            I have reviewed the written submission, the two new documents from Amnesty International and the documentation filed during the hearing. I note that the new information does not add anything of significance to what the CRDD already had before it concerning the return and torture of HADEP supporters in Turkey. It is important to indicate that the CRDD concluded that the applicant did not have a high political profile as an opponent to the regime and that he was a sympathiser of HADEP. Therefore, the interest he had, if any, was minimal. Having said that , I have to conclude that even if the CRDD panel members were still under an obligation to consider further evidence, the said evidence filed by the applicant does not add anything new to what was already provided.

[30]            In any event, it appears to me that counsel should have followed Rule 28 to file further submissions or/and documentation after the hearing. In Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404, the Court of Appeal held that "the only way for the Refugee Division after the end of a hearing but not before a decision, to consider new evidence beyond that which it might take judicial notice, was by reopening the hearing and that it should do so". [See also Salinas v. Canada (Minister of Employment and Immigration) (1992), 93 D.L.R. (4^th) 631, and Yang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1941.] This non-respect of the Rules can only create problems that can be detrimental to the interest of the applicant or the duties of the CRDD. Furthermore, counsel for the applicant did not give any explanation for forwarding on November 20, 2001 the letter dated November 15 and for not filing during the hearing the Amnesty International document dated November 1, 2001. This is unacceptable. Again, it does not help the applicant's case, nor the work of the CRDD.

[31]            In her affidavit, counsel for the applicant informed that after transmitting the new documentation she received a telephone call from a case officer of the CRDD, Sonya James, during which she confirmed that the new documentation was received by the Board, that the CRDD panel members would be receiving it and that no decision had been made. The CRDD panel members are not bound by the actions of the employees of the CRDD: Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 511 (F.C.T.D.).

[32]            With regard to the third issue, namely whether the Board committed a reviewable error of fact in finding that the applicant does not face a serious possibility of persecution, the applicant submits that the CRDD made the negative finding based on unreasonable inferences for which there was no basis in the evidence.

[33]            The finding of the CRDD that the applicant suffered discrimination only, and not persecution, must be considered in light of the definition of "persecution" enunciated by this Court, being an affliction of repeated acts of cruelty or a particular course or period of systemic infliction of punishment. Mere harassment is not sufficient.

[34]            I believe the inferences made by the Board to conclude that the applicant would face discrimination instead of persecution if returned to his country were clearly reasonable in light of the documentary evidence and his oral testimony.

[35]            I was asked to certify one of two questions:

"When after the completion of a hearing, a Board determines that a claimant is not a Convention refugee, and provides its reasons orally in chambers, which are later reduced to writing and sent, along with the written notice of decision to the claimant, has the Board complied with ss. 69.1(9) & 69.1(11)(a) of the Immigration Act R.S.C. 1985 c.I-2 and, is the decision final as of the date it is rendered in chambers?

Or,

Whether a decision rendered in chambers by the Board is a final decision such that the Board becomes functus thereafter?

[36]            In my view, the first question is more in line with the concept of general public importance as it is more explicit and it refers to the proper section of the Act. The second question is a summary of the first question. Therefore, I will certify the first question.

[37]            For all the above reasons, this application for judicial review is dismissed.                       

                                                  ORDER

THIS COURT ORDERS that:

-           This application for judicial review of the CRDD decision, rendered November 22, 2001, be dismissed and the following question is certified:

"When after the completion of a hearing, a Board determines that a claimant is not a Convention refugee, and provides its reasons orally in chambers, which are later reduced to writing and sent, along with the written notice of decision to the claimant, has the Board complied with ss. 69.1(9) & 69.1(11)(a) of the Immigration Act R.S.C. 1985 c.I-2 and, is the decision final as of the date it is rendered in chambers ?"

            "Simon Noël"                 

        Judge

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-5795-01

STYLE OF CAUSE :                                        TUNCER AVCI and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

PLACE OF HEARING :                                  Toronto, Ontario

DATE OF HEARING :                                    October 30th, 2002

REASONS FOR ORDER :                           THE HONOURABLE JUSTICE SIMON NOËL

DATED :                     December 9, 2002

APPEARANCES :

Ms. Nicole Rahaman                                            FOR THE APPLICANT

Ms. Rhonda Marquis                                            FOR THE RESPONDENT

SOLICITORS OF RECORD :

VanderVennen, Lehrer                                                     FOR THE APPLICANT

Toronto, Ontario

Department of Justice                                           FOR THE RESPONDENT

Deputy Attorney General of Canada                  

Toronto, Ontario