Date: 20021121
Docket: IMM-5802-01
Neutral citation: 2002 FCT 1203
BETWEEN:
DESIRE MUNYANEZA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] On September 20, 2000, the Convention Refugee Determination Division dismissed the claim of the applicant, a citizen of Rwanda, who alleged a well-founded fear of persecution by reason of his Hutu ethnicity. The panel made negative credibility and plausibility findings and found serious reasons to believe that the applicant had participated in crimes against humanity within the meaning of Article 1F(a) of the Convention. Accordingly, the panel determined that the applicant was not a Convention refugee on the basis of both the inclusion and the exclusion criteria.
[2] On January 24, 2001, an application for leave to commence judicial review of the panel's negative decision was dismissed.
[3] On November 21, 2001, the Refugee Division dismissed the applicant's motion, made in September 2001, to have his refugee hearing reopened based on what was said to be new evidence. This motion was considered and dismissed by a differently constituted second panel. The applicant now seeks judicial review of the decision not to reopen his refugee hearing.
[4] The applicant's "new evidence" consists mainly of affidavits and correspondence from family and acquaintances in rebuttal of the testimony of an officer of the Royal Canadian Mounted Police during the original refugee hearing. This officer testified in March 2000, the hearing was resumed in May 2000 and the panel's decision was made in September 2000. The record discloses no satisfactory explanation for the applicant's failure to bring this evidence before the original panel.
[5] The second panel dismissed the motion to reopen principally for two reasons: (a) the Refugee Division lacks jurisdiction to reopen a refugee claim unless there was a breach of natural justice at the original hearing; and (b) the applicant failed to establish any such breach of natural justice. The applicant now disputes both these findings.
[6] In Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.) (QL), Justice Marceau stated (at pages 291 and 293) that the former Immigration Appeal Board, then responsible to consider the Minister's determination that a claimant was not a Convention refugee pursuant to section 71 of the Immigration Act, S.C. 1976-77, c. 52, "... does not have jurisdiction to reopen an application for redetermination of refugee status which it has already disposed of solely in order to hear evidence of new facts." Justice Marceau did allow for the following exception to this general rule: "... if the hearing of an application has not been held according to the rules of natural justice, the Board may look at its decision as a nullity and reconsider the matter." See also: Agbona v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 279 (T.D.); Camacho Souza v. Canada (Minister of Employment and Immigration) (1994) 74 F.T.R. 208; and Chaudhry v. Canada (Minister of Employment and Immigration, [1995] F.C. 104 (T.D.).
[7] In relying on Castro v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 87 (C.A.), the applicant argues that the availability of new evidence should justify the reopening of a refugee claim, as long as there exists a reasonable possibility that the new evidence could lead the tribunal to change its original decision. The subject matter of the statutory provision under consideration in Castro, section 15 of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, repealed by section 128 of the Immigration Act, S.C. 1976-77, c. 52, is completely irrelevant to this proceeding. The "continuing equitable jurisdiction" referred to in Castro has no application to this case and is not vested in the Convention Refugee Determination Division by either the Immigration Act, R.S. 1985, c. I-2, as amended, or by the applicable C.R.D.D. rules.
[8] In my opinion, the second panel was correct in concluding that the Refugee Division lacks jurisdiction to open a refugee claim in the absence of any breach of natural justice.
[9] The applicant's challenge of the second finding of the decision under review must also fail. On the basis of the record in this proceeding, the applicant has shown no error in the second panel's finding of the absence of evidence of any breach of natural justice in the original hearing.
[10] Finally, during the hearing in this proceeding, counsel for the applicant properly acknowledged, in my view, that his Charter arguments were premature.
[11] For these reasons, this application for judicial review will be dismissed. There exists no serious question for certification.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
November 21, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5802-01
STYLE OF CAUSE: DESIRE MUNYANEZA
Applicant
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO
DATE OF HEARING: NOVEMBER 6, 2002
REASONS FOR ORDER : THE ASSOCIATE CHIEF JUSTICE
DATED: NOVEMBER 21, 2002
APPEARANCES: Leon Damonze
For plaintiff / applicant
Ian Hicks
For defendant / respondent
SOLICITORS OF RECORD:
Laurence Cohen
50 Richmond St. E. Suite 101
Toronto, Ontario
M5C 1N7
For plaintiff/applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For defendant/ respondent
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