Date: 20020110
Docket: IMM-1917-01
Ottawa, Ontario, January 10, 2002
Before: Pinard J.
Between:
German CHINEN MURATA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review is allowed. The decision by the Refugee Division on March 19, 2001 is dismissed and the matter is referred back for re-hearing and reconsideration by a panel of different members.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20020110
Docket: IMM-1917-01
Neutral citation: 2002 FCT 21
Between:
German CHINEN MURATA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division on March 19, 2001 that the plaintiff is not a Convention refugee as defined s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] This is a case in which I accept the plaintiff's argument based on a procedural aberration.
[3] After adjourning the hearing sine die, the tribunal subsequently set no date for re-opening and simply rendered its decision based on the record. It is true that the plaintiff's former counsel had not filed by the deadline certain relevant documents which she indicated she wished to obtain from the Japanese authorities during the adjournment. However, there is nothing in the transcript of the hearing to indicate that this defect allowed the tribunal to discontinue the proceeding. On the contrary, it appeared that the member first suggested towards the end of the hearing that it might be possible to make [TRANSLATION] "representations and arguments today", a suggestion rejected by counsel for the plaintiff and by the refugee claims officer. The tribunal therefore did not insist and decided that it would [TRANSLATION] "adjourn sine die". The plaintiff was accordingly entitled to expect, even if no documents had been filed at the end of the agreed deadline, that representations or pleadings would be made for or by him at a re-opened hearing.
[4] The Court must note the error mentioned by learned counsel for the defendant regarding para. 42 of his written memorandum, in which he incorrectly suggested that representations were made for the plaintiff at the initial hearing.
[5] In my opinion, therefore, the tribunal erred by not setting a precise date, after the agreed time for filing the documents in question had expired, to re-open the hearing and instead making a decision simply based on the record.
[6] Consequently, the application for judicial review is allowed and the matter referred back for re-hearing before a Refugee Division with different members.
OTTAWA, ONTARIO
January 10, 2002
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1917-01
STYLE OF CAUSE: GERMAN CHINEN MURATA v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 20, 2001
REASONS FOR ORDER BY: PINARD J.
DATED: January 10, 2002
APPEARANCES:
Eveline Fiset FOR THE PLAINTIFF
Steve Bell FOR THE DEFENDANT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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