Navaratnam v. Canada (Minister of Citizenship and Immigration), docket IMM-318-99

                            

Date: 19991020

Docket: IMM-318-99

BETWEEN:

     RAJASEGARAM NAVARATNAM

Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

Respondent

     REASONS FOR ORDER AND ORDER

CAMPBELL J.:

[1]      The Immigration and Refugee Board adheres to guidelines set with respect to extra-hearing communications between members of the Refugee Division and Refugee Claims officers (RCO). This judicial review application concerns an apparent breach of these guidelines.

[2]      The applicant is a refugee claimant from Sri Lanka who objected to an RCO making an inquiry in Sri Lanka to confirm his arrest in Colombo in July 1996. With respect to this issue, communications between the RCO and counsel for the applicant resulted in the RCO bringing the matter to the attention of the presiding member of the panel in the claimant"s case. As a result, in a letter dated April 22, 1997, the RCO wrote to counsel for the applicant saying that he was writing "on the instructions of the panel" to say the following:

In light of the procedure involved, and after carefully assessing the risk factor, the Panel is prepared to consider a negative inference with respect to claimant"s credibility, if claimant does not provide the appropriate written, translated consent to enable this procedure to go ahead to check only if the claimant was detained, fingerprinted and photographed as he has stated.

                                

[3]      The guidelines respecting communications between an RCO and members of the Refugee Division are entitled "Instructions Governing Extra-Hearing Communications Between Members of the Refugee Division and RCOs and Between Members of the Refugee Division and Other Employees of the Board" (CRDD 96"02) and, in part, provide as follows:

C. Instructions

Members, and RCOs and other employees of the Board shall follow these Instructions in all extra-hearing communications that takes place in the absence of the parties and that related to individual cases.

1. Communications

1.1      Communications Permitted

Subject to subsection 1.2 and 1.3, Members may communicate with RCOs and with other employees of the Board outside the hearing in the absence of the parties with respect to a case that has not been concluded.

1.2      General Prohibition

No communication referred to in subsection 1.1 shall involve the offering or the soliciting of an opinion on:

1.      the merits of the case;

2.      the conclusion to be reached on any element of the case;

3.      the decision that should be made on any question of law that arises for determination;

4.      any conclusion of fact or conclusion as to the credibility of trustworthiness of any evidence adduced; or,

5.      the reasons for decision. [Emphasis added]

[4]      In Baker v. MCI (1999) 174 D.L.R. (4^th ) 193, L"Heureux-Dubé J. at paragraph 72 makes it clear that guidelines such as those as quoted above have real importance in determining whether a particular decision is supportable. In the present case, I find that s.1.2(4) of the quoted guidelines has been breached. Therefore, I accept the applicant"s argument that a breach of due process has occurred which amounts to reviewable error.

     ORDER

[5]      Accordingly, the decision herein is set aside, and the matter is referred to a differently constituted panel for redetermination.

                                 "Douglas R. Campbell"

     J.F.C.C.

TORONTO, ONTARIO

October 20, 1999     

        

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          IMM-318-99

STYLE OF CAUSE:                      RAJASEGARAM NAVARATNAM

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                            

DATE OF HEARING:                  WEDNESDAY, OCTOBER 20, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER AND ORDER BY:      CAMPBELL, J.

DATED:                          WEDNESDAY, OCTOBER 20, 1999

APPEARANCES:                      Mr. Robert Blanshay

                                

                                 For the Applicant

                             Mr. James Brender

                                 For the Respondent

SOLICITORS OF RECORD:              Robert Blanshay

                             Barrister & Solicitor

                             49 St. Nicholas Street

                             Toronto, Ontario

                             M4Y 1W6

                            

For the Applicant

                              Morris Rosenberg

                             Deputy Attorney General

                             of Canada

                                 For the Respondent

                                    

                             FEDERAL COURT OF CANADA

                                 Date: 19991020

                        

         Docket: IMM-318-99

                             Between:

RAJASEGARAM NAVARATNAM

                                            

                                                 Applicant

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                        

     Respondent

                    

                            

            

                                                                             REASONS FOR ORDER

                             AND ORDER