Date: 20020424
Docket: A-699-00
Neutral citation: 2002 FCA 148
CORAM: STONE J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
GYOZO STUMF, HAJNALKA ILLYES
and HAJNALKA VIVIEN STUMF
Appellants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on Tuesday, April 23, 2002.
Judgment delivered from the Bench at Toronto, Ontario,
on Tuesday, April 23, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20020424
Docket: A-699-00
Neutral citation: 2002 FCA 148
CORAM: STONE J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
GYOZO STUMF, HAJNALKA ILLYES
and HAJNALKA VIVIEN STUMF
Appellants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
Ontario, on Tuesday, April 23, 2002)
SHARLOW J.A.
[1] The appellants are a married couple and their minor child. They are refugee claimants from Hungary. On August 27, 1999, a two member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board determined that their refugee claims had been abandoned due to their failure to file personal information forms and their failure to appear at a hearing to consider the abandonment of their claims. On November 19, 1999, a single member of the Board denied their motion to have their refugee claims re-opened.
[2] An application was made under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, for judicial review of the decision not to re-open the claims. The application was dismissed on October 30, 2000 for reasons now reported as Stumf v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1785, (2000) 195 F.T.R. 313, (2000) 10 Imm. L.R. (3d) 290 (F.C.T.D.). The following question was certified in order to permit an appeal to this Court:
Should the motion to reopen the Applicants' refugee claims following the Board's decision that the Applicants had abandoned their claims have been heard by two members of the Board pursuant to section 69.1(7) of the Immigration Act, R.S.C. 1985, c. I.02, or pursuant to the rules of natural justice?
[3] However, the appeal was not pursued on that question, because it has now been settled by Faghihi v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 249, (1999) 173 F.T.R. 193, (1999) 2 Imm. L.R. (3d) 196 (F.C.T.D.). In that case, Evans J. as he then was held that a motion to re-open a refugee claim may be determined by a single member of the Board. He gave extensive and detailed reasons for that conclusion, which was affirmed by this Court (2001 FCA 163, (2001) 274 N.R. 358, (2001) 14 Imm. L.R. (3d) 1).
[4] However, counsel for the appellants pressed an alternative argument based on the undisputed fact that the Board was aware at all material times that one of the refugee claimants was a minor child. There is no indication in the record that any member of the Board considered subsection 69(4) of the Immigration Act with respect to that claimant. Subsection 69(4) read as follows:
Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings.
[5] Counsel for the Minister argues that this argument should not be entertained because it was not raised in the judicial review in the Trial Division, nor was it raised in any of the proceedings before the Board. We have determined that it is appropriate to consider this issue at this stage, despite the fact that it has not been raised before. The record discloses all of the relevant facts, and there is no suggestion that the Minister would be prejudiced if this issue is considered. On the other hand, the designation of a representative in this case could have affected the outcome.
[6] It is our view that subsection 69(4) of the Immigration Act imposes on the Board an obligation to designate a representative for any refugee claimant who meets the statutory criteria, and that the obligation arises at the earliest point at which the Board becomes aware of those facts. In this case, the age of the minor claimant was apparent from the outset, and the matter of designating a representative for her should have been considered at least at the point at which abandonment proceedings were in contemplation, and certainly should have been done before the motion to re-open the claim was considered. The failure of the Board to do so was an error that vitiates the decision to refuse the motion.
[7] This appeal will be allowed, the decision of the Applications Judge will be set aside, and the motion to re-open will be referred back for rehearing by a different Board member who must, before considering the motion, designate a representative for the minor claimant.
"Karen R. Sharlow"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-699-00
STYLE OF CAUSE: GYOZO STUMF, HAJNALKA ILLYES
and HAJNALKA VIVIEN STUMF
Appellants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, APRIL 23, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: SHARLOW J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON TUESDAY, APRIL 23, 2002.
DATED: TUESDAY, APRIL 23, 2002
APPEARANCES BY: Mr. Rocco Galati
For the Appellants
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: GALATI, RODRIGUES & ASSOCIATES
Barristers & Solicitors
637 College Street, Suite 203
Toronto, Ontario
M6G 1B5
For the Appellants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20020424
Docket: A-699-00
BETWEEN:
GYOZO STUMF, HAJNALKA ILLYES
and HAJNALKA VIVIEN STUMF
Appellants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
OF THE COURT
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