Date: 20020611
Docket: IMM-2086-01
Neutral Citation: 2002 FCT 658
Ottawa, Ontario, this 11th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
SKENDER JAUPI
ARMINDA SHEHAJ
MARIO JAUPI
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER AND ORDER
KELEN J.:
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated April 3, 2001, wherein the applicants were found not to be Convention refugees.
[2] The CRDD decision is based, in part, on a patently unreasonable finding of fact, namely:
"The port of entry notes however indicate that the claimants resided in Greece for seven (7) years before arriving in Canada in January 2000."
In fact, the port of entry notes are inconsistent and include the officer's handwritten note:
"States he has been in Greece from 1997 to present.",
which indicates the claimants resided in Greece for only three years before arriving in Canada. I am satisfied that this error of fact had an impact on the CRDD's conclusion with respect to the applicants' credibility, and is sufficiently important to justify the intervention of this Court per Sharma v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 47 (F.C.A.) and Peng v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 119 (F.C.A.).
[3] The CRDD also breached the rules of natural justice by refusing the applicants' motion to have the immigration officer and interpreter cross-examined at the hearing with regard to inconsistencies in the immigration officer's port of entry notes. In this case, the CRDD relied upon notes taken by the immigration officer at the port of entry when the applicants entered Canada. The applicants contested those notes and brought a motion to have the officer and interpreter produced for cross-examination. The CRDD took the motion under advisement, and then denied the motion for the reason that "in our opinion, the officer's or the interpreter's examination would not resolve the issue of the claimants' stay in Greece". The CRDD's conclusions with respect to the immigration officer's notes are detrimental to the position of the applicants. As Heald J. held inCheung v. M.E.I. (1981), 122 D.L.R. (3d) 41 (F.C.A.) at page 46:
In my view, it was essential that applicant's counsel be given the opportunity to test and challenge in cross-examination the evidence of (the immigration officer) as accepted and relied upon by the adjudicator.
In the present case, the applicants should have been given the opportunity to properly test and cross-examine the case against them, including the evidence of the officer and interpreter, where that evidence was so central. As they were not given this opportunity, the rules of natural justice have been breached.
[4] The CRDD also erred in law by relying upon fraudulent documents, namely a Greek business license and the minor claimant's health book, as evidence of the claimants' length of stay in Greece. The claimants and the respondent agreed that these documents were fraudulent, as noted by the immigration officer in the Notice of Seizure of documents dated January 15, 2000 and as per the evidence of the claimant. The CRDD failed to find that these documents were fraudulent. The erroneous reliance by the CRDD on these fraudulent documents as legitimate evidence had an impact on the decision, and is sufficiently important to justify intervention of this Court.
[5] Finally the CRDD breached the rules of natural justice by failing to conduct a pre-hearing conference as requested by the applicants' counsel on January 11, 2001, and in accordance with Rule 20 of the Immigration and Refugee Board. A pre-hearing conference provides for a full and proper hearing by requiring the parties to exchange documents and the names of witnesses prior to the hearing. The request for a pre-hearing conference was not responded to by the CRDD prior to the hearing on February 14, 2001. A pre-hearing conference is to provide parties with the opportunity of knowing the case they will have to meet. With hindsight, this pre-hearing conference was necessary to provide the applicants with their right to a fair hearing in accordance with the rules of natural justice.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed. The decision of the CRDD dated April 3, 2001 is set aside and the matter is referred to a different panel of the CRDD for redetermination. No question is certified.
(signed) Michael A. Kelen _________________________
JUDGE
Ottawa, Ontario
June 11, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2086-01
STYLE OF CAUSE: SKENDER JAUPI
ARMINDA SHEHAJ
MARIO JAUPI
Applicants
- and -
M.C.I.
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 6, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN
DATED: June 11, 2002
APPEARANCES:
Mr. Jeffrey Goldman FOR THE APPLICANTS
Mr. Greg George FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Jeffrey L. Goldman FOR THE APPLICANTS
Barrister & Solicitor
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada