Date: 20020524
Docket: IMM-3391-01
Neutral citation: 2002 FCT 593
BETWEEN:
VARGANE ROSTAS, ZSOFIA
VARGA, JOZSEF
VARGA, VANDA (ZSOFIA)
VARGA, ATTILA ROBERT
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Atilla Robert Varga (male applicant), his common law wife Zsofia Vargane Rostas (female applicant) and their children Jozsef Varga and Vanda Varga (minor applicants) are Hungarian citizens of Roma ethnicity who claimed refugee status in Canada. On June 14, 2001, the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) found the applicants not to be Convention refugees.
[2] The issue which this Court must determine is whether the CRDD lacked jurisdiction to determine the applicants' claims. If so, the decision is null and void.
[3] The facts, briefly stated, are that the applicants attended for the hearing of their refugee claims on August 31, 2000 before a two-member CRDD panel. The adult applicants were sworn. Documents, including the applicants' Personal Information Forms (PIF's), were entered into evidence. Amendments to the PIF's were made orally, noted by the CRDD panel and attested to by the applicants. Counsel for the applicants tendered two medical reports and a supplementary PIF narrative for the female applicant. The medical reports and supplementary PIF narrative constituted new evidence and contravened the CRDD's twenty-day disclosure rule. The panel questioned the female applicant who responded to the questions. The male applicant gave minimal evidence. The CRDD determined that it would accept the new evidence but adjourned the hearing to review and consider the new evidence.
[4] On January 2, 2002, the applicants attended for the hearing of their refugee claims before a two-member panel of the CRDD. The panel was comprised of one member who had been present at the August hearing and one new member. At the outset of the January hearing, the adult applicants were sworn and all documents were marked as exhibits and entered into evidence.
[5] The relevant statutory provision, subsection 69(7) of the Immigration Act, R.S.C. 1985, C. I-2, provides:
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69.(7) Proceedings before the Refugee Division that are adjourned may be resumed before any member or members of the Refugee Division other than the member or members who presided at the adjourned proceedings if the person who is the subject of the proceedings and the Minister, if taking part in the proceedings, consent thereto or if no substantive evidence was adduced before the adjournment.
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69.(7) La procédure peut reprendre devant un ou d'autres membres que celui ou ceux qui entendaient l'affaire avant l'ajournement si le ministre, quand il y prend part, et l'intéressé y consentent ou qu'aucun élément de preuve de fond n'a été encore présenté. |
[6] The Federal Court of Appeal considered subsection 69(7) in Hernandez v. Canada (Minister of Employment and Immigration) (1993), 162 N.R. 391 and determined that: the reception of documentary evidence, including PIF's constitutes substantive evidence; the panel is not precluded from proceeding de novo when consent is not provided.
[7] It is common ground that, here, consent was neither requested nor given. The resolution of the jurisdictional issue turns on whether or not the hearing on January 2, 2001 was de novo. For the reasons which follow, I have determined that the January hearing was not de novo.
[8] Although the CRDD entered and numbered all exhibits anew, it did not re-enter the amendments to the PIF's. I am mindful of the respondent's submission that because the amendments had been entered and attested to during the first hearing, the amendments formed part of the PIF's at the second hearing. It seems to me that this argument begs the question. "De novo" means anew. The second hearing, to be de novo, must be conducted as if the first hearing had not occurred. That is not the case when amendments made at the first hearing are considered evidence at the second without being re-entered. Moreover, the transcript reveals confusion by the panel members with respect to the amendments. Not all of the PIF amendments from the first hearing made their way to the new panel member's documentation: Transcript, page 9, lines 20-65.
[9] The respondent also argued that counsel's statement that changes to the PIFs "were made last time" amounts to a waiver. I do not agree. In the first place, the statement by counsel was in relation only to the female applicant's PIF: Transcript, page 6, lines 25-42. Secondly, it is not clear from the transcript what discussions occurred regarding the amendments because comments of both counsel and the panel members are recorded as being inaudible: Transcript, page 9, lines 25-40. Thirdly, there is no reference anywhere in the transcript to the male applicant's PIF amendments. Absent clear and unequivocal statements by counsel, I am not prepared to find that there was a waiver with respect to the re-entering of the PIF amendments. Additionally, the CRDD presides over its hearings and it is incumbent upon it to ensure that, when conducting a de novo hearing, it does so in a manner commensurate with the responsibilities attendant thereto, including the proper reception of evidence.
[10] There was also oral evidence given at the first hearing. Again, I am mindful of the respondent's submissions that the evidence was elicited with respect to the preliminary issues of the applicants' show cause hearing and the tardy disclosure of the new evidence. Had the evidence been confined solely to those issues, I would agree with the respondent that the issues were moot and the evidence taken was irrelevant. However, the transcript reveals that some of the evidence related to the credibility of the female applicant. Explanations provided by the female applicant, in response to the panel members' concerns regarding the medical report and the supplementary narrative, are, or may be, relevant factors in determining the weight, if any, to be given to the documents: Transcript of August 31, 2000 hearing at page 19, lines 40-70; page 20, lines 1-5; page 23, lines 15-70, and page 24, lines 1-10. Therefore, substantive oral evidence was taken at the August hearing that was neither re-entered nor mentioned at the January hearing.
[11] For the reasons given, I conclude that the January 2, 2001 hearing was not a de novo hearing and was therefore in contravention of the provisions of subsection 67(9) of the Immigration Act. It is not necessary for me to determine whether the CRDD must formally state its intention to conduct the hearing de novo, as argued by the applicants.
[12] In the result, the CRDD lacked jurisdiction to render a decision in relation to the applicants' claims. The application for judicial review is allowed and the matter is remitted back to the Minister for determination before a differently constituted CRDD panel.
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Judge
Ottawa, Ontario
May 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3391-01
STYLE OF CAUSE: Vargane Rostas and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 1, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
DATED: May 24, 2002
APPEARANCES:
Mr. Ronald Poultonfor the Applicant
Mr. Matthew Oommenfor the Respondent
SOLICITORS ON THE RECORD:
Ms Lisa Winter-Cardfor the Applicant
Barrister and Solicitor
Toronto, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada