Date: 20011010
Docket: IMM-5405-00
Ottawa, Ontario, the 10th day of October, 2001
Present: The Honourable Mr. Justice Pinard
Between:
Haissam AZAKIR,
Rewa AZAKIR,
Racha AZAKIR,
Hani AZAKIR,
Asma AZAKIR,
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
ORDER
The application for judicial review is allowed. The decision rendered on September 20, 2000 by the Refugee Division is set aside and the matter is sent back to a differently constituted panel of the Refugee Division for a rehearing.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20011010
Docket: IMM-5405-00
Neutral Citation: 2001 FCT 1097
Between:
Haissam AZAKIR,
Rewa AZAKIR,
Racha AZAKIR,
Hani AZAKIR,
Asma AZAKIR,
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This an application for judicial review of a decision rendered on September 20, 2000 by the Refugee Division, ruling that the applicants are not Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The main applicant, Mr. Haissam Azakir, is a national of Lebanon of the Muslim religion. He is married to Ms. Asma Azakir and is the father of three children, Racha, Hani and Rewa, who base their claims on his, which alleges a well-founded fear of persecution because of his political opinions.
[3] The applicants criticize the Refugee Division for excluding the female applicant from the hearing room. They rely on subsection 69(2) of the Act:
| 69. (2) Subject to subsections (3) and (3.1), proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable, and be conducted in camera or, if an application therefor is made, in public. |
69. (2) Sous réserve des paragraphes (3) et (3.1), la section du statut tient ses séances à huis clos ou, sur demande en ce sens, en public, et dans la mesure du possible en présence de l'intéressé. |
|
[4] Needless to say, the female applicant, one of the parties whose rights and interests are at stake, is a person who is the subject of the proceedings within the meaning of subsection 69(2) of the Act.
[5] The respondent argues, first, that the female applicant waived her right to attend the hearing through her failure to object to her exclusion at the first opportunity. It appears, however, that the female applicant had indeed indicated her desire to be present at the hearing and to participate in it. In what appears to be the only decision of this Court dealing with this particular issue, my colleague Mr. Justice Rothstein, in Phillip v. Canada (M.C.I.) (1998), 159 F.T.R. 49, at paragraphs 4 and 6, interprets subsection 69(2) as follows:
Subsection 69(2), provides that parties cannot be excluded from refugee division proceedings involving their rights and interests. The words "wherever practicable", while recognising that in some circumstances, it may not be possible for an applicant to be present, also require that when it is feasible, applicants must be present. That means that when it is practically possible to be present, applicants may not be excluded by a panel.
. . .
This is not a situation in which the panel is saved because there was no objection by counsel or because a briefing was given to the applicant when she was invited back in the hearing. The requirement of presence of the parties under subsection 69(2) is mandatory. ...
[6] I have no hesitation in accepting this point of view. The presence of a person who is the subject of the proceeding is expressly provided for in subsection 69(2) of the Act. It is therefore more than a mere requirement of natural justice or procedural fairness.
[7] The respondent also argues that the female applicant's presence was practically not possible, since she and her children made the male applicant's testimony emotionally difficult.
[8] In Phillip, supra, the respondent tried to justify the applicant's exclusion by saying that the Refugee Division wanted to avoid her influencing her children during their testimony. Rothstein J. held that the Refugee Division could have resolved this problem in other ways without having to exclude the applicant. Similarly, in the case at bar the Refugee Division had an obligation to find some means of resolving the problem without necessarily excluding the applicant, such as, for example, excluding only the children and providing the male applicant with as many reasonable breaks as he needed in order to pull himself together.
[9] Finally, the respondent argues that the female applicant's presence would have had no effect on the Refugee Division's decision, since she had not been present during the incidents of persecution alleged by her husband in support of his claim.
[10] I am unable to accept this position. It is obvious that the Refugee Division based its assessment of the male applicant's credibility in part on his notes at the point of entry, notes that were prepared and completed by the female applicant, however. As the author of those notes, the female applicant is certainly in a better position than the male applicant to offer some explanations concerning any omission or contradiction contained therein.
[11] Consequently, in view of the special circumstances of this case, I believe that the Refugee Division erred in regard to subsection 69(2) of the Act, which justifies the intervention of this Court.
[12] The application for judicial review is therefore allowed, the impugned decision is set aside and the matter is sent back to a differently constituted panel of the Refugee Division.
J.
OTTAWA, ONTARIO
October 10, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-5405-00
STYLE: HAISSAM AZAKIR ET AL.
v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 21, 2001
REASONS FOR ORDER OF PINARD J.
DATED: OCTOBER 10, 2001
APPEARANCES:
JACQUES BEAUCHEMIN FOR THE APPLICANTS
FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN, PAQUIN
JOBIN, BRISSON & PHILPOT
MONTRÉAL, QUEBEC FOR THE APPLICANTS
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT