Date: 19990901
Docket: IMM-6525-98
Between:
MARIUS GHEORGHE DEAC
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DENAULT J.
1 In the case at bar, neither the applicant nor his counsel appeared before the Court to put forward their arguments in support of the application for judicial review, though leave to commence such an application had been granted. A few days before the hearing, counsel for the applicant did, however, advise the Court that he had lost contact with his client, who had probably gone back to his country of origin, Romania, because of a departure order issued in December 1998. Saying that he no longer had any instructions from his client, counsel asked [TRANSLATION] "respectfully that the Court proceed with the application on the basis of the evidence in the Court record and in the absence of the undersigned counsel and the applicant".
[2] In his factum, counsel for the applicant raised two arguments: (1) the contradictions identified in the applicant's testimony are minor and should not have led the panel to find that the applicant lacked credibility; (2) the behaviour of the presiding member of the panel and his intimidating and inquisitorial way of questioning the applicant, [TRANSLATION] "a large part of the hearing having gone unrecorded because of the 'rashness' or carelessness of the presiding member, who was operating the recording system but neglected to turn it on".
[3] The first argument does not warrant serious consideration: it was for the panel to weigh the evidence, and there is nothing to suggest that the panel made any error in that regard.
[4] With respect to the second argument counsel raised, the Court is not in a position to judge its merit; the panel's record contains no transcript whatsoever of the testimony given at the hearing. The panel was, however, equipped with mechanical recording equipment, as the judgment delivered from the bench is set out in the panel's record (p. 254-258). The Court remains puzzled by that oversight, which is incomprehensible, to say the least. However, the argument cannot be accepted in view of the case law on this point.[1] In CUPE v. Montreal, [1997] 1 S.C.R. 793, the Supreme Court held that: (p. 842)
In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice.
[5] In the case at bar, because the Immigration Act does not require the Refugee Division to record testimony, and particularly because the applicant, in his affidavit, did not in any way fault the panel in that regard, the argument cannot be accepted.
O R D E R
The application for judicial review is dismissed.
Montréal, Quebec Pierre Denault
September 1, 1999 Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6525-98
STYLE OF CAUSE: MARIUS GHEORGHE DEAC
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 31, 1999
REASONS FOR ORDER OF DENAULT J.
DATED September 1, 1999
APPEARANCES:
unrepresented for the applicant
Josée Paquin for the respondent
SOLICITORS OF RECORD:
Léonard Manzararu
Montréal, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent
Federal Court of Canada
Trial Division
Date: 19990901
Docket: IMM-6525-98
Between:
MARIUS GHEORGHE DEAC
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER