Date: 20000818
Docket: IMM-5093-99
OTTAWA, ONTARIO, AUGUST 18, 2000
BEFORE: TREMBLAY-LAMER J.
Between:
AZRA BATOOL QURESHI,
BILAL PERVEZ QURESHI,
Plaintiffs,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
O R D E R
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000818
Docket: IMM-5093-99
Between:
AZRA BATOOL QURESHI,
BILAL PERVEZ QURESHI,
Plaintiffs,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review from a decision by Martine Beaulac, post-claim determination officer, on October 5, 1999 that the plaintiffs are not members of the post-determination refugee claimants in Canada class (hereinafter "PDRCC"), as defined in s. 2(1) of the Immigration Regulations, 1978.1
[2] The reviewing officer concluded that the plaintiffs were not members of the PDRCC class because there were no objectively identifiable risks to which other persons from Pakistan were not exposed.
[3] She based her decision essentially on (i) the lack of credibility found by the Refugee Division regarding the plaintiff's political involvement, (ii) the fact that the plaintiff, an educated woman who was an independent worker living in an urban centre, who could return to her country and who was able to come back to Canada without difficulty, was not in a vulnerable position, and (iii) the fact that the allegations of problems resulting from the plaintiffs' religion were not supported by the reference documents.
[4] The plaintiffs submitted that the reviewing officer was influenced by matters external to the record, namely that the female plaintiff's husband was in an illegal situation in Canada.
[5] In fact, in assessing the risks of return, and in particular under the heading [TRANSLATION] "risk(s) identified by applicant(s)", the officer noted the following in her notes:
| [TRANSLATION] |
| . . . I note that the subjects, that is the female claimant and her child, left Canada on January 24, 1994 and returned to Pakistan and came back on February 10, 1998, submitting a new application for refugee status in Canada. The female claimant's husband remained in Canada and is still being sought by the Immigration authorities.2 [My emphasis.] |
[6] In my view, these comments may be regarded as extrinsic evidence since the unfavourable decision on the plaintiffs' case, to the effect that they do not face risks on returning to Pakistan, is in no way based on comments related to the husband.
[7] The plaintiffs further argued that there was an apparent bias in the fact that the reviewing officer made two assessments of the risk incurred by the plaintiffs if they returned. I am not of that view.
[8] In Arthur v. M.E.I.,3 MacGuigan J.A. of the Federal Court of Appeal clearly stated that the mere fact of a second hearing before the same adjudicator, without more, did not give rise to a reasonable apprehension of bias.4 That case concerned a quasi-judicial decision. A fortiori this principle will apply to an administrative decision, where the requirements of natural justice are less stringent.
[9] As regards the comments on the presence in Canada of certain members of the plaintiffs' family, the reviewing officer's decision dealt only with risks of return. Although I find these comments gratuitous, they did not deal with the issue and so had no impact on the decision made regarding risks of return.
[10] As he has already done in the past, counsel for the plaintiff tried to present new arguments at the hearing which did not appear anywhere in his principal memorandum or in his reply memorandum. I refused to hear his arguments. In my opinion, such a tactic by counsel is not acceptable since it prejudices the opposing party, who is obviously taken by surprise. Further, it is clear that the Court is not in a position to fully assess the merits of a new argument suddenly raised at the hearing. This practice is all the more surprising as under Rule 13 of the Federal Court Immigration Rules, 19935 it is possible to file a reply memorandum after the defendant's memorandum is filed as well as a supplementary memorandum under Rule 15.
[11] In Lanlehin v. Canada (M.E.I.),6 the Federal Court of Appeal refused to hear the appellant on points that had not been raised in his memorandum. More recently, Richard J. relied on that judgment in also refusing to hear new arguments at a hearing which were not in the memorandum.7 I accept that there may be very special circumstances in which it is in the interests of justice to hear a plaintiff on a new argument. In my opinion, such a situation requires an adjournment to give the defendant an opportunity to prepare adequately. However, such a situation can only be exceptional since all counsel would have to do is appear on the day of the hearing with a new argument and thereby be granted an adjournment which he could not have obtained if he had confined himself to the argument appearing in his memorandum.
[12] One final observation: the structure of the Federal Court Rules, 19988 provides for the filing of a memorandum in support of the reasons given by a plaintiff as the basis of the application for leave and application for judicial review. It is on the basis of the reasons given in this memorandum, and if applicable in the defendant's memorandum and the memorandum in reply, that the application for leave will or will not be granted by a judge of the Court. Apart from exceptional cases, this is one more reason why in my opinion it is not appropriate to disregard the arguments for which leave has been given and present new arguments at the hearing without the latter being the subject of the same consideration at the time of the application for leave.
[13] For these reasons, the application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
August 18, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-5093-99
STYLE OF CAUSE: AZRA BATOOL QURESHI et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 15, 2000
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: AUGUST 18, 2000
APPEARANCES:
MICHEL LEBRUN FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LEBRUN FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
2 Decision of reviewing officer, plaintiff's record, at p. 8.
6 March 2, 1993, A-610-90 (F.C.A.).