Date: 19990308
Docket: IMM-1681-98
Between:
YVACHESLAV SOROGIN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a Convention Refugee Determination Division decision that the applicant is not a Convention refugee.
[2] The applicant is a citizen of Russia. He alleges that he has a well-founded fear of persecution in his country of origin because of his Chechen nationality. At the hearing, the panel raised doubts about the authenticity of his birth certificate.
[3] The panel accordingly decided to have the RCMP examine it.
[4] It was agreed at the hearing that the applicant would be able to make representations with respect to that examination within ten days of receiving the report.
[5] A copy of the report was sent to counsel, Mr. Rios, on January 21, 1998. The applicant maintains that he did not receive it. The laboratory result established that the birth certificate was counterfeit. Since the panel did not receive any comments within the allotted time, it rejected the applicant"s claim.
[6] The applicant argues, first, that the panel could not have regard to that evidence after the hearing, and that considering Lawal,1 it should have reopened the hearing for that evidence to be filed.
[7] With respect to the admissibility of evidence filed after the hearing but before the panel makes its final determination, the Federal Court of Appeal in Salinas v. Canada (M.E.I.)2 said that the panel can carry out its functions, and thus allow the filing of new evidence with an opportunity for the opposing party to reply thereto, until such time as it makes its determination:
Nor, in our view, was the Refugee Division functus officio. It had yet to make a determination of the claim. Until it did, the proceedings were still pending and finality had not been reached. In order to arrive at its decision, the Refugee Division could exercise the powers conferred by and under the statute provided it did so properly by giving the respondent an opportunity to be heard at the reconvened hearing. That it did. Inquiry into any change of conditions in the respondent"s homeland comes within the general mandate of the Refugee Division in determining the claim. The Division should be allowed to complete its statutory task.
In our view the issue has already been implicity decided for this Court in Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404, where Hugessen J.A. held for the Court that the only way for the Refugee Division, after the end of a hearing but before decision, to consider new evidence beyond that of which it might take judicial notice was by reopening the hearing, and that it should do so.3
[8] In Lawal v. M.E.I., the Federal Court of Appeal stated that the panel does not have the power to take evidence other than by way of hearing. The Court said that this hearing may take place in the applicant"s absence if the applicant consents:
Subsection 69.1(4) specifically requires that the Refugee Division hold its hearings in the presence of the claimant. A consideration of the scheme of sections 67 to 69.1 inclusive makes it abundantly clear that the Board is only to proceed to the determination of refugee claims by way of hearing. In the context, this must mean an oral hearing. The Board has no power to take evidence other than at a hearing and, absent a proper waiver, such hearing must be in the presence of the claimant.4
[9] However, as counsel for the respondent submits, subsection 69.1(4) was repealed after Lawal, so in his opinion, it would now be acceptable to have a more informal procedure, whereby evidence may be filed outside a hearing where the parties consent to such a procedure and where the rules of natural justice are observed by allowing the claimant to comment on that evidence.
[10] The repeal of subsection 69.1(4) certainly relaxed the rule established by Lawal, since the panel is no longer required to hold a hearing in the claimant"s presence. Parliament thus prefers a more flexible procedure. In my view, as long as the rules of procedural fairness are observed and the parties consent, the scheme of the Act allows for proceeding in this manner, since Parliament expressly provided that the Refugee Division is not bound by the formal rules of evidence.
[11] While reopening the hearing is always the most appropriate procedure, the circumstances might be such that this procedure would be impracticable or would prevent the panel from acting expeditiously. I therefore accept a departure from this procedure provided that the applicant consents to it and is not prejudiced by it in any way. However, should the applicant object to it, the panel should reopen the hearing.
[12] With respect to the second point Mr. Le Brun raised, regarding the requirement to serve the document on both the claimant and his representative, I am of the view that the panel must ensure that the applicant is made aware of the new evidence and given an opportunity to reply thereto within the allotted time. In these circumstances, the principles of natural justice require service other than merely by ordinary mail.
[13] Under the circumstances, the application for judicial review is allowed. I refer the matter back to the same panel for the claimant to make his representations in writing (since he consented to this procedure) within ten days of service of the examination report. After receiving his comments, the panel may make its determination.
[14] Neither counsel recommended that a question be certified.
(Sgd.) Danièle Tremblay-Lamer
JUDGE
VANCOUVER, BRITISH COLUMBIA
March 8, 1999.
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1681-98
STYLE OF CAUSE: YVACHESLAV SOROGIN
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal QC
DATE OF HEARING: March 3, 1999
REASONS FOR ORDER OF THE HONOURABLE TREMBLAY-LAMER J.
DATED: March 8, 1999
APPEARANCES:
Michel Le Brun for the applicant
Claude Provencher for the respondent
SOLICITORS OF RECORD:
Michel Lebrun for the applicant
Montréal QC
Morris Rosenberg for the respondent
Deputy Attorney General
of Canada
__________________1 Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404 (F.C.A.)