Date: 20000628
Docket: IMM-5449-99
Ottawa, Ontario, June 28, 2000
| Present: THE HONOURABLE MR. JUSTICE DENAULT |
Between:
STANISLAV PACHKOV,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review of the decision by the Immigration and Refugee Board dated October 20, 1999 is allowed. The matter is accordingly referred back to the Board for re-hearing by a differently constituted panel. The record will not include the transcript of the preceding hearings.
PIERRE DENAULT
JUDGE
Certified true translation
Martine Brunet, LL. B.
Date: 20000628
Docket: IMM-5449-99
Between:
STANISLAV PACHKOV,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division"), delivered by the Members Yves Boisrond and Anna-Maria Silvestri on October 20, 1999, which found that the plaintiff is not a Convention refugee. In this application the plaintiff is also challenging an interlocutory decision of the Refugee Division, delivered by the Co-ordinating Member Georges Gustave on April 21, 1999, on an objection to the makeup of the file for the de novo hearing.
[2] The plaintiff was a citizen of the former Soviet Union. He was born in Latvia, where he has always lived. When the Soviet Union collapsed and Latvia declared independence, the plaintiff became a stateless person.
[3] On account of his Russian origin, the plaintiff was the victim of Latvian nationalists. In April 1995 he began receiving notes printed in Russian in his mailbox, in which there were threats to kill him and rape his wife, and he was told to leave the country. He informed the police authorities, who told him not to be concerned and that they would look after the matter.
[4] Some time later, when he had to go 20 km away from Riga, he was stopped on the way by a police officer who asked him to get out of his car and get into the police car. Once inside the police car, the plaintiff found himself facing three individuals, one of whom had a pistol. He was taken to a forest where he was beaten, before being left there unconscious. When he recovered consciousness the plaintiff went to seek medical attention, but avoided contacting the police in view of the threats made by his attackers.
[5] The plaintiff was afraid and left his work as a mechanic to travel to the U.S. with a group of tourists in December 1995. When he returned to Latvia in January 1996 the plaintiff received a telephone call from one of his attackers. Fearing for his life, the plaintiff left for the U.S. in August 1996 and stayed there until August 1997. That was when he came to Canada and claimed refugee status.
[6] On January 8, 1999, Teitelbaum J. allowed an application for judicial review from a decision by the Refugee Division dismissing the plaintiff's claim and ordered a re-hearing before a panel of different members.
[7] On April 8, 1999, counsel for the plaintiff filed an objection to the inclusion in the record for the de novo hearing of the transcript, the notice of decision and the reasons for the decision of the Refugee Division, and any other evidence contained in the record of the first hearing. This objection was dismissed by the Co-ordinating Member Georges Gustave in a decision dated April 21, 1999.
[8] The hearing of the claim took place on April 29 and May 31, 1999 before Members Yves Boisrond and Anna-Maria Silvestri, based on the record as it stood following the decision on the objection. The plaintiff's claim was dismissed on October 20, 1999.
[9] At the hearing of this application for judicial review I allowed the motion by counsel for the plaintiff to adjourn the hearing on the question he had raised in his memorandums regarding the jurisdiction of the Co-ordinating Member Gustave to decide on the makeup of the de novo record, since counsel stated that he had never received any policy of the Immigration and Refugee Board titled [TRANSLATION] "Court-ordered Re-hearings"1 when he filed his memorandum in reply on February 4, 2000. However, the parties agreed to make, and did make in extenso, their respective arguments on the decision of the Members Boisrond and Silvestri dated October 27, 1999.
[10] In the latter decision the Refugee Division found that the plaintiff was not credible and that his conduct after leaving Latvia indicated that he had no fear of persecution. However, it appeared that during the hearing, as the plaintiff was arguing that it was no longer possible for him to return to Latvia, the question arose as to whether, since the provisions of the Citizenship law were made more flexible, the plaintiff had taken steps since January 1, 1999 to return to his country.
[11] Of course, this is evidence the plaintiff should ordinarily present. However, as appears from the transcript of the hearing of May 31, 1999 it was the members of the tribunal who undertook that the Refugee Claims Officer Céline Paradis would send a request for information to the Latvian Embassy in Canada.2 This request contained a research directive worded as follows:
[TRANSLATION]
| Situation of stateless persons holding passport of former USSR who have not exchanged it for a new Latvian stateless persons passport: can they obtain another one? Can they return to Latvia as permanent residents (left Latvia in 1996)? |
as appears from the information request forms authorized by the presiding Member at the hearing, Yves Boisrond, and signed by the plaintiff before members of the tribunal on May 31, 1999.3
[12] In the case at bar, it was Judith Malka, who did not attend the tribunal's hearings, who sent the information request, not to the Latvian Embassy but to the Immigration and Refugee Board Documentation Centre. Contrary to the undertaking given by the tribunal, no request was sent to the Latvian Embassy. Further, the Immigration and Refugee Board never informed the plaintiff of its intention not to request the information sought from the Latvian Embassy.
[13] Nevertheless, it was on the basis of this evidence from the Research Branch of the Immigration and Refugee Board, dated July 16, 1999,4 that the Refugee Division concluded that the plaintiff had not shown that he had taken steps since January 1, 1999 to obtain a return certificate, though he could have obtained this without restriction. The Refugee Division said the following:5
[TRANSLATION]
| However, in addition to the fear of persecution which he mentioned as a reason for not returning to his country, the plaintiff also raised an important point, the fact that it is now impossible for him to return to Latvia even though steps have been taken to facilitate life for non-citizens, especially those of Russian nationality (Exhibit A-12). On this point, the provisions of the citizenship law have been made more flexible by Parliament following the referendum of October 1998 favouring non-citizens (Exhibit A-10). The plaintiff stated that he could not take advantage of these new measures as he no longer had the right to return to Latvia. |
| In support of his claim he submitted Exhibit P-16, which appeared to indicate that in April 1998 he submitted a request for information about renewal of his entry visa to the Latvian Embassy in Ottawa. According to his testimony, he received no reply to this request. However, on this point a request for information received by the Immigration and Refugee Board (IRB) dated July 16, 1999 indicated that persons who like the plaintiff used the passport of the former Soviet Union issued by Latvia to travel abroad had until December 31, 1998 to return to Latvia, and those who did not do so could apply to Latvian diplomatic and consular missions abroad as of January 1, 1999 for a return certificate. |
| This document was obtained after the hearing of May 31, 1999. Following that hearing it was agreed that the document would be sent to counsel for the plaintiff, who then had 15 days to submit whatever comments or arguments he thought it advisable to submit. That is what he did on August 31, 1999 and he appeared to maintain the plaintiff's argument that he did not have the right to return to Latvia. The tribunal cannot accept such an argument since there is no evidence in the record that the plaintiff has taken any steps whatever since January 1, 1999 to obtain the return certificate mentioned in the document of July 16, 1999, and which places no type of restriction on its issue. |
[14] According to the theory of legitimate expectations, which is based on rules of fairness and natural justice, an administrative authority must observe the procedural undertakings it has freely given, provided that authority is not acting contrary to its legal obligations.6
[15] In these circumstances, there is in my opinion no doubt that it was reasonable for the plaintiff to expect that the request for information would be sent to the Latvian Embassy, and I consider that the failure to send the request to the Embassy caused the plaintiff significant hardship. If the tribunal had kept its promise, the plaintiff could have had the benefit of a more complete and final response on his right to return to Latvia, especially as the plaintiff had initiated contacts with the Latvian Embassy in Canada through CIBSC Inc., a company specializing in immigration services, but received no reply7 and, contrary to the conclusion drawn by the tribunal, there was nothing in the record to indicate that obtaining a return certificate was subject to [TRANSLATION] "[any] type of restriction".
[16] After hearing the parties' argument regarding the decision on the merits of the case, and in view of the conclusion at which I have arrived, the issue in this Court is at an end and it would be pointless to hear the parties again on Co-ordinating Member Gustave's decision regarding the makeup of the de novo record.
[17] For these reasons, the application for judicial review is allowed and the matter is referred back to a panel of different members. The record will not include the transcript of the preceding hearings.
PIERRE DENAULT
JUDGE
Ottawa, Ontario
June 28, 2000
7 T.F., p. 58.
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-5449-99 |
| STYLE OF CAUSE: STANISLAV PACHKOV v. MCI |
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 20, 2000
REASONS FOR JUDGMENT BY: DENAULT J.
DATED: June 28, 2000
APPEARANCES:
| Michel LeBrun FOR THE PLAINTIFF |
| Simon Ruel FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Michel LeBrun FOR THE PLAINTIFF |
Montréal, Quebec
| Morris Rosenberg FOR THE DEFENDANT |
Deputy Attorney General of Canada
__________________1 Procedural note No. 1999-001.
2 Tribunal's file (T.F.), pp. 840, 859-860, 875, 883-884, 886 and 891-892.
5 Refugee Division's decision, T.F., pp. 7-8.
6 Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 (S.C.C.); Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 (S.C.C.); Canada v. Lidder, [1992] 2 F.C. 621 (F.C.A.).