Date: 20020131
Docket: IMM-523-01
Neutral citation: 2002 FCT 120
Toronto, Ontario, this 31st day of January, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SMILJANA SCEKIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. 1985, c. I-2 of the decision dated January 10, 2001 by a two member panel of the Immigration and Refugee Board (the "Board"), wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant seeks an order quashing the decision of the officer, sending the matter back for a redetermination.
Background Facts
[3] The applicant is from Yugoslavia, was born in Belgrade and claims to be treated with suspicion in her country because she is a Montenegrin from Montenegro.
[4] In 1998, the applicant claims to have begun a relationship with a member of the Radical Party, and that she subsequently joined the Radical Party to please him. The applicant claims that as a result of this relationship, she was exposed to serious danger. She claims to have received numerous threatening telephone calls, had someone shoot bullets into her parked car, and that her car was exploded in June, 1998. The applicant claims that the situation in her country is unstable and that she would be at serious risk should she return.
[5] The oral hearing of the applicant's claim for Convention refugee status was heard on November 30, 2000.
[6] The decision of the Board stated that after a careful review of all of the evidence, the panel was satisfied that there is no reasonable chance or serious possibility that the claimant would be targeted for any of the five grounds in the definition. As the applicant had failed to establish that she has a well-founded fear of persecution, the Board determined that she was not a Convention refugee.
Applicant's Submissions
[7] The applicant submits that the respondent failed to accord the applicant procedural fairness by failing to ensure that both panel members did not fall asleep during the hearing. In particular, the applicant contends that the panel member that wrote the decision was sleeping through a substantial portion of the hearing.
[8] The applicant submits that the respondent erred in fact by misunderstanding evidence put forward by the claimant at the hearing.
[9] The applicant submits that there was a breach of procedural fairness and natural justice in that counsel representing the claimant was negligent.
[10] Issue - Should the Board's decision be set aside?
Analysis
[11] The applicant has alleged through affidavit evidence that one of the panel members, Mr. Tahiri, was sleeping during a substantial portion of the hearing. Relevant extracts from the applicant's affidavit are:
In her sworn affidavit, at paragraphs 3 and 4, the applicant states:
The hearing lasted about four hours. However, only on [sic] of the Board members Mr. Rossi, spoke during the hearing. The other member Mr Tahiri seemed to be sleeping throughout the hearing. I do not recall him saying one word, except perhaps the exchange of greetings. Due to this fact I was particularly surprised and shocked when after reviewing the decision of the Board it indicated that it was written by Mr. Tahiri.
I am puzzled as to how it is possible for him to make such a decision when I believe he was literally sleeping throughout the proceeding.
Then at paragraph 13 of her affidavit, the applicant states:
About 45 minutes into the hearing I noticed that Mr. Tahiri was in fact sleeping. It caught my attention because his head slumped forward as if he could not hold it up.
At paragraphs 19 and 20 of her affidavit, the applicant further states:
Between 10:00 and 10:30 Mr. Rossi suggested that we take the first brake [sic]. HE [sic] called a recess. I saw Mr. Tahiri open his eyes, they were bloodshot.
During the brake [sic] Mr. Gombinsky seemed angry at how the hearing had gone so far. He asked me if I had noticed that Mr. Tahiri was sleeping. I said that I had and that I could not believe that someone that was deciding such an important issue in my life, could sleep though my hearing. I was frustrated, but I did not know that to do about it.
[12] On this evidentiary record, the only other evidence that can shed light on the issue of whether the panel member was sleeping is the transcript of the hearing.
[13] At pages 2 and 3 of the transcript, the panel member in question, Mr. Tahiri, spoke a number of times to swear in the applicant. The next time Mr. Tahiri appears on the transcript is at page 5 where he responds to a question of the other panel member as follows:
ROSSI Is that clear, Mr. Tahiri?
TAHIRI I have noted it.
[14] Mr. Tahiri makes brief comments on pages 6 and 8 of the transcript. Mr. Tahiri is on record on page 9 as attempting to ask a question. The transcript indicates that Mr. Tahiri next spoke at page 16 where he speaks twice and demonstrates that he has some knowledge of the proceedings taking place before him. Mr. Tahiri next speaks at page 19, where he makes a statement comparing an aspect of the claimant's Personal Information Form to the testimony at the hearing. The transcript then continues to page 49, during which time Mr. Tahiri does not speak on the record. In contrast, the transcript indicates that panel member Mr. Rossi spoke many times throughout the proceeding.
[15] In this case, the applicant was not cross-examined on her affidavit. The applicant's affidavit, however, states that the Board member was "literally sleeping throughout the proceeding", yet the transcript shows the Board member did speak during the proceeding. As well, the applicant stated that the member was "in fact sleeping" because his "head slumped forward".
[16] As I was not at the hearing, and as this is a serious allegation, it is difficult for me to make a finding that the Board member was asleep during the hearing. One of the statements in the affidavit alleges that the Board member seemed to be asleep and that the applicant believed him to be sleeping while another statement in the affidavit states that he was asleep. On the other hand, the transcript shows the Board member did make some statements and ask some questions during the hearing. I must add that simply because a Board member does not speak often during a hearing does not on its own indicate to me that the Board member is asleep.
[17] Based on all of the evidence, I am not prepared to find that the Board member was in fact asleep during the hearing. Notwithstanding this finding, I am satisfied on the record in this proceeding that the applicant has succeeded in demonstrating that it is in the best interests of justice that the matter be reheard by a different panel of the Board.
[18] Because of my finding, it is not necessary to deal with the other issues raised by the applicant.
[19] The decision of the Board is therefore set aside and the matter is referred to a different panel of the Board for redetermination.
[20] Neither party wished to certify a serious question of general importance.
ORDER
IT IS ORDERED that:
1. The decision of the Board is set aside and the matter is referred to a different panel of the Board for redetermination.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
January 31, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-523-01
STYLE OF CAUSE: SMILJANA SCEKIC
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, OCTOBER 31, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: THURSDAY, JANUARY 31, 2002
APPEARANCES:
Mr. Max Chaudhary
FOR APPLICANT
Mr. Jeremiah Eastman
FOR RESPONDENT
SOLICITORS OF RECORD:
Chaudhary Law Office
18 Wynford Drive, Suite 707
Toronto, Ontario
M3C 3S2
FOR APPLICANT
Department of Justice
Ontario Regional Office
Exchange Tower, Suite 3400, Box 36
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020131
Docket: IMM-523-01
BETWEEN:
SMILJANA SCEKIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER