Date: 20040325
Docket: IMM-370-03
Ottawa, Ontario, this 25th day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
RICHARD BORCSOK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision ("Decision") of the Refugee Protection Division of the Immigration and Refugee Board ("Member"), dated December 17, 2002, dismissing the refugee claim of Mr. Richard Borcsok ("Applicant").
BACKGROUND
[2] The Applicant is a citizen of Hungary. His claim for protection was based on an alleged fear of persecution by reason of his membership in a particular criminal social group.
[3] The Member was not satisfied that the Applicant was a Convention refugee or a person in need of protection.
[4] The Applicant notes that his claim was heard before only one Member pursuant to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Applicant's Personal Information Form ("PIF") and his Personal Narrative were filed with the Registry of the Immigration and Refugee Board on March 15, 2002.
[5] The IRPA came into effect on June 28, 2002.
[6] On August 21, 2002, the Applicant filed an application pursuant to Rule 44 of the Refugee Protection Division Rules, 2002, requesting that the matter should be heard under the provisions of the Immigration Act, R.S.C. 1985 c. I-2 ("Immigration Act"), and specifically s. 69.1(7) of the Immigration Act, which indicates that two members are required for a quorum. That application was denied.
RELEVANT LEGISLATION
[7] The transition provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, stipulate as follows in s. 191:
| 191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board. |
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191. Les demandes et procédures présentées ou introduites, à l'entrée en vigueur du présent article, devant la Section du statut de réfugié sont, dès lors que des éléments de preuve de fond ont été présentés, mais pour lesquelles aucune décision n'a été prise, continuées sous le régime de l'ancienne loi, par la Section de la protection des réfugiés de la Commission. |
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[8] Section 69.1(7) of the Immigration Act stipulates that two members shall hear a claim unless, pursuant to s. 69.1(8), consent is obtained from the claimant:
| (7) Subject to subsection (8), two members constitute a quorum of the Refugee Division for the purposes of a hearing under this section.
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(8) One member of the Refugee Division may hear and determine a claim under this section if the person making the claim consents thereto, and the provisions of this Part apply in respect of a member so acting as they apply in respect of the Refugee Division, and the disposition of the claim by the member shall be deemed to be the disposition of the Refugee Division. |
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(7) Le quorum de la section du statut lors d'une audience tenue dans le cadre du présent article est constitué de deux membres.
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(8) Si l'intéressé y consent, son cas peut être jugé par un seul membre de la section du statut; le cas échéant, les dispositions de la présente partie relatives à la section s'appliquent à ce membre et la décision de celui-ci vaut décision de la section. |
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[9] Section 163 of IRPA indicates that claims need only be heard before a one member panel:
| 163. Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted. |
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163. Les affaires sont tenues devant un seul commissaire sauf si, exception faite de la Section de l'immigration, le président estime nécessaire de constituer un tribunal de trois commissaires. |
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ISSUES
[10] The Applicant raises the following issue:
Should the hearing have been conducted under the provisions of the Immigration Act rather than under the provisions of the IRPA?
ARGUMENTS
Applicant
[11] The Applicant submits that, for the purposes of s. 191 of the IRPA, his PIF and Personal Narrative constitute "substantive evidence," and s. 191 necessitates that the matter should have been heard under the provisions of the Immigration Act.
[12] The Applicant notes that s. 69.1(7) of the Immigration Act stipulates that two members shall hear a claim unless, pursuant to s. 69.1(8), consent is obtained from the claimant.
[13] The Applicant notes that no consent was obtained from him to have his claim heard by only one panel member.
[14] The Applicant says that the hearing should have been heard by two panel members under the provisions of the Immigration Act. As a result, the Member erred in rendering the decision under the provisions of the IRPA.
Respondent
[15] The Respondent submits that the Member acted within his jurisdiction by proceeding alone under the IRPA.
[16] The Respondent's argument is that no substantive evidence was adduced by the Applicant until September 10, 2002, the date of the hearing. The mere filing of the PIF did not constitute adduced evidence so as to require the Member to proceed under the Immigration Act. Substantive evidence is said to be adduced when it is entered or introduced as evidence at the hearing, which in this case did not occur until September 10, 2002 (Hernandez v. Canada (Minister of Employment and Immigration) (1993), 162 N.R. 391 (F.C.A.) and Martin v. St. Lawrence Cement Co. et al., [1968] 1 O.R. 94 (Ont. C.A.)).
[17] The Respondent says that the recent decision of Tremblay-Lamer J. in Isufi v. Canada (Minister of Citizenship and Immigration), 2003 F.C. 880 (T.D.) is directly on point and determinative of the issue before the court. In Isufi, supra, Tremblay-Lamer J. held that the filing of a PIF does not constitute evidence adduced in the proceeding. Evidence is only adduced when it is identified on the record and entered as an exhibit at the hearing:
6. The applicant first argues that the Board acted without jurisdiction by hearing the matter before a single-member panel.
7. Section 191 of the Act states as follows:
191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.
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191. Les demandes et procédures présentées ou introduites, à l'entrée en vigueur du présent article, devant la Section du statut de réfugié sont, dès lors que des éléments de preuve de fond ont été présentés, mais pour lesquelles aucune décision n'a été prise, continuées sous le régime de l'ancienne loi, par la Section de la protection des réfugiés de la Commission.
8. The applicant submits that the hearing should have proceeded under the former Immigration Act, R.S.C. 1985, c. I-2 ("Immigration Act") as substantial evidence had been adduced, particularly the applicant's PIF and documentary material, prior to the coming into force of the Act.
9. According to the applicant, it was necessary that he explicitly consent to a single member panel of the Board pursuant to subsections 69.1(7) and (8) of the Immigration Act. There is no indication in the decision that the applicant consented thereto. As such, the Board acted without jurisdiction by hearing the applicant's claim by a single member panel without his consent. I disagree.
10. The filing of a PIF does not constitute substantive evidence. In Aquino v. Minister of Employment and Immigration (1992), 144 N.R. 315, the Federal Court of Appeal held that a PIF which was filed but not identified on the record nor entered as an exhibit at the hearing was not considered to be evidence adduced in the proceedings. I recognize that these remarks were made in the context of subsection 68(3) of the Immigration Act but I find that they are equally applicable to subsection 170(h) of the Act as both provisions contain similar wording.
11. As a result, the applicant's claim had not commenced before the coming into force of the Act and the Board had the jurisdiction to proceed under the Act with a single member panel.
[18] The Respondent submits that, in the case at bar, the Applicant's PIF was not "adduced" before any particular panel of the Refugee Division. Rather, it was received, as evidenced by the date stamp of March 15, 2002, and as required by Rule 14(2)(b) of the former Convention Refugee Determination Division Rules (the Rules in force at the time the Applicant filed his PIF).
[19] The Applicant's Notice to Appear sets a hearing date of September 10, 2002, and the Certified Tribunal Record indicates that this was the first and only hearing date. So no hearing ever took place prior to June 28, 2002. The Respondent submits that, clearly, no substantive evidence was adduced prior to June 28, 2002.
[20] The Respondent's point is that, when read as a whole, s. 191 contemplates situations where a hearing before the Refugee Division was commenced prior to June 28, 2002 and evidence was adduced but the hearing was adjourned to a date after June 28, 2002. This is clearly not the Applicant's situation.
[21] The Respondent does concede that a Refugee Board member reviewed the Applicant's file on August 1, 2002, in the presence of the Applicant to determine when to schedule a hearing, what the issues might be, and to estimate the length and complexity of the hearing. But this was merely procedural and did not constitute the commencement of the Applicant's hearing before the Refugee Division. The Respondent also submits that it cannot be said that the PIF was adduced before the Member on August 1, 2002, because that would have required identification on the record and entry as an exhibit.
ANALYSIS
[22] This Application involves an interpretation of the transitional provisions contained in s. 191 of IRPA.
[23] The Applicant points out that there is some jurisprudential ambiguity concerning the intended meaning of "proceeding" and "matter." That may be true but the section does require that "substantive evidence" be "adduced" and no "decision" made. On the facts of the present case, the only substantive evidence was adduced at the hearing of September 10, 2002.
[24] Hence, I feel that this matter is squarely covered by Aquino v. Canada (Minister of Employment and Immigration) (1992), 144 N.R. 315 (F.C.A.), Isufi, supra, as referred to by the Respondent. The Member was correct. I believe that the law is clear on this issue and that no question needs to be certified.
ORDER
THIS COURT ORDERS that
1. This Application is dismissed.
2. There is no question for certification.
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"James Russell" |
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JFC |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-370-03
STYLE OF CAUSE: RICHARD BORCSOK v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: March 9, 2004
REASONS FOR ORDER: The Honourable Justice Russell
DATED: March 25, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |