Date: 19981211
Docket: IMM-434-98
BETWEEN:
MARY FRANCISCA PHILLIP
GABY PHILLIP
GRAVIN PHILLIP
JEYSEELAN PHILLIP
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.
[1] At the commencement of the hearing before it, a panel of the Immigration and Refugee Board, through the RCO, ordered the female applicant to leave the hearing room with her youngest child, so that questions could be asked of her other children, 5 and 8 years of age, in her absence. After questions were asked of the 5 and 8 year-old children, the female applicant was invited back into the hearing room. At the request of her counsel, the presiding panel member provided the female applicant with a very brief summary of the questions asked of the children.
[2] The applicant says the panel erred when it excluded her from the hearing. Subsection 69(2) of the Immigration Act, R.S.C. 1985, c. I-2, provides:
| 69. (2) Subject to subsections (3) and (3.1), proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable, and be conducted in camera or, if an application therefor is made, in public. |
Subsections 3 and 3.1 are not relevant for purposes of excluding an applicant. Counsel were not able to find any cases interpreting subsection 69(2).
[3] The respondent's position was that the panel is the master of its own procedure. Reference was made to paragraph 67(2)(d) of the Immigration Act:
| 67. (2) The Refugee Division, and each member thereof, has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of a hearing, |
| . . . |
| (d) do any other thing necessary to provide a full and proper hearing. |
He also suggested that the words "wherever practicable" in subsection 69(2) provide a panel with the discretion necessary to exclude applicants when considered necessary and appropriate.
[4] Subsection 69(2), provides that parties cannot be excluded from refugee division proceedings involving their rights and interests. The words "wherever practicable", while recognising that in some circumstances, it may not be possible for an applicant to be present, also require that when it is feasible, applicants must be present. That means that when it is practically possible to be present, applicants may not be excluded by a panel.
[5] Respondent's counsel suggested that the reason for excluding the female applicant was to preclude her from influencing or signalling to the children as they gave their evidence. If that was the purpose, I do not know why the panel could not have opted for speaking to the female applicant and her counsel and issuing a warning that if signalling took place that this could affect credibility. It seems to me that there are other ways of dealing with that type of problem short of excluding a party. Whatever the motivation of the panel, there is no justification for excluding the female applicant. The panel contravened subsection 69(2) of the Immigration Act when it did so.
[6] This is not a situation in which the panel is saved because there was no objection by counsel or because a briefing was given to the applicant when she was invited back in the hearing. The requirement of presence of the parties under subsection 69(2) is mandatory. In any event, it appears that the panel made up its mind to exclude the female applicant and through the RCO gave its exclusion decision. It was too late, once that had been done, for any objection to be effective. I also detect from the transcript, that except for the request by applicant's counsel, the panel was not intending to provide a summary of the examination of the children to the female applicant. Indeed, the summary given was extremely brief and general and did not tell the applicant the answers given by the children:
| Wiseman: Don't you think we should explain to the claimant what happened in her absence? |
| Coyne: Oh. |
| Wiseman: So she doesn't worry. |
| Coyne: Yeah. We asked your two other children some questions about whether, who you were and you were their mummy and where they came from and where they went to school and just some things like that to establish identity. And your daughter's very articulate and your five-year-old doesn't like talking. Four-year-old. Is there anything else? |
| Wiseman: No. |
Even if the wrongful exclusion of the female applicant could be excused by the provision of a summary when she returned (which it cannot), the summary provided here would have been inadequate for the purpose.
[7] That is sufficient to dispose of the judicial review. However, a few other observations should be made in view of the fundamental issues at stake here. Subsection 69(4) of the Immigration Act provides:
| 69. (4) Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings. |
The female applicant was not designated as the representative of the infant children until after she had been excluded, the children were examined in her absence and she had been invited back into the hearing. A late designation may not invalidate all proceedings in all circumstances. However, it is proper practice that the designation take place at the outset in order to avoid the risk of spoiling the proceedings.
[8] Finally, I would observe that the usual formalities when young children are asked to give evidence were not adhered to in this case. At the least, if the evidence is to have any probative value, a tribunal must establish that the children understand right from wrong, the importance of telling the truth, and the consequences of not telling the truth. The panel ignored these requirements.
[9] One of the Court's functions is to be a supervisor of the conduct of federal tribunals. When tribunals conduct their proceedings without regard for statutory requirements, the Court will speak out strongly so as to ensure that loud and clear guidance is given for future proceedings. That is what the Court is doing here.
[10] This judicial review is allowed and the matter is remitted to a different panel of the Immigration and Refugee Board for redetermination.
[11] The following question is certified for appeal:
| Did the Refugee Division breach subsection 69(2) of the Immigration Act by hearing evidence from the minor children of the female applicant Mary Francisca Phillip in her absence. |
Marshall Rothstein
J U D G E
OTTAWA, ONTARIO
December 11, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-434-98
| STYLE OF CAUSE: MARY FRANCISCA PHILLIP |
GABY PHILLIP
GRAVIN PHILLIP
JEYSEELAN PHILLIP
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: TUESDAY, DECEMBER 1, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: FRIDAY, DECEMBER 11, 1998
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman and Associates
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981204
Docket: IMM-434-98
Between:
| MARY FRANCISCA PHILLIP |
GABY PHILLIP
GRAVIN PHILLIP
JEYSEELAN PHILLIP
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER