Date: 20020718
Docket: IMM-3300-01
Neutral citation: 2002 FCT 802
Ottawa, Ontario, Thursday the 18th day of July 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HORACIO MILTON ABREU ROJAS
Respondent
[1] These are my reasons for allowing the Minister's application for an order quashing the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which re-opened Mr. Rojas' refugee claim after it had been declared to be abandoned.
THE FACTS
[2] On April 18, 2001, the CRDD declared Mr. Rojas' claim abandoned. Thereafter, on either June 15, 2001 or June 18, 2001 (the evidence is not clear as to the date) counsel for Mr. Rojas filed with the CRDD a notice of motion with supporting materials seeking an order re-opening the refugee claim. The covering correspondence sent to the CRDD advised that the material had been served on the Minister's representative and requested prompt attention because arrangements had been made for the removal of Mr. Rojas on June 26, 2001.
[3] The motion materials were served upon the Minister's representative at 1:57 p.m. on June 18, 2001 and the materials so served did not reflect the request that the CRDD render its decision on an urgent basis due to Mr. Rojas' imminent removal.
[4] The Minister's representative had seven days from the time of service of the materials upon her in which to reply to Mr. Rojas' motion materials. On June 21, 2001, well within the seven day period, the Minister's representative served and filed with the CRDD the evidence and submissions opposing the motion to re-open.
[5] The motion to re-open was granted by the CRDD on June 20, 2001, and a Notice of Decision to that effect was issued on June 21, 2001.
[6] The Minister's representative never received the June 21, 2001 Notice of Decision.
[7] On June 21, 2001, the Minister's representative received a telephone call from Mr. Rojas' lawyer's assistant in which the assistant advised that the CRDD had already granted the motion to re-open.
[8] As a result, the Minister's representative requested a copy of the Notice of Decision from the CRDD on June 21, 2001. This request was repeated, together with a request for the reasons of the CRDD, on July 3, 2001.
[9] On July 5, 2001, the Minister filed this application for leave and for judicial review of the CRDD's decision to re-open.
[10] On July 12, 2001, the CRDD served the Minister's representative with a Notice of Decision on the motion to re-open, which notice was dated July 12, 2001. The Minister's representative was also served with a Notice to Appear for a refugee hearing in respect of Mr. Rojas scheduled for September 13, 2001.
[11] On September 13, 2001, the Minister's representative received a copy of the CRDD's written reasons, dated September 4, 2001, for granting the motion to re-open.
THE DECISION OF THE CRDD
[12] In its written reasons, after stating that the CRDD had found an asserted non-receipt by Mr. Rojas of the Notice to Appear for an abandonment hearing to constitute a denial of natural justice, the CRDD wrote as follows:
Since granting the motion to re-open, the panel received a Statement of Law and Argument in Reply together with a Declaration of Dale Munro to the Notice of Motion filed by the Applicant, from Ms. Heathfield, Hearings Officer, filed on behalf of the Minister. A copy of the Notice of Decision on a Motion to Reopen was forwarded to Ms. Heathfield by facsimile transmission on July 12, 2001, at the direction of the panel. The panel has considered the above-noted materials as submitted on behalf of the Minister and is of the opinion it would have nonetheless granted the Applicant's motion to re-open. Any credibility concerns including those raised by events that transpired at the time of the Applicant's arrival in Canada can be fully canvassed at the hearing into his Convention refugee claim. In this regard, the panel notes further that the Applicant co-operated fully at the July 11, 2001 PABA Court hearing in filing his Personal Information Form and providing a listing of counsel's available dates. The matter was set down for hearing on September 13, 2001 at 1:00 p.m. [footnote omitted, underlining added]
ANALYSIS
[13] The Minister's right to submit evidence and to make representations as a party to any proceeding before the CRDD is recognized in both subsection 69(1) of the Immigration Act, R.S.C. 1985, c. I-2 and Rule 28 of the Convention Refugee Determination Division Rules,
SOR/93-45.
[14] The CRDD is obliged to afford procedural fairness to the Minister in the exercise of that right. Procedural fairness requires a meaningful opportunity to present relevant evidence and submissions and to have such evidence and submissions fully and fairly considered.
[15] In rendering its decision before receiving evidence and submissions from the Minister, and before the time for the receipt of that material had expired, the CRDD breached the duty of procedural fairness by depriving the Minister of his opportunity to be heard. The significance of the breach of duty in the present case is sufficient to warrant intervention by the Court to set aside the decision of the CRDD.
[16] It was argued on Mr. Rojas' behalf, however, that the CRDD then remedied its breach of fairness when it subsequently considered the Minister's motion materials and then decided that it would nonetheless have granted the motion to re-open.
[17] In Ke v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 46 (T.D.) Justice McKeown considered the circumstance where the CRDD committed a breach of natural justice by issuing reasons prior to hearing the submissions of counsel. Justice McKeown was required to determine whether the CRDD had remedied its breach of natural justice by considering the applicant's submissions after it had reached its decision and then issuing an addendum to its decision. At paragraph 12 of his analysis Justice McKeown wrote:
In my view, the error that the tribunal made in making a decision without the submissions of counsel tainted the whole proceeding so as to require the tribunal to start afresh. The Board did not start afresh by simply reading submissions after the fact which were made in connection with the hearing, and which the Board used simply to determine if its own decision should be changed. The circumstances of this case certainly required the Board to propose a way to start the matter afresh or to discuss with counsel possible ways of starting the proceeding afresh to see if a suitable method could be found to deal with the matter. Counsel for the respondent submitted that in the circumstances of this case since the Board had not made any adverse credibility findings against the applicant, the Board met the requirements of the Chandler case by considering the submissions before rendering an addendum to the decision. I do not agree. It is an essential part of the judicial process that counsel be permitted to make submissions, and that the submissions be considered no less valuable where there are no adverse findings of credibility. For example, counsel may wish the Board to make certain findings of fact to assist their client in any subsequent judicial review where applicable, or any subsequent appeal. I do not see counsel's submissions as being any less important in cases where credibility is not an issue than where it is an issue. It is not starting the matter afresh to review submissions which were made with the intention of influencing the decision and are instead used to determine whether any changes should be made in the decision. These are two entirely different matters. [emphasis added]
[18] I respectfully adopt that analysis and find the present circumstance analogous. I can see no indication that the CRDD reconsidered the whole matter afresh with the benefit of the Minister's evidence and submissions. The requirement that the CRDD fully and fairly consider the materials submitted on the Minister's behalf is not met when that material is simply read in order to determine whether it warrants any change being made to the original decision.
[19] Accordingly, the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted panel of the CRDD. It is desirable that the member of the CRDD who made the impugned decision have no subsequent involvement with this claim at any stage.
[20] Counsel posed no question for certification and no question is certified.
ORDER
[21] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board to re-open the applicant's claim is hereby set aside. The matter is remitted for redetermination before a differently constituted panel of the CRDD.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3300-01
STYLE OF CAUSE: MCI v. Horacio Milton Abreu Rojas
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER
AND ORDER OF: The Honourable Madam Justice Dawson
DATED: July 18, 2002
APPEARANCES:
Ms. Amina RiazFOR THE APPLICANT
Mr. Daniel FineFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris RosenbergFOR THE APPLICANT
Deputy Attorney General of Canada
Mr. Daniel FineFOR THE RESPONDENT
Toronto, Ontario