Date: 20010821
Docket: IMM-4516-00
Neutral citation: 2001 FCT 928
Between:
VLADIMIR VOSLAEV
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
Introduction
[1] This is an application for judicial review by Vladimir Voslaev, a Russian national, whose refugee status claim was denied by the Refugee Division ("the tribunal") on August 7, 2000 on the ground that he had not established his Jewish nationality, an essential aspect of his fear of persecution.
[2] The plaintiff's claim was considered by the tribunal on February 24, 2000; the case proceeded on March 24 and April 27, 2000.
[3] In the tribunal's opinion a Russian claimant usually presents evidence of his Jewish nationality by submitting his internal passport and birth of certificate, since the nationality of the parents is shown in the birth certificate, and in the internal passport that of the passport holder.
[4] At the first hearing the tribunal emphasized the importance of the claimant obtaining an official document corroborating his mother's birth. The tribunal concluded as follows on this point:
[TRANSLATION]
In the instant case the claimant filed the original of his internal passport issued by the government identifying him as of "Tartar" nationality, and so with no connection to his alleged Jewish nationality.
As regards his birth certificate, the claimant submitted not the original of the said certificate or that of his mother but two unrelated documents, namely statements of birth (R-17), a form completed by hand with a stamp which the tribunal would describe as a very unofficial document, and a copy of a fax (R-18) which appeared to be a transcript of a birth register, a doubtful document with a heading in the same print as the text. [My emphasis.]
[5] The tribunal referred to its specialized knowledge,
[TRANSLATION]
. . . which indicated to it that the great majority of claims alleging they are of Jewish nationality do not produce original documents certifying that nationality. The latter usually are confined to submitting evidence of duplicates or photocopies of their birth certificates for identity purposes. Some years ago the IRB began sending these documents to the RCMP for expert opinions and the great majority of the documents proved to be forged or falsified documents.
[6] In the plaintiff's submission, at the hearing of April 27, 2000 the tribunal told his counsel that Exhibit R-18, dealing with his birth certificate, indicating his mother's Jewish nationality and his father's Tartar nationality, was insufficient to establish his Jewish nationality. The tribunal required him to produce a duplicate of the certificate and gave him until June 9, 2000 to do so.
[7] On June 6, 2000 counsel for the plaintiff wrote the tribunal explaining what steps had been taken to obtain the duplicate. She reviewed the complex procedures requiring an authenticated power of attorney that would allow the plaintiff's wife, who is in Russia, to obtain the duplicate. Counsel asked for further time but this was denied.
Analysis - Preliminary question
[8] In a supplementary memorandum the plaintiff raised a preliminary question about the fact that the tribunal was unable to provide a transcript of the hearings of March 24 and April 27, 2000 because of a technical breakdown.
[9] In her first memorandum counsel for the plaintiff had mentioned several errors of law and infringements of the rules of natural justice at these two hearings of the tribunal.
[10] It was at the hearing of March 24, 2000 that the plaintiff filed Exhibits R-16 to R-25. I note that in its decision of August 7, 2000 the tribunal dismissed Exhibits R-17 and R-18 for the reasons mentioned above. I set out in full the objections made by the plaintiff in paras. 11 and 12 of his memorandum to the hearing on March 24, 2000:
[TRANSLATION]
11. At the finalized hearing of March 24, 2000 counsel for the plaintiff told the members that if the documents were not to their satisfaction he would not proceed and would insist on an adjournment. Despite this the members said they were satisfied and the parties made their oral submissions. The case was taken under advisement.
12. Despite the observations made orally by counsel for the claimant, the latter at the request of the members had to submit the same observations in writing within a deadline imposed as March 31, 2000.
[11] The following is what counsel for the plaintiff wrote concerning the hearing of April 27, 2000, in paras. 14, 15, 16 and 18 of her memorandum:
[TRANSLATION]
14. Despite the objection of his counsel, the claimant was summoned at 1:00 p.m. on April 27, 2000 to a verification of the copies entered in the record with the originals. This verification, according to the members, should have lasted 15 minutes. The verification was transformed into a full hearing lasting one and a half hours.
15. The failure to issue a summons for reopening the hearing and give the claimant an opportunity to prepare for the hearing properly was a clear infringement of the right to a full and fair hearing.
16. At this "improvised hearing" of April 27, 2000 the refugee claims officer, who never participated in the hearings of February 24 and March 24, 2000 (finalized hearing), indicated the special knowledge of the tribunal . . .
18. By proceeding in the way in which the hearing of April 27, 2000 was held the Refugee Division acted contrary to the mandatory provisions of this subsection of the Immigration Act.
[12] In her supplementary memorandum counsel for the plaintiff argued that the lack of a transcript of the hearings prevented her from establishing the circumstances in which she wished to present her objections and comments, including those relating to the documents filed. She added that the transcript of the second and third hearings was important because the plaintiff was examined and cross-examined about his Jewish nationality, the documents filed and the basis for his fear of persecution.
[13] Counsel for the plaintiff maintained that the fact the transcript of the second and third hearings was not available would never permit the Court to verify the inadmissible attitude of the refugee claims officer at the hearing, and in particular the objections made by her and the fact she could not make her observations at the last hearing. Further, she argued that the absence of the recording of these last two hearings did not give the tribunal an opportunity to determine whether the Refugee Division performed its obligations under s. 68(5) of the Immigration Act.
[14] Counsel for the defendant also filed a supplementary memorandum, arguing that the failure to have the transcripts was not [TRANSLATION] "a denial of natural justice preventing the Court from deciding on the plaintiff's application for judicial review". In the defendant's submission, the nub of the matter was the failure to have documentary evidence at the proper time rather than, for example, the plaintiff's testimony, which was not at issue.
[15] The defendant maintained that the plaintiff did not deny that he had not provided the requisite documents, but alleged that the tribunal should have accepted his explanations and given him additional time to obtain his documents. The defendant argued that the presence of the transcript was not essential in the case at bar and that the Court could decide the matter. In the defendant's submission, the issue here was not the verification of the improbabilities, inconsistencies and contradictions in a plaintiff's testimony.
[16] The leading case in this area is the judgment of the Supreme Court of Canada in Canadian Union of Public Employees, Local 301 v. City of Montréal, [1997] 1 S.C.R. 793. The Supreme Court judgment was delivered by L'Heureux-Dubé J., who said the following at 841 and 842:
In my view, the decisions in Kandiah and Hayes, supra, provide an excellent statement of the principles of natural justice as they apply to the record made of an administrative tribunal's hearing. In cases where the record is incomplete, the denial of justice allegedly arises from the inadequacy of the information upon which a reviewing court bases its decision. As a consequence, an appellant may be denied his or her grounds of appeal or review. The rules enunciated in these decisions prevent this unfortunate result . . .
In the absence of a statutory right to a recording, courts must determine whether the record before it [sic] allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice . . .
The question we must therefore answer in the case at bar is whether the respondent was denied a ground of review by virtue of the absence of a recording of the hearing before the Council.
[17] Counsel for the defendant properly noted that the plaintiff's credibility is not at issue in the case at bar, as was the case before Tremblay-Lamer J. in Likele v. Canada (M.C.I.) (1999), 175 F.T.R. 281.
[18] However, the rule of intervention stated by L'Heureux-Dubé J. in Canadian Union of Public Employees, Local 301, supra, is not limited to a case where the claimant's credibility is in question. For example, in Ahmed v. Canada (M.C.I.), Court file IMM-1654-99, dated May 26, 2000, Dawson J. said the following:
I have concluded that without a transcript of the hearing, I am unable to properly review the general finding of a lack of credibility, nor can I properly consider whether the Board provided a reasonable opportunity to the applicant to address its concerns or complied with its obligation under subsection 68(5) of the Immigration Act.
[19] As L'Heureux-Dubé J. said in Canadian Union of Public Employees, Local 301, supra, the issue is whether the plaintiff was denied his grounds of review because of the lack of a recording of the two hearings on March 24 and April 27, 2000. I think he was. Without a transcript of those two hearings, I cannot determine:
1. if the tribunal performed its obligations under s. 68(5) of the Act : see Ahmed, supra;
2. if the tribunal infringed the rules of natural justice regarding objections made by counsel for the plaintiff and the fact she was unable to submit her comments;
3. if the tribunal said it was satisfied with the evidence filed on March 24, 2000 and then concluded its inquiry, but illegally resumed it on April 27, 2000;
4. if the tribunal's conclusion on the evidentiary value of the other documents filed by the plaintiff was patently unreasonable.
Disposition
[20] For all these reasons, the application for judicial review is allowed. The tribunal's decision is quashed and the matter referred back for re-hearing by a panel of different members. No question was submitted for certification.
|
J. François Lemieux Judge |
OTTAWA, Ontario
August 21, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4516-00
STYLE OF CAUSE: VLADIMIR VOSLAEV v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 13, 2001
REASONS FOR ORDER BY: Lemieux J.
DATED: August 21, 2001
APPEARANCES:
Lia Cristinariu FOR THE PLAINTIFF
Caroline Doyon FOR THE DEFENDANT
SOLICITORS OF RECORD:
Lia Cristinariu FOR THE PLAINTIFF
HADDAD, CRISTINARIU
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada