Date: 19980305
Docket: IMM-3328-97
BETWEEN:
PRISCILLA OSEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division (the "CRDD") dated July 15, 1997 which granted the Minister's application to vacate the determination that Priscilla Osei is a Convention refugee. This action was taken pursuant to s. 69.2(2) of the Immigration Act which reads as follows:
| 69.2(2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person. |
[2] On September 16, 1994, Ms. Osei was determined to be a Convention refugee by the Refugee Division. On March 11, 1996, the Chairperson of the Board granted the Minister of Employment and Immigration leave to apply to the Refugee Division to reconsider and vacate that determination. The Minister's application was heard on December 03, 1996, January 8, 1997 and May 5, 1997 and the application was granted on July 15, 1997.
[3] Mr. Matas, counsel for Ms. Osei, argues that a reviewable error in the July 15, 1997 decision results from the fact that a substantial part of the evidence used to argue that
Ms. Osei obtained her refugee status by fraudulent means or misrepresentation was available prior to the determination of her refugee status. The fact that this evidence was not acted upon for a year and a half after the refugee determination is also emphasized.
[4] Mr. Matas argues that the withholding of this evidence and the delay in using it raises a valid abuse of process argument about its admissibility before the CRDD. Indeed this argument was made at the redetermination hearing and, in this respect, the CRDD in its decision said as follows:
| The panel does not accept as valid the basis for the counsel's objection and submission. The panel cannot make rulings as to the way the Canadian Immigration Department conducts itself. If counsel maintained that there was a breach of natural justice or that prejudice existed, he had the option available to him at any time during this hearing to request a stay of the proceedings from the Federal Court Trial Division. |
| In past, credible basis hearings the courts have stated that a claimant must establish some prejudice occurred as a result of the delay. This was not done. |
[5] Mr. Matas argues that the apparent decision of the CRDD that it does not have jurisdiction to deal with the abuse of process argument is an error in law. In this respect the jurisdiction of the CRDD becomes the issue. As to the jurisdiction of the CRDD, s. 67 of the Immigration Act says as follows:
| 67. (1) Sole and Exclusive Jurisdiction - The Refugee Division has, in respect of proceedings under section 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. |
[6] Unfortunately a transcript of the reconsideration hearing is unavailable so there is no certain way to conclude upon the exact arguments placed before the CRDD. However, Mr. Matas who acted on behalf of Ms. Osei before the CRDD, confirms that he made his objections to the impugned evidence during the hearing but did not receive a decision on his objection until the written reasons were filed.
[7] I find that the written reasons disclose a reviewable error of law in dealing with the objection made. It is abundantly clear that by s. 67 of the Immigration Act that the CRDD does have jurisdiction to deal with the kind of objection made by Mr. Matas.
[8] I find the error made is highly significant to a fair hearing of Ms. Osei's case.
Ms. Osei was initially determined a convention refugee and only on the reconsideration hearing and the admission of the impugned evidence was this finding overturned. Accordingly, the admissibility of the evidence is very important. On this basis, I find that the error made is one which requires that the CRDD's decision be set aside.
[9] Mr. Matas' has also argued that there is a bias question in this case because one of the panel members dealing with Ms. Osei also sat on a hearing related to her husband. The bias objection arise from the fact that her husband was not believed in the hearing concerning him and, accordingly, the argument is that the panel member who sat on that determination should not have sat on Ms. Osei's case because one of her prime witnesses was her husband. I can certainly understand how a well informed bystander would be concerned about the fairness of the process as a result, but I choose not to decide on this objection because, having ruled in Ms. Osei's favour on the issue of the abuse of process argument, any bias concerned will be rectified by the new hearing being before panel members who have not in any way dealt with either Ms. Osei's case or that of her husband's.
[10] Accordingly, I order that the CRDD decision on July 15, 1997 be set aside and the matter be reheard before a differently constituted panel to that which decided Ms. Osei's refugee claim and redetermination and the hearing related to her husband.
(Sgd.) "Douglas Campbell"
Judge
Vancouver, British Columbia
March 5, 1998
Date: 19980305
Docket: IMM-3328-97
BETWEEN:
PRISCILLA OSEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Winnipeg, Manitoba, on February 16, 1998
Order delivered at Vancouver, B.C., on March 5, 1998
REASONS FOR ORDER AND ORDER: THE HONOURABLE MR. JUSTICE CAMPBELL
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3328-97
| STYLE OF CAUSE: PRISCILLA OSEI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 16, 1998
REASONS FOR ORDER
AND ORDER OF THE COURT: The Honourable Mr. Justice Campbell
DATED: March 5, 1998
APPEARANCES:
David Matas for the Applicant
Duncan Fraser for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD:
David Matas
Barrister and Solicitor
602 - 225 Vaughan Street
Winnipeg, Manitoba
R3C 1T7
for the Applicant
Mr. George Thomson, Q.C.
Deputy Attorney General of Canada for the Respondent
FEDERAL COURT OF TRIAL
Date: 19980305
Docket: IMM-3328-97
BETWEEN:
PRISCILLA OSEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER