Date: 19990907
Docket: IMM-6431-98
BETWEEN:
SETHUPILLAI THURAIRAJASINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
EVANS J.
[1] These are in substance the reasons that I delivered from the Bench in Toronto on September 2, 1999 when dismissing the application for judicial review of the Refugee Division"s dismissal of the applicant"s motion that it reopen its decision that the applicant had abandoned her refugee claim.
[2] The applicant alleged that the Refugee Division had erred in law in concluding that the abandonment proceeding was vitiated by breaches of the duty of fairness, the only ground on which a motion to reopen may succeed.
[3] First, since the applicant had been advised in writing prior to the hearing that she was entitled to be represented by counsel at the abandonment hearing the panel was not obliged by the duty of fairness to enquire whether she wished to be represented by counsel when she appeared at the hearing without a legal representative.
[4] Second, the panel"s acceptance at the hearing of the applicant"s completed personal information form before it had rendered a decision on the motion to reopen was not strictly in accordance with its announced procedure. However, the panel did not thereby commit a breach of the duty of fairness.
[5] Third, the fact that the applicant was sent the wrong version of the standard-form notice of the panel"s decision not to reopen did not invalidate the decision. The applicant was fully aware of the reasons given by the panel for its decision.
[6] Fourth, it was certainly irregular for the presiding member to have started the abandonment hearing in the absence of a second member, since the applicant had not waived her right under subsection 69.1(7) of the Immigration Act to a hearing by two members. However, it is apparent from the transcript of the hearing that the second member was summoned and arrived shortly after the hearing had started, and that nothing of significance had been said before then that was not gone into in greater detail later in the hearing when both members were present.
[7] In my opinion, therefore, this technical irregularity cannot be said to have prejudiced the applicant in any way, and hence did not constitute a breach of that aspect of the duty of fairness that stipulates that those who decide a matter must also have heard all the evidence that pertains to it.
[8] The applicant also attacked the legality of the disposition of the motion to reopen. However, in my opinion neither of the grounds on which counsel relied establishes that the panel committed any error of law.
[9] First, it was alleged that the member who decided the motion to reopen ought to have advised the applicant that he was using a transcript of the abandonment hearing in order to determine whether there had been a breach of the duty of fairness as alleged by the applicant. The applicant had not included a transcript in her motion record.
[10] In my opinion it was not a breach of the duty of fairness for the member to rely on the transcript of the abandonment hearing. The member was not precluded from considering the transcript by the fact that the applicant had not included it in her motion record.
[11] Further, since the applicant based her motion on the alleged unfairness of the abandonment hearing it must have been anticipated that the member might well wish to consult the best evidence available as to what occurred at that hearing. Accordingly, the member was not obliged to advise the applicant that he was relying on the transcript and to give her an opportunity to respond.
[12] Second, there was ample evidence before the member deciding the motion to reopen to enable him conclude that the applicant had not been denied the right to be legally represented at the abandonment hearing.
[13] The affidavit sworn for the purpose of the motion did not state that the applicant"s lawyer had been ill at the relevant time. Further, despite the short note from the lawyer"s doctor about a heart problem, the evidence was that at that time the lawyer wrote a letter on behalf of the applicant, and had a telephone conversation with a Board official, requesting extra time. In neither communication did the lawyer indicate that he wanted more time because he was ill.
[14] For these reasons the application for judicial review is dismissed.
OTTAWA, ONTARIO "John M. Evans"
September 7, 1999. J.F.C.C.