Date: 19990708
Docket: IMM-4690-98
BETWEEN:
SERGEY KONONOV,
NINA KONONOVA,
ANNA KONONOVA,
Plaintiff,
AND
THE MINISTER,
Defendant.
REASONS FOR ORDER AND ORDER
NADON J.
[1] The plaintiffs, who claim refugee status, are challenging a decision of the Refugee Board dated August 20, 1998.
[2] The purpose of the Refugee Board"s decision was to decide on the merits on an application to reopen a hearing, filed pursuant to s. 28 of the Refugee Status Rules.
[3] The obvious purpose of the application to reopen was to obtain the quashing of a decision by the Refugee Division on May 21, 1998 by which the Refugee Division concluded that the plaintiffs" claim pursuant to s. 69.1(6) of the Immigration Act had been withdrawn. It should be noted that the plaintiffs did not file an application for judicial review of this decision.
[4] I concur entirely with the submissions of Mr. Deslauriers, the defendant"s counsel, that the application to reopen is a disguised challenge of the decision of May 21, 1998. The conclusion of the decision rendered by the Refugee Division on August 20, 1998 is as follows:
[TRANSLATION]
| Having listened to the hearing cassettes of May 4 and 21, 1998 and reviewed the record as a whole, the panel cannot allow the application to reopen the hearing as the decision that the claims had been withdrawn was made entirely in accordance with procedure and the rules of natural justice. |
| By refusing to answer the Board members" questions at the hearing of May 21, 1998, the applicants were very uncooperative. This being so, it was difficult or impossible for the panel to determine whether they had made reasonable efforts to find counsel during the period from May 4 to 21, 1998. The members accordingly properly concluded that the claim had been withdrawn. |
| The application to reopen the hearing is therefore dismissed. |
[5] In my opinion, the Refugee Division made no error in concluding that the decision of May 21, 1998 was made "entirely in accordance with procedure and the rules of natural justice". The plaintiffs were duly summoned to the hearing of May 21, 1998, they had an opportunity to make whatever submissions they thought were relevant and the Refugee Division reached its decision after considering these submissions.
[6] Mr. Leblanc, the plaintiffs" counsel, submitted that the Division should have allowed the application to reopen because inter alia the plaintiffs were not represented at the hearing of May 21, 1998. In my opinion, this argument would have been relevant in an application for judicial review of the May 21 decision. In my view, the argument is not relevant in connection with an application for judicial review of the decision of August 20, 1998. The Refugee Division panel which made the May 21 decision knew that the plaintiffs were not represented on that day and heard the plaintiffs" submissions that they were entitled to counsel before proceeding. After considering this argument, the Refugee Division concluded that there had been a withdrawal.
[7] An application to reopen a hearing is not and cannot be an application for judicial review of the decision made on May 21, 1998. As they did not challenge this decision, the plaintiffs could not expect to succeed on their application to reopen unless they established a denial of natural justice at the hearing of May 21, 1998, and this they were not able to do.
[8] For these reasons, the application for judicial review is denied.
| Marc Nadon Judge |
MONTRÉAL, QUEBEC
July 8, 1999
Certified true translation
Bernard Olivier, LL. B.
| Federal Court of Canada Trial Division Date: 19990708 Docket: IMM-4690-98 Between: SERGEY KONONOV, NINA KONONOVA, ANNA KONONOVA, Plaintiff, AND THE MINISTER, Defendant. REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-4690-98 |
| STYLE OF CAUSE: BETWEEN: |
SERGEY KONONOV,
NINA KONONOVA,
ANNA KONONOVA,
Plaintiff,
AND
THE MINISTER,
Defendant.
PLACE OF HEARING: MONTRÉAL, QUEBEC
| DATE OF HEARING: July 8, 1999 |
REASONS FOR ORDER BY: NADON J.
DATED: July 8, 1999
APPEARANCES:
| Nathalie Leblanc for the plaintiff |
| Patricia Deslauriers for the defendant |
SOLICITORS OF RECORD:
Nathalie Leblanc for the plaintiff
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Montréal, Quebec