Date: 20000921
Docket: IMM-134-00
BETWEEN:
DUSANKA GRBIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated December 20, 1999 wherein the applicant was denied status as a Convention refugee.
[2] The two principle issues concern whether or not the Board has denied procedural fairness to the applicant. First, did the Board commit a reviewable error in allowing one of the members of the Board to fall asleep during the hearing? Second, did the Board err in refusing to hear the testimony of the applicant's brother?
[3] The applicant submits that the Board denied her a fair hearing by permitting one of its members to fall asleep during the proceedings. The applicant states at pages 2-3 of her affidavit:
| 16. The hearing started at 8:30 AM. First the Board asked my brother to leave the room. Then we searched for the missing documents. After this Mr. Popatia started asking questions. After roughly 20 minutes of questioning, Mr. Tahiri fell asleep. |
| 17. Mr. Tahiri slept almost until the first break which was held [between] around 10:00 AM. |
| 18. At the return to the hearing room, Mr. Popatia continued to ask me questions. In the middle of this questioning Mr. Tahiri fell asleep almost until [him] and the other Board member left the hearing room to make a decision. |
[4] On both the first and the second issue, the applicant submits that her lack of counsel contributed to the denial of procedural fairness. However, the Board raised the point of the applicant's right to counsel with her during the proceedings. Just prior to the break during the hearing, Board member Mr. Popatia noted at page 19 of the transcript:
| ... I just wanted to remind you that you have a right to Counsel at this hearing. You have a right to be represented by Counsel throughout your proceedings. Do you understand that right? |
| CLAIMANT Yes |
| POPATIA Okay. And is it your intention nonetheless to proceed on your own? |
| CLAIMANT Yes |
[5] With respect to the first issue, Mr. Tahiri participated infrequently during the hearing but this is not unusual. Aside from a thirty page gap, the transcript indicates that he did participate in the hearing. It is not uncommon for one of the members of a panel to ask the majority of the questions, and this fact certainly does not imply that the other member is asleep.
[6] Furthermore, rather than raising the problem with the Board at the end of the hearing, the applicant complimented the panel on its attentiveness and preparation. She stated at page 51 of the transcript:
| .... all persons present here wanted to help me to give straight answers to the questions and everybody really prepared themselves by reading all the material and reviewing the problems at stake. |
[7] As stated by Heald J. in Lopez v. Canada (M.C.I.), [1997] F.C.J. No. 979 (T.D.) at paragraph 11, "I think it significant that the applicants' counsel did not make a timely objection in respect of this matter."
[8] I also note that Pratte J. stated in Caplan v. Canada (H.R.D.), [1997] F.C.J. No. 1371 (C.A.) at paragraph 4 that:
| The applicant's second attack would deserve serious consideration if the evidence established that one of the members of the Board had, in fact, fallen asleep during the hearing. However, the only evidence on this point is the affidavit of the applicant to the effect that a member of the Board "appeared" to her to be asleep. This is not enough. A member of a board or a judge who is wide awake may appear to some to be asleep. |
[9] In my view, the transcript discloses that the Board member did participate in a good portion of the hearing. The applicant's own comments at the hearing clearly do not support the position that one of the members of the panel was asleep. I find that there is no error by the Board in this respect.
[10] With respect to the second issue, at page 45 of the transcript the applicant informed the panel that her brother would testify as to, "[t]he situation relating to our family and the struggle for democracy."
[11] The Board itself gave the applicant an opportunity to state what additional testimony her brother could give. For the sake of clarity I will set out the relevant discussion found at pages 50-51 of the transcript:
| POPATIA ... |
| Madam, my colleague and I conferred about the evidence taken thus far and you've indicated on two occasions in what manner the intended witness is to give testimony and on what subjects and it has to do with the profile of the family, his own profile and your membership in the Party. |
| The panel has considered that portion of your testimony and we accept what the family's profile is. We accept what you have indicated about your having been a member until the time you left Yugoslavia and about the participation that he had and you had, as you've indicated today in your evidence. |
| Okay. Are there any other areas that the witness would be able to give testimony on? |
| CLAIMANT Honestly, honestly not. Just my stay here and... |
| POPATIA Okay. And you've provided testimony on that. The panel is not interested in hearing repetition. |
| CLAIMANT Absolutely. |
| POPATIA Okay. |
| CLAIMANT I share your opinion. |
[12] The applicant submits that the Board's finding regarding her membership in the Democratic Party is contrary to the panel's assurances. At page 60 of the transcript, the Board states:
| We find that your membership and your profile in the Democratic Party is not so fundamental to you as would lead us to find that you would prospectively participate to a degree necessary to expose you to serious harm, by which I mean repetitive, persistent harm. |
[13] I do not see anything contradictory in this finding. Furthermore, the applicant's brother stated in his own affidavit that he was not involved with the Democratic Party. In addition, I note that the applicant's brother came to Canada in 1994, while the applicant did not arrive until 1996. Therefore, he was not in a position to give any direct evidence with respect to the relevant time period.
[14] In light of the foregoing, I am of the view that the Board did not err in excluding the applicant's brother as a witness. It is not contrary to natural justice to exclude a witness who could not bring testimony that is relevant to the matters under the Board's consideration. Also, there is nothing in the applicant's brother's affidavit to indicate that he had any testimony with respect to the membership and profile of the Democratic Party which was not already before the Board.
[15] The application for judicial review is dismissed.
"W. P. McKeown"
JUDGE
Ottawa, Ontario
September 21, 2000