Date: 19990209
Docket: IMM-1437-98
BETWEEN:
Abd El Aziz ALY BASHA
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
DUBÉ, J.
[1] The applicant appeals an Order of Prothonotary Morneau dated January 27, 1999 on the grounds that the Prothonotary erred in law when he ignored an Order of Madame Justice McGillis dated November 30, 1998 wherein she ordered inter alia that
| further affidavits, if any, shall be served and filed by the Applicant on or before December 28, 1998. |
The applicant also claims that the Prothonotary failed to recognize his right to put before the Court necessary evidence to dispose of the judicial review and that he failed to recognize that the contents of these affidavits are necessary to address the issue of apprehension of bias on the part of the Refugee Board.
[2] The Order in question of McGillis J. is the standard order used by the Court when granting leave to commence an application for judicial review. It does not mean, of course, that any and all affidavits may be served and filed by either the applicant or the respondent. The affidavits must be relevant and must not be used by the applicant for the purpose of introducing into the record evidence which was not before the tribunal when it rendered its decision. And the affidavits may not relate to events which took place in the country of origin, or elsewhere, after the hearing by the board. Nadon J. of this Court explained in a
nutshell the rationale for that basic principle in Asafov c. M.E.I., (IMM-7425-93) dated May 18, 1994
| The purpose of the judicial review process is to examine the tribunal's decision in the light of the evidence adduced before it at the hearing and to decide whether or not there are grounds for review. From that perspective, the evidence which the Applicants now seek to introduce is irrelevant. By granting this application, I would be transforming the judicial review process into that of an appeal. |
[5] Bearing this fundamental principle in mind, I have perused the six (6) affidavits in question. One is the affidavit of a brother of the applicant, three are from friends and
co-religionists of the applicant. They are mostly to the effect that if the applicant is forced back into Egypt he would be in great danger as a Muslim. Allowing this new evidence into the record would be tantamount to transforming this judicial review into a trial de novo. The fifth affidavit is of a translator of the Armenian and Arabic languages. His affidavit is to the effect that the translation of the "Show Cause of Application" of the applicant that appears on pages 259 and 260 of the applicant's record was translated by him and not by Mr. Edmond Irani. That affidavit appears on the surface to be innocuous but I cannot see where it would be relevant to this judicial review.
[6] Finally the sixth affidavit is of a legal technician who says that on December 25, 1998 she met with the applicant's brother who had in his possession the original passport of the applicant. In annex to her affidavit is a the certified true copy of the passport in question. In the absence of any reason why the applicant did not produce his own passport at the hearing I cannot see why this new evidence should now be allowed.
[7] The applicant claims that one of the affiants, Samir Girgis Morcos, adduces evidence of bias on the part of the Presiding Board Member as the latter judged differently on another application "based on the same events". Obviously, treating a different application differently is not evidence of bias.
[8] Thus, it cannot be said that the Prothonotary was clearly wrong in the sense that in the exercise of his discretion he based his decision on a wrong principle of law or upon a misapprehension of the facts.
[9] The appeal therefore is dismissed.
Montreal, Quebec Jean Eudes Dubé
this 9th day of February 1999 Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990209
Docket: IMM-1437-98
BETWEEN:
Abd El Aziz ALY BASHA
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1437-98
STYLE OF CAUSE: Abd El Aziz ALY BASHA
Applicant
| AND |
| THE MINISTER OF CITIZENSHIP AND |
| IMMIGRATION CANADA |
Respondent
PLACE OF HEARING: MONTREAL (QUEBEC)
DATE OF HEARING: February 8, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE DUBÉ
DATED: February 9, 1999
APPEARANCES:
Mr. André Carbonneau for the Applicant
Ms Patricia Deslauriers for the Respondent
SOLICITORS OF RECORD:
Mr. André Carbonneau for the Applicant
Montreal (Quebec)
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa (Ontario) for the Respondent