Date: 20010124
Docket: IMM-754-00
Ottawa, Ontario, January 24, 2001
Before: Pinard J.
Between:
Paul and Tina MOLDOVEANNU
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on January 7, 2000 that the plaintiffs are not Convention refugees is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010124
Docket: IMM-754-00
Between:
Paul and Tina MOLDOVEANNU
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The plaintiffs Paul and Tina Moldoveannu were the subject of an initial decision by the Refugee Division of the Immigration and Refugee Board (hereinafter "the RD") on March 10, 1998 denying them refugee status. On judicial review I quashed that decision myself on April 29, 1999, referring the matter back to a panel of different members of the RD. The application for judicial review at bar is from the decision subsequently rendered by the RD on January 7, 2000 that the plaintiffs are not Convention refugees as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The male and female plaintiffs are citizens of Roumania. They alleged that they had a well-founded fear of persecution because of their religion and their Jewish nationality [sic]. The RD refused to grant them refugee status essentially because they lacked credibility as the result of several inconsistencies and contradictions.
[3] First, I wish to dispose of the plaintiffs' argument that the panel erred in its assessment of the facts and credibility. After reviewing the evidence, the plaintiffs did not persuade me that the RD made a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it (s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The panel noted the following inconsistencies and contradictions:
[TRANSLATION]
- A few days before the date of the hearing the male plaintiff submitted an amended reply to question 37 of his Personal Information Form ("PIF") in which he related incidents prior to 1995 which he had not included in his first PIF dated June 12, 1997. Citing Basseghi (December 6, 1994), IMM-2227-94, the RD questions the credibility of these incidents.
- The RD does not believe the male plaintiff's story about the two incidents that took place in June 1999, when the plaintiff was leaving the synagogue, since they were not included in the plaintiff's PIF. It notes an inconsistency regarding the number of stones thrown at the plaintiff's car in the first incident. It also observes that in his second PIF the male plaintiff failed to mention that the young people who pushed him also spat in his face.
- The RD found that the incident with the former work colleague was accidental and isolated. It does not accept that this individual suddenly undertook to persecute him with such fury as he suggests.
- There is a contradiction regarding the male plaintiff's account of the motor vehicle accident which occurred on August 1, 1996. According to the plaintiff, the police officer arrived on the scene but dropped the inquiry as soon as he learned that he was of Jewish origin. However, the plaintiff went to the station where a police inspector decided in his favour.
- The RD did not believe the incident in which the plaintiff was jostled. When the RD asked if the hospital summoned the police, as is customary in Roumania in the case of victims of criminal offences, the plaintiff said that it did not and did not explain why. Further, in view of the content of the medical certificate the latter could not constitute evidence that the plaintiff was jostled on the stairway.
- The RD observes that the son's testimony offered nothing new on the facts at issue. It prefers the documentary evidence to the subjective testimony of the witness, who left Roumania over 25 years ago.
[4] Although the panel was wrong to object to the failure to include events occurring in 1999 in the first PIF of June 12, 1997, the fact remains that according to the transcript of the hearing these events were not mentioned in the second PIF, when in view of their importance they could and should have been. The RD's error is thus not decisive. On the remainder, it would appear that the inferences generally drawn by this specialized tribunal could reasonably have been drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)). Consequently, the RD's conclusion that the plaintiffs were not credible, in view of the many improbabilities and contradictions mentioned above, amounts in fact to a conclusion that there was no credible basis to support their refugee status claim (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at 244).
[5] As to the plaintiffs'other argument, that a panel of different members considering the plaintiffs' prior file could not make an impartial decision because they felt themselves bound by the first panel's decision, I find this to be without merit also.
[6] It is hardly necessary to repeat that the RD is not subject to strict rules regarding evidence, as indicated by s. 68(3) of the Act:
| 68. (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
68. (3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
[7] As the provision indicates, the panel can base its decision on the evidence it considers credible or trustworthy in the circumstances of the case, and this is quite understandable in view of the informal nature of the proceedings.
[8] Further, in Prassad v. Canada (M.E.I.), [1989] 1 S.C.R. 560, at 568 and 569, the Supreme Court of Canada said the following about an administrative tribunal's power over its procedure:
We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, when they exercise judicial or quasi-judicial functions, the rules of natural justice.
[9] It is with this in mind that Gibson J. said the following in Sitsabeshan v. Canada (1994), 27 Imm.L.R. (2d) 294, at para. [16]:
While I am not satisfied that an order requiring the CRDD to take into account the record before a previous panel is necessary, that option always being open to a second panel, counsel advised me that some panels of the CRDD have been reluctant in a hearing de novo to do anything else than to in fact start "de novo" ignoring all of the evidence previously before the earlier panel. That strikes me as a significant waste of resources.
(My emphasis.)
[10] This reasoning was also followed by Reed J. in Diamanama v. Minister of Citizenship and Immigration (January 30, 1996), IMM-1808-95, in which she said the following at para. [10]:
With respect to the wording of the order, I do not think it appropriate to word it in a way which would limit the Board that rehears the application. What is in issue, in this case, is the evaluation of factual evidence in which the credibility of the applicant is an integral component. I would not be prepared to require that a decision maker (in this case the second panel) has to accept a credibility finding made by another decision maker. I am not prepared to require the second decision maker to accept the facts as found by the earlier panel. The applicant wishes to rely on the transcript of the earlier hearing and add evidence thereto. I consider this to be quite inappropriate. The second panel must be free to conduct the hearing as it sees fit and to make its decision by reference to the evidence adduced before it. The second panel can, of course, use the transcript of the first hearing for whatever purposes it wishes but no order, from me, conditioning that use is either required or appropriate.
(My emphasis.)
[11] This point was considered again by Gibson J. in Khalof v. Minister of Citizenship and Immigration (April 7, 2000), IMM-1719-99, where he said at paras. [15] and [16]:
I am satisfied that the decision of the CRDD to rely upon the transcript from the first hearing of the principal applicant's testimony constituted that transcript "evidence adduced in the proceedings", within the meaning of subsection 68(3). Nowhere in the transcript of the second hearing or in the reasons of the CRDD for the decision here under review is the principal applicant's testimony, as reflected in the transcript relied upon, questioned as to its credibility or trustworthiness. If it had been, I am satisfied that the CRDD could not have relied on subsections 68(2) and (3) to justify reliance on the transcript. To rely on the mere transcript as a basis for a finding of want of credibility or trustworthiness would, I am satisfied, constitute a breach of natural justice and fairness. Principles of natural justice and fairness would require that the CRDD hear testimony and have the opportunity to observe the demeanor of the person testifying before a finding of want of credibility and trustworthiness of testimony could be fairly made. But no such finding was made here.
I conclude that the CRDD made no reviewable error in relying on the transcript of the principal applicant's testimony at the first hearing before the CRDD. I am satisfied that, on the facts of this matter, such reliance was consistent with subsections 68(2) and (3) of the Immigration Act.
(My emphasis.)
[12] Finally, referring to both Sitsabeshan and Diamanama, supra, Gibson J. concluded as follows, at para. [20]:
I am satisfied that the conclusion I have reached herein regarding no reviewable error in relying on the transcript of the principal applicant's testimony at the first hearing before the CRDD is consistent with the reasoning in the foregoing cases and should stand regardless of any distinction that might be drawn on the facts in those cases and the facts of this case.
(My emphasis.)
[13] In the case at bar, it was not clearly established that the RD based its decision in any way on that rendered earlier by another panel in respect of the plaintiffs' claim on March 10, 1998. The resemblance of the language used in the reasons contained in the two decisions is not conclusive in itself, as for the most part the same facts were under discussion. However, even assuming that the second decision was largely based on the first, that does not seem unfair in procedural terms as the second decision was made after the plaintiffs were given another viva voce hearing with every opportunity to provide explanations. Accordingly, the requirement of my brother Gibson J. in Khalof, supra, was met: the RD heard the plaintiffs' testimony and had an opportunity to observe their demeanor "before a finding of want of credibility and trustworthiness of testimony could be fairly made". As the RD's first decision was not itself quashed for a breach of the rules of fairness and the rules of natural justice (see Prassad, supra), this Court's intervention is accordingly not justified.
[14] For all these reasons, the application for judicial review is dismissed.
[15] After reading the written submissions of counsel for the parties concerning the certification of a question pursuant to s. 83(1) of the Act, I agree to certify the following question suggested by the plaintiffs:
[TRANSLATION]
At a hearing de novo, does the IRB observe the rules of natural justice when it leaves in a claimant's record the transcript, evidence and decision from an initial hearing, despite an order of the Federal Court of Canada that directed a re-hearing before a panel of different members?
YVON PINARD
JUDGE
OTTAWA, ONTARIO
January 24, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-754-00
STYLE OF CAUSE: PAUL AND TINA MOLDOVEANNU v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOV. 29, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: JAN. 24, 2001
APPEARANCES:
DAN M. BOHBOT FOR THE APPLICANT
ERIC BERNATCHEZ FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAN M. BOHBOT FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario