Date: 20000616
Docket: IMM-4007-99
Between:
LUSMER CHRYSOSTOME NDJOBO,
YVANE LUSMERE NDJOBO,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The applicant requests judicial review of a decision of the Immigration and Refugee Board (IRB), which dismissed his motion to reopen the hearing "[translation] pursuant to a negative decision of the IRB rendered on November 16, 1998". The record clearly indicates that the negative decision rendered on November 16, 1998 was rendered in docket IMM-6354-98.
[2] In my opinion, this application cannot be allowed, and I will explain why.
[3] On November 16, 1998, the Board found that the applicant and his daughter were not Convention refugees. The applicant tried to obtain leave to bring an application for judicial review of this decision, alleging both in his memorandum and in his reply that the Refugee Division had infringed the audi alteram partem rule when it accepted the filing of documents without giving him an opportunity to comment on them or make submissions in regard to them. The application for leave was dismissed, however, by my colleague Teitelbaum J. on April 14, 1999.1
[4] The applicant subsequently applied to have the hearing reopened. This application was dismissed by the IRB because of, inter alia, "[translation] the decision of the Federal Court of Canada of April 14, 1999, dismissing the application for leave and for judicial review"2; the panel added that its jurisdiction to reopen a hearing was extremely limited and that once its decision was rendered, "[translation] the CRDD is functus officio and could regain jurisdiction in the same case only if there had been a violation of the rules of natural justice".
[5] Need it be pointed out that, in dismissing the application for leave, in which the applicant specifically alleged a violation of the rules of natural justice -- more precisely, the audi alteram partem rule -- this Court dismissed that argument and terminated the applicants' claim for refugee status. Indeed, under section 82.2 of the Immigration Act, there is no appeal from a dismissal of an application for leave. Furthermore, this decision constituted res judicata between the parties.3
[6] In my opinion, the other grounds raised by the applicant in support of his application for judicial review, namely, that the Refugee Division (1) failed to exercise its discretion, linking its decision-making authority to that of the IRB and the Federal Court, and (2) failed to give reasons for its decision, are completely unfounded. I think the IRB was justified in this case in verifying which decisions had been rendered in the case, the hearing of which the applicant was seeking to have reopened. Proceeding to exercise its own discretion, the IRB was justified, for the reasons it stated, in dismissing the application to reopen the hearing.
[7] For these reasons, the application for judicial review must be dismissed.
[8] At the end of the hearing, the applicant's counsel suggested that the following question be certified for the purposes of section 83(1) of the Act:
| In a motion for re-opening of a hearing on the grounds that there has been a violation of natural justice and fairness, is the CRDD obliged to evaluate the arguments presented in the motion on their merits even after the Federal Court has refused an application for judicial review in the same file and is the CRDD barred from granting a motion for re-opening a hearing by the mere fact of this refusal, without any proof as to what was actually pleaded in the application for judicial review? |
[9] What the applicant suggests is in fact a dual question. The first part clearly refers to the rule of res judicata; in so far as the principles underlying that rule are well known,4 there is no need to certify this question. As to the second part of the question suggested by the applicant, on the one hand it does not transcend the immediate interest of the parties,5 and on the other hand the applicant's memoranda, both in this case and in IMM-6354-98, refer to what was pleaded in his respective applications for judicial review. In short, there is no need to certify these questions.
ORDER
The application for judicial review is dismissed.
| Judge |
Ottawa, Ontario
June 16, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-4007-99 |
| STYLE: LUSMER CHRYSOSTOME NDJOBO et al. |
v. MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JUNE 14, 2000 |
REASONS FOR ORDER OF DENAULT J.
DATED: JUNE 16, 2000
APPEARANCES:
ROSEMARY HNATIUK FOR THE APPLICANTS
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROSEMARY HNATIUK FOR THE APPLICANTS
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 The applicant's counsel filed a notice of motion on April 29, 1999 for review of the order dismissing the application for leave on the ground that "[translation] an issue that ought to have been addressed was unintentionally omitted", but the motion was not filed with the Court and counsel did not pursue it.
2 This was obviously the decision of my colleague Teitelbaum J., rendered April 14, 1999 in IMM-6354-98.
3 Canada v. Chung, [1993] 2 F.C. 42, at p. 57; see also Shaju v. M.C.I., IMM-3275-94, June 21, 1995 (F.C.).
4 Ibid.
5 Liyanagamage v. M.C.I. (1994), 176 N.R. 4.