Date: 19990429
Docket: IMM-1467-98
Ottawa, Ontario, April 29, 1999
Before: Pinard J.
Between:
PAUL MOLDOVEANU,
TINA MOLDOVEANU,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is allowed. The decision by the Convention Refugee Determination Division on March 10, 1998 is quashed and the matter is referred back to the Division for re-hearing by a differently constituted panel.
YVON PINARD
JUDGE
Certified true translation
Bernard Olivier, LL. B.
Date: 19990429
Docket: IMM-1467-98
Between:
PAUL MOLDOVEANU,
TINA MOLDOVEANU,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Convention Refugee Determination Division ("the Refugee Division") on March 10, 1998 which found that the applicants Paul Moldoveanu and his wife Tina Moldoveanu were not Convention refugees.
[2] The Refugee Division found that the applicants were not credible and also concluded that they had no objective fear of persecution. On the question of credibility it is worth reproducing the following passage:
| [TRANSLATION] |
| None of the two passports was submitted to us. The claimants said that they were confiscated by the Immigration office. Nevertheless, their PIF indicated that they are in their possession. Only the claimants know the reason which led them to avoid submitting their passport to the tribunal. |
(My emphasis.)
[3] It seems clear from the transcript of the hearing, at pp. 5 and 6, that first the applicants indicated that the passports were seized by Immigration Canada, and then the adviser stated that it was an error on his part:
| [TRANSLATION] |
| A. No, I . . . I could not write that because our passports were kept. |
| Q. Kept where? |
| A. At Immigration, when we completed the forms. |
| Q. But it states in . . . in my possession? |
| A. I have the documents to show that the passports were kept - the documents. |
| BY THE ADVISER (addressing the President) |
| - This was an error I seem to have made in completing the form with them . . . |
| (My emphasis.) |
[4] The Refugee Division thus wrongly concluded that the applicants had intended [TRANSLATION] "to avoid submitting their passport to the tribunal".
[5] In my view, the error is of such seriousness as to justify the intervention of this Court, since it bears directly on the honesty of applicants whose story the Refugee Division then did not wish to believe. In my opinion, this error of judgment at the very start of the analysis by the tribunal is such as to vitiate the very basis of its decision (see Miranda v. M.E.I. (1993), 63 F.T.R. 81, at 81 and 82).
[6] The application for judicial review is accordingly allowed. The decision will be quashed and the matter referred back to the Division for re-hearing by a panel of different members.
YVON PINARD
JUDGE
OTTAWA, ONTARIO,
April 29, 1999.
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1467-98
STYLE OF CAUSE: PAUL MOLDOVEANU
TINA MOLDOVEANU
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 15, 1999
REASONS FOR ORDER BY: PINARD J.
DATED: APRIL 29, 1999
APPEARANCES:
DAN BOHBOT FOR THE APPLICANTS
LISA MAZIADE FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAN BOHBOT FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA