Date: 20011213
Docket: IMM-1648-01
Neutral citation: 2001 FCT 1377
BETWEEN:
OLEG KURKUNOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (CRDD) (the "Board") rendered on March 23, 2001 dismissing the applicant and his father's motion to reopen the hearing into their claim to be Convention refugees.
[2] The applicant is Oleg Kurkunov, a citizen of Kazakhstan. On September 3, 1997, the Board (Initial Ruling) ruled that the applicant was not a Convention refugee for the following reasons. Firstly, the Board found that there was no nexus between the claimants' (the applicant and his father) fear of persecution and one of the enumerated grounds in the Convention. Secondly, the Board was of the opinion that the father's problems were related to organized crime and consequently, he was not persecuted because of his nationality. Finally, the Board did not believe the father to be credible.
[3] On October 16, 1997, the applicant filed an application for leave to commence an application for judicial review of the Board's decision. This application was dismissed on January 28, 1998 by Nadon J.
[4] On February 15, 2001, the applicant filed a motion to reopen the hearing into his claim to be a Convention refugee. The motion was dismissed by the Board on March 23, 2001 (Subsequent Ruling). It held that nothing in the evidence presented showed that the Board had violated the principles of natural justice. The applicant seeks judicial review of that decision.
[5] As a general rule, an administrative tribunal that exercises adjudicative powers can only reopen, rehear or set aside its decision if it is authorized by statute (Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848).
[6] There are limited exceptions to the principle of functus officio. In Longia v. Canada (M.E.I.), [1990] 3 F.C. 288 (F.C.A.) at para 6, the Court held that if the hearing of an application has not been held according to the rules of natural justice, the Board may look at its decision as a nullity and reconsider the matter (See also Ojie v. M.C.I., [1998] F.C.J. No. 883; Zezle v. M.C.I.,[1996] 3 F.C. 20) .
[7] In order to be successful in the present application, the applicant must show that the Board (Subsequent Ruling) erred in determining that the Board (Initial Ruling) had not violated the principles of natural justice.
[8] The applicant claims that the Board (Subsequent Ruling) failed to consider the fact that he feared going back to his country for personal reasons, notably to be forced to enroll in the military service.
[9] This constitutes new evidence that was not brought to the attention of the Board (Initial Ruling). Absent a violation of the principles of natural justice, the Board does not have jurisdiction to resume a hearing after it has made its decision, so that parties can put forward new facts:
It is true, of course, that facts may change and political events may occur which may lead to the conclusion that a fear which was not well founded has become now reasonable. But it is not by reopening the hearing on the first claim that this can be verified, it is only by allowing a second claim and proceeding to consider it. Parliament has not provided for the possibility of successive claims; indeed, in the new Act, it has formally prohibited it (see paragraph 46.01(1)(c)). (Longia, supra,at p. 292; See also Agbona v. Canada (M.E.I.) (1993), 21 Imm. L.R. (2d) 279).
[10] The applicant then submits that the Board erred in hearing the father's and the applicant's applications jointly. I disagree. Guideline 3 of the Immigration Act, R.S.C. 1985, C. I-2, (the "Act") concerning Child Refugee claimants states that a child's claim is usually heard jointly with the claim of his parents.
[11] Concerning the applicant's right to be heard, the Boards (Initial and Subsequent Rulings) did not commit an error. The applicant's claim was based on his father's. At question 37 of the Personal Information Form (PIF), which requires the claimant to set out the incidents causing him to seek protection, the applicant wrote "see my father's story". It therefore follows that there was no need for the Board (Initial Ruling) to have the applicant testify, as the father had first hand knowledge of the incidents causing them to seek protection. Furthermore, the Board asked the claimants' lawyer, Me Debanne, if she was going to have the applicant testify, to which she responded that she would not. Whether or not Me Debanne failed to properly represent the applicant will be discussed below.
[12] For these reasons, it was not unreasonable for the Board (Initial Ruling) to act as it did, especially considering the fact that the father was the designated representative of the applicant and as such, he was supposed to act in the best interests of the applicant. This brings me to the applicant's next point.
[13] Subsection 69(4) of the Act requires that:
| Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings. |
La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause. |
|
[14] The applicant alleges that the Board failed to exercise its statutory mandate pursuant to subsection 69(4) of the Act. I disagree.
[15] "Where the claimant has a parent [...] who appears to be capable and can meet the above criteria, then that person will usually be designated as representative." (Chapter 10 of the CRDD Handbook). In the case at bar, the father was the designated representative. Consequently, the Board did not fail to exercise its statutory mandate pursuant to subsection 69(4) of the Act.
[16] The Board (Initial Ruling) had every reason to believe that the father was acting in the best interests of the applicant. It was for the applicant to raise the issue then if such was not the case.
[17] The applicant also claims that he was unable to understand the nature of the proceedings. In 1997, the applicant was 17 years old. I cannot see how he would not have been able to understand the nature of the proceedings. In the absence of any indication to the contrary, it is reasonable to presume that the claimant was able to appreciate the nature of the proceedings.
[18] In response to the allegation that the applicant did not receive adequate representation, the respondent refers to Del Moral v. Canada (M.C.I., (1998) 46 Imm. L.R. (2d) 98, and other cases. The applicant responds among other things that these cases are not applicable since he was a minor at the relevant time. I have already explained that the applicant was entitled to a designated representative, which he in fact had. The applicant is confusing the right to counsel with the right to a designated representative. Since, as an accompanied child, his application was being heard jointly with that of his father's, who was represented by counsel, the applicant did not need to choose a counsel.
[19] Having found that the Board (Subsequent Ruling) did not err in finding that the Board (Initial Ruling) did not breach the principles of natural justice, the applicant's claim is res judicata.
[20] For these reasons, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
Montreal, Quebec
December 13, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011213
Docket: IMM-1648-01
BETWEEN:
OLGA KURKUNOV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1648-01
STYLE OF CAUSE: OLEG KURKUNOV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 12, 2001
REASONS FOR ORDER OF
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: December 13, 2001
APPEARANCES:
Mr. Oleg Kurkunov
(representing himself) FOR APPLICANT
Mr. Michel Pépin FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT