Date: 19990624
Docket: IMM-3562-98
BETWEEN:
MAJLINDA DINI
ARBEN DINI
KLAUDIA DINI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J. (orally)
[1] I will give you a decision right away.
[2] I have been persuaded that the decision under review should be set aside.
[3] As I indicated earlier I accept counsel"s affidavit evidence that he raised the question of the need for a subsection 2(3) analysis with one of the Board members, albeit off the record, as well as including a reference, albeit very oblique, in his written submission (subsection 2(3) of the Immigration Act was not specifically identified in the written submissions, only the general concept was referred to).
[4] Relying on submissions that are made to a Board member that are not formally recorded as part of the record is not an appropriate way of proceeding, although I recognize that proceedings before panels of the Board can be somewhat informal. Most importantly, however, I accept that the conversation relied upon by the applicant, that was not formally recorded, took place.
[5] It is important to emphasize that the better practice is to ensure that any such representation is clearly on the record, otherwise counsel can expect disputes to arise as to what was said, and arguments that whatever was said should be ignored.
[6] In the present case, counsel"s assertion as to what occurred was not disputed and he was not cross-examined on his affidavit. As I have indicated, I accept his evidence that he raised with the panel member, on his client"s behalf, the request that a subsection 2(3) analysis be done.
[7] The Board found that there had been changed country conditions but did not expressly decide whether the applicants had been convention refugees prior to the change. Implicit in reliance on the principle of charged country conditions is a finding that they were such. In any event, the Board proceeded, as Federal Court of Appeal jurisprudence has indicated is appropriate, to assess what is likely to occur to the applicants if they are returned to their country of origin in the circumstances that exist there at the date of the hearing before the CRDD, which of course includes the changed country conditions. That analysis led to the conclusion that the applicants were not as of that date, convention refugees.
[8] I understood both counsel to agree that when changed country conditions are relied upon by a panel of the Board and a request for a subsection 2(3) analysis is made there is an obligation on the Board to undertake that analysis. (Subsection 2(3) is not limited to cessation cases). The required analysis was not undertaken.
[9] That leaves for consideration counsel for the respondent"s argument that there is insufficient evidence, in any event, to allow the Board to make a positive subsection 2(3) decision. When I read the decision under review, however, I find therein a number of statements that suggest to me, that the panel of the Board that rendered that decision, might have reached a positive decision had they addressed their mind to it. To render the decision that it is suggested I should make would require me to make not only determinations of law but also conclusions from the facts that are more properly within the province of the Board. In this regard, I note that while counsel referred to subsection 2(3) only being applicable when the treatment to which an applicant had been subjected was appalling, and to the references in the jurisprudence to situations of personal trauma, subsection 2(3) describes the relevant test as being:
if the person established that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left ...
[10] I have come to the conclusion that the applicants" appeal should be returned to allow the CRDD to decide that issue, and that it is not the proper province of the Court.
[11] Accordingly, the decision under review will be set aside and the matter referred back for reconsideration.
"B. Reed"
Judge
Toronto, Ontario
June 24, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3562-98 |
| STYLE OF CAUSE: MAJLINDA DINI |
| ARBEN DINI |
| KLAUDIA DINI |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: THURSDAY, JUNE 24, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: THURSDAY, JUNE 24, 1999
APPEARANCES: Mr. Micheal Crane
For the Applicants
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
| Barrister & Solicitor |
| 166 Pearl Street, Suite 200 |
| Toronto, Ontario |
| M5H 1L3 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990624
Docket: IMM-3562-98
Between:
| MAJLINDA DINI |
| ARBEN DINI |
| KLAUDIA DINI |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |