Date: 19981028
Docket: IMM-3030-98
MONTRÉAL, QUEBEC, THE 28TH DAY OF OCTOBER 1998
| Present: RICHARD MORNEAU, PROTHONOTARY |
Between
CARLOS MAURICIO CHAVEZ LAGOS
Applicant
AND
THE MINISTER
Respondent
ORDER
The applicant"s motion is allowed.
The applicant"s service on the respondent and filing in the Court record of the transcripts made on October 6, 1998 are deemed valid.
The respondent shall have fifteen (15) days from the date of this order in which to serve and file any additional representations he might wish to make.
Richard Morneau
Prothonotary
Certified true translation
Bernard Olivier
Date: 19981028
Docket: IMM-3030-98
Between
CARLOS MAURICIO CHAVEZ LAGOS
Applicant
AND
THE MINISTER
Respondent
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] The applicant has moved in the context of an immigration application for leave that the Court authorize him to file in the Court record a copy of the transcripts of the applicant"s hearing before the Refugee Division of the Immigration and Refugee Board. This motion was submitted to the Court under Rule 369 of the Federal Court Rules, 1998 (the Rules), under which a decision on a motion may be made without a personal appearance by a party or his counsel and on the basis of written representations. This motion also draws, directly or indirectly, on Rules 47 and 55. The transcripts at the heart of this dispute were filed by the applicant in the context of his motion record.
[2] In his memorandum of argument under rule 10 of the Federal Court Immigration Rules, 1993 (the rules), and in his memorandum in reply, the applicant alleges that the Refugee Division hearing entailed some serious violations of his fundamental rights including, inter alia, the right to the assistance of counsel in his representations, a violation of the audi alteram partem rule and the right to a fair and equitable hearing before an impartial tribunal. It should be noted here that the motion is not addressed to the time for filing the applicant"s memorandum of argument and memorandum in reply. These documents are already in the Court file.
[3] In his memorandum of argument under rule 11, the respondent rebuts these allegations (see paragraphs 64, 70, 74, 78, 79 and 82), saying they are simply suspicions unsupported by evidence.
[4] In this case I accept the applicant"s statements that he is seeking to produce the transcripts in order to reply adequately and objectively to the respondent"s allegations. I am also satisfied that the applicant and his present counsel were unable to obtain the said transcripts in due time.
[5] I infer from paragraphs 9 and 10 of the respondent"s representations in opposition to this motion that the transcripts will not add any additional evidence to the record, since they will simply confirm or invalidate information that the applicant has already filed in his rule 10 record. Thus there is no issue as to harm caused to the respondent by the introduction of new evidence or new representations.
[6] At all events, the applicant agrees that, as was held in Nguyen v. Canada, IMM-2574-93, a decision rendered on September 10, 1993, it would be appropriate in this case to give the respondent two weeks from the date of the order to be issued in which to serve and file any additional representations he might wish to make. An order shall go accordingly.
[7] The respondent is also asking this Court, in the context of his representations, to remove paragraph 20 from the applicant"s memorandum in reply on the ground that it contains gratuitous allegations unsupported by the evidence already on the record, even by the transcripts that are to be filed. When all is said and done, paragraph 20 is simply a statement by the applicant, and the Court, in the course of its examination of the application for leave, will most certainly consider how much weight should be accorded to this paragraph. It is unnecessary, however, to order that it be struck out at this stage.
[8] It seems to me, therefore, that it is in the interests of justice to allow this motion by the applicant. An order shall be issued accordingly.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
October 28, 1998
Certified true translation
Bernard Olivier
Federal Court of Canada
Court file no. IMM-3030-98
Between
CARLOS MAURICIO CHAVEZ LAGOS
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. IMM-3030-98 |
| STYLE: CARLOS MAURICIO CHAVEZ LAGOS |
Applicant
| AND |
| THE MINISTER |
Respondent
WRITTEN MOTION EXAMINED IN MONTRÉAL WITHOUT APPEARANCE BY THE PARTIES
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
| DATED: October 28, 1998 |
WRITTEN REPRESENTATIONS BY:
Stewart Istvanffy for the applicant
Barbara Boily for the respondent
SOLICITORS OF RECORD:
Stewart Istvanffy for the applicant
Montréal, Quebec
George Thomson for the respondent
Deputy Attorney General
of Canada