Docket: IMM-6129-03
Citation: 2004 FC 1147
Toronto, Ontario, August 18th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
YING XUAN LENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently
written for precision and clarification)
[1] The applicant, a citizen of China, made an application to reopen his claim for refugee status with the Board. The facts are not in dispute:
- On July 24th, 2003, he received a Notice of Decision by Board Member V. Bubrin in which this application was dismissed. No written reasons were provided.
- On July 25th, 2003, counsel for the applicant requested written reasons from the Board.
- On September 5th, 2003, the Board issued an Amended Notice of Decision by a different Board Member, M. Then. This decision restated the conclusion of V. Bubrin that the applicant's application was being dismissed.
- The Board responded to the applicant's request for Reasons in a letter dated September 11th, 2003 in which it stated that formal Reasons would not be provided as there was not statutory requirement for them. Nonetheless, it noted that there was an endorsement on the applicant's file dated July 15th, 2003 by M. Then which stated that there had been no apparent breach of natural justice in the handling of the applicant's case.
[2] The facts of this case leave it unclear:
- who made the decision, Member Bubrin or Member Then?
- then the decision was made (July 16th, 2003; September 5th, 2003 or July 15th, 2003)?
- on what basis?
[3] These circumstances would suggest that there has been a violation of the principle "he who hears must decide" (Silion v. Canada (M.C.I.), [1999] F.C.J. No. 1390; Ayatollahi v. Canada (M.C.I.), [2003] F.C.J. No. 340).
[4] The application will therefore succeed and the matter will be sent back for reconsideration in a more transparent manner by another member of the Board.
ORDER
THIS COURT ORDERS that the decision not to reopen the application is set aside. The matter is referred back to the Board to be decided by a Member other than Member Bubrin or Then.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6129-03
STYLE OF CAUSE: YING XUAN LENG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 18, 2004
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: AUGUST 18, 2004
Ms. Nadine Tobin
FOR THE APPLICANT
Mr. Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lewis & Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040818
Docket: IMM-6129-03
BETWEEN:
YING XUAN LENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER