Date: 19991020
Docket: IMM-318-99
BETWEEN:
RAJASEGARAM NAVARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.:
[1] The Immigration and Refugee Board adheres to guidelines set with respect to extra-hearing communications between members of the Refugee Division and Refugee Claims officers (RCO). This judicial review application concerns an apparent breach of these guidelines.
[2] The applicant is a refugee claimant from Sri Lanka who objected to an RCO making an inquiry in Sri Lanka to confirm his arrest in Colombo in July 1996. With respect to this issue, communications between the RCO and counsel for the applicant resulted in the RCO bringing the matter to the attention of the presiding member of the panel in the claimant"s case. As a result, in a letter dated April 22, 1997, the RCO wrote to counsel for the applicant saying that he was writing "on the instructions of the panel" to say the following:
| In light of the procedure involved, and after carefully assessing the risk factor, the Panel is prepared to consider a negative inference with respect to claimant"s credibility, if claimant does not provide the appropriate written, translated consent to enable this procedure to go ahead to check only if the claimant was detained, fingerprinted and photographed as he has stated. |
[3] The guidelines respecting communications between an RCO and members of the Refugee Division are entitled "Instructions Governing Extra-Hearing Communications Between Members of the Refugee Division and RCOs and Between Members of the Refugee Division and Other Employees of the Board" (CRDD 96"02) and, in part, provide as follows:
| C. Instructions |
| Members, and RCOs and other employees of the Board shall follow these Instructions in all extra-hearing communications that takes place in the absence of the parties and that related to individual cases. |
| 1. Communications |
| 1.1 Communications Permitted |
| Subject to subsection 1.2 and 1.3, Members may communicate with RCOs and with other employees of the Board outside the hearing in the absence of the parties with respect to a case that has not been concluded. |
| 1.2 General Prohibition |
| No communication referred to in subsection 1.1 shall involve the offering or the soliciting of an opinion on: |
| 1. the merits of the case; |
| 2. the conclusion to be reached on any element of the case; |
| 3. the decision that should be made on any question of law that arises for determination; |
| 4. any conclusion of fact or conclusion as to the credibility of trustworthiness of any evidence adduced; or, |
| 5. the reasons for decision. [Emphasis added] |
[4] In Baker v. MCI (1999) 174 D.L.R. (4th ) 193, L"Heureux-Dubé J. at paragraph 72 makes it clear that guidelines such as those as quoted above have real importance in determining whether a particular decision is supportable. In the present case, I find that s.1.2(4) of the quoted guidelines has been breached. Therefore, I accept the applicant"s argument that a breach of due process has occurred which amounts to reviewable error.
ORDER
[5] Accordingly, the decision herein is set aside, and the matter is referred to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
TORONTO, ONTARIO
October 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-318-99 |
STYLE OF CAUSE: RAJASEGARAM NAVARATNAM
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, OCTOBER 20, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: CAMPBELL, J. |
DATED: WEDNESDAY, OCTOBER 20, 1999
APPEARANCES: Mr. Robert Blanshay
For the Applicant
Mr. James Brender
For the Respondent
SOLICITORS OF RECORD: Robert Blanshay
Barrister & Solicitor
49 St. Nicholas Street
Toronto, Ontario
M4Y 1W6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19991020
Docket: IMM-318-99
Between:
| RAJASEGARAM NAVARATNAM |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
AND ORDER