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Date: 19990901

Docket: IMM-6525-98

Between:

                                                    MARIUS GHEORGHE DEAC

                                                                                                                                            Applicant

                                                                          AND

                                                    MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

DENAULT J.

1           In the case at bar, neither the applicant nor his counsel appeared before the Court to put forward their arguments in support of the application for judicial review, though leave to commence such an application had been granted. A few days before the hearing, counsel for the applicant did, however, advise the Court that he had lost contact with his client, who had probably gone back to his country of origin, Romania, because of a departure order issued in December 1998. Saying that he no longer had any instructions from his client, counsel asked [TRANSLATION] "respectfully that the Court proceed with the application on the basis of the evidence in the Court record and in the absence of the undersigned counsel and the applicant".

[2]         In his factum, counsel for the applicant raised two arguments: (1) the contradictions identified in the applicant's testimony are minor and should not have led the panel to find that the applicant lacked credibility; (2) the behaviour of the presiding member of the panel and his intimidating and inquisitorial way of questioning the applicant, [TRANSLATION] "a large part of the hearing having gone unrecorded because of the 'rashness' or carelessness of the presiding member, who was operating the recording system but neglected to turn it on".

[3]         The first argument does not warrant serious consideration: it was for the panel to weigh the evidence, and there is nothing to suggest that the panel made any error in that regard.

[4]         With respect to the second argument counsel raised, the Court is not in a position to judge its merit; the panel's record contains no transcript whatsoever of the testimony given at the hearing. The panel was, however, equipped with mechanical recording equipment, as the judgment delivered from the bench is set out in the panel's record (p. 254-258). The Court remains puzzled by that oversight, which is incomprehensible, to say the least. However, the argument cannot be accepted in view of the case law on this point.[1] In CUPE v. Montreal, [1997] 1 S.C.R. 793, the Supreme Court held that: (p. 842)

In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice.

[5]         In the case at bar, because the Immigration Act does not require the Refugee Division to record testimony, and particularly because the applicant, in his affidavit, did not in any way fault the panel in that regard, the argument cannot be accepted.

                                                                     O R D E R

                                           The application for judicial review is dismissed.

Montréal, Quebec                                                                                                            Pierre Denault    

September 1, 1999                                                                                                                       Judge           

Certified true translation

Peter Douglas


                                                   FEDERAL COURT OF CANADA

                                                               TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:                           IMM-6525-98

STYLE OF CAUSE:                 MARIUS GHEORGHE DEAC

                                                                                                                                              Applicant

                                    AND

                                    MINISTER OF CITIZENSHIP

                                                AND IMMIGRATION

                                                                                                                                          Respondent

PLACE OF HEARING:            Montréal, Quebec

DATE OF HEARING: August 31, 1999

REASONS FOR ORDER OF DENAULT J.

DATED                                    September 1, 1999

APPEARANCES:

unrepresented                                                                                                                for the applicant

Josée Paquin                                                                                                              for the respondent

SOLICITORS OF RECORD:

Léonard Manzararu

Montréal, Quebec                                                                                                         for the applicant

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Ontario                                                                                                         for the respondent


                            Federal Court of Canada

                                     Trial Division

Date: 19990901

Docket: IMM-6525-98

Between:

                      MARIUS GHEORGHE DEAC

                                                                                Applicant

                                            AND

                      MINISTER OF CITIZENSHIP

                            AND IMMIGRATION

                                                                            Respondent

                          REASONS FOR ORDER

                                    AND ORDER

                                               



                        1Kandiah v. M.E.I. (1992), 141 N.R. 232; Cicek v. M.C.I., IMM-4477-96, decision of October 24, 1997 (Pinard J.); and Mohamed v. M.C.I., IMM-2445-96, decision of August 27, 1997 (Muldoon J.).

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