Date : 20000406
Docket: IMM-1904-99
BETWEEN:
DIOMANDE SAHY LOU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration Refugee Board ( the "Board") whereby the Board determined that the applicant is not a refugee as defined by the definition in the Convention.
[2] The applicant, a citizen of the Ivory Coast, bases his claim on the well-founded fear of persecution for reasons of his political opinions.
[3] The applicant claims to be the founding member and general secretary of the support committee (comité de soutien) of the Rassemblement des Républicains ("CSRDR"), a committee which he created with the assistance of journalists as well as supporters of the political party, Rassemblement des Républicains ("RDR").
[4] The applicant claims that he was arrested at various demonstrations. He alleges that on May 25, 1997 he was arrested at a demonstration, detained for nine months without trial and eventually released due to poor health.
[5] On July 15, 1998, the applicant claims that he was arrested at another demonstration and that on September 10, 1998 he was released with the help of a friend.
[6] The applicant left the Ivory Coast on September 20, 1998 and claimed refugee status in Canada on September 22, 1998.
[7] Based on the documentary evidence adduced before it, the Board did not find the applicant to be credible and concluded that the applicant had invented his story.
[8] The applicant essentially takes issue with the fact that the Board allowed for two documents to be filed into evidence the morning of the hearing. He argues that this untimely disclosure of evidence amounts to a denial of natural justice.
[9] It is well-established in case-law that a waiver of a breach to natural justice may be implied if one does not raise an objection to the alleged breach at the earliest practical opportunity.
[10] A thorough reading of the transcript shows that counsel for the applicant did not raise an objection to the introduction of the Responses to Information Request at the hearing.
[11] In this regard the two cases, Noormohamed et al v. MEI1 and Nrecaj v. Canada (MEI),2 relied upon by counsel for the applicant can be distinguished from the case at bar.
[12] In these two cases, counsel for the applicant had made a request for disclosure before the hearing, a request which was refused. Specifically, in Noormohamed, despite several requests for disclosure, 80 pages of documentation were communicated to counsel for the applicant an hour prior to the hearing which the Court held did not provide time to counsel for the applicant to rebut this new evidence.
[13] Further, even if the rules of natural justice were breached and counsel for the applicant had objected accordingly, as noted by the Supreme Court of Canada in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board3 and applied by the Federal Court of Appeal in Yassine v. Canada (MEI),4 the breach must have an impact on the tribunal"s ultimate decision.
[14] In the case at bar, counsel for the applicant has not convinced me that the Board"s decision would have been any different had it not taken into account the two Responses to Information Request filed the morning of the hearing. In fact, the transcript reveals that the Board did not find the applicant"s story credible based on the absence of any reference to the support committee of the RDR or arrests at the demonstrations of May 1997 and September 1998 in the documentary evidence.
[15] Therefore, the two responses to information requests did not have an effect on the Board"s ultimate decision that the applicant was not credible. As a result, there is no cause for intervention by this Court.
[16] For these reasons, the application for judicial review is dismissed.
[17] Me. Styliani Markaki has submitted the following questions for certification:
| Is there an obligation on the Refugee Board to provide a refugee claimant with an adjournment and an opportunity to respond to evidence which contradicts the very basis of a refugee claimant? |
| To what extent does the Refugee Board have an responsibility to ensure that a refugee claimant obtains a fair hearing? (In light of the nature of there proceedings and what is at stake?) |
[18] Considering that the principles underlying these questions have already been the subject of several Federal Court decisions, I will not certify these questions.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 6, 2000.
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