Yushchuk v. Canada ( Minister of Employment and Immigration )
IMM-4773-93
Nadon J.
9/9/94
13 pp.
Application for judicial review of CRDD decision applicant not Convention refugee-Applicant citizen of Ukraine- Claiming refugee status based on fear of persecution by reason of political opinion, membership in particular social group-Problems encountered stemming from era of communist government in Ukraine-Applicant submitting to Board situation in Ukraine still "quite volatile" despite intervening change of government, achievement of independence; many old KGB members still occupying positions of power; as passport indicating claimed refugee status in Canada, likely tried for treason on return-Submitting paper by Dr. Benifand in support of contentions-Further paper by Dr. Benifand (arguing many of old political structures of communism firmly entrenched in Ukraine, impeding democratization) submitted in May 1993 after close of hearing, but prior to date on which Board rendering decision-Board not considering admissibility of document-Holding required to examine alleged fear of persecution as it related to conditions in Ukraine at date of receipt of final evidence-Applicant relying on Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404 (C.A.), Salinas v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 247 (C.A.), to argue Board having jurisdiction, duty "to receive evidence submitted by parties at any time up until rendering of a decision"-Application allowed-In not considering admissibility of Dr. Benifand's second report, Board refusing to exercise jurisdiction-Fundamental difference between Board's decision not to admit evidence based on its perception of relevance and other factors and failure to even consider question of admissibility-In former circumstances, Immigration Act, s. 68(3) vesting Board with broad discretion to receive or not to receive evidence-As long as evidence not material to case before it, Board's decision not to allow claim "based on all of evidence before it" not erroneous, even if Board not specifically referring to each piece of evidence-Board cannot preclude itself from considering evidence merely on basis such evidence submitted after last day of hearing-In Salinas, Court holding Refugee Division having jurisdiction to consider new evidence submitted by refugee claimants until end of proceedings, i.e. until decision rendered-In circumstances, Board ought to have reopened hearing to consider admissibility of second Benifand report-Respondent relying on Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308 (F.C.A.) for proposition despite error of law on substantive matter, applicant should be denied relief sought-Stone J.A. holding where Refugee Division making clear findings of credibility against applicant, pointless to return matter to Refugee Division notwithstanding possible breach of natural justice-Yassine, Mobile Oil Canada Ltd. et al. v. Canada Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 distinguished as reviewable error herein substantive, not procedural-Unlike cases where independent substantive findings of Board unaffected by other errors, no such independent substantive findings herein where outcome of applicant's case depending entirely on Board's appreciation of Benifand's second report-Following question certified: Does Refugee Division breach tenets of natural justice by not acknowledging receipt of or considering relevant new evidence submitted after hearing but before decision rendered where no formal request to reopen hearing made?-Immigration Act, R.S.C., 1985, c. I-2, s. 68(3) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18).