[2000] 1 F.C. 249
IMM-4836-98
Ali Faghihi (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Faghihi v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Evans J.—Toronto, August 11; Ottawa, August 17, 1999.
Citizenship and Immigration — Immigration practice — Judicial review of Refugee Division’s refusal to reopen hearing — Two-member panel of Refugee Division dismissing Convention refugee claim — One of those members subsequently dismissing application to reopen claim — Immigration Act, s. 69.1(7), prescribing two-member quorum, applying only to hearings —under this section—, i.e. hearing into refugee claim, abandonment thereof — In absence of statutory provision dealing with quorum, tribunal having implicit discretion over process by which discharges statutory responsibilities, subject to limitations expressly, impliedly imposed by enabling Act, other statutes, delegated legislation, including statutory rules of procedure, principles of administrative law, Constitution — Immigration Act neither expressly, nor impliedly requiring two members to hear application to reopen — Interpretation Act, s. 22(2), providing quorum comprise at least half members, not applicable as Immigration Act not prescribing number of members who may be appointed to Refugee Division — S. 22(2) applies only to bodies in respect of which Parliament fixing number of members to be appointed — Nothing in CRDD Rules requiring motions to reopen be heard by two-member panels — Implicit discretion over own process not displaced by presumption against sub-delegation of exercise of statutory powers affecting rights of individuals — Question certified: is Refugee Division properly constituted by single member when determining motion to reopen decision dismissing refugee claim on ground of procedural unfairness?
Administrative law — Judicial review — Certiorari — Presumption against sub-delegation of exercise of statutory powers affecting rights of individuals — Application to reopen refugee hearing heard by one member only — Presumption excluded where nature of statutory scheme so indicating — Statutory scheme revealing Parliament’s intention to avoid protraction of refugee determination process — Refugee Division’s discretion over own process not displaced by presumption — To require motions be heard by two members unjustifiably diverting resources from CRDD’s job: determining refugee claims.
This was an application for judicial review of the Refugee Division’s refusal to reopen a hearing. A two-member panel of the Refugee Division dismissed the applicant’s Convention refugee claim, finding that his evidence was not credible, and that he had not established a well-founded fear of persecution. The application to reopen the claim was based on an allegation that, as a result of an inaccurate interpretation, Iran was wrongly entered on his Personal Information Form (PIF) as the applicant’s country of nationality. Relying on this statement, and finding no evidence to contradict it, and concluding that the applicant had no well-founded fear of persecution in Iran, the Refugee Division did not inquire further into the applicant’s claim to fear persecution in Iraq. This argument was rejected, in part because any translation difficulties had been cleared up prior to the hearing. The applicant’s second submission was that, as a specialist agency, the Refugee Division was under a duty to inquire into the statement on the PIF that the applicant was a national of Iran. The application to reopen was decided by a single member of the Refugee Division, one of the two members who had heard the claim.
The issues were: (1) whether the Refugee Division was properly constituted when a single member decided the applicant’s motion to reopen; and (2) whether the Refugee Division erred in law when it concluded that there had been no breach of the duty of procedural fairness in the rejection of the applicant’s refugee claim.
Held, the application should be dismissed.
(1) Subsection 69.1(7), which provides that two members constitute a quorum of the Refugee Division for the purposes of “a hearing under this section”, did not apply because this was not one of the two kinds of hearing held pursuant to section 69.1—a hearing into a person’s claim to be a refugee, and a hearing into the abandonment of a refugee claim.
In the absence of a statutory provision expressly dealing with the quorum required for an application to reopen a decision on the ground of procedural unfairness, tribunals are masters of their own procedure and have an implicit discretion over the process by which they discharge their statutory responsibilities. This implicit discretion, including authority for the tribunal to decide how many members to assign to hear a particular matter, is subject to any limitations expressly or impliedly imposed by the tribunal’s enabling Act, or any other statute, delegated legislation, including statutory rules of procedure, the principles of administrative law, and the Constitution.
There is no express power conferred on the Refugee Division to reopen its decision on the ground of procedural unfairness, but case law has established that the Refugee Division has an implicit power to rehear when a breach of procedural fairness has been made out. The Court was not, however, satisfied that, by clear implication, the statute requires that two members also hear a motion requesting a reopening.
Interpretation Act, subsection 22(2) provides that a quorum of a statutory body comprises at least half of its members, but this applies only to bodies in respect of which Parliament has fixed the number of members to be appointed. Since the Immigration Act does not prescribe the number of members who may be appointed to the Refugee Division, this statutory presumption does not apply to it.
A request to reopen a decision of the Refugee Division must take the form of an application to the Refugee Division and since the Rules do not otherwise provide, and it does not arise in the course of a hearing, the application to reopen must be made by motion pursuant to Convention Refugee Determination Division Rules, subrule 28(1). But that rule is silent as to the composition of the Refugee Division when deciding motions. Rule 29 provides that in the event of a split decision on an interlocutory matter the presiding member shall have the deciding vote. A motion to reopen a decision is an interlocutory matter, because if granted it will simply open the gate to a redetermination of the claim by the Refugee Division. While rule 29 contemplates the use of two-member panels to determine motions on interlocutory matters because a single-member panel is incapable of producing a “split decision”, it does not make two-member panels mandatory. Rule 29 is simply irrelevant when an interlocutory matter is heard by a single member. Furthermore, rule 29 is an exception to the principle that the vote of only one member of a panel of the Refugee Division is required for a decision to be rendered in favour of the claimant. Hence the fact that part of the rationale of two-member panels does not apply to the determination of interlocutory matters weakens the argument for finding that one member may not determine them. Nothing in the Rules requires that motions to reopen be heard by two-member panels.
The principle of administrative law relevant to limiting the discretion of the Refugee Division to assign a single member to determine a motion to reopen is the presumption against the sub-delegation of the exercise of statutory powers that affect the rights of individuals, especially when the powers in question are of an adjudicative nature. But the presumption against sub-delegation will be excluded if the nature of the statutory scheme so indicates. The Refugee Division’s implicit discretion over its own process, which prima facie enables it to allocate one member to hear a motion to reopen, is not displaced by the presumption against sub-delegation. To require that two members be assigned to all motions when not clearly so required by the Act would unjustifiably divert resources from the Refugee Division’s main activity, the determination of refugee claims. Further, it was apparent from several aspects of the statutory scheme that Parliament was concerned to avoid a protraction of the determination process beyond the time required for affording claimants a fair hearing. Two members are not required to decide an interlocutory matter in a proceeding that is not even expressly provided for in the Act.
(2) When the Refugee Division had no reason to suspect that an error had occurred, a bona fide mistranslation prior to a hearing that leads to the introduction of erroneous documentary evidence is not a denial of the fair hearing to which an applicant is in law entitled. The kind of error herein does not so undermine the integrity of the hearing as to render it a travesty, especially since the applicant had ample opportunity at the hearing to establish that he could not return to Iran.
Although applicant’s second submission was not dealt with specifically, the Refugee Division member’s reasons adequately disposed of it by indicating that the applicant had not provided any evidence that Iranian authorities would not permit him to return, or that he would be deported to Iraq. Furthermore, the applicant was represented at his refugee hearing by experienced counsel, who could have brought to the panel’s attention any relevant material.
The following question was certified: Is the Refugee Division properly constituted by a single member when determining a motion to reopen, on the ground of procedural unfairness, a decision of a panel dismissing the applicant’s claim to be recognized as a refugee in Canada?
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Convention Refugee Determination Division Rules, SOR/93-45, RR. 28, 29.
Immigration Act, R.S.C., 1985, c. I-2, ss. 35 (rep. by S.C. 1992, c. 49, s. 25), 46.01(1)(c) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 59 (as am. idem, s. 49), 69.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), 69.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61), 82.1(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73), 83(1) (as am. idem, s. 73).
Interpretation Act, R.S.C., 1985, c. I-21, s. 22(2).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Ihunwo v. Canada (Minister of Employment & Immigration) (1990), 12 Imm. L.R. (2d) 58 (F.C.A.); Said v. Canada (Minister of Employment & Immigration) (1991), 16 Imm. L.R. (2d) 194; 129 N.R. 229 (F.C.A.); Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (1989), 64 D.L.R. (4th) 317; 10 Imm. L.R. (2d) 1; 104 N.R. 50 (C.A.).
REFERRED TO:
Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; (1989), 57 D.L.R. (4th) 663; [1989] 3 W.W.R. 289; 36 Admin. L.R. 72; 7 Imm. L.R. (2d) 253; 93 N.R. 81; Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (1990), 44 Admin. L.R. 264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.).
APPLICATION for judicial review of the refusal by a single member of the Refugee Division to reopen a hearing originally heard by two members. Application dismissed.
APPEARANCES:
Michael T. Crane for applicant.
Andrea M. Horton for respondent.
SOLICITORS OF RECORD:
Michael T. Crane, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Evans J.:
A. INTRODUCTION
[1] In 1995 a two-member panel of the Refugee Division dismissed Ali Faghihi’s claim to be a refugee by virtue of a well-founded fear of persecution on account of his political opinions and ethnicity.
[2] The panel did not find his evidence to be credible. It also held that the treatment that the applicant alleged that he had suffered in Iran did not support a well-founded fear of persecution within the Convention’s definition of a refugee.
[3] Four months after this decision the Court dismissed an application by Mr. Faghihi for leave to apply for judicial review because he had not filed an application record.
[4] Mr. Faghihi applied to the Refugee Division to reopen its decision more than two years after it had rejected his refugee claim. He alleged that an error in the translation of his Personal Information Form (PIF), of which he had been unaware, had led the panel to make an erroneous finding that was crucial to his claim. It found that he was a citizen of Iran, to which, it concluded, he could safely return without fear of persecution. Hence, it did not consider his claim to fear persecution in Iraq, which he now says is his only country of nationality.
[5] The application to reopen was made by a motion that was decided by a single member of the Refugee Division, Mr. Bubrin, who had been one of the two members who had heard and dismissed Mr. Faghihi’s refugee claim. Mr. Bubrin dispensed with an oral hearing, as he was empowered to do by subrule 28(9) of the Convention Refugee Determination Division Rules, SOR/93-45, and decided the motion on the basis of written submissions from counsel.
[6] Mr. Bubrin denied the motion, finding that no procedural unfairness had occurred in the hearing of Mr. Faghihi’s refugee claim and that the Refugee Division accordingly had no jurisdiction to reopen its decision.
[7] In this application for judicial review the applicant requests that the dismissal of his motion to reopen be set aside on two grounds: that the Refugee Division was not properly constituted to determine the motion; and that the member who decided it made an error of law in concluding that there had been no breach of the duty of fairness when the Refugee Division dismissed the applicant’s refugee claim.
B. ISSUES AND ANALYSIS
Issue 1: Was the Refugee Division properly constituted when a single member decided the applicant’s motion to reopen?
[8] Counsel submitted that the decision made by Mr. Bubrin was not a decision of the Refugee Division because two members comprise a quorum, and the applicant had not consented to the determination of the motion by a single-member panel.
[9] The provisions of the Immigration Act, R.S.C., 1985, c. I-2 of most direct relevance to this issue are found in section 69.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60].
69.1 (1) Subject to subsection (2), where a person’s claim to be a Convention refugee is referred to the Refugee Division pursuant to section 46.02 or 46.03, the Division shall, as soon as is practicable, commence a hearing into the claim.
…
(7) Subject to subsection (8), two members constitute a quorum of the Refugee Division for the purposes of a hearing under this section.
…
(8) One member of the Refugee Division may hear and determine a claim under this section if the person making the claim consents thereto, and the provisions of this Part apply in respect of a member so acting as they apply in respect of the Refugee Division, and the disposition of the claim by the member shall be deemed to be the disposition of the Refugee Division.
…
(10) Subject to subsection (10.1), in the event of a split decision, the decision favourable to the person who claims to be a Convention refugee shall be deemed to be the decision of the Refugee Division. [Underlining added.]
[10] Subsection 69.1(7) applies only to “a hearing under this section”. Only two kinds of hearing are held pursuant to section 69.1. Subsection 69.1(1) provides for a hearing into a person’s claim to be a refugee, and subsection 69.1(6) provides for a hearing into the abandonment of a refugee claim. Subsection 69.1(7) does not therefore include a motion to reopen a decision dismissing a claim.
[11] In the absence of a statutory provision expressly dealing with the quorum required for an application to reopen a decision on the ground that it is vitiated by procedural unfairness, I start from the premise that tribunals are masters of their own procedure and have an implicit discretion over the process by which they discharge their statutory responsibilities: see, for example, Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 561, at pages 568-569.
[12] I include within this implicit discretion an authority for the tribunal to decide how many members to assign to hear a particular matter. I was advised by counsel at the hearing that, in disposing of motions to reopen, the Refugee Division sometimes deploys one member and sometimes two, regardless of whether the claimant has consented to a determination of the motion by a single member.
[13] Striking a balance between the importance and complexity of a matter on the one hand, and the efficient allocation of the tribunal’s limited resources on the other, is something that is appropriately left to the tribunal, subject only to judicial review of the exercise of its discretion on the ground of unreasonableness.
[14] Of course, the implicit statutory discretion of any tribunal over its process is subject to any limitations expressly or impliedly imposed by its enabling Act or any other statute, delegated legislation, including statutory rules of procedure, the principles of administrative law, and the Constitution.
(a) The statutory scheme
[15] Counsel submitted that it would be inconsistent with the statutory scheme to permit a single member of the Refugee Division to decide a matter arising from a refugee claim. This is because when Parliament has provided in the Immigration Act for a quorum of the Refugee Division it has stipulated that hearings shall be by two-member panels, unless the claimant consents to a hearing by a single member.
[16] Further, the presence of two members, and the provision that a claim normally succeeds if only one member decides in favour of the claimant (subsections 69.1(10) and (10.1)), are of fundamental importance to the statutory protection provided to claimants against the erroneous rejection of their claims.
[17] In support of his argument counsel referred me to Ihunwo v. Canada (Minister of Employment & Immigration) (1990), 12 Imm. L.R. (2d) 58 (F.C.A.) and Said v. Canada (Minister of Employment & Immigration) (1991), 16 Imm. L.R. (2d) 194 (F.C.A.). It was held in these cases that, under the provisions of the Immigration Act then in force, an adjudicator sitting alone had no authority to determine a request to reopen a decision of a “credible basis tribunal” which was constituted under the Act by an adjudicator and a member of the Board.
[18] The Court held that an adjudicator’s power to hear and determine a matter alone under section 35 of the Act did not apply to hearings in respect of matters within the jurisdiction of a “credible basis tribunal”.
[19] I do not find these cases helpful here. Section 35 has since been repealed [S.C. 1992, c. 49, s. 25], and “credible basis tribunals” are no longer part of the statutory decision-making scheme. Further, given the fact that “credible basis tribunals” comprised an adjudicator, who was a departmental official with no statutory guarantee of independence, and a member of the Refugee Division, which is, of course, an independent tribunal, it is hardly surprising that an adjudicator sitting alone was found to have no jurisdiction to decide any matters relating to the decision of a “credible basis tribunal”.
[20] Nor do I think that the rationale for the provision of two-member panels under the present Act is itself sufficient to establish that the scheme of the Act requires that, in the absence of the claimant’s consent, two members must hear an application to reopen. After all, the applicant’s claim was heard by a two-member panel, and he had a right, which he did not pursue, to seek leave to apply for judicial review.
[21] Indeed, there is no indication that Parliament ever turned its mind to conferring on the Refugee Division a power, exercisable at the instance of a previously unsuccessful claimant, to reopen its decision on the ground of procedural unfairness. Section 69.2 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61] provides in certain circumstances for rehearings on the application of the Minister.
[22] Nonetheless, case law has established that the Refugee Division has an implicit power to rehear when a breach of procedural fairness has been made out: see, for example, Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.). However, such a hearing can hardly be said to be within the central core of the Refugee Division’s jurisdiction.
[23] Of course, if the motion is granted and a rehearing is held, subsection 69.1(7) will apply since the rehearing will be “a hearing into the claim” within subsection 69.1(1). However, I am not satisfied that by clear implication the statute requires that two members also hear a motion requesting a reopening.
(b) Interpretation Act
[24] Subsection 22(2) of the Interpretation Act, R.S.C., 1985, c. I-21, provides that a quorum of a statutory body comprises at least half of its members. However, this provision applies only to bodies where Parliament has fixed the number of members to be appointed. Since the Immigration Act does not prescribe the number of members who may be appointed to the Refugee Division (subsection 59(1) [as am. by S.C. 1992, c. 49, s. 49]), this statutory presumption does not apply to it.
(c) Convention Refugee Determination Division Rules
[25] Rule 28 deals with motions. Subrule 28(1) provides that applications to the Refugee Division by a party shall be made by way of a motion, unless otherwise provided for in the Rules, or the application is made in the course of a hearing and the members decide to dispose of it in another manner.
[26] It would seem obvious that a request to reopen a decision of the Refugee Division must take the form of an application to the Refugee Division. And, since the Rules do not otherwise provide, and it does not arise in the course of a hearing, the application to reopen must be made by motion.
[27] Rule 28 says nothing about the composition of the Refugee Division when deciding motions. However, rule 29 is of some significance.
29. In the event of a split decision on an interlocutory matter, the presiding member shall have the deciding vote.
[28] I am prepared to assume for present purposes that a motion to reopen a decision is an “interlocutory matter” because, if granted, it will not be a final disposition of the case. It will simply open the gate to a redetermination of the claim by the Refugee Division in accordance with section 69.1.
[29] It may be argued that rule 29 clearly contemplates that interlocutory matters will be heard by a panel of two members because a single-member panel is incapable of producing a “split decision”. Accordingly, motions to reopen cannot be determined by single-member panels.
[30] The fallacy of this argument is that, while rule 29 no doubt contemplates the use of two-member panels to determine motions on interlocutory matters, it does not make them mandatory. Rule 29 is simply irrelevant when an interlocutory matter is heard by a single member.
[31] Furthermore, rule 29 is an exception to the principle found in the Act that the vote of only one member of a panel of the Refugee Division is required for a decision to be rendered in favour of the claimant. Hence, the fact that part of the rationale of two-member panels does not apply to the determination of interlocutory matters weakens the argument for finding that one member may not determine them.
[32] Accordingly, I find nothing in the Rules to require that motions to reopen be heard by two-member panels. The implicit discretion of the Refugee Division over its own process is thus untrammelled.
(d) Administrative law principles
[33] The principle of administrative law relevant to limiting the discretion of the Refugee Division to assign a single member to determine a motion to reopen is the presumption against the sub-delegation of the exercise of statutory powers that affect the rights of individuals, especially when the powers in question are of an adjudicative nature.
[34] Hence, since one-member panels are not expressly or by necessary implication authorized by statute in this context, and the power to reopen must be exercised on an adjudicative basis, the Refugee Division is not properly constituted by a single-member panel for the determination of a motion to reopen, unless the applicant has consented.
[35] The common law presumption against sub-delegation is, of course, much broader in scope than subsection 22(2) of the Interpretation Act. Nonetheless, in the absence of a statutory quorum provision for the determination of motions to reopen, it would be absurd to apply the non-delegation presumption to the Refugee Division so as to require the entire membership of the Division to hear motions to reopen.
[36] The Refugee Division comprises a very large number of members who are dispersed in local offices across Canada. Moreover, since the statute provides that two members of the Division constitute a quorum for discharging its principal responsibility, namely determining refugee claims, it would be whimsical in the extreme to require that all members must hear motions to reopen, especially since the Act does not even expressly confer on the Refugee Division the power to reopen its own decisions.
[37] A less extravagant and more plausible version of the argument would be that, when disposing of a motion to reopen, the Refugee Division must be constituted in its normal manner. Accordingly, a two-member panel is required unless the applicant consents to a single member.
[38] The presumption against sub-delegation is no more than a presumption, even when applied to the exercise of an adjudicative power, and will be excluded if the nature of the statutory scheme so indicates. Accordingly, the presumption will not apply when the costs in terms of agency efficiency, effectiveness and expeditiousness outweigh the benefits to the individual of a decision by the full body.
[39] In my opinion the Refugee Division’s implicit discretion over its own process, which prima facie enables it to allocate one member to hear a motion to reopen, is not displaced by the presumption against sub-delegation. The Refugee Division has a high-volume caseload, which it is continually struggling to dispose of without undue delay and expense. To require that two members be assigned to all motions when not clearly so required by the Act would unjustifiably divert resources from the Refugee Division’s main activity, namely the determination of refugee claims.
[40] Further, it is apparent from several aspects of the statutory scheme that Parliament was concerned to avoid a protraction of the determination process beyond the time required for affording claimants a fair hearing. For example, the Act restricts multiple claims by a previously unsuccessful applicant (paragraph 46.01(1)(c) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36]); there is no statutory right of appeal on the merits to an appellate tribunal; an applicant requires leave to apply to this Court for judicial review (subsection 82.1(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73]); and an appeal may only be taken from this Court to the Court of Appeal if the judge who heard the application for judicial review has certified that the case involves a question of general importance (subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73]).
[41] With these considerations in mind I conclude that two members are not required to decide an interlocutory matter in a proceeding that is not even expressly provided for in the Act. The power to reopen has been implied simply to avoid the necessity of obtaining a court order setting aside the dismissal of a refugee claim on the ground of procedural unfairness. The right to request the Board to reopen does not preclude an application to this Court for leave to apply for judicial review, a remedy that Mr. Faghihi started to pursue, but apparently abandoned.
[42] Accordingly, in my view it would be incompatible with the statutory scheme to require the Refugee Division to appoint a two-member panel to dispose of motions to reopen which are at the periphery of the Refugee Division’s jurisdiction. Such a requirement would impose an unjustifiably burdensome restriction on its discretion over the allocation of the resources available to it to discharge its responsibilities.
Issue 2: Did the Refugee Division err in law when it concluded that there had been no breach of the duty of procedural fairness in the rejection of the applicant’s refugee claim?
[43] I shall assume for the purpose of these reasons that the standard of correctness applies to the review of the member’s conclusion that there had been no procedural unfairness in the determination of Mr. Faghihi’s refugee claim. However, in view of the implicit, discretionary and residual nature of the power to reopen, and the various statutory provisions in the Act designed to restrict judicial review of decisions of the Refugee Division, it would seem arguable that a less demanding standard than correctness would be appropriate.
[44] The applicant made two submissions in writing to the Refugee Division in support of the motion to reopen. First, as a result of an inaccurate interpretation during the preparation for the hearing of the applicant’s refugee claim, Iran was wrongly entered on the PIF as his country of nationality. Relying on this statement and finding no evidence to contradict it, and concluding that the applicant had no well-founded fear of persecution in Iran, the Refugee Division did not inquire into Mr. Faghihi’s further claim that he also feared persecution in Iraq. Further, the applicant did not discover the alleged error until after the hearing of his claim, so that his evidence at the hearing that the content of the PIF was accurate and that it had been properly translated to him was not determinative of the issue.
[45] Mr. Bubrin rejected this argument, in part because he found that any translation difficulties had been cleared up prior to the hearing. Moreover, counsel did not satisfy me that, when the Refugee Division had no reason to suspect that an error has occurred, a bona fide mistranslation prior to a hearing that leads to the introduction of erroneous documentary evidence is a denial of the fair hearing to which an applicant is in law entitled.
[46] Counsel relied on Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (C.A.), where the Court held that a woman who had been prevented by her husband’s duress from putting before the Board her true circumstances had thereby been denied a fair hearing, even though the Board had done nothing wrong.
[47] In my view the position of a person who is intimidated from telling her story is quite different from that of Mr. Faghihi, who simply says that as a result of a mistranslation of one item in his PIF the Refugee Division made an erroneous finding about it. This kind of error does not so undermine the integrity of the hearing as to render it a travesty, especially since Mr. Faghihi had ample opportunity at the hearing to establish that he could not return to Iran.
[48] Counsel’s second submission was that, as a specialist agency, the Refugee Division was under a duty to inquire into the statement on the PIF that the applicant was a national of Iran. This is because it is notorious that, as a Mo’awed, namely a Shi’ite Muslim of Iranian ethnicity born in Iraq, the applicant would not have Iranian nationality.
[49] Mr. Bubrin seems not to have dealt with this submission explicitly. However, I am satisfied that his reasons adequately dispose of it. In particular, he noted that Mr. Faghihi had provided no evidence at the hearing that the Iranian authorities would not permit him to return, or that he would be deported to Iraq. Mr. Bubrin also observed that the applicant had been represented at his refugee hearing by experienced and competent counsel who could reasonably be expected to have brought to the panel’s attention any relevant information, including the kind of glaring error that the applicant subsequently alleged was contained in the PIF.
[50] In these circumstances, Mr. Bubrin did not err in law when he concluded that the panel had not breached the duty of fairness by failing to investigate the applicant’s claim with sufficient care.
[51] Indeed, in my view both of the written submissions made to Mr. Bubrin were little more than thinly disguised attempts to persuade him to reopen the decision on the ground that the Refugee Division’s rejection of Mr. Faghihi’s claim was based on a seriously erroneous finding of fact of a highly material nature.
[52] This would seem not to be a ground on which the Refugee Division may reopen a decision. An allegation that his refugee claim was dismissed without regard to the evidence could have been addressed to the Court, if the applicant had elected to perfect his application for leave.
C. CONCLUSIONS
[53] For these reasons the application for judicial review is dismissed.
[54] Pursuant to subsection 83(1) of the Immigration Act I certify that the disposition of this case involves the following question of general importance:
Is the Refugee Division properly constituted by a single member when determining a motion to reopen on the ground of procedural unfairness a decision of a panel dismissing the applicant’s claim to be recognized as a refugee in Canada?