CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Convention Refugees |
Csonka v. Canada (Minister of Employment and Immigration)
IMM-6268-99
2001 FCT 915, Lemieux J.
17/8/01
11 pp.
Application for judicial review of IRB decision denying refugee claims of applicants, citizens of Hungary, based on fear of persecution on ground of race/nationality (Romany)--IRB found principal claimant's evidence and conduct inconsistent with well-founded fear of persecution and concluded though claims heard jointly, recognized that each claim must be considered and determined individually--Main issue failure by IRB, as required by Immigration Act, s. 69(4), to name representative for minor child--As result, independent claim of minor child tarnished by unfavourable credibility finding with respect to father--Application allowed--No person designated as representative for minor child--IRB's decision should be set aside with respect to all applicants, sidestepping question whether failure to designate representative for minor child rendering void decision in respect of all members of family unit--F.C.A. decision in Kissoon v. Minister of Employment and Immigration, [1979] 1 F.C. 301 involving compliance with Immigration Act provision making it mandatory for adjudicator to designate person to represent minor child not so represented by parent or guardian, authority for proposition resulting decision void, not only voidable--Although distinction has suffered from erosion, no demonstration of prejudice or breach of natural justice need be shown where such statutory breach has taken place--Clearly, non-compliance with Act, s. 69(4), in so far as minor child concerned, meaning decision as relating to him must be set aside--Situation with respect to wife and other son different--IRB's decision in respect of claim must be set aside on authority of F.C.A.'s decision in Retnem v. Minister of Employment and Immigration (1991), 13 Imm. L.R. (2d) 317 (in view of distinctive elements in wife's claim, tribunal could not simply decide case "for same reasons" as husband's)--While IRB found husband's evidence not credible, did not make any adverse findings against wife and son; wife and son both brought some distinctive elements to their claims which warranted comment and analysis by IRB--As to husband, decision set aside on basis IRB failed to mention and consider psychological report (identifying post-traumatic stress disorder) which accompanied counsel's written submissions--Immigration Act, R.S.C., 1985, c. I-2, s. 69(4) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18).