[1993] 1 F.C. 27
92-A-4861
Manjit Dhillon Singh (Applicant)
v.
The Minister of Employment and Immigration (Respondent)
Indexed as: Singh v. Canada (Minister of Employment and Immigration) (C.A.)
Court of Appeal, Mahoney J.A.—Ottawa, September 30, 1992.
Citizenship and Immigration — Immigration practice — Application for leave to appeal decision of Convention Refugee Determination Division — Applicant wishing to rely on Refugee Division’s record under Federal Court Immigration Rules, s. 20(1) — Written request to forward record served by Court Registry on tribunal — Board objecting to request as served by Registry rather than by applicant — Whether tribunal required to act on request served by Registry on behalf of applicant — Interpretation of Rules matter for Court, not for Immigration and Refugee Board — Leave application not to be disposed of without tribunal’s record, where requested, regardless of technical defect in service of request — Order requiring Board, respondent and applicant to file memorandum of fact and law in support of respective positions.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Immigration Rules, SOR/89-26, ss. 20 (as am. by SOR/91-698, s. 15), 21 (as am. idem).
Federal Court Rules, C.R.C., c. 663, R. 1604 (as enacted by SOR/92-43, s. 19).
INTERLOCUTORY ORDER pursuant to subsection 21(3) of Federal Court Immigration Rules within an application for leave to appeal a decision of the Convention Refugee Determination Division.
COUNSEL:
Narindar S. Kang for applicant.
Deirdre A. Rice for respondent.
SOLICITORS:
Kang & Company, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Mahoney J.A.: This application for leave to appeal an adverse decision by the Convention Refugee Determination Division, received by the applicant July 14, 1992, was filed August 10, 1992. In the application, the applicant stated that he wished to rely on the Refugee Division’s record and requested that it be forwarded to the Court without delay. The applicant filed his supporting affidavit and representations on August 21; the respondent filed representations in opposition on September 11 and the applicant representations in reply on September 21. On September 29, the file was referred to me for disposition of the application. The Refugee Division’s record is not on file and the matter cannot now be dealt with pending a determination whether or not it has been lawfully withheld.
The Federal Court Immigration Rules [SOR/89-26 (as am. by SOR/91-698, s. 15)] provide:
20. (1) A party to an application for leave who wishes to rely on the tribunal’s record shall file in the Registry and serve on the tribunal a written request asking the tribunal to forward its record to the Registry.
(2) In the case of an applicant, the request may be included in the application for leave.
…
21. (1) A tribunal that is served with a request under subsection 20(1) shall forward the record to the Registry without delay.
(2) Where the tribunal or a party objects to the request, the tribunal or party shall, in writing, inform all parties and the Registry of the reasons for the objection.
(3) A judge may give directions to the parties and the tribunal on the procedure for making representations with respect to the objection.
(4) A judge may, after hearing the tribunal and any party, order that all or part of the tribunal’s record be forwarded to the Registry.
As stated, the request for the record was included in the application for leave as permitted by subsection 20(2). The Registry, on September 3, 1992, wrote to the Registrar of the Immigration and Refugee Board in Vancouver as follows:
In his application for leave, the applicant has requested, pursuant to Rule 20 of the Federal Court Immigration Rules, that the Tribunal forward its record to the Registry.
The letter went on to recite section 21 in full. The letter was received by the tribunal September 9.
On September 17, M. Netley, A/Deputy Registrar, wrote the Court’s District Administrator, attaching a copy of the letter of September 3 and stating:
Please be advised that the tribunal has not forwarded the record in this matter, as this office is not in receipt of an application for leave nor a written request for the record to be forwarded as required by Rule 20(1) and (2).
I take that letter to be an objection to the request that the record be forwarded although there is no indication of the parties having been informed. The letter from the Court’s Registry to the tribunal was a written request served on the tribunal asking it to forward its record. The fact that the request was served by the Court’s Registry rather than by the applicant does not alter that simple fact. Nothing in subsection 20(1) requires the entire application for leave to be served on the tribunal; all that is required to be served on it is the request for its record. Compliance with Federal Court Rule 1604 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] if leave is granted and acted upon is, of course, another matter.
The question then, would appear to be simply whether the tribunal is required to act on a request served by the Registry in pursuance of the applicant’s request in the application for leave or whether the request must be served by the applicant and not the Registry. An authoritative interpretation of the Federal Court Immigration Rules is clearly a matter for this Court, subject to appeal, and not for the Immigration and Refugee Board, if it has considered the question, or for its functionaries if it has not.
One may speculate what public interest is thought to be served by refusing to deliver the record when requested by the Court. It is trite to say that the security of the person of every refugee claimant is in issue. It follows that no judge would advertently dispose of a leave application absent the tribunal’s record where it had been requested regardless of a technical defect in service of the request on the tribunal.
ORDER
Pursuant to subsection 21(3), it is ordered that:
1. The Immigration and Refugee Board do, on or before October 23, 1992, cause to be filed a memorandum of fact and law in support of its refusal to deliver its record herein to the Registry of this Court and do, within the same time, cause to be served copies thereof on counsel for the applicant and the respondent.
2. The respondent do, on or before November 6, 1992, file and serve on the applicant and tribunal, a memorandum of fact and law in support of its position on the refusal of the tribunal to deliver its record herein.
3. The applicant do, on or before November 20, 1992, file and serve on the tribunal and the respondent, a memorandum of fact and law in support of its request for the delivery of the record.
4. Unless on application a judge orders otherwise, the issue be decided without personal appearance of counsel.
5. The applicant be entitled to his costs of complying with this order from the tribunal to be taxed as between solicitor and client.
6. Further compliance with this order will not be required if, on or before October 23, 1992, the Immigration and Refugee Board has:
(a) delivered the record herein to the Registry; and
(b) advised the Registry, in writing, that requests for its record served by the Registry will be acted upon in the same manner as if served by an applicant for leave.