Moldoveannu v. Canada (Minister of Citizenship and Immigration)

Moldoveannu v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2002-04-18 Neutral citation 2002 FCA 143 File numbers A-61-01 Decision Content Date: 20020418 Docket: A-61-01 Montréal, Quebec, April 18, 2002 Coram: DÉCARY J.A. NOËL J.A. PELLETIER J.A. BETWEEN: PAUL MOLDOVEANNU Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT The appeal is dismissed. "Robert Décary" J.A. Certified true translation Suzanne M. Gauthier, C. Tr., LL.L. Date: 20020418 Docket: A-61-01 Neutral citation: 2002 FCA 143 Coram: DÉCARY J.A. NOËL J.A. PELLETIER J.A. BETWEEN: PAUL MOLDOVEANNU Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Hearing held at Montréal, Quebec, on April 18, 2002. Judgment from the bench at Montréal, Quebec, on April 18, 2002. REASONS FOR JUDGMENT OF THE COURT: DÉCARY J.A. Date: 20020418 Docket: A-61-01 Neutral citation: 2002 FCA 143 Coram: DÉCARY J.A. NOËL J.A. PELLETIER J.A. BETWEEN: PAUL MOLDOVEANNU Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal, Quebec, on April 18, 2002.) DÉCARY J.A. [1] This appeal results from the following question certified by the trial judge: [TRANSLATION] At a hearing de novo, is the IRB acting in accordance with the rules of natural justice when it leaves in a claimant's record transcripts, evidence and the decision made at a first hearing despite an order by the Federal Court of Canada which ordered a second hearing before a panel of different members? [2] It appeared at the hearing that the transcripts of the first hearing before the Refugee Division ("the Division") and the first decision made by the Division were not included in the record at the second hearing. The absence of the said documents was certified by the Immigration and Refugee Board Registrar. [3] Accordingly the certified question seems to this Court to be moot, but we nevertheless allowed counsel for the appellant to make his argument, namely that despite the official certification the second decision was to such an extent based on the first that it can be concluded that it actually was in the record. [4] We do not accept the appellant's argument. The similarities he mentioned in the reasons for the two decisions were not really similarities and, on the contrary, it seems quite clear to the Court that the reasons for one are quite different from the other, although they arrived at the same conclusion. [5] In the circumstances, it does not seem proper to express an opinion on the validity of a [TRANSLATION] "practice" by the Division [TRANSLATION] "to include in the record for a new hearing as evidence filed all documents pertaining to the first hearing, unless the Federal Court has ordered otherwise or it considered that there was a denial of natural justice" (appeal case, vol. 1, p. 50). This "practice" was not followed in the case at bar and as it raises a number of questions it is better to await a suitable occasion for discussing it. (See Lahai v. Minister of Citizenship and Immigration, 2002 FCA 119; Sawridge Indian Band v. Canada, 2002 FCA 338.) [6] There is no need to consider the other points made by the appellant. The situation here is one in which the question giving rise to the appeal had no factual foundation and should not have been certified. We are in the same position as if no question was certified. (See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at 833.) [7] The appeal will be dismissed. "Robert Décary" J.A. Certified true translation Suzanne M. Gauthier, C. Tr., LL.L. FEDERAL COURT OF CANADA APPEAL DIVISION Date: 20020418 Docket: A-61-01 Between: PAUL MOLDOVEANNU Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT OF THE COURT FEDERAL COURT OF CANADA APPEAL DIVISION SOLICITORS OF RECORD FILE: A-61-01 appeal from Trial Division judgment in case IMM-754-00 on January 25, 2001 STYLE OF CAUSE: PAUL MOLDOVEANNU Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: April 18, 2002 REASONS FOR JUDGMENT OF THE COURT: DÉCARY J.A. CONCURRED IN BY: NOËL J.A. PELLETIER J.A. DATED: April 18, 2002 APPEARANCES: Dan M. Bohbot FOR THE APPELLANT Louise-Marie Courtemanche FOR THE RESPONDENT SOLICITORS OF RECORD: Dan M. Bohbot FOR THE APPELLANT Montréal, Quebec Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada Montréal, Quebec