Ottawa, Ontario, March 7, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is the Applicant’s second round before the Immigration and Refugee Board (IRB). His first refugee claim was rejected after having been successful at an abandonment hearing. The Applicant was also successful on judicial review of the IRB’s first decision and the matter was referred back for a rehearing. The rehearing of this refugee claim again resulted in a negative decision by the IRB. This is the judicial review of that second IRB decision.
[2] The Applicant has advanced nine issues in his attack on the IRB. This matter can be resolved on the basis of the allegation that the Applicant did not have a fair hearing because of non-fulfillment of a legitimate expectation as to an evidentiary record and the failure to consider relevant evidence.
[3] In the second IRB decision, the Board was concerned about the lack of detail in the Applicant’s PIF on the issues of persecution and fear. The Applicant explained that this lack of detail resulted from only having 15 minutes to complete his PIF in the context of the conclusion of abandonment hearing.
[4] At his second IRB hearing, when advised that it would be a de novo hearing, the Applicant’s counsel objected because he wanted to be able to rely on the previous record before the Board. Counsel assumed that the abandonment hearing materials would be in the previous record.
[5] The transcripts show an exchange between counsel and the Member which led counsel to believe that although this would be a de novo hearing, the record would include all the previous documentary evidence. The hearing would proceed on the old documentary record, supplemented by any new materials and new testimony in this second hearing, but that none of the prior testimony would be included in the record of this second hearing.
[6] The Board has a policy about documents to be used in rehearings. The Policy on Court Ordered Rehearings applicable in any rehearings not based on a denial of natural justice outlined the documents to be on the rehearing case file:
· jurisdictional documents (for example: notice of appeal, referral to the RPD, request for admissibility hearing or detention review)
· the Court order and any reasons
· the original decision of the IRB and any reasons
· administrative documents (for example: notices to appear)
· exhibits filed at the previous hearing
· any transcripts of the previous hearing
· other evidence on the original file.
[7] Upon reviewing the Certified Tribunal Record, it is clear that the abandonment proceeding materials did not form part of the record in this judicial review.
[8] It is the Applicant’s position that he had a legitimate expectation, both as a result of the exchange between himself and the Member, as well as the current Board Policy, that the Board record would be complete, which means that it would include the abandonment hearing proceedings.
[9] As the Respondent points out, at the first IRB hearing the Applicant’s excuse for failing to mention key events in his PIF was that he did not have a lawyer and that he had problems writing. The Respondent argues that because the abandonment hearing and the alleged 15 minutes to complete the PIF were not raised in the first hearing, there was no reason for the abandonment materials forming part of either the old or new record.
[10] The difficulty is two-fold. Firstly, the Applicant had a reasonable basis for believing that the new record would contain what could be called the “file history”. Secondly, the Board never referred to the abandonment hearing process despite the Applicant’s new explanation for incompleteness in his PIF.
[11] In the context of this case, it was reasonable to expect that the complete documentary file would have been before the Member. The Applicant’s excuse for the omissions in his PIF was grounded in the abandonment hearing and the Applicant put that issue squarely to the Board.
[12] Furthermore, the abandonment materials which were in the record were partially corroborative of the Applicant’s explanation in that the PIF was dated on the same day as the abandonment hearing and there is evidence to suggest that it had not been completed before that date.
[13] Having raised the issue of the time to complete the PIF in the context of the abandonment hearing, the Board should have considered its own file on that hearing. It failed to consider relevant evidence which was in its own files and about which it had knowledge of its relevance.
[14] Therefore, this application for judicial review will be granted, and the decision of the IRB quashed. The matter will be referred back to the Board for a new determination based on a record which consists of, at a minimum, the documents potentially relevant to the Applicant’s claim and history of that claim. This does not include transcripts of the Board’s previous decisions. The Court would expect that the Board could cooperate and agree with both counsel to ensure that there is a proper record available for the rehearing.
[15] There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be granted, and the decision of the IRB quashed. The matter will be referred back to the Board for a new determination based on a record as described in these Reasons.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2045-06
STYLE OF CAUSE: ALI SHIRAZ NAQVI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 27, 2007
APPEARANCES:
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Mr. Ali Amini
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Ms. Janet Chisholm
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SOLICITORS OF RECORD:
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AMINI CARLSON LLP Barristers & Solicitors Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |