Date: 20060320
Docket:
IMM-4299-05
Citation:
2006 FC 351
Ottawa, Ontario, the 20th day
of March 2006
Present: The Honourable Mr. Justice
Simon Noël
BETWEEN:
ARASH
ASLANI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is
an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), of a decision by
the Refugee Protection Division (the RPD) dated June 9, 2005. By that
decision, the RPD denied the refugee protection claim of Arash Aslani (the
applicant). In the opinion of the RPD, the applicant is not a Convention
refugee nor a person in need of protection within the meaning of sections 96
and 97 of the IRPA.
I. Issue
[2] Did the
RPD err in fact or in law in dismissing the applicant’s claim for refugee
protection?
II. Conclusion
[3] The
application for judicial review is dismissed and no question is certified.
III. Facts
alleged
A. Applicant’s
first narrative
[4] The
applicant, who is of Iranian origin, gave the following version of the facts in
his first Personal Information Form (PIF), dated December 15, 2004.
[5] He
claimed he was opposed to the government of the Mullahs in Iran and said he
took part in secret meetings and a demonstration in 1999. He said he was
arrested, imprisoned and tortured before being released. In 2001, he became a
partner in a data processing company and in 2003, the company signed a contract
to establish an Internet service business with the Dorna company. Fraudulent
activities are said to have occurred in the Dorna company. On account of its
connection with Dorna, the applicant’s company allegedly received a visit from
government agents in July 2004. The manager of the applicant’s company,
Reza Kashani, was arrested a few days after that visit. He telephoned the
applicant, begging him to pay his bail.
[6] As the
applicant was about to pay the bail, he was arrested in turn. Both men were
tortured, since they were suspected of sending out information on internal
affairs in Iran. They were released on condition that they remained silent and
assisted the government agents in their investigation.
[7] A new
meeting was arranged by the government agents. Instead of going there, the
applicant sought refuge with a friend. Then, in October 2004, he left the
country and went to Turkey and then Germany, where he took a boat for Canada.
The applicant arrived in Canada on November 16, 2004 and applied for
refugee protection on the same day.
B. Applicant’s
second narrative
[8] The
applicant was released on December 21, 2004 after his detention was
reviewed. Soon afterwards, the Canadian authorities discovered that the
applicant had spent a considerable time in Europe before coming to Canada. On
December 29, 2004, the applicant filed a new PIF, which told a story that
was very different from the first one. In this second PIF the applicant
explained that he had concealed the truth in his first narrative because in the
Netherlands the events he had recited were not believed. He added that in the
United Kingdom he was detained and sent back to the Netherlands, where he said
there are secret Iranian agents.
[9] The
applicant added to his narrative the fact that he did his military service from
November 1995 to February 1998. He said that in the course of his work he
discovered certain inconsistencies in the army information. When his
employment ended he was denied a military service card and was instead given a
military service certificate, advising him to return five years later to
collect his card. When he returned to get it, the applicant, in order to
explain his delay in obtaining the card, had to explain the inconsistencies he
found in the army information during his military service. He claims to have
been imprisoned in March 2003 for this reason. In May 2003, his house was
searched and the hard disk on his computer stolen. The applicant said he tried
to obtain police protection without success. After that he continued to work
in the data processing field. He said General Iran Nejad
(General Nejad) confirmed that he would be protected and could disclose
the information he had.
[10] In June
2003, the applicant was again arrested, imprisoned and sentenced to death by a
military tribunal. He was able to escape by paying a bribe and with the help
of a judge. On July 19, 2003, the applicant left Iran, travelling through
Georgia and then the Netherlands. After being intercepted and detained at
various places in Europe, and after two unsuccessful attempts, the applicant
managed to get to Canada on November 16, 2004, where he filed a refugee
claim upon his arrival.
IV. Analysis
[11] The
applicant raised the following five main issues, that I will examine one by
one:
- the RPD made errors of fact;
- the RPD made a procedural error
when it said that in order to be heard before the RPD the applicant’s
last-minute witnesses should first have gone to the Canadian Embassy;
- the RPD made an error in
expressing reservations about the photographs submitted by the applicant (RPD
decision, at page 4), because at the hearing the applicant’s evidence was
accepted (panel’s record, at page 246);
- the RPD ignored part of the
evidence since it did not mention important evidence;
- the RPD violated the applicant’s
right to be heard.
[12] The
applicable standard of review with respect to alleged errors of fact is that of
patent unreasonableness (Thavarathinam v. Canada (Minister of Citizenship
and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at
paragraph 10; Aguebor v. Canada (Minister of Citizenship and
Immigration), [1993] F.C.J. No. 732 (F.C.A.), at paragraph 4).
As the other issues are solely issues of law, the applicable standard is that
of correctness.
A. Errors
of fact
[13] In the
applicant’s submission, the RPD erred in saying that the applicant was not
credible when he related the meetings he allegedly had with General Nejad. In
his PIF the applicant described the events in chronological order and nearly
all the paragraphs began with some indication as to time (e.g. [TRANSLATION] “from 09/11/1995 to 07/02/1998”, “in May 2003” and so on). The
paragraph in which he referred to General Nejad for the first time began with
the words [TRANSLATION] “in June 2003”, though it is not expressly stated that the
applicant’s meetings with him took place during that month. At the hearing the
applicant said he returned to collect his military service card in March 2003,
and it was then that General Nejad asked him for his assistance to elucidate
the fraud matters (panel’s record, at pages 269 et seq.). The
General and the applicant allegedly met several times in the same week, from
March 1 to 8 (panel’s record, at page 308). This important point in
the applicant’s story was not recited in his second PIF. In this context, and
in view of the applicant’s very weak explanations (panel’s record, at
page 309), I consider that the RPD’s conclusion in this regard is not patently
unreasonable.
[14] The RPD
noted that the applicant had not filed any evidence, such as an incident report
or copy of a written complaint, to establish the theft of his hard disk which
allegedly occurred in May 2003. The RPD further noted that the applicant at
one point said he had first learned of the origin of the theft from the police
and at another time from neighbours. The applicant maintained he had always
said that it was first his neighbours who told him that SEPAH (the acronym for
the organization of guardians of the revolution) were responsible for the
theft, and then that it was confirmed by the police. However, it was clear
from the evidence that he contradicted himself in this regard (panel’s record,
at pages 304 and 305).
[15] The
applicant maintained that he had not contradicted himself on the question of
whether his father was detained or not. He said that at all times he
maintained that his father had been detained. In this regard, I think the RPD
did not err in its description of the facts. It quite properly noted that the
applicant’s explanations were complicated and his testimony confused (panel’s
record, at pages 76 to 79), whereas the questions were straightforward.
There was no error of fact.
[16] The
applicant maintained he did not contradict himself regarding the dates of his
military service. The record shows the contrary (see in particular panel’s
record, at pages 14, 26, 31, 259 and 260).
[17] In
short, in my view the RPD did not make any errors of fact, still less any
patently unreasonable errors of fact. After having examined the evidence in
the record, I find that the RPD had ample reasons to note that the applicant’s
credibility was very seriously compromised by the numerous contradictions
between the various versions of his narrative and his inability to explain
them.
B. Procedural error
[18] At the
hearing before the RPD the Division member had an exchange with the applicant.
The latter wanted to call to testify two individuals, one in Iran and the other
in the United Kingdom, without having first sent the other party and the RPD
the information provided for in section 38 of the Refugee Protection
Division Rules (the Rules).
[19] Under
subsection 38(4) of the Rules, it is possible for the RPD to allow an
individual to testify even if the necessary information was not provided at the
proper time:
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38 (4) If a
party does not provide the witness information as required under this rule,
the witness may not testify at the hearing unless the Division allows the
witness to testify.
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38 (4) La partie
qui ne transmet pas les renseignements concernant les témoins selon la
présente règle ne peut faire comparaître son témoin à l’audience, sauf
autorisation de la Section.
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[20] At the
close of the hearing, the presiding member addressed the applicant and his
counsel, explaining the procedure to be used in calling remote witnesses
(panel’s record, at page 376). She explained that equipment had to be
installed so that the witnesses could be heard from out of the jurisdiction,
and those witnesses would have to report to the Canadian embassy in the
countries where they resided to be identified. As the applicant was being
detained at the time of the hearing, the presiding member also pointed out that
the arrangements for hearing the witnesses by telephone would take some time.
The applicant maintained that a non-existent procedural rule was imposed upon
him and that this infringed his right to be heard. In my opinion, this
argument must be rejected since (1) the RPD has complete control of its
own procedure; and (2) because there are practical considerations leading
me to this finding.
(1)
The RPD is the master of its own procedure
[21] First,
as an administrative body, the RPD is the master of its own procedure and this
makes the Court reluctant to intervene with respect to the requirement of
identification made by the RPD in the case at bar.
[22] This
fundamental rule of administrative law derives from the decisions of the
Supreme Court of Canada and of the Federal Courts (see, inter alia,
Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R.
560; Komo Construction v. Quebec (Commission des relations de travail),
[1968] S.C.R. 172; Siloch v. Canada (Minister of Employment and Immigration)
[1993] F.C.J. No. 10; Gorodiskiy v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 997, at paragraph 12).
[23] In Prassad
v. Canada (Minister of Employment and Immigration), supra, at
paragraph 16, Mr. Justice Sopinka wrote:
We are dealing here with the powers of an
administrative tribunal in relation to its procedures. As a general rule,
these tribunals are considered to be masters in their own house. In the
absence of specific rules laid down by statute or regulation, they control
their own procedures subject to the proviso that they comply with the rules of
fairness and, where they exercise judicial or quasi-judicial functions, the
rules of natural justice.
[24] In Siloch
v. Canada (Minister of Employment and Immigration), supra, at
paragraph 3, Décary J.A. recalled the same general rule:
It is well settled that in the absence of specific
rules laid down by statute or regulation, administrative tribunals control
their own proceedings and that adjournment of their proceedings is very much in
their discretion, subject to the proviso that they comply with the rules of
fairness and, where they exercise judicial or quasi-judicial functions, the
rules of natural justice.
[25] Guideline
No. 6 of the Chairperson of the Canada Immigration and Refugee Board, Scheduling
and Changing the Date or Time of a Proceeding in the Refugee Protection
Division, is consistent with this rule. It states, in fact, that “[t]he
RPD has the authority to set its own procedures, as long as the principles of
natural justice and fairness are followed”.
[26] Finally,
paragraph 170(a) of the IRPA appears to give the RPD considerable latitude in
matters of procedure:
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170. The Refugee
Protection Division, in any proceeding before it,
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170. Dans toute
affaire dont elle est saisie, la Section de la protection des réfugiés :
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(a) may
inquire into any matter that it considers relevant to establishing whether a
claim is well-founded . . .
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a) procède à tous les actes qu’elle juge
utiles à la manifestation du bien-fondé de la demande…
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[27] Based on
all this, I think it must be said that, in the absence of written rules, the
RPD is free to make procedural requirements so long as they are consistent with
the Act and Regulations, existing rules of procedure and the principles of
natural justice.
(2)
Inevitable practical considerations when witnesses are heard by
telephone
[28] At the
hearing, I asked the parties to submit their comments on two cases which
appeared to me to be relevant to the question of whether the RPD erred in
requiring the applicant to have the witnesses he wished to testify by telephone
first report to the Canadian embassy for identification. Those cases are Farzam
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1453, [2005]
F.C.J. No. 1776, and Al-Khaliq v. Canada (Minister of Citizenship and
Immigration), 2005 FC 625, [2005] F.C.J. No. 843. Only the applicant
chose to submit his arguments to the Court.
[29] In Farzam
v. Canada (Minister of Citizenship and Immigration), supra,
Mr. Justice Martineau analysed the rules applicable to the exercise
by a court of law of its power to authorize a party to have witnesses heard by
telephone. The judge’s approach was based on judgments by provincial courts,
on a decision of the Tax Court of Canada, the Rules of Civil Procedure,
R.R.O. 1990, Rule 194 (Ontario), on the Federal Courts Act, R.S.C.
1985, c. F-7 and on the Federal Court Rules (1998), SOR/98-106.
[30] In his
comments, the applicant maintained that Farzam v. Canada (Minister of
Citizenship and Immigration), supra, is not relevant because:
- that case was decided in a
judicial context, whereas the RPD is an administrative tribunal;
- a proceeding before an
administrative tribunal is not adversarial in nature;
- it is not the general rule that
witnesses are to be present at a hearing before the RPD, as it is in the
Federal Court.
[31] It is
true, as the applicant pointed out, that the cases cited by
Mr. Justice Martineau in Farzam are not directly applicable
to the case at bar, since they deal with telephone testimony in a court of law,
and not before an administrative tribunal. Nevertheless, in my opinion the
comments by Mr. Justice Martineau do clearly explain the risks
created by applying an unduly flexible procedure with regard to telephone
testimony. In my view, these comments, which I set out in part below, are to
some extent valid even in an administrative context. Further, the presence of
witnesses at the hearing appears to me to be the general rule before the RPD,
as in courts of law. Indeed, this appears from sections 38 to 40 of the
Rules. The Rules provide that the notice sent to the other party must indicate
whether the first party wants the witness to testify by video conference or telephone
(38(1)(f)), and set out a detailed procedure for an appearance at the
hearing, whereas nothing is said specifically about a telephone testimony. In
my opinion, this indicates the special nature of telephone testimony.
[32] Further,
the Rules provide that witnesses must be identified, and in principle the RPD
cannot authorize a person to testify who has not submitted the necessary
identification information unless that person appears “at the hearing”
(subs. 38(4) of the Rules). In other words, the RPD may disregard the
requirement that witnesses be identified in advance and the information
forwarded to the opposing party if the witness is present at the hearing.
Accordingly, the applicant was given special leave by the RPD, namely to have a
witness appear by telephone without the information required in
subsection 38(1) being submitted in advance. However, the rule that
witnesses must be identified still stands: in the opinion of this Court, it is
essential. This general rule is set out in subsections 38(1), (2) and (3)
of the RPD:
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38. (1) If a
party wants to call a witness, the party must provide in writing to any other
party and the Division the following witness information:
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38. (1) Pour
faire comparaître un témoin, la partie transmet par écrit à l’autre partie,
le cas échéant, et à la Section les renseignements suivants :
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(a) the
witness’s contact information;
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a) les coordonnées du témoin;
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(b) the
purpose and substance of the witness’s testimony or, in the case of an expert
witness, the expert witness’s signed summary of the testimony to be given;
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b) l’objet du témoignage ou, dans le cas
du témoin expert, un résumé, signé par lui, de son témoignage;
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(c) the
time needed for the witness’s testimony;
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c) la durée du témoignage;
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(d) the
party’s relationship to the witness;
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d) le lien entre le témoin et la partie;
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(e) in
the case of an expert witness, a description of the expert witness’s
qualifications; and
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e) dans le cas du témoin expert, ses
compétences;
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(f)
whether the party wants the witness to testify by videoconference or
telephone.
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f) le fait qu’elle veut faire comparaître
le témoin par vidéoconférence ou par téléphone, le cas échéant.
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(2) The witness
information must be provided to the Division together with a written
statement of how and when it was provided to any other party.
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(2) En même
temps que la partie transmet à la Section les renseignements visés au
paragraphe (1), elle lui transmet une déclaration écrite indiquant à
quel moment et de quelle façon elle a transmis ces renseignements à l’autre
partie, le cas échéant.
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(3) A document
provided under this rule must be received by its recipient no later than
20 days before the hearing.
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(3) Les
documents transmis selon la présente règle doivent être reçus par leurs
destinataires au plus tard vingt jours avant l’audience.
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[33] In the
case at bar, the requirement imposed by the RPD seems to the Court to be
entirely reasonable and necessary. At paragraph 38 of Farzam, supra,
Mr. Justice Martineau cited a passage from Ramnarine v. Canada,
2001 DTC 991, [2001] T.C.J. No. 736:
In Ramnarine, Miller T.C.J. summarized in the
following way the factors justifying the granting of an order for evidence by
teleconferencing in that case:
There are instances where the interests of justice can
best be served in the Tax Court by a practical approach to the implementation
of rules. This is one of those instances. This granting of an Order for
evidence by teleconferencing is not intended to open any floodgates. It is
limited to the circumstances of this particular appeal and specifically the
following factors:
(1) The appeal is in regard to
what has been described as the blunt instrument of a net worth assessment;
(2) The cost is substantial in
connection with the tax in issue;
(3) The Appellant’s financial
resources are prima facia limited;
(4) The witness is outside North
America;
(5) The witness is not an expert;
(6) The witness will not rely on
any documentary evidence;
(7) The testimony is limited in
scope and is anticipated to be brief in duration; and
(8) The witness must testify in
the presence of a judge or lawyer of the foreign jurisdiction under oath in
that jurisdiction.
[34] Mr. Justice Martineau
went on to give further explanations. At paragraphs 42 to 50, he asked
important questions about the practical aspects of holding a teleconference in
the Federal Court:
¶42 In the case at bar, the credibility of the
evidence of the Iranian witnesses is critical. In my opinion, the “just”
determination of the contentious issues in the trial, here the cause or causes
of the alleged divorce, necessarily implies that the Defendant be given the
opportunity to cross-examine the Iranian witnesses. However, it is obvious
from the facts of the case that, through teleconferencing, I will not be able
to observe the Iranian witnesses’ demeanour.
¶43 In B. (K.G.) [1993] 1 S.C.R. 740 at 792,
79 C.C.C. (3d) 257, Lamer C.J. emphasized the handicap of the trier of fact in
assessing the credibility of the declarant in such circumstances:
When the witness is on the stand, the trier can
observe the witness’s reaction to questions, hesitation, degree of commitment
to the statement being made, etc. Most importantly, and subsuming all of these
factors, the trier can assess the relationship between the interviewer and the
witness to observe the extent to which the testimony of the witness is the
product of the investigator’s questioning.
. . .
¶45 In her request for directions dated October 19,
2005, Plaintiff’s counsel proposes, as a first alternative, that the evidence
of the Iranian witnesses be taken by telephone.
. . .
¶46 Keeping in mind that the Plaintiff has raised
this alternative, it was up to him to bring satisfactory evidence to the Court
that teleconferencing is both feasible from a legal and technical point of view
within the time frame of a trial of 12 days starting in Ottawa on October 24,
2005. In this regard, important questions remain unanswered. For
instance, who will be the company who will provide the teleconferencing
services, at what costs and conditions? At what time of the day in Canada and
Iran will this teleconference simultaneously take place? Where will the Iranian
witnesses be located? How will the taking of their oral testimonies through telephone
be coordinated in view of the fact that counsel have already indicated that the
examinations in chief and cross-examinations involve simultaneous translation
and may require two days of hearing? Will there be a Court’s representative
present? How will the room be organized and how will the decorum of the Court
be maintained? How will any exclusion order of the witnesses be enforced at
trial in the telephone conference facilities in Iran? Since the Iranian
witnesses will testify in Farsi, how will the Court deal with the taking of
evidence in Iran? Should a stenographer be also present in Iran to ensure that
the questions and answers are properly recorded? Are there special
arrangements that need to be taken with the provider of the teleconference
services, the Canadian Embassy or the Defendant to assure the presence of the
Iranian witnesses and any representatives of the Defendant in Tehran?
¶49 My final concern with the Iranian witnesses’
testimony by telephone or video conference is that of their reliability.
In the present case, no evidence was tendered regarding Iranian laws as to
administration of an oath and possible ensuing enforcement procedures. It is
imperative that a witness who provides evidence in a jurisdiction other than
Canada do so under oath in accordance with our laws, as well as in accordance
with the local laws. While Plaintiff’s counsel asserts that the Iranian
witnesses have nothing to gain in this case, I note that the Plaintiff claims
damages from the Defendant in the area of $2,000,000. It must be made clear to
the Iranian witnesses that they cannot escape responsibility for their actions
should they have any thought that helping another member of their family, the
Plaintiff in this case, requires some shading of the truth. In these
circumstances, assuming that teleconferencing or video conferencing are
possible means to take the evidence of the Iranian witnesses, I believe that
there should be a member of the Iran legal system, either judge or lawyer
present at the local facility to administer the oath and explaining the
consequences of perjury to the Iranian witnesses prior to administering the
oath. Unfortunately, there is no indication in Plaintiff’s affidavit and
material that this could be done at this late date since the trial will
actually start after the issuance of the present reasons for order and order.
¶50 For these reasons, having balanced all relevant
factors, the evidence before me fails to satisfy me that the issuance of an
order that the evidence of the Iranian witnesses be taken by telephone is in
the interest of justice and would secure at this late date and in the
absence of a detailed plan, the just, most expeditious and least expensive
determination of the contested issues in this action.
[35] Although,
as the applicant pointed out, the decision by Mr. Justice Martineau
was rendered in a judicial context, the concerns expressed by him still hold
with respect to the RPD. In my opinion, all the procedural rules set forth by
Mr. Justice Martineau should not necessarily apply to the RPD.
However, it seems to the Court that the requirement that a person must prove
his or her identity by reporting to the Canadian Embassy, or in some other way
if permitted by the RPD, is necessary to prevent refugee protection claimants
from being able to call to testify individuals who are not who they say they
are. This is reasonable based on Rule 38 and consistent with the flexibility
that must characterize the adducing of evidence before an administrative tribunal
like the RPD.
[36] The
applicant relied on paragraph 170(h) of the IRPA, emphasizing the
procedural flexibility applicable before administrative tribunals:
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170. The Refugee
Protection Division, in any proceeding before it,
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170. Dans toute
affaire dont elle est saisie, la Section de la protection des réfugiés :
|
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. . .
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[…]
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(h) may
receive and base a decision on evidence that is adduced in the proceedings
and considered credible or trustworthy in the circumstances;
and . . .
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h) peut recevoir les éléments qu’elle juge
crédibles ou dignes de foi en l’occurrence et fonder sur eux sa
décision . . .
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In my opinion, the
effect of procedural flexibility should not be such as to undermine the RPD’s
ability to render informed decisions. In my view, Al-Khaliq v. Canada
(Minister of Citizenship and Immigration), 2005 FC 625, [2005] F.C.J.
No. 843, may serve to illustrate why it is important for the tribunal to
first establish the identity of witnesses who are to be heard by telephone. In
that case, the RPD had allowed the witness to be heard without further
formalities. However, the RPD refused to attach any evidentiary value
whatsoever to the testimony since it was not certain of the witness’ identity.
This indicates that at least some formality is necessary, even before an
administrative tribunal, for a telephone testimony to be authorized.
Otherwise, the credibility of witnesses will be compromised even before the
witness has been heard. This creates the danger of sterile debates on the
identity of witnesses, when it is possible to avoid such debates by
ascertaining the identity of the witnesses beforehand. Imposing this minimal
formal requirement as the RPD did is in the best interest of refugee protection
claimants, the RPD and the Minister.
[37] In the
case at bar, the choice of procedure was made in accordance with the spirit of
the applicable rules, no procedural rule was infringed and the applicant
suffered no prejudice. When the RPD does not have any rule governing its
conduct, it must of necessity develop practices. The applicable procedure was
explained quite clearly to the applicant and it seems to the Court to have been
appropriate in the circumstances. That procedure necessarily involved delays.
The RPD did not take the applicant by surprise, since it was prepared to grant
him a postponement so as to enable him to meet the procedural requirement of
witness identification. When he learned of the possible delays in presenting
his remote witnesses, the applicant preferred to waive the privilege extended
to him by the RPD. Accordingly, this Court does not have to intervene.
C. Photographs
[38] The
applicant maintained that, as the RPD had accepted all the applicant’s evidence
(see panel’s record, at page 246), it could not express reservations
regarding parts of the evidence it contained (panel’s decision, at
page 4).
[39] On this
point, I am of the view that counsel for the applicant is confusing the
preliminary acceptance of evidentiary material and the evidentiary value of that
evidence. The fact that the RPD accepted the photographs in evidence does not
mean that, in view of the circumstances, it cannot subsequently place a limited
value on them. Accordingly, the RPD made no error of law.
D. Evidence
not expressly referred to in the RPD decision
[40] The
applicant argued that some evidence was ignored by the RPD, in particular the
affidavit of Mr. Kashani (panel’s record, at page 55) and the
documents regarding the latter’s claim for refugee protection in the United
Kingdom (panel’s record, at pages 43 et seq.).
[41] This
argument cannot be accepted. Unless the contrary is shown, the RPD is presumed
to have taken all the evidence before it into account (see, inter alia,
Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J.
No. 598 (F.C.A.); Lewis v. Canada, 2004 FC 1195, [2004] F.C.J.
No. 1436, at paragraph 19 (F.C.)). The applicants did not offer
evidence that could convince the Court that all relevant material was not
considered. It seems more likely that all the evidence was considered, since
Mr. Kashani’s situation and his connection to the applicant was the
subject of discussions at the hearing (panel’s record, at pages 361 et
seq.).
E. Right to be heard
[42] Finally, the applicant argued that his right to be heard
was infringed as the description of his escape from the Kerman prison was not
given all due consideration.
[43] I have
reviewed the transcript of the hearing (panel’s record, at pages 291 et
seq.) and I am of the view that the applicant had a sufficient opportunity
to explain the circumstances of his escape.
[44] In
addition, the panel found that this explanation was not credible and that
finding, based on the facts of this case, is subject to the patently
unreasonable decision standard. I do not think it was patently unreasonable
for the RPD to have found that the applicant lost credibility due to the
description he gave of his escape.
V. Questions
for certification
[45] The
parties were invited to submit questions for certification. The applicant
asked that the following questions be certified:
- Is there a breach of natural
justice when a written decision by the panel concerning the presentation of
evidence on procedure is contrary to what was given orally?
- When the Court finds that there
was a breach of natural justice, can we apply a standard other than that set
forth by the Supreme Court, namely that any infringement of natural justice has
the effect of rendering the decision null and void unless the outcome of the
case would have inevitably been the same? - in particular, does the Court
legally have the discretion to refuse to order a new hearing because the result
would likely have been the same?
[46] In order
to determine whether a question must be certified, we must refer to the
criteria set out in Canada (Department of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The
question must transcend the interests of the parties to litigation, contemplate
issues of broad significance and be determinative of the appeal. These two
questions are certainly not determinative of the appeal, in view of the
applicant’s lack of credibility as indicated by the evidence and the reasons
mentioned in this judgment. Further, for purposes of clarification, they are
not relevant since the rules of natural justice were observed by the RPD at all
times.
[47] For
these reasons, the application for judicial review is dismissed and no question
will be certified.
JUDGMENT
THE COURT
ORDERS THAT:
- the application for judicial
review is dismissed and no question will be certified.
“Simon Noël”
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