IMM-2027-96
BETWEEN:
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION,
Applicant,
-
and -
DARSHY
DARSHAN DHALIWAL-WILLIAMS,
Respondent.
REASONS
FOR ORDER
PINARD J.
This is an
application for judicial review pursuant to section 82.1 of the Immigration
Act, R.S.C. 1985, c. I-2, (the "Act") of a decision of the
Immigration Appeal Division ("I.A.D.") rendered March 6, 1996 and
signed March 14, 1996, whereby the tribunal allowed the appeal of the
respondent Darshy Darshan Dhaliwal-Williams from a refusal to approve the
application for landing of Ramandeep Ram.
The applicant
has raised several grounds for attacking the I.A.D.'s decision to allow the
respondent's appeal. In my opinion, the main ground raised by the applicant, namely
that the applicant was denied a full opportunity to make her case, is
sufficient to dispose of this application in the applicant's favour.
At the
commencement of the hearing before the I.A.D., the respondent's counsel advised
the panel that he intended to call the respondent, the respondent's husband,
the guardian of Ramandeep in India, and Ramandeep herself as witnesses.
However, after the respondent was examined by her own counsel and
cross-examined by the Appeals Officer, the I.A.D. advised the parties that it
would only need to hear from one further witness, Ramandeep. Ramandeep then
gave only very brief testimony, and the panel adjourned for a short recess.
When proceedings resumed, the presiding member advised the parties that the
panel had come to a decision on the appeal, and that the appeal was allowed in
law and equity.
The evidence
shows that had the applicant been given the opportunity, the Appeals Officer
would at least have made submissions on the three issues before the I.A.D., namely
whether there had been a ceremony of adoption in compliance with the
requirements of the Hindu Adoptions and Maintenance Act, 1956, whether
the adoption had been carried out with the intention to transfer Ramandeep from
her natural parents to the respondent, and whether there was a parent/child
relationship between the respondent and Ramandeep. Furthermore, the I.A.D. was
alive to the fact that the Appeals Officer intended to make representations at
the hearing. It appears from the transcript of the hearing that indeed the
Appeals Officer raised the issue of making summations after the
cross-examination of the respondent was concluded, and that the I.A.D. stated
that submissions would be received following the evidence. Notwithstanding
this indication by the I.A.D. to the Appeals Officer, the I.A.D. did not in
fact provide the Appeals Officer with an opportunity to present his case at any
time prior to rendering its decision.
In my opinion,
this constitutes a clear violation of the principles of natural justice and
procedural fairness. When section 25 is read in conjunction with section 39 of
the Immigration Appeal Division Rules ("I.A.D. Rules") it is
clear that the I.A.D. is meant to be master of its procedure. In my view,
however, this discretion with respect to procedure cannot be read so as to
remove the duty of the I.A.D. to respect the principles of natural justice and
procedural fairness. Sections 25 and 39 of the I.A.D. Rules read as follows:
25. The Appeal Division may permit evidence to be adduced at a
hearing in such manner as would provide for a full and proper hearing and to
dispose of the appeal or application expeditiously, including
(a) the filing of affidavits and other documentary evidence;
(b) the presentation of written or oral arguments or both;
(c) the calling, questioning and cross-examination of witnesses; and
(d) the testimony of any party.
39. These Rules are not exhaustive and, where any matter that is
not provided for in these Rules arises in the course of any proceeding, the
Appeal Division may take whatever measures are necessary to provide for a full
and proper hearing and to dispose of the matter expeditiously.
It is well
established that the content of the duty of procedural fairness varies with the
circumstances.
In S.E.P.Q.A., Sopinka J. writing for himself and for Lamer and La
Forest JJ., expressed the following opinion regarding the applicability of
procedural fairness, at pages 895 and 896:
. . . Both the rules of natural justice and the duty of fairness are
variable standards. Their content will depend on the circumstances of the
case, the statutory provisions and the nature of the matter to be decided. The
distinction between them therefore becomes blurred as one approaches the lower
end of the scale of judicial or quasi-judicial tribunals and the high end of
the scale with respect to administrative or executive tribunals. Accordingly,
the content of the rules to be followed by a tribunal is now not determined by
attempting to classify them as judicial, quasi-judicial, administrative or
executive. Instead, the court decides the content of these rules by reference
to all the circumstances under which the tribunal operates.
It is also
well established that procedural fairness means at a minimum allowing each side
to present its case and providing both parties with the opportunity to be
heard. At pages 230 and 231 of Principles of Administrative Law,
written by David Jones and Anne de Villars, the authors note that:
The content of the audi alteram partem principle
is difficult to determine in particular circumstances, and what fairness
requires has altered over time and circumstance.
At the very least, the rule requires that the parties
affected be given adequate notice of the case to be met, the right to bring
evidence and to make argument.
(My
emphasis.)
Sopinka J.
expressed a similar view in S.E.P.Q.A.. He writes, at page 902:
. . . I agree with the reasons of Marceau J. that the Commission had a
duty to inform the parties of the substance of the evidence obtained by the
investigator and which was put before the Commission. Furthermore, it was
incumbent on the Commission to give the parties the opportunity to respond to
this evidence and make all relevant representations in relation thereto.
In the case at
bar, the I.A.D. failed to observe even this minimal requirement.
Notwithstanding the indication by the I.A.D. to the Appeals Officer that
submissions would be received following the evidence, the applicant was given
no opportunity to make submissions, and therefore was denied the opportunity to
make out her case, which constitutes a serious violation of the principles of
natural justice and procedural fairness. Consequently, the I.A.D.'s decision
must be quashed and a rehearing by a differently constituted panel will be
ordered.
I agree with
counsel for the parties that this is not a matter for certification pursuant to
subsection 18(1) of the Federal Court Immigration Rules, 1993.
OTTAWA, Ontario
May 7, 1997
JUDGE
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