Date:
20120620
Docket: IMM-8219-11
Citation: 2012 FC 792
Toronto, Ontario, June 20,
2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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AVWEROSUOGHENE OKWAGBE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27, of a decision of the Refugee
Protection Division of the Immigration and Refugee Board is allowed. The
Board, in response to a specific question, stated that counsel need not make
submissions on areas other than the delay in claiming protection as that was
the only issue of concern. The Board could not, as it did, then render a decision
on the basis of there being an internal flight alternative (IFA) without
providing counsel with an opportunity to respond to its concerns.
[2]
The
Certified Tribunal Record (CTR) shows that at the commencement of the hearing
the Board identified the issues as identity, affiliation, state protection,
credibility, and IFA: CTR 308.
[3]
These
issues were dealt with in turn by the Member who questioned the applicant.
When questioning him about IFA possibilities in Nigeria, the Member
asked if he would not be safe in Lagos or Ibadan. The
applicant stated that he would not because the police falsely believed that he
was a member of the MASSOB and he would be at risk for that reason in those
locations and elsewhere in Nigeria. The Member and
applicant’s counsel then engaged in a discussion of the documentary evidence
that the applicant was relying on in this regard.
[4]
The
Member then returned to question the applicant on the delay in claiming
protection and commented: “That’s the only thing I have to get past
[emphasis added].” Immediately following this line of questioning, counsel
commenced his submissions. His submissions were restricted to the issue of
delay. When he commenced those submissions he advised the Member that he would
deal with the delay issue and the Member responded at CTR 350: “Okay. That’s
what I need.”
[5]
Counsel
concluded his submissions on delay with the following query at CTR 352: “If
there’s any other issue you want me to address --.” The response, in my
opinion, can only be reasonably interpreted as an indication from the Member
that the delay was the only issue for determination. This led counsel to the
view that he need not make submissions on any other issue. The relevant
exchange is as follows:
COUNSEL: … If there’s any other issue you
want me to address –
MEMBER: No. I’m satisfied with
regards to identity, I’m satisfied with that. We dealt really with state
protection. In turn you can’t have one without the other so. No, that was
my only, shall I say, concern [emphasis added].
[6]
I
agree with the respondent that the Member never said that counsel for the
applicant need not make submissions of IFA because that was no longer at issue;
however, the Member did the same when in response to a specific question as to
whether there was any other areas he wished him to address, said “No, that was
my only … concern [emphasis added].”
[7]
When
the applicant has not made submissions on an issue because the tribunal
directly indicates that no such submissions are required, or where the tribunal
indirectly indicates that no such submissions are required, then the applicant
is denied natural justice if the tribunal makes its ruling based on that
issue: Velauthar v Canada (Minister of Employment and Immigration), [1992]
FCJ No 425; Rodriguez v Canada (Minister of Citizenship and Immigration),
[1995] FCJ No 77; Butt v Canada (Minister of Citizenship and Immigration),
[1998]
FCJ No 325.
[8]
For
these reasons this decision must be set aside. Neither party proposed a
question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is allowed, the
decision is set aside and the applicant’s claim for protection is remitted to a
differently constituted Board, and no question is certified.
"Russel
W. Zinn"
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