Date: 20080801
Docket: IMM-547-08
Citation: 2008 FC 914
Ottawa,
Ontario, August 1st,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ABDUL-HAKIM
ABD AZIZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review, pursuant to section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA), of the decision of the Refugee Protection Division
(RPD) wherein the applicant was determined not to be a “Convention refugee” nor
a “person in need of protection”.
I. Facts
[2]
The
RPD found the applicant not to be credible in his claimed identity as a member
of the Bajuni tribe from Chula, a small island in Somalia. The
applicant claimed that he had fled Somalia for Kenya with an
uncle after his father was murdered in October 2003 and his mother died shortly
thereafter. In August, 2005, the applicant left Kenya for Canada, travelling
on a false Canadian passport procured for him by an uncle.
[3]
The
applicant provided no documentary evidence from Somalia and the RPD
panel member gave little weight to the documents he obtained in Canada for reasons
which will be discussed further. He then noted discrepancies between the
applicant’s testimony and the documentary evidence and found that, on the
totality of the evidence, he was not persuaded that the applicant was a citizen
of Somalia or that he
had spent his youth in Chula. On the basis that he failed to establish his
identity, the panel member could not find that the applicant was a Convention
refugee or a person in need of protection.
II. Issues
[4]
This
application raises three issues:
a. Did the RPD
breach its duty of procedural fairness?
b. Did the RPD ignore
evidence?
c. Did the RPD
misapprehend evidence?
[5]
The
decision of the RPD is reviewable on a reasonableness standard, subject to the
statutory regime of subsection 18.1(4) of the Federal Courts Act, S.C. 2002, c. 8. A breach of
procedural fairness cannot be remedied and a decision found to have been made
as a result of the unfair procedure must be vacated. Any decision which is
made without regard to the material before the tribunal must be considered unreasonable
and should be set aside.
III. Analysis
Did the RPD breach its
duty of procedural fairness?
[6]
The
RPD panel member gave little weight to the applicant’s documentary evidence,
including an affidavit from a childhood friend from Somalia who now lives in Calgary and a letter
from a Somali agency in Toronto corroborating his
identity. The member found the affidavit of Abdul Nassour to be defectively
sworn, as the commissioner’s signature was illegible and no stamp or other
identification of the commissioner appeared on it. He gave little weight to
the Somali agency’s letter because it contained no specific information about
the qualifications of the author to determine Mr. Aziz’ heritage, how the
determination was made or the language of the interview.
[7]
The
applicant argues that the RPD panel member breached his duty of fairness by
questioning the credibility of Mr. Nassor’s affidavit and finding it to be
defectively sworn in his reasons when he had not given notice that the validity
of the commissioner was at issue. The applicant notes that in Vinski et al.
v. Lack et al. (1987), 61 O.R. (2d) 379, relied upon by the panel member in
finding the affidavit defective due to the lack of stamp or typed signature,
Master Sandler provided counsel with the opportunity to supply an affidavit
with a legible signature. The RPD panel member in this instance never informed
the applicant of the irregularity or provided him the opportunity to correct
it.
[8]
Likewise,
the applicant alleges, the panel member did not notify him of his concerns
regarding the letter from Midaynta, the Somali agency in Toronto. Had this
been made known, the Refugee Protection Officer, the panel member or the
applicant’s counsel could have asked the questions which concerned the panel member
and the applicant could have answered them under oath.
[9]
The
respondent counters that, in light of the incredible testimony of the applicant
regarding Chula and the distinction between Bajuni and Somali ethnic groups,
the RPD was within its jurisdiction and expertise to give the weight that it
did to the documents. The panel member was under no obligation to point out
evidence which he found unconvincing and the applicant and his counsel were
equally able to identify and address the deficiencies. He also notes that
raising concerns with the applicant would have served no purpose as he had
previously given affidavit evidence regarding the interview which the panel
member is presumed to have considered.
[10]
Unfortunately,
with regard to the affidavit of Mr. Nassor, it appears that the panel member
focused on form rather than substance. The Court notes that a brief assessment
of signatures suggests that the commissioner who took the oath of Mr. Nassor
was probably the applicant’s counsel. While counsel should be encouraged to
file complete applications in conformity with the letter of the Court’s
procedure, the Court finds it unfair to the applicant for the panel member not
to have brought his concerns with the irregularity to his attention before
coming to the decision, in order to allow him to submit a properly commissioned
oath.
[11]
The
respondent asks the Court, in the event that the failure of the RPD to provide
notice of its concerns about the commissioning of the affidavit was erroneous,
to find that this failure was not conclusive. The applicant responds that the
decision on the validity of the affidavit goes to the heart of the issue and
the essence of identity and that the suggestion that the RPD’s conclusion would
have remained the same is an exercise in speculation. This breach of natural
justice requires a new hearing, regardless of whether the ultimate decision
would have remained the same.
[12]
The
applicant is correct in his submissions on this point. It is trite law that a
breach of procedural fairness must result in a quashing of the decision
resulting from that unfair procedure and that a new hearing of the case must result.
The affidavit was important to support the applicant on his identity. The
affidavit should not have been discarded without providing counsel with an
opportunity to supply an affidavit with a legible signature. The form here was
less important than the content of the affidavit, and the noted deficiencies
should have been brought to the attention of counsel for him to remedy.
[13]
As
for the letter from the Somali agency, the applicant would not have been able
to address the member’s concerns in testimony. It should be noted by counsel,
in this instance and in the field of immigration law generally, that evidence
purporting to establish the identity of a claimant should provide sufficient
information about the author and the criteria on which that identity was determined
in order to allow decision-makers and reviewing Courts to assess the
reasonableness of the evidence and to assign it proper weight.
[14]
The
applicant also alleges that the panel member erred in ignoring evidence of his
diligence in having a witness present for the hearing and in misapprehending
evidence. The panel member concluded that the applicant was not diligent in
having the witness Nassor present at his hearing. In order to reach this
decision, he ignored evidence which showed that Mr. Nassor attended one aborted
hearing, traveled to Toronto from his home in Calgary for a second aborted
hearing and cancelled flights from Calgary to Toronto on at least one if not
two subsequent occasions when hearings were adjourned. The applicant’s diligence
in arranging to have his witness present continued in the face of five separate
adjournments of his hearing over the span of seventeen months.
[15]
The
respondent argues that the evidence regarding Mr. Nassor’s previous attempts to
be present at Mr. Aziz’ hearings is not relevant to the impugned decision. The
panel member’s negative inference was not drawn from the lack of Mr. Nassor’s
physical presence in Toronto or testimony by other
means, such as teleconference, but on the lack of diligence shown by the
applicant in failing to follow up on the one telephone call he says he made to
a friend, leaving a message for Mr. Nassor, five months before the hearing.
The panel member clearly knew of the history of the case, including Mr.
Nassor’s previous presence and move to Calgary. It was
within his jurisdiction to find the applicant’s explanation inadequate or
unsatisfactory in the face of his inaction.
[16]
While
it may be true that, taken out of context, one single telephone call to a
potential witness five months prior to the hearing seems to be highly
indicative of a lack of due diligence, in the history of this case the Court
disagrees with the panel member’s negative finding. The panel member ignored
that in spite of five adjournments over 17 months, none of them his
responsibility, the applicant continued to arrange for his witness to be
physically present at his hearing. The Court cannot see how it is reasonable
to make a negative inference against a claimant for his inability to sustain
such willingness to appear indefinitely. That finding under these
circumstances is unreasonable. By itself, such a single point of error on a
minor issue would not lead to the quashing of the decision; however, in
combination with the procedural unfairness relating to the validity of Mr.
Nassor’s affidavit, it becomes more imperative to set aside the decision. In
view of this conclusion, the Court does not see the necessity to address the
two other issues.
[17]
For
the foregoing reasons, this application is allowed. No questions were proposed
for certification and none will be certified.
JUDGMENT
FOR THE FOREGOING
REASONS THE COURT allows the application and refers the matter
back to a newly constituted panel for redetermination.
"Maurice E. Lagacé"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-547-08
STYLE OF CAUSE: ABDUL-HAKIM
ABD AZIZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 16, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: LAGACÉ
D.J.
DATED: August 1st, 2008
APPEARANCES:
|
Mangesh Duggal
|
FOR THE APPLICANT
|
|
Amina Riaz
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Mangesh Duggal
Barrister and Solicitor
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.,
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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