Canada (Minister of Citizenship and Immigration) v. Tiky, 2001 FCT 980

Date: 20010831

Docket: IMM-5693-00

Neutral Citation: 2001 FCT 980

BETWEEN:

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Applicant

                                                                            - and -

                                                              ANBESSIE DEBELE TIKY

                                                                                                                                               Respondent

                                                  REASONS FOR ORDER AND ORDER

BLAIS J.

[1]                 This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision rendered on October 11, 2000, wherein the Board denied the applicant's application to vacate the Convention refugee status of the respondent and determined the respondent to be a Convention refugee.

FACTS

[2]                 By way of an application for leave dated August 14, 1996 and pursuant to subsection 69.2(3) of the Immigration Act, the applicant made an application to the chairperson of the Board for leave to make an application to the Board to reconsider and vacate its determination that the respondent was a Convention refugee.

[3]                 The application was accompanied by the statutory declaration of Charles Dombrady, Appeals Officer with the Immigration Appeals Office, signed on August 14, 1996. Leave was granted on August 30, 1996 and by application dated November 21, 1996, the applicant made an application to reconsider and vacate the Board's determination.

[4]                 The grounds for the vacation application, brought by the applicant, were that the respondent obtained refugee status by fraudulent means, misrepresentation, suppression and concealment of material facts that had they been known to the Board, could have resulted in a different determination.

Immigration Inquiry

[5]                 The respondent has also been subject to an immigration inquiry, pursuant to paragraph 19(1)(j) of the Immigration Act, since July 1996. The applicant alleges at the inquiry that there are reasonable grounds to believe that the respondent has committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission. This allegation is based on information in the applicant's possession that the respondent held the position of a government cadre in the zonal council area of Gurage in Ethiopia during the years of 1977/1978 during the Red Terror campaign, and that he committed mass murders and aggravated assaults against the civilian population in the zonal council of Gurage in the town of Wollisso, Ethiopia, during the Red Terror campaign. It is also based on information that the respondent tortured or gave orders to torture Dessalegn Mammo and Hommo Worku. All witnesses have been called by both parties at the inquiry and final submissions were scheduled to be made by the parties at the end of January 2001.

[6]                 Counsel for the respondent at the immigration inquiry, who was also the counsel on the vacation application, has been provided with continuing disclosure of the applicant's evidence. By letter dated July 15, 1997, he was provided with ten volumes of materials at the inquiry. By letter dated August 7, 1997, counsel for the respondent was provided with proclamations of the former Ethiopian government. A report of Professor Ibrahim Idris on the Derg and the Red Terror in Ethiopia was entered as Exhibit C-11 to the immigration inquiry, on August 11, 1997. By letter dated December 23, 1997, counsel for the respondent was provided with a copy of the indictment made against the respondent.

Vacation application

[7]                 On December 17, 1996, the respondent requested that he be provided with a list of witnesses and will-say statements for each witness, and with the witnesses' Personal Information Forms ("PIF").

[8]                 A further letter of January 3, 1997, to the Board, stated that the respondent was also subject to inquiry for six months, and asked for postponement until the inquiry was completed.

[9]                 The case was, however, scheduled with counsel and the Appeals Office for April 23, 1997.

[10]            On April 16, 1997, the applicant, requested a postponement in order to have two witnesses appear at the vacation hearing, along with an expert witness from the United States. The postponement was granted and the case was rescheduled for September 10, 1997.

[11]            By letter dated August 22, 1997, counsel for the respondent wrote a letter stating that his client had instructed him to oppose any further adjournment requests and asked for complete and full disclosure.

[12]            By letter dated August 28, 1997, the applicant sought a further postponement of the vacation application because of the ongoing inquiry, which request was opposed by the counsel for the respondent on August 29, 1997. The postponement request was granted and a date of February 25, 1998 was set.

[13]            On November 12, 1997, the Board excluded the inquiry testimony of Dessalegn Mammo, one of the witnesses who testified at the respondent's 19(1)(j) immigration inquiry, that he had been tortured by the respondent. The Board excluded counsel for the respondent's cross-examination of Worku Homma, given at the respondent's immigration inquiry on January 16, 1998, wherein Mr. Homma testified that he had been tortured by the respondent.

[14]            On January 30, 1998, the applicant sought a postponement on the same grounds. Counsel for the respondent opposed the request by letter dated February 4, 1998. The case was rescheduled for July 8, 1998.

[15]            On June 22, 1998, counsel for the respondent requested further disclosure. By letter dated July 1, 1998, counsel for the respondent asked the appeals officer, Mary Heyes, whether she intended to proceed. By letter dated July 5, 1998, Ms Heyes requested a postponement on the previous grounds. By letter dated July 6, 1998, counsel for the respondent opposed the postponement request. Another date was set for October 14, 1998.

[16]            By letter dated October 7, 1998, from the Appeals Officer to the Registrar of the Board, counsel for the applicant attacked copies of the following documents that the applicant intended to file at the hearing of the application on October 14, 1998, including transcripts of six sittings of the inquiry, the affidavit of Girma Wakjira, Chief Special Public Prosecutor, Ethiopia, and attachments dated June 3, 1997, Release from the office of the Special Public Prosecutor, Ethiopia, dated February 13, 1997, and a copy of "Part I - Concerning Genocide; A Crime Against Humanity", Ethiopia. By a fax cover sheet dated October 8, 1998, counsel for the applicant sent the disclosure letter to counsel for the respondent.

[17]            Disclosed were, inter alia, a copy of the affidavit of Girma Wakjira dated June 3, 1997, and a copy of the document entitled "Part I Concerning Genocide: A crime Committed Against Humanity", both enclosed with the letter of the Appeals Officer to the Board, dated October 7, 1998.

[18]            On October 14, 1998, the vacation application was postponed by the Board because only one member was available to hear the case. The case was rescheduled to February 4, 1999.

[19]            By letter dated January 22, 1999, the Board indicated that the February 4, 1999, sitting had been postponed because one of the three members was not available.

[20]            A further date was set for May 6, 1999. By letter dated April 27, 1999, counsel for the respondent requested a postponement because he was unable to communicate with his client because the applicant was in the middle of the cross-examination of his client in the inquiry. The hearing was rescheduled for March 30, 2000.

[21]            By letter dated January 19, 2000, Robert Bafaro, hearing officer, sent a letter to the Board's Registrar's office, attaching copies of the transcript of the sittings of the inquiry held on May 25, 26, 27, June 24, November 15 and November 23, 1999. The letter indicated that these documents had already been served on counsel for the respondent during the course of the respondent's ongoing immigration inquiry.

[22]            On March 30, 2000 a pre-hearing conference was held by the Presiding Member of the Board. At the pre-hearing conference, the documentary evidence was reviewed. It was agreed that the relevant documents for the vacation application hearing would be the vacation application and declaration; the original Board's transcript of October 23, 1995, which is the date of the hearing into the refugee claim of the respondent; Exhibits C-1 to C-5 from the original hearing of October 23, 1995; and that Mr. Bafaro, on behalf of the applicant, by July 6, 2000, would provide to the Board specific references to the relevant passages of the enclosures of the letters of Mrs. Hayes, of October 7, 1998, of Mr. Bafaro, January 19, 2000 and also of letter of February 10, 1999; and that only the relevant passages provided in advance would be considered by the Board. Counsel for the respondent agreed that by August 7, 2000, he would respond to the provision of July 6, 2000. The hearing was scheduled for September 19, 2000.

[23]            On June 8, 2000, the applicant requested an extension of the deadline of July 6, 2000 on the basis that the applicant determined that it would be necessary to file additional documentation that would not be available until the end of June and that the applicant also intended to file additional documentary evidence consisting of excerpts from scholarly works and that due to the very large volume of materials, which the applicant had to review in order to prepare the documents brief, the applicant was requesting that the deadline be changed to September 2000.

[24]            By letter dated June 13, 2000, the applicant's request for an extension of time was denied by the Presiding Member.

[25]            By letter dated June 14, 2000, the applicant reiterated its request. Again the request was denied and on June 22, 2000, the pre-hearing conference deadline of July 6 was reiterated to be still in effect, along with the ruling that any additional document to be filed must be preceded by a motion with a summary of what has been filed with relevance to vacation.

[26]            On August 2, 2000, counsel for the respondent wrote that he would not be able to provide his submissions until the applicant had provided his submissions and also advised that if the applicant would be calling witnesses at the resumption of the vacation application, that he would require will-say statements at least two weeks prior to the date.

[27]            On September 12, 2000, counsel for the respondent reiterated his letter of August 2, 2000. At no time prior to the July 6, 2000, did the applicant provide the details of the relevant passages and portions of the transcripts and other documents filed with the letters of October 7, 1998; February 10, 1999; and January 19, 2000. Nor did the applicant file any additional evidence until the day before the hearing on September 18, 2000, when a motion was brought dated September 15, 2000, to file additional country documentation in connection to the applicant's application to vacate.

[28]            At the outset of the hearing on September 19, 2000, the hearings officer orally brought the motion to admit the additional country documentation into evidence. The Board denied the motion for the reason that the practice notice on disclosure and filing before hearings of relevant evidence before the Board had not been complied with nor had the Board's rules been complied with in terms of time lines for filing a motion. The Board stated that it would not be just, in all the circumstances, for the country documentation to be filed by way of a motion the day before the vacation hearing, given the history of the application to vacate.

[29]            The Board did not accept the items attached to the notice of motion dated September 15, 2000, but it also did not accept the transcripts and documents which had been delivered to the panel and to counsel for the respondent by Mrs. Hayes on October 7, 1998 and further transcripts which the hearings officer had delivered to the Board on January 21, 2000, of which counsel for the respondent already had possession from the inquiry.

[30]            The only evidence which the Board accepted as evidence at the vacation hearing was the following:

M-1 -             application for leave to vacate dated August 14, 1996;

M-2 -               declaration of Charles Dombrady with attachments;

M-3 -               leave order from the Board dated August 30, 1996;

R-1 -                transcript of the respondent's original Board hearing heard on October 23, 1996; and

R-2 -                Exhibits C-1 to C-5 to the respondent's original Board hearing.

[31]            At the application to vacate, the respondent was questioned by the applicant's counsel, the Board and his own counsel. The basis of the vacation application consisted of the attachments to Mr. Dombrady's declaration. There were three declarations attached to Mr. Dombrady's declaration.

[32]            Two of the declarations indicated the respondent committed crimes against humanity, namely torture and/or killing of persons during the Red Terror. One indicated that the declarant was a decent man and had never been involved in any torture or massacre of any other individuals.

ISSUES

[33]            Did the Board err in excluding the evidence?

ANALYSIS

Did the Board err in excluding the evidence?

[34]            The applicant submits that the Board fettered its discretion, breached the rules of natural justice and fairness for refusing to allow the applicant's counsel to tender evidence at the vacation hearing because the applicant's counsel had allegedly not complied with the Practice Direction of the Board in providing the Board with a précis of all the anticipated evidence and had not submitted the material within the time frame specified by the Board Practice Direction and the Rules pertaining to service.

[35]            Subsection 69.3(1) of the Immigration Act provides:

[36]            By letter dated June 13, 2000, the applicant's request of June 8, 2000 for an extension of the deadline of July 6, 2000 was denied by the Presiding Member.

[37]            By letter dated June 14, 2000, the applicant reiterated its request. Again the request was denied and on June 22, 2000, the pre-hearing conference deadline of July 6 was reiterated to be still in effect, along with the ruling that any additional document to be filed must be preceded by a motion with a summary of what has been filed with relevance to vacation.

[38]            The Board stated in its decision that at no time prior to the July 6, 2000, did the applicant provide the details of the relevant passages and portions of the transcripts and other documents filed with the letters of October 7, 1998; February 10, 1999; and January 19, 2000. Nor did the applicant file any additional evidence until the day before the hearing on September 18, 2000, when a motion was brought dated September 15, 2000, to file additional country documentation in connection to the applicant's application to vacate.

[39]            At the outset of the hearing on September 19, 2000, the Hearings Officer orally brought the motion to admit the additional country documentation into evidence. The Board denied the motion for the reason that the practice notice on disclosure and filing before hearings of relevant evidence before the Board had not been complied with nor had the Board's rules been complied with in terms of time lines for filing a motion. The Board stated that it would not be just, in all the circumstances, for the country documentation to be filed by way of a motion the day before the vacation hearing, given the history of the application to vacate.

[40]            In Prassad v. Canada (M.E.I.), [1989] 1 S.C.R. 560, the issue was whether the adjudicator of an immigration inquiry must adjourn the inquiry to enable the appellant in that case to pursue an application to the Minister under s. 37(1) of the Immigration Act. The adjudicator in that case had refused to grant the appellant's request for an adjournment. The majority of the Supreme Court of Canada held at page 568:

In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. 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 provison that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion.

[...]

Jackett C.J., in Pierre v. Minister of Manpower and Immigration, [1978] 2 F.C. 849, put it this way, at p. 851:

In considering a complaint that a tribunal has refused to grant an adjournment, it must be remembered that, in the absence of some specific rule governing the manner in which the particular tribunal should exercise its discretion to grant an adjournment, the question as to whether an adjournment should be granted is a discretionary matter for the tribunal itself and that a supervisory tribunal has no jurisdiction to review the tribunal's decision to refuse an adjournment unless the refusal results in the decision made by the tribunal at the termination of the hearing being voidable as having been made without complying with the requirements of natural justice.

[41]            The Convention Refugee Determination Division Rules ("Board's Rules") provide, regarding motions:

28. (1) Every application that is not provided for in these Rules shall be made by a party to the Refugee Division by motion, unless, where the application is made during a hearing, the members decide that, in the interests of justice, the application should be dealt with in some other manner.

(2) The motion shall consist of

(a) a notice specifying the grounds on which the motion is made;

(b) an affidavit setting out the facts on which the motion is based; and

(c) a concise statement of the law and of the arguments that are relied on by the applicant.

(3) The motion shall be

(a) served on the other party to the proceeding; and

(b) filed in duplicate, together with proof of service thereof, at the registry within five days after the date of service.

(4) Evidence in support of a motion shall be introduced by affidavit, unless the Refugee Division decides that, in the interests of justice, the evidence should be introduced in some other manner.

(5) The other party may, within seven days after being served with a motion, file at the registry a reply stating concisely the law and arguments relied on by the party, accompanied by an affidavit setting out the facts on which the reply is based.

(6) A refugee hearing officer may, within seven days after the day on which the motion was filed, file at the registry a summary of the matters that the refugee hearing officer believes that the Refugee Division should take into consideration when deciding on the motion.

(7) The applicant may, within seven days after being served with a reply referred to in subrule (5) or a summary referred to in subrule (6), file a response thereto at the registry.

(8) A copy of the reply and affidavit filed pursuant to subrule (5), of the summary filed pursuant to subrule (6) and of the response filed pursuant to subrule (7) shall be served on every party within seven days after the date of service of the motion, reply or summary, as the case may be.

(9) The Refugee Division, on being satisfied that no injustice is likely to be caused, may dispose of a motion without a hearing.

[42]            The Board's Rules also provide:

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 Refugee Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously.

40. Where a party or a refugee hearing officer does not comply with a requirement of these Rules, the Refugee Division, on application made by the party or refugee hearing officer in accordance with rule 27, may permit the party or refugee hearing officer to remedy the non-compliance or may waive the requirement, where it is satisfied that no injustice is thereby likely to be caused to any party or the proceeding will not be unreasonably impeded.

[43]            In its reasons, the Board indicated that Worku Homma and Dessalegn Mammo did not provide sufficient details as to when and where they became involved with the respondent, saying that the lack of details meant that their declarations were not trustworthy evidence of the respondent's role in the Red Terror campaign. In its reasons, the Board quoted Mulugeta Bikila's statement to Immigration Officer, Tammy McKinght, that the respondent was a decent man. Mr. Bikila's statement to the Immigration Officer does not provide any details of where and when he became involved with the respondent. Rather, he simply states that he last saw the respondent when he was about fourteen or fifteen years of age.

[44]            The Board discounted the evidence of Worku Homma and Dessalegn Mammo because they were not called to testify at the respondent's vacation application. However, Mr. Bikila did not testify at the vacation application either. The Board accepted his conclusion that the respondent was a decent man, even though he cited no facts to support his assertions as to the respondent's character and lack of involvement in torture and massacre of individuals.

[45]            The Board relied on the respondent's testimony that Homma Worku's statutory declaration was inconsistent with the evidence of the witness at the respondent's immigration inquiry, in order to discount the statutory declaration of Homma Worku. The Board stated in its reasons that the statement by the respondent that the evidence of the two witnesses at the inquiry was inconsistent with the information in the declarations was not challenged by the Minister's counsel.

[46]            The Board made an error in relying upon testimony on what happened at the inquiry when the Board had refused to allow the Hearings Officers to tender their exact evidence. The Board was not entitled to rely on the respondent's testimony regarding the inquiry to bolster the respondent's credibility and discredit evidence contained in statutory declarations submitted by the applicant. It was not open to the Board to consider the respondent's testimony about what the witnesses had testified to at the immigration inquiry concerning the respondent when the Board had refused to admit the transcripts of the immigration inquiry pertaining to the testimony of the said witnesses.

[47]            In its zeal to find against the applicant, the Board was prepared to consider evidence that was not before it while prohibiting the applicant from tendering evidence from the inquiry that would have established that Homma Worku had been consistent in his evidence. Dessalegn Mammo did not state in his statutory declaration that he had been tortured by the respondent. At the inquiry, he testified that the respondent had tortured him and provided an explanation as to why he did not refer to this in his statutory declaration.

[48]            All material had been provided to the respondent, years before the hearing.

[49]            I have no hesitation to conclude that the respondent has had full disclosure.

[50]            Nevertheless, the applicant failed to provide the details of the relevant passages and portions of the transcripts by July 6, 2000, pursuant to the agreement reached at the pre-hearing conference.

[51]            Twice the applicant was denied requests for extension of time. The letter by counsel for the applicant, dated June 14, 2000 said specifically that he could not comply with the decision of the Board regarding the deadline.

[52]            The applicant suggests that she has a further right to make further representations pursuant to section 69.3 of the Act.

[53]            The Board has shown some impatience with the applicant when the applicant was not allowed to provide further representations on the ruling by the Board that the motion dated September 15, 2000 to file documents and the précis was denied.

[54]            In my view, in denying to admit evidence at the hearing and particularly in rejecting evidence that was already filed with the Board and disclosed to the respondent years before, amounts to an error.

[55]            At no time did the Board state in its reasons for excluding the evidence, why the evidence was not relevant to the respondent's vacation application.

[56]            In my view, those errors made by the Board constitute reviewable errors and justify this Court's intervention. It was not reasonable for the Board to conclude as it did.

[57]            Therefore, this application for judicial review is allowed. This case is to be returned to a differently constituted panel for adjudication pursuant to this decision.

[58]            Counsel for the respondent suggests a question for certification:

Does the Refugee division err if it declines to admit evidence at a vacation hearing held under ss. 69.2 and 69.3 of the Immigration Act if a schedule for admission of evidence is not adhered to and no motion for extension is made?

[59]            Counsel for the applicant suggests a question for certification:

Does the refugee Division err if it declines to admit evidence at a vacation hearing held under ss. 69.2 and 69.3 of the Act, if a schedule for the admission of evidence is not adhered to by the opposing party (the applicant) and the respondent has been given timely disclosure of the evidence?

[60]            In my view, neither questions are of general importance, so, no questions will be certified.

Pierre Blais                                          

Judge

OTTAWA, ONTARIO

August 31, 2001