Warda v. Canada (Minister of Citizenship and Immigration), 2001 FCT 604

Date: 20010607

Docket: IMM-1104-00

Neutral Citation: 2001 FCT 604

BETWEEN:

           GEORGE EASHO WARDA (aka BOUTROS)

                                                                                             Applicant

                                                 - and -

                       THE MINISTER OF CITIZENSHIP

                            AND IMMIGRATION

                                                                        Respondent

                REASONS FOR ORDER AND ORDER

HENEGHAN J.

[1]    George Easho Warda (aka Boutros) (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated February 16, 2000. In its decision, the Board determined the Applicant not to be a Convention refugee.

[2]    The Applicant is a citizen of Iraq who claims to be a Convention refugee on the ground of political opinion because he allegedly refused to use his professional skills as a dentist to torture political prisoners in Iraq.

[3]    The Board specifically identified the issues of identity and credibility as the areas of concern upon the hearing of the Applicant's claim for Convention refugee status. Ultimately, it was satisfied that the Applicant was an Iraqi citizen but reached negative credibility findings in regards to certain aspects of his evidence. However, although the Applicant raised arguments relating to the findings of the Board in this Application, this Application can be disposed of on the basis of procedural fairness.

[4]    The Board did not identify availability of an Internal Flight Alternative ("IFA") as an issue to be addressed by the Applicant. On the contrary, it specifically stated on the Record, in response to an objection from counsel for the Applicant, that IFA was not an issue, as follows:

Mr. Hobson: Sorry, I have to object if this is an internal flight alternative issue being raised at this stage. I'm certainly –

PRESIDING MEMBER: It obviously is not, is it?^[1]

[5]                However, in its reasons, the Board made a finding that an IFA was available to the Applicant and this availability militated against his status as a Convention refugee.^[2]

[6]                According to Thirunavukkarasu v. Canada (Minister of Employment and Immigration) (1993), 109 D.L.R. (4^TH) 682 (F.C.A.), the Federal Court of Appeal recognized that the principles of natural justice require that notice of an issue respecting an IFA must be given to a claimant in order to provide him or her with the opportunity to present a case in response to that issue. Linden J.A., writing for the Court, said at page 686:

...Therefore, neither the Minister nor the Refugee Division may spring the allegation of an IFA upon a complainant without notice that an IFA will be in issue at the hearing.

[7]                The prohibited spontaneous introduction of the issue of a IFA is what happened here and despite the assurance of the Board that an IFA was not in issue, the Board made a finding on that question, against the Applicant. In my opinion, this amounts to a breach of procedural fairness, such that this application for judicial review should be allowed and the matter is remitted to a differently constituted panel of the Board for consideration and determination.

[8]                Counsel advise that there is no question for certification arising from this application.

                                               ORDER

[9]                The Application for judicial review is allowed and the matter will be remitted to a different panel of the Board for consideration and determination.

[10]            There is no question for certification.

                                                                                      "E. Heneghan"              

                                                                                               J.F.C.C.              

Toronto, Ontario

June 7, 2001

                         FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                                    IMM-1104-00

STYLE OF CAUSE:                                        GEORGE EASHO WARDA

(aka BOUTROS)

                                                                                              Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                          Respondent

DATE OF HEARING:                          TUESDAY, JUNE 5, 2001

PLACE OF HEARING:                                    TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                                           HENEGHAN J.

DATED:                                                            THURSDAY, JUNE 7, 2001

APPEARANCES BY:                                     Ghina Al-Sewaidi

For the Applicant

John Loncar

For the Respondent

SOLICITORS OF RECORD:                       Ghina Al-Sewaidi

Barrister and Solicitor

425 Mount Pleasant Road

Toronto, Ontario

M4S 2L8

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

Date: 20010607

                                                          Docket: IMM-1104-00

Between:

GEORGE EASHO WARDA

(aka BOUTROS)

                                                                                            Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                        Respondent

REASONS FOR ORDER

AND ORDER