Date: 20090306
Docket: IMM-3970-08
Citation: 2009 FC 246
Toronto, Ontario, March 6, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MEKEDLAWETE
HAILU SHEFERAW
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Mekedlawete Hailu Sheferaw (the “Applicant”) seeks judicial review of the
decision of the Refugee Protection Division, Immigration and Refugee Board “the
Board” on August 25, 2008. In that decision, the Board found that the Applicant
is neither a Convention refugee nor a person in need of protection as defined
in section 96 and 97, respectively, of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
The
Applicant made her claim by reference to Ethiopia. The Board
rejected her claim, on the ground that the Applicant had failed to prove her
identity. Although she advanced arguments in this application for judicial
review to challenge that finding of the Board, she also raised an issue of
breach of procedural fairness. Specifically, she alleged that the Board
breached the requirements of procedural fairness by failing to provide her with
the opportunity to ask questions or to make closing submissions. Further, she
alleges that the Board had reached a conclusion without having provided the
opportunity to ask questions or make submissions.
[3]
Having
carefully considered the material submitted, including the transcript of the
proceedings before the Board and the submissions of Counsel, I am satisfied
that this application for judicial review should be allowed.
[4]
The
transcript of the hearing is contained in the certified Tribunal Record. The
transcript records the following:
PRESIDING MEMBER: Okay, we’re back on the
record.
Is there anything you want to do? To be
frank with you I’m having serious concerns about the claimant’s identity.
COUNSEL: Well, I spoke to her when I was
out and she told me that she I able to get you all the school documents, the
Cabale, or whatever, to give her time.
PRESIDING MEMBER: Well, she’s had a year
and a half to do that, so I don’t think I can accept that. She’s had plenty of
time to provide the Board with adequate documentation regarding her identity,
and she has not done that.
I don’t know if you want to make any sort
of submissions, but I’m prepared to make a decision on this today.
So, can I go ahead and give you my
decision?
[5]
The
Minister of Citizenship and Immigration (the “Respondent”) argues that the
transcript shows that the Applicant was indeed given the opportunity to make
submissions but declined to do so. Further, the Respondent submits that the
speed with which the decision was delivered, that is, after a breach, does not
mean that the matter was pre-determined.
[6]
I
have carefully concluded the material filed and the submissions of counsel. The
question of breach of procedural fairness, including pre-determination or the
result, is reviewable on the standard of correctness, see Ha v. Canada (Minister of
Citizenship and Immigration), [2004] 3 F.C.R. 195 and Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190.
[7]
I
am not persuaded by the Respondent’s defence or the Board. I accept the
arguments of the Applicant that, the text of the Board’s so-called oral
decision implies that a decision had been reached prior to the close of the
hearing. I agree with the view expressed by Justice Blais in Agastra v. Canada (Minister of
Citizenship and Immigration) (1999) 179 F.T.R. 316 (Fed. T.D.) at para.
10 where he said the following:
10 In my view, there is a clear
appearance of lack of fairness from the panel. The panel must not have the
appearance of having already decided the case before hearing all the evidence
and consulting, even though the hearing might not have brought anything new.
These actions tarnish the integrity of the system.
[8]
Administrative
efficiency cannot trump respect for procedural fairness. While an applicant for
protection under the Act has no right to a particular outcome, he or she has
the right to a fair hearing.
[9]
I
am not satisfied that such right was respected in this case and the application
for judicial review will be allowed and the matter remitted to a different
panel of the Board for determination. There is no question for certification
arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed and the matter remitted back to a
different panel of the Board for determination. There is no question for
certification arising.
“E. Heneghan”
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