Date: 20090730
Docket: IMM-343-09
Citation: 2009
FC 792
Vancouver, British
Columbia,
July 30, 2009
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ARSIM
SADA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUGMENT
[1]
The
Applicant is a refugee claimant from Kosovo. He fled to Canada after having allegedly
suffered a series of acts of persecution in Kosovo.
[2]
The
Applicant’s claim to protection as a Convention refugee was heard by a Member
of the Immigration and Refugee Board. A decision rejecting that claim was
given by the Member on January 5, 2009. This is the decision under review.
During the course of that hearing and the events surrounding the hearing, the
Applicant, who has only a limited ability in one of Canada’s official languages, English, was
self-represented.
[3]
The
determination of this application for judicial review rests on a single issue,
that of procedural fairness. The Applicant’s counsel has raised other issues
attacking the merits of the decision itself, however, I do not need to comment
on these arguments since the issue of procedural fairness, or lack thereof, is
determinative. As such, it is not necessary to consider questions such as the
standard of review.
[4]
Prior to
the hearing, the Applicant was sent a package of documents known as a Screening
Form. On the bottom of one page of the documents in that package, the following
instructions were given:
INSTRUCTIONS TO COUNSEL/CLAIMANT
Please ensure that you provide this
office with a copy of all documents, translated as necessary, at least 20 days
prior to the hearing. This should include identity documents, and any other
evidence that would support your claim. Please provide translated documents
relating to your status in Germany and please provide translated copies of any UNMIK documents
in your possession.
[5]
I presume
that the acronym UNMIK stands for United Nations Mission In Kosovo.
[6]
The
Applicant did not produce some of these documents prior to or at the hearing
despite being advised to do so. However, at the end of the hearing, the
following exchange between the Member and the Applicant was recorded at page 51
of the transcript (p. 53 of the Tribunal Record):
PRESIDING MEMBER: All right. Well, I’m
not going to render a decision orally today. I want to thank you, sir, for
coming in to tell me your story. You’ll receive written notification about the
outcome of your case. You must make sure that your address is up-to-date and current
with the Refugee Protection Division, so we know where to mail it to you.
We’re giving you back your original
documents and whatever the outcome of the decision is, I sincerely wish
you the best for the future.
This concludes the matter.
CLAIMANT: I just have something to add.
PRESIDING MEMBER: Yes?
CLAIMANT: If you do need the UNMIK
document, I have a possibility of getting that. I can bring it 100 percent, no
problem. I do possess that document, I just don’t have it here.
PRESIDING MEMBER: Okay. Thank you for
offering that. If I do need it, I’ll let you know.
--- PROCEEDINGS CONCLUDED
[7]
Neither
the Member nor anyone on the Member’s behalf after this exchange let the
Applicant know that such documents would be needed. The Member simply made a
decision including stating in paragraph 21 of that decision that the documents
were “important” and that the Board had made a “specific request” for
them. If they were important, the Board should have followed up on the
undertaking to request them if needed. Further, the decision is simply wrong in
stating that the documents were “specifically requested”. No such request was
made following the Member’s undertaking to the claimant. The member wrote at
paragraph 21 of the decision:
[21] The panel explained to the
claimant why the UNMIK documents were so important. Foremost, they would
establish the claimant was indeed located in Kosovo, during the period he
alleges. It is also odd that when travelling within, and later departing the
country, he did not travel with the UNMIK documents. These were valid,
well-recognized methods to establish identity. The panel is left questioning
why he would leave such important documents in Kosovo. The panel finds the
claimant has not been credible and forthright about producing these important
documents, especially in that the Board made a specific request that the
claimant produce them. The panel finds that it raises important questions about
whether this claimant was indeed in the country during the times alleged. These
concerns are further exacerbated in that most of his personal identity
documents are from the early 2000’s.
[8]
The Member
may have forgotten that he undertook to request the UNMIK documents
“if needed.” He wrote in his decision several times that the documents
were “important” therefore the undertaking to request the documents cannot be
overlooked or be said to be insignificant. The matter must be returned to
a different Member for rehearing and redetermination.
[9]
There is
no question for certification. No order as to costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application is allowed;
2. The matter is sent back for rehearing and
redetermination by a different Member;
3. There is no question for certification;
4. No Order as to costs.
“Roger
T. Hughes”
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