Date: 20110617
Docket: IMM-6953-10
Citation: 2011
FC 718
Toronto, Ontario, June 17, 2011
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
|
|
ALI ISIK
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND ORDER
[1]
Mr. Ali
Isik seeks judicial review of the decision of the Refugee Protection Division
[RPD] rejecting his claim made pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
Although
the applicant raised many issues with respect to this decision, the Court will
only briefly discuss the question of procedural fairness, given that it is
sufficient in the particular circumstances to justify setting aside the
decision.
[3]
The basic
facts of the case are not relevant. The following circumstances, on the other
hand, are relevant.
[4]
At the
beginning of the hearing, as is now the normal process, the RPD identified the main
issues to be addressed, namely, credibility and failure to claim protection in
the United States.
[5]
The
applicant was represented by a legal student who, at the beginning of the
hearing, sought permission to call as a witness one of the applicant’s nephews who
was present at the hearing, despite the fact that a written request to that
effect had not been sent 20 days in advance as required by the applicable rules
of practice.
[6]
This
witness was described as an “accepted refugee” who was to testify about some
communication he had with the applicant before the departure and that
the refugee claims of the nephew and applicant were related “[i]n terms of
their basis”.
[7]
No more
details were given and from the exchange one could, at best, reasonably deduce
that this evidence was meant to corroborate some of the applicant’s testimony,
although it is not clear what part exactly. Certainly, the nephew was still in Turkey when the applicant said he
was first arrested and beaten by the police because he was a Kurd and an active
supporter of the Democratic
Society Party (Kurdish party).
The applicant also testified that he did not make a claim in the United States because the nephew he spoke to
in order to get help before leaving Turkey was located in Canada and the applicant knew
absolutely no one in the United
States.
[8]
Towards
the end of the hearing, the RPD noted that there was time to hear the nephew
but it also noted:
Do not do it for me. I do not think it is
necessary. So if you do not want to forget it. Just go to submissions. Are you
going to do oral?
[9]
After this
exchange, the student went on to make his oral submissions.
[10]
In its
decision, which is primarily – if not entirely – based on lack of credibility,
the RPD starts by noting that the applicant failed to provide corroborative
evidence of his detention. It again states later on that “the Panel can make a
negative inference as to credibility from the applicant’s failure to
corroborate his allegations […] the Panel has done so in this case”.
[11]
In Sivaraj
v Canada (Minister of Citizenship and
Immigration) (1996),
120 FTR 136, 36 Imm LR (2d) 45 [Sivaraj] at paragraph 3, Justice McKeown
stated:
It is clear that the Board cannot
discourage testimony on a point and then rely on the absence of evidence on it
in its decision. The Board dissuaded the applicant from pursuing evidence of
his work as a seaman. It cannot then rely on the absence of the passport to say
he was not a seaman (see Li v. The Minister of Citizenship and Immigration,
July 20, 1994, Court File A-1657-92 (F.C.T.D.), [1994] F.C.J. No. 1109). The matter
must be returned to the Board for this reason alone.
In Kaur v Canada (Minister of Employment and Immigration) (1993), 21 Imm LR (2d) 301, 41
ACWS (3d) 382 [Kaur] Justice Marc Noël (as he then was) quashed a
decision rejecting an applicant’s claim as a Convention refugee on the basis
that the applicant’s testimony was not credible, particularly because the
applicant “presented no corroborative testimony to support her allegations”. In
that case, the presiding member had suggested that if the applicant’s son was
only to be called to corroborate the testimony of the applicant, his testimony
could be dispensed with. He noted, at paragraph 7, “[a]fter suggesting that the
corroborative testimony of the Applicant's son was not necessary, it was no
longer open to the Board to rule against the Applicant on the basis that her
evidence was not supported by corroborative testimony.”
[12]
In Veres
v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 124, [2000]
FCJ No 1913 (QL) [Veres] Justice Denis Pelletier (as he then was), after
citing Sivaraj and Kaur, above, confirmed that the RPD can direct
which evidence it wishes to hear from the mouth of a witness and which it waives
hearing. When it says that it does not need to hear from a witness, it cannot
subsequently complain that it has not heard from the witness. Obviously in Veres,
the circumstances my learned colleague had to deal with were quite different,
but the point made at paragraph 32 of his decision that “[t]he price of setting
the agenda is to accept the responsibility for the items which are missed” is
an important one that can apply to comments such as those made in this case,
especially now that the claimants generally present their case only after the
RPD has set out the issues to be dealt with and carried out its own
cross-examination.
[13]
As
evidenced by the two cases relied upon by the respondent (Ndombele v Canada
(Minister of Citizenship and Immigration), 2001 FCT 1211, particularly
paragraph 22 where the affidavit of a witness who did not testify had been
filed, and Singh v Canada (Minister of Employment and Immigration)
(1994), 50 ACWS (3d) 651, [1994] FCJ No 1367, where the main reason for
refusing the refugee claim appears to have been the absence of critical aspects
of his story from his personal information form) one must always examine the
particular facts of each case to see if what was said and done was fair.
[14]
That said,
the Court strongly believes that the RPD should refrain from taking a position
on the necessity of presenting a witness unless it knows exactly what
facts the witness will testify about and in what specific respect this evidence
is meant to corroborate a claimant’s testimony or story. If a counsel simply
inquires about the advisability of presenting a witness, the RPD can always
refuse to take a position on the basis that it has yet to complete its
evaluation of the evidence. If it chooses to take a stand, it must be fully
aware that its decision will have consequences.
[15]
In this
particular case, the Court finds that the RPD ought to have known that its
comment that the evidence was not necessary would clearly impact on the legal
representatives acting in this case and it is clear that it did so without
knowing the full extent of the facts on which the proposed witness was meant to
testify.
[16]
Even if the
RPD did rely on other issues in its reasons, the Court is not convinced that
this breach of procedural fairness had no impact whatsoever on the ultimate
decision. The Court must thus set aside the decision.
[17]
The
parties did not present any question for certification and the Court is
satisfied that this case turns on its own facts.
[18]
The
application is granted.
ORDER
THIS COURT ORDERS that the application is granted. The
matter shall be remitted to a differently constituted panel for consideration.
“Johanne Gauthier”
Email this Content