Date: 20070307
Docket: IMM-2045-06
Citation: 2007 FC 258
Ottawa, Ontario, March 7,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALI
SHIRAZ NAQVI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is the Applicant’s second round before the Immigration and Refugee Board (IRB).
His first refugee claim was rejected after having been successful at an
abandonment hearing. The Applicant was also successful on judicial review of
the IRB’s first decision and the matter was referred back for a rehearing. The
rehearing of this refugee claim again resulted in a negative decision by the
IRB. This is the judicial review of that second IRB decision.
[2]
The
Applicant has advanced nine issues in his attack on the IRB. This matter can be
resolved on the basis of the allegation that the Applicant did not have a fair
hearing because of non-fulfillment of a legitimate expectation as to an
evidentiary record and the failure to consider relevant evidence.
[3]
In
the second IRB decision, the Board was concerned about the lack of detail in the
Applicant’s PIF on the issues of persecution and fear. The Applicant explained
that this lack of detail resulted from only having 15 minutes to complete his
PIF in the context of the conclusion of abandonment hearing.
[4]
At
his second IRB hearing, when advised that it would be a de novo hearing,
the Applicant’s counsel objected because he wanted to be able to rely on the
previous record before the Board. Counsel assumed that the abandonment hearing
materials would be in the previous record.
[5]
The
transcripts show an exchange between counsel and the Member which led counsel
to believe that although this would be a de novo hearing, the record
would include all the previous documentary evidence. The hearing would proceed
on the old documentary record, supplemented by any new materials and new
testimony in this second hearing, but that none of the prior testimony would be
included in the record of this second hearing.
[6]
The
Board has a policy about documents to be used in rehearings. The Policy on
Court Ordered Rehearings applicable in any rehearings not based on a denial of
natural justice outlined the documents to be on the rehearing case file:
·
jurisdictional
documents (for example: notice of appeal, referral to the RPD, request for
admissibility hearing or detention review)
·
the Court
order and any reasons
·
the
original decision of the IRB and any reasons
·
administrative
documents (for example: notices to appear)
·
exhibits
filed at the previous hearing
·
any
transcripts of the previous hearing
·
other
evidence on the original file.
[7]
Upon
reviewing the Certified Tribunal Record, it is clear that the abandonment
proceeding materials did not form part of the record in this judicial review.
[8]
It
is the Applicant’s position that he had a legitimate expectation, both as a
result of the exchange between himself and the Member, as well as the current
Board Policy, that the Board record would be complete, which means that it
would include the abandonment hearing proceedings.
[9]
As
the Respondent points out, at the first IRB hearing the Applicant’s excuse for
failing to mention key events in his PIF was that he did not have a lawyer and
that he had problems writing. The Respondent argues that because the abandonment
hearing and the alleged 15 minutes to complete the PIF were not raised in the
first hearing, there was no reason for the abandonment materials forming part
of either the old or new record.
[10]
The
difficulty is two-fold. Firstly, the Applicant had a reasonable basis for
believing that the new record would contain what could be called the “file
history”. Secondly, the Board never referred to the abandonment hearing process
despite the Applicant’s new explanation for incompleteness in his PIF.
[11]
In
the context of this case, it was reasonable to expect that the complete
documentary file would have been before the Member. The Applicant’s excuse for
the omissions in his PIF was grounded in the abandonment hearing and the
Applicant put that issue squarely to the Board.
[12]
Furthermore,
the abandonment materials which were in the record were partially corroborative
of the Applicant’s explanation in that the PIF was dated on the same day as the
abandonment hearing and there is evidence to suggest that it had not been
completed before that date.
[13]
Having
raised the issue of the time to complete the PIF in the context of the
abandonment hearing, the Board should have considered its own file on that
hearing. It failed to consider relevant evidence which was in its own files and
about which it had knowledge of its relevance.
[14]
Therefore,
this application for judicial review will be granted, and the decision of the
IRB quashed. The matter will be referred back to the Board for a new
determination based on a record which consists of, at a minimum, the documents
potentially relevant to the Applicant’s claim and history of that claim. This
does not include transcripts of the Board’s previous decisions. The Court would
expect that the Board could cooperate and agree with both counsel to ensure
that there is a proper record available for the rehearing.
[15]
There
is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review will be granted, and the decision of the IRB
quashed. The matter will be referred back to the Board for a new determination
based on a record as described in these Reasons.
“Michael
L. Phelan”
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