Date: 20080303
Docket: IMM-2779-07
Citation: 2008 FC 272
Ottawa, Ontario, March 3rd
, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ADNAN
DECEVIC
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Adnan Decevic is a citizen of Serbia and Montenegro. He arrived in Canada
in 2003 claiming refugee protection on the basis that he had been persecuted
because of his sexual orientation. A panel of the Immigration and Refugee Board
found that Mr. Decevic did indeed have a well-founded fear of persecution.
However, the Board also found that Mr. Decevic was excluded from refugee
protection because of alleged criminal activity in Norway, for which there was
an outstanding warrant against him.
[2]
Mr. Decevic argues that the Board treated him unfairly by denying him an
adequate opportunity to respond to the allegations against him. He also submits
that the Board made serious factual errors. He asks me to order a new hearing.
I agree that Mr. Decevic was treated unfairly and must, therefore, allow this
application for judicial review. I need not address his submissions relating to
the Board’s fact-finding because a different panel will have to make fresh
findings of fact.
I. Issue
[3]
Did the Board treat Mr. Decevic unfairly?
II. Analysis
- Factual Background
[4]
The Minister of Citizenship and Immigration notified the Board in
January 2005 that the Minister intended to participate in the hearing of Mr.
Decevic’s refugee claim. In particular, the Minister contended that Mr. Decevic
should be excluded from refugee protection based on Article 1(F)(b) of the
Refugee Convention. That provision states that the Convention does not apply to
those for whom there are serious reasons for considering that they have
committed serious non-political crimes. Here, the Minister submitted that Mr.
Decevic should be excluded because he had been convicted of drug trafficking in
Norway and sentenced to 10 years’ imprisonment. Attached to the Minister’s
written submission to the Board was a copy of an Interpol warrant which
referred to a warrant that had been issued in Norway in 2003 for Mr. Decevic’s
arrest. Counsel for the Minister did not appear at the hearing.
[5]
Just prior to the hearing, counsel for Mr. Decevic responded to the
Minister’s allegations with documentary evidence indicating that Mr. Devevic
could not have been convicted of anything because accused persons in Norway
cannot be convicted in their absence. The Board accepted that evidence, but
also stated that it would be prepared to receive further evidence from the
Minister after the hearing. The Board also informed counsel for Mr. Decevic
that she would be given a chance to respond to any additional evidence either
in writing or by reconvening the hearing. At that point, the Minister provided
a statutory declaration of an immigration officer indicating that Mr. Decevic
had been charged and indicted, not convicted, of drug offences in Norway.
Still, the Minister submitted that there remained serious reasons to believe
that Mr. Decevic had committed serious non-political crimes in Norway.
[6]
After receiving the Minister’s submissions, Mr. Decevic’s counsel
notified the Board that she wished an opportunity to respond. Shortly
thereafter, she provided the Board with written submissions arguing against the
admission of the Minister’s supplementary evidence. The Board responded by
indicating that it had accepted the Minister’s new evidence and that Mr.
Decevic could respond either in writing or by requesting a re-opening of the
hearing. Counsel for Mr. Decevic replied by asking the Board to provide reasons
for its decision to accept the Minister’s new evidence. The Board declined to
provide written reasons, but allowed Mr. Decevic to submit further written
evidence. In addition, the Board again noted that Mr. Decevic was entitled to
request that the hearing be re-opened. Counsel for Mr. Decevic responded by
formally requesting the Board to reconvene the hearing to allow him to respond
to the Minister’s supplementary evidence. Counsel for the Minister stated that
she had no objection to reconvening the hearing, so long as Mr. Decevic would
consent to the release of further information from Norwegian authorities.
Counsel for Mr. Decevic indicated that she was attempting to obtain further information
from Norway, but her position was that there was no indictment against Mr.
Decevic.
- The Board’s Decision
[7]
Without reconvening the hearing, the Board issued its reasons in which
it concluded that Mr. Decevic was excluded from refugee protection on the basis
of the Minister’s supplementary evidence. In its reasons, the Board
specifically referred to its invitation to Mr. Decevic to request a resumption
of the hearing. The Board implied that, given that Mr. Decevic had not made
such a request, it should accept the uncontradicted evidence in the Minister’s
supplementary submission. The Board stated:
The panel had the Refugee
Protection Officer inform counsel that the panel did not consider that
recalling the claimant would add probative evidence to the case, but left it
open to counsel to call for a resumption. Therefore, on a balance of
probabilities, I find the evidence of the Statutory Declaration to be probative
and credible.
. . .
Counsel points out that the rules
of disclosure are designed to provide for fairness, to which the panel agrees.
However, the panel accepted the claimant’s late disclosure and gave the
Minister the opportunity to respond. On a balance of probabilities, I find that
the panel would have accepted counsel’s submission to reconvene, if that was
desired.
[8]
It appears that the Board was not aware of Mr. Decevic’s request to
re-open the hearing in order to respond to the Minister’s post-hearing
evidence. Further, the Board seems to have concluded that it was bound to
accept that evidence in the absence of any responding evidence from Mr.
Decevic.
- Discussion and Conclusion
[9]
In my view, these circumstances amount to unfair treatment of Mr.
Decevic. He requested an opportunity, through counsel, to address the
additional submissions of the Minister and was denied that opportunity. The
Board wrongly, probably through no fault of its own, concluded that Mr. Decevic
had nothing further to say on the matter and made findings against him
accordingly. This was clearly unfair to him, given that his counsel had
specifically requested a re-opening of the hearing to address the Minister’s
evidence.
[10]
This matter should be referred back to a differently constituted panel
of the Board for a new hearing solely on the issue of exclusion. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for Judicial review is allowed;
2.
A
new hearing is ordered solely on the issue of exclusion, to be
heard by a different constituted panel;
3.
No
question of general importance is stated.
“James
W. O’Reilly”
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