Date: 20081009
Docket: IMM-1580-08
Citation: 2008
FC 1149
Toronto, Ontario, October 9, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ROKSANA RAHMAN
SUSAHOSH RAHMAN
and OGGNI RAHMAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges a decision of the Refugee Protection Division
(RPD) which vacates the Applicants’ Convention Refugee status. The vacation is
based on the ground of misrepresentation. In reaching the decision under review,
the RPD found that the Applicants did not disclose that, prior to applying for refugee
protection within Canada, they entered Canada on visas
issued by Canadian authorities in Bangladesh.
The argument presented by the Minister to the RPD, and which was accepted by
the RPD, is that proof of the misrepresentation exists in the fact that
photographs taken of the persons who applied for the visas are, indeed,
photographs of the Applicants herein.
[2]
The
finding in the decision under review with respect to the important photograph
evidence reads as follows:
The INS records show, as part of the visa
application of December 22, 1998, photos of the visa applicants, Roksana Lais
and her spouse, Mohan Raihan, and their two children, Shahosh Raihan and
Aggnita Raihan.
The photos that accompany the Referral to
the Refugee Division for Roksana Rahman and Susahosh Rahman and Oggni Rahman,
dated November 9, 1999, on a balance of probabilities, are, on examination, in
the opinion of this panel, the same persons. The panel determines, even
allowing for a “coincidental happenstance”, that Roxsana Rahman has a “double”
who entered the United
States on the
same date as Roksana Lais, it is beyond plausibility to conclude these two
“look-alike” women would each have two “look-alike” children.
(Decision, p. 8)
Counsel for the Applicants argues that the opinion expressed
by the RPD member was formed in breach of due process. I agree with this
argument.
[3]
The only
evidence of the process by which the opinion was formed is that stated in the
quotation provided from the RPD’s decision. A serious due process concern arises
as a result.
[4]
It is
agreed that the actual photographs viewed by the RPD in reaching the opinion
are not part of the record in the present Application. Indeed, what actually
was viewed is unknown. It seems obvious that both parties to such an important
opinion formation should have complete knowledge of what is being considered
and compared. The best way to ensure this essential procedural requirement is
to have the opinion formation occur in an open forum and on the record. In the
present case the formation of the identity opinion was not open to such scrutiny.
In particular, neither party of the present Application had the opportunity,
through questioning, to challenge the evidentiary basis upon which the opinion
was formed, or through argument, to persuade the opinion-maker to come to a
certain result.
[5]
As a
result, I find that the decision under review was rendered in fundamental breach
of due process.
ORDER
Accordingly, the decision under review is set
aside and the matter is referred back for redetermination in accordance with
these reasons before a differently constituted panel.
“Douglas
R. Campbell”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1580-08
STYLE
OF CAUSE: ROKSANA RAHMAN, SUSAHOSH AHMAN
and OGGNI RAHMAN v. THE
MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 9, 2008
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: OCTOBER 9, 2008
APPEARANCES:
|
JOHN M. GUOBA
|
FOR THE APPLICANT
|
|
SHARON STEWART GUTHRIE
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
JOHN M. GUOBA
Barrister and Solicitor
Toronto, Ontario
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content