Date:
20130704
Docket:
IMM-9378-12
Citation:
2013 FC 749
Ottawa, Ontario,
July 4, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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SHAHLAVI, MAJID
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Perfection
is not to be expected or demanded by a reviewing Court as to the conduct of an
Immigration Appeal Division [IAD] hearing; however, in my view, the conduct of
the IAD in this case demands a fresh hearing. Ultimately, the procedure
followed by an administrative tribunal must be “fair, reasonable and
appropriate in the circumstances:” See Uniboard Surfaces Inc v Kronotex
Fussboden GmbH & Co KG, 2006 FCA 398 at para 48. Here, all that can be
concluded from a full review of the transcript is that the second hearing day
lost all semblance of order and procedure and proceeded in near total disarray;
with the Panel and both counsel making sporadic remarks and interjections; with
unsworn evidence of the Applicant’s daughter being received; with counsel
giving evidence; and, apparently because of the disarray, with a witness not
being called. No doubt all of the parties, including applicant’s counsel,
share the blame for the degeneration of the hearing; nevertheless, it is the
responsibility of the Panel to control the proceeding and ensure fairness. It
is appropriate in the circumstances, and particularly because the best
interests of a disabled child hang in the balance, to grant the Applicant a
fresh hearing.
[2]
Majid
Shahlavi is a citizen of Iran. He and his family were granted permanent
resident status in Canada in March 2006 under the entrepreneurial program. His
family, including his daughter Nahal, initially joined him in Canada for two months starting in March 2006, but they returned to Iran so that Nahal could finish
writing her exams for the school year she had commenced there. The family
remained in Iran until the fall of 2006 while Mr. Shahlavi says he was making
preparations in Canada for his family when, tragically, Nahal was involved in a
single car accident in Iran and was seriously injured.
[3]
The
travel history of Mr. Shahlavi and Nahal after the accident is not clear based
on the record in this application; however, what is certain is that both Mr.
Shahlavi and Nahal were found by an immigration officer to have breached their
residency obligation under subsection 28(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27, for having failed to reside in Canada for at
least 730 days in the five-year period prior to August 29, 2011. Mr.
Shahlavi’s wife, Ms. Samsani, was also found by an officer to have breached her
residency obligation, but by only less than two weeks, and was successful
before the officer in retaining her permanent resident status on humanitarian
and compassionate [H&C] grounds.
[4]
The
Applicant and Nahal appealed the officer’s determination to the IAD based on
H&C considerations under paragraph 67(1)(c) of the Act. Only Nahal was
successful.
[5]
The
application by Mr. Shahlavi and Nahal was heard over two days. It was stated
soon after the hearing commenced that their counsel would be calling Ms.
Samsani as a witness and she was excluded from the hearing room. The intention
to call her was repeated many times throughout the hearing, the last just a few
minutes before the hearing concluded. But she was not called.
[6]
I
do not accept the Applicant’s submission that the Board prevented in any direct
manner the calling of Ms. Samsani as a witness. The record shows that despite
stating on more than one occasion that he would be calling her as a witness,
counsel for the Applicant never actually did so.
[7]
However,
as I explained to the parties, after seeking their submissions, the Court is
very troubled by the way in which the hearing was conducted. On the first day
of hearing Mr. Shahlavi testified under oath. His testimony in chief and
cross-examination occupies most of the transcript of the first day of hearing
which concluded with a discussion of the evidence the Panel required after it
noting that “this is a tough case.”
[8]
The
second hearing day began with the tendering of new documentary evidence and
another assertion that Ms. Samsani would be called as a witness. In fact, as
noted, she was not called, nor was any testimony heard by the Panel that day.
Instead, the hearing degenerated into what can only be described as a
free-for-all with no structure or direction offered or imposed by the Panel.
It is impossible to read the 23 page transcript of that day’s hearing and come
away with any understanding of what evidence, if any, was properly before the
Board, whether any party truly made submissions on the evidence, and why Ms.
Samsani was not called to testify.
[9]
It
may be, after a fair hearing, that a different Panel will reach the same
conclusion as this Panel did; however, because it cannot be said that the
Applicant received a fair hearing given the serious deficiencies that have been
described, the application must be granted.
[10]
Neither
party proposed a question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is allowed, the
decision of the Immigration Appeal Division of the Immigration and Refugee Board
of Canada is set aside, the appeal of the Applicant shall be re-determined by a
differently constituted Panel, and no question is certified.
"Russel W.
Zinn"
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