Date: 19980306
Docket: IMM-475-97
BETWEEN:
SARMAD ZAHOOR BUTT
TASKIN SARMAD
FARZAAM SARMAD ZAHOOR BUTT
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY, J.:
[1] At the conclusion of the hearing in this matter, I allowed the applicants' application for judicial review and ordered that the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated January 7, 1997, here in question, be set aside and the matter referred for reconsideration by differently constituted panel. The decision in question had determined that the applicants are not Convention refugees. Brief oral reasons were given for my decision and those I hereby reaffirm.
[2] Counsel for parties were agreed that the only issue of significance in the application for judicial review was whether the tribunal had failed to ensure procedural fairness in the process leading to and including its decision. That decision, rejecting the applicants' claim, was based on the panel's negative assessment of the applicants' credibility.
[3] At the commencement of the hearing, the presiding member discussed issues in the applicants' refugee claim. In that discussion, he made the following statement:
| As always, credibility may or may not be an issue, and that depends on the testimony which we hear from you today. |
[4] At the end of the hearing, when it became evident that it could not be completed that day, counsel for the applicants was asked to provide written submissions, which she agreed to do, but she requested that the panel provide her with a list of outstanding issues on which she should expect to comment. In his closing submissions, the RCO had suggested that credibility was an issue in relation to certain matters. Before the panel adjourned for the day, while its proceedings were off the record, there were discussions with counsel for the applicants about the outstanding issues perceived by the panel.
[5] By affidavit, then counsel for the applicants avers that the Board, in these off the record discussions with her, reviewed the issues on which she should make submissions. The panel did not then list credibility as an issue. That understanding on the part of counsel was affirmed, at the commencement of written submissions that she made following the hearing. In those submissions, she stated:
| Credibility was not listed as an issue by the panel at the end of the hearing when I, as counsel, requested that the panel list the outstanding issues in the claim. Therefore, I will not be making submissions on this issue. I would submit that, according to the case law, it is inappropriate for the panel to decide the claim on this basis if it has not been identified in the list of outstanding issues ... |
[6] About three months later written reasons were filed by the Board. The decision includes the following statement:
| Counsel in her submissions argued that credibility is not an issue and implied that the panel instructed her not to address it. The panel does not agree with counsel's assessment, since counsel was instructed at the outset of the hearing that credibility was an issue and the RCO indicated in his observations at the end of the hearing that credibility was an issue. |
The Board's decision then concluded that the evidence on behalf of the applicants was not credible or trustworthy. On this basis their claim to be Convention refugees was found not to be established.
[7] Counsel for the respondent argues that credibility is always an issue in any refugee claim, that the Board here indicated it was an issue at the commencement of the hearing, and that the panel in its reasons refuted that it had indicated credibility was not an issue. The respondent relies on Paranawithana v. the Minister of Citizenship and Immigration, (IMM-670-96), November 21, 1996 (F.C.T.D.) where Mr. Justice Heald found that having indicated at the commencement of the hearing that credibility was an issue, the panel, by later indicating that the primary issue was a change in country circumstances, did not eliminate credibility as an issue.
[8] In my view, the circumstances here are different. At the commencement of its hearing, the panel did indicate that credibility may be an issue, but later, it was asked by counsel to indicate the issues on which submissions should be made in writing. There was discussion of those issues and no mention was then made of credibility. When written submissions were provided, counsel indicated her understanding that credibility was not an issue. No response was made to that understanding on which written submissions were made, until some three months later when the decision of the panel was rendered, and credibility was the issue on which the Board's decision turned.
[9] The circumstances in this case, in my opinion, are clearly comparable to those in Velauthar v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 239 (F.C.A.). There the Court of Appeal found that, having indicated issues on which submissions should be made, not including credibility, the tribunal could not render its decision based on negative credibility findings without providing an opportunity for the applicant to respond to its concerns. The process, without that opportunity, constituted a denial of natural justice, and the decision was set aside. Similar circumstances led to a similar decision by my colleague Mr. Justice Gibson in Rodriguez v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 77 (F.C.T.D.).
[10] In my opinion, the failure of the panel to indicate that credibility was an issue when, at the request of counsel, it listed issues on which submissions should be made, resulted in a denial of natural justice when by its decision the panel determined that the applicants' evidence was not credible. In the circumstances the applicants were denied an opportunity to address the matter of principal concern to the panel in its decision.
[11] For these reasons, by Order the application for judicial review was allowed, the decision of the panel was set aside and the matter referred for reconsideration by differently constituted panel.
Judge
OTTAWA, ONTARIO
March 6, 1998