Date: 20011002
Docket: IMM-5361-00
Neutral citation: 2001 FCT 1082
BETWEEN:
OMAR IMHAMMED YAKUB, AISHA SAAD ABURWIS
and AUWIAS OMAR YAKUB
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated September 15, 2000, wherein the Board determined that the applicants Omar Imhammed Yakub, Aisha Saad Aburwis and Auwias Omar Yakub were not convention refugees.
[2] The primary issue is whether the Board breached the principle of natural justice by permitting the hearing to stand after the Minister's representative had participated in all the oral evidence with the understanding that the CSIS officer would testify that the applicant had been involved with a terrorist group, and then, when the CSIS officer was to testify, dropped the claim under Article 1(F)(a) and stated that the CSIS officer denied ever making such a statement. The applicants' counsel made no objection at the hearing to the Board rendering the decision. The applicants' counsel also agreed it was no longer necessary to cross-examine the CSIS officer. The facts relating to the question of the breach of natural justice are unique and I will set out the relevant facts.
[3] There were three dates for the hearing: April 19, 2000, June 5, 2000 and July 4, 2000. On April 19th, the presiding member of the Board stated that at the prehearing conference the following issues were discussed:
The potential issue of exclusion was raised and at that time the witnesses were to be subpoenaed. I believe Immigration Officer Campbell, who is with us this morning at the back; a CSIS (phon.) officer, David Patowski (phon.); and earlier today there was a CSIS representative who indicated he just got the subpoena a day ago.
[4] Later on they stated:
Now, other issues raised at that prehearing was [sic] that an acquisition information form would be done regarding the Libyan Human Rights League, since the claimant had presented a document from him and we needed to know who was Mr. Mohammed who signed the document. And the question was to be how did Mr. Mohammed get this information and which group he belongs to.
We were also to get the passports translated through Public Works and a list of entries were to be done in chronological order. And my notes indicated that we were going to get background information on the brotherhood.
[5] The Minister's representative attended the hearing on April 19th and cross-examined the witnesses of the applicant except for Immigration Officer Campbell, who was not an applicants' witness. The male claimant also testified at that time. On June 5th the hearing resumed and the Minister's representative did not attend and the female claimant was examined.
[6] At the end of the hearing on June 5th the presiding member stated:
We've decided to try to get as quick a resumption date as possible. We also have a letter from the CSIS saying he's available that week, so we're going to mark it down as Tuesday, July 4th, which is a month away. And at that time we'll hear from the CSIS officer and then do submissions. Right?
Everyone agreed with that. Then on June 29th, 2000, counsel for the Department of Justice wrote the applicants' counsel and stated:
In reference to the belief statement to the effect that your client may likely be a member of "Al Gamma Al Islmiya Al Muqatilaa", attributed to David Patocskai in the "Other Comments" portion of the SIO Note/Review Report dated December 15, 1997, my client has instructed me to inform you that no such statement was provided by Mr. Patocskai or by anyone from the Service to Citizenship and Immigration Canada (CIC) in the context of the interview. You are authorized to provide this letter to the Immigration Review Board.
In response to that the counsel for the applicant stated:
I no longer require Mr. Patocskai's attendance at the July 4, 2000 hearing.
Accordingly, on July 4th only submissions were made and the Minister's representative did make submissions. The Board dealt with this part of the facts as follows:
The Minister had intervened in the case under Article 1(F)(a) of the Convention saying "that this claimant claims to be a member of a group in Libya that may be [an] extremist organization." This intervention was based on Port of Entry notes conducted after an interview with the claimant by a Senior Immigration Officer (SIO) and a Canadian Security and Intelligence Service (CSIS) officer. Exhibit M-1 had stated the name of the possible group was Al Gamma Al Islamiya Al Muqatilaa. However, when subpoenaed, SIO Yvonne Campbell stated that in the POE interview the claimant said he had never heard of the group and she did not know if he belonged to any group. In a letter to counsel CSIS Officer David Patocskai denied ever making any statement linking the claimant to any group. The claimant also said that for security reasons the name of his own group was never revealed to him. He also said the name per se was not an important matter. Based on these developments, the Minister's Counsel dropped any exclusion issues but remained as a participant at the hearing for credibility matters.
[7] The applicants' counsel stated that he was apprised of the opportunity of cross-examining the CSIS Officer but in light of the concession by the previous applicants' counsel prior to the July 4th hearing, I do not think there was any breach of natural justice there. However, all the oral testimony was given with the understanding that this was an exclusion case under Article 1(F)(a) of the Convention. I agree that the Minister is entitled to participate in any refugee claim but this was not the capacity in which the Minister's representative participated. We do not know if the Minister's representative would have decided to participate at all if he had talked to the CSIS officer before the case began. Furthermore, it is wrong for the Board to state that the Minister's counsel remained as a participant at the hearing for credibility matters since all the oral evidence was in by the time the Minister dropped the exclusion issue.
[8] In my view, it is highly prejudicial to the applicant to conduct an Article 1(F)(a) hearing based on the proposed evidence of a CSIS officer and then state after all the evidence is in that the officer denies making the statement in his proposed evidence and the Minister is rescinding the Article 1(F)(a) claim. The Minister's counsel should have spoken to the CSIS Officer prior to any evidence being presented on April 19th to ensure that the case for exclusion had some merit. I am unable to determine at this stage whether the Board's perception of the applicants' credibility was influenced by the Article 1(F)(a) claim by the Minister. This is not a case like Siad v. Canada [1997] 1 F.C. 608. Cross-examination would not have resolved the problem, since the witness disavowed the statement. While it would have been preferable if the applicants' counsel had made the objection during submissions to the Board, it is clear from the breach of natural justice cases that the failure of counsel does not always preclude the review of the matter by the supervising court. In my view this constitutes a reviewable error and the matter must be returned to be heard by a different Board without reference to the Article 1(F)(a) claim.
[9] I am not satisfied that the Board erred in refusing to accept the documentation from the Libyan League for Human Rights based on letters from members of its Executive Committee. The Refugee Division Specific Information Research Unit (SIRU) wrote the Libyan League to verify the authenticity of the statement and the group and received no responses to their letters of August 25, 1999 and May 17, 2000. In my view the SIRU had no obligation to write Mr. Mohammed at his German address since they really were trying to authenticate his involvement with the Libyan League for Human Rights.
[10] The other issues raised by the applicant were related to the statement of the Board:
Neither the claimant nor the two witnesses could name the opposition group they had been associated with since 1991.
This is not true, since the witnesses, particularly the second witness, did name unconditionally the opposition group. Respondent's counsel indicated that the Board really meant that they could not name the group while they were still in Libya. That is not, however, what the Board said. In light of my findings with respect to the natural justice issue I do not have to find whether this error was so material as to require the matter to be sent back to a different panel. However the new panel should use more specific language if this point is in issue in the redetermination.
[11] The application for judicial review is allowed. The decision of the Board dated September 15, 2000 is set aside and the matter is returned to the Board for determination by a differently constituted panel in a manner not inconsistent with these reasons.
[12] Both parties requested that a question be certified for appeal. This case is not about the Minister's right to participate in a refugee hearing when exclusion is not an issue. The Act clearly allows the Minister to participate. This case is about a party claiming at the end of the evidence that its key witness denies his proposed evidence. In my view, however, this case is fact driven, and does not raise a serious question of general importance.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
October 2, 2001