Federal Court Decisions

                                                                                                                                             Date: 20020322

                                                                                                                                  Docket: IMM-1464-01

                                                                                                                   Neutral Citation: 2002 FCT 301

Between:

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                        Applicant

                                                              - and -

                                                  MOHAMMAD IQBAL

                                                                                                                    Respondent

                                                REASONS FOR ORDER

PINARD J.:

[1]         The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated April 26, 2001, determinating the respondent to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).

[2]         The respondent, Mohammad Iqbal, is a citizen of Pakistan. He left Pakistan on August 2, 2000 and arrived in Canada on August 3, 2000 and made a refugee claim upon his arrival that same day. He claims to have a well-founded fear of persecution due to his imputed political opinion, his membership in a particular social group and his nationality as an Indian immigrant from occupied Kashmir living in the Pakistan Occupied Kashmir.

[3]         The applicant submits that the Board acted without regard to subparagraph 69.1(5)(a)(ii) of the Act as well as to the duty of fairness by preventing the Minister's representative to make written representations in the respondent's file. I agree with this argument.

[4]         In Prassad v. Canada (M.E.I.), [1989] 1 S.C.R. 560, it was confirmed by the Supreme Court of Canada, at pages 568 and 569, that administrative tribunals have the power to control their own procedures:

. . . We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. . . .

[5]         As well, in Lin v. Canada (M.C.I.) (1999), 1 Imm.L.R. (3d) 287, 171 F.T.R. 289, Justice Evans determined that not every procedural shortcoming amounts to the breach of a duty. To enable a court to set aside a decision, errors must have deprived the individual of what any fair-minded person would regard as a reasonable opportunity to influence the decision maker through the production of evidence in the making of submissions.

[6]         In the case at bar, on March 5, 2001, the Minister's representative, Mr. Simon-Pierre Lessard asked the Board to postpone his intervention until a later date. A postponement was granted and another hearing was set to take place March 9, 2001. That day, the Minister's representative was granted one month to make written representations. However, after having previously notified the parties, a decision granting the respondent refugee status was rendered orally on March 14, 2001. The following was stated by the Board as evidenced by the recorded cassettes:

Board Member:        Thank you very much.

So it won't be (inaudible)... last Friday and you have to respect the same oath.

The last hearing dated the ninth of March 2001 ah. We had (inaudible) for a full the claimant and at the end of this hearing ah it was decided to ask for representations, observations and the month had been given to the Minister's representative and (inaudible) fifteen days to the counsel of the claimant. Ah and at the end of the hearing (inaudible)... the board members had the chance to discuss the testimony of the claimant and the abundant (inaudible)... evidence introduced and after lengthily discussions and some thought over the week end it was decided last Monday, two days ago, that the board members would not request any observations and ah representations in this case and that the board members, the tribunal had (inaudible)... particularly the... (inaudible)... this Monday (inaudible)... and evidence and was ready to render decision on the bench. So this is why we ask everybody (inaudible)... notice to appear today, this morning at 8:30. But it's now 25 past nine (inaudible)... this morning and we are now ready to render decision on the bench. So.

(My emphasis.)

[7]         I believe that discretionary powers have not been awarded to the Board in this context. Subparagraph 69.1(5)(a)(ii) of the Act makes it very clear that the Board shall give the Minister a reasonable opportunity to present evidence and if the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention of the Act are raised by the claim, to question the person making the claim and other witnesses and make representations.

[8]         It appears plain to me that from the initial hearing on March 5, 2001 the Board was fully aware that the Minister's representative planned on making his written submissions as there were serious reasons for considering that the applicant had committed crimes against humanity pursuant to clause 1F of the Act. Therefore, after examining the legislation at bar in conjunction with the facts of this case, I am of the opinion that the Board was obligated to permit the Minister's representative an opportunity to make written representations.

[9]         I believe the Board simply took earlier submissions and did not seek any input from the Minister's representative as to the applicability of clause 1F. Contrary to the respondent's submissions, I am also of the opinion that although the Minister's representative was contacted prior to March 14, 2001 by telephone, it would have still been reasonable for him to expect that his submissions would be heard. First of all, the legislation is clear that the Minister's representative shall be given an opportunity to make written representations. Moreover, he had been promised the right to do so.

[10]       It is therefore my opinion that there was a breach of procedural fairness by the Board in this case and there was no opportunity offered to the Minister's representative to remedy the problem (see Ke v. Canada (M.C.I.), 100 F.T.R. 46).

[11]       Accordingly, the application for judicial review is allowed. The decision of the Board is quashed. The matter is returned to a differently constituted Board for rehearing and redetermination.

                                                                         

       JUDGE

OTTAWA, ONTARIO

March 22, 2002