Date: 20040322
Docket: IMM-934-03
Citation: 2004 FC 430
Ottawa, Ontario, March 22, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
IQBAL HUSSAIN, YASMIN SHAZIA
FATIMA HUSSAIN, NABGHA HUSSAIN
ZAINAB HUSSAIN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel) that the applicants are not persons in need of protection or Convention refugees.
[2] The principal applicant, his wife and his three minor children are citizens of Pakistan. The applicant's claim is based on his membership in the Pakistan Muslim League (Nawaz) (PML(N)). As such, he says he was targeted by members of the Like-minded Group (PML(LM)) faction of the party. The panel found that the principal applicant's story was not credible.
[3] The applicants argue that the panel erred in finding that their failure to go back before the panel to reconvene the hearing while their counsel, Ms. Valois, was on maternity leave, undermined their credibility. An initial hearing took place on July 29, 2002. During this hearing, the panel asked the refugee protection officer (the officer) to make an information request to find out if there was evidence of the applicants' passage through the United States. A second hearing took place on August 7, 2002. On August 9, 2002, the officer received a report from the American authorities which informed her that they had no indication that the applicants had crossed the American border.
[4] The officer immediately informed the panel of this. It was evident that additional evidence would be required in the file. On September 27, 2002, Ms. Valois gave birth to a child (affidavit of Ms. Valois, paragraph 13).
[5] On October 16, two months after the report was received, the panel asked the officer to contact Ms. Valois to ask her how she wanted to proceed and to tell her that she could make written submissions. Ms. Valois was to respond within six days because the panel wanted to conclude the matter as soon as possible.
[6] I reproduce the letter addressed to Ms. Valois:
October 16th, 2002
Me Stéphanie Valois
407 St-Laurent
suite 300
Montréal, Québec
H2Y 2Y5
Subject: IRB File # MA2-00466, HUSSAIN, Iqbal
Dear Me. Valois :
On October 10th, 2002, Mrs. Joan Kouri, presiding member in the above-noted file, requested that I contact you.
You may recall that on August 7th, 2002, this hearing was concluded. On August 9th, 2002, I received from Immigration Canada a response to my letter dated July 31st, 2002. I had requested clarification of a report from the United States Border Patrol. This report indicated that there was no record of the claimants travelling in the United States under what they say are their real names. However, it was not clear whether a search had been done by the U.S. Border Patrol in relation to the aliases used by the claimants to travel. The response of Immigration Canada dated August 9th, 2002, a copy of which was faxed to you and to Mrs. Kouri, confirmed that the search had been done under both the real and assumed names of the claimants.
This information may materially affect your clients' claim. Accordingly, your clients have a right to be heard by the Panel at a hearing reconvened to deal with this new information. However, if you file the claimants' written consent to the use of this information as evidence by the Panel, and, their waiver to the right to an oral hearing before Mrs. Kouri in relation to this information, the hearing will not be reconvened. The case will then be taken under reserve. Along with the claimants' consent and waiver, you may file written submissions concerning the August 9th, 2002 response to my inquiry.
I do apologize for not contacting you sooner in relation to how your clients wish to proceed in light of the information received from the Minister on August 9th, 2002. Mrs. Kouri advises me that she would like to conclude this matter as soon as possible. Therefore, would you please advise us on or before Tuesday, October 22nd, 2002 as to how your clients wish to proceed.
Yours truly,
Gretchen Timmins
Refugee Protection Officer
cc: Mrs. Joan Kouri, Commissioner
[7] Ms. Valois, informed of this letter at home by the secretary of her office, submitted a written reply to the panel, informing it that it was not necessary to reconvene because her client had informed her that it had been a smuggler who had made the arrangements and that he did not know the details about the journey to Canada.
[8] Three months later, on January 21, 2003, the panel rendered its decision. It held that the principal applicant's story was not credible, due in part to the fact that he and his family did not appear for a reopened hearing.
[9] The applicants claim that the panel's conduct was unacceptable and that, in compelling Ms. Valois to provide it an answer in so short a time, while she was at home on maternity leave, it did not respect its duty of procedural fairness. I am of the same opinion.
[10] First, the panel was aware that Ms. Valois had been on maternity leave for several months, since she had appeared before the panel in the final months of her pregnancy and she had discussed it with the panel informally (affidavit of Ms. Valois, paragraph 5).
[11] Further, the panel had been informed by the officer of the receipt of the report in August, while Ms. Valois was still available to answer the panel's questions.
[12] Despite this, it was only two months later that, at the panel's request, the officer wrote to Ms. Valois, giving her only six days to respond, knowing that she was on maternity leave at that time. In my opinion, this manner of proceeding was that much more unacceptable in that there was no urgency, since the panel did not render its decision until three months later.
[13] The respondent submits that Ms. Valois could have asked for a postponement, but since she did not do it, she cannot complain about it now. Although I acknowledge that this was a possibility, it does not change the fact, in view of the short time given to reply, which was, incidentally, totally unjustified, that Ms. Valois, who was at home with a newborn, was not in a position to make an enlightened decision about how to deal with the file and to present the applicants' position fully and fairly.
[14] This breach of procedural fairness in itself warrants the intervention of the Court.
[15] The application for judicial review is allowed. The matter is referred for reconsideration before a differently constituted panel.
ORDER
THE COURT ORDERS that the application for judicial review be allowed. The matter is referred for reconsideration by a differently constituted panel.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-934-03
STYLE OF CAUSE: IQBAL HUSSAIN ET AL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal
DATE OF HEARING: March 17, 2004
REASONS FOR ORDER BY: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATE OF REASONS: March 22, 2004
APPEARANCES:
Éveline Fiset FOR THE APPLICANTS
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset
Montréal, Quebec FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE APPLICANTS