Halifax, Nova Scotia, October 5, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
ALYA KHAN
FAISAL KHAN
SAAD KHAN
NAHEED BEGUM
MARIUM FARHAT KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Farhat Khan is a citizen of Pakistan who claims status as a Convention refugee and a person in need of protection. The other applicants are his wife, Naheed Begum, and their infant children. Mr. Khan testified before the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "panel") that he fears members of the Mohajir Quami Movement ("MQM"), a political party in Pakistan. His fear stems, he testified, from an incident when he and his late brother-in-law were the only witnesses to the killing of a Shia doctor and two patients by three members of the MQM. Mr. Khan and his brother-in-law knew the assailants and so the police took witness statements from them.
[2] The RPD dismissed the claim of Mr. Khan and his family, finding, among other things, that Mr. Khan was not credible. The determinative issue on this application for judicial review of that decision is the RPD's treatment of a request that it receive into evidence a document, notwithstanding that the document had not been disclosed and provided to the RPD 20 days before the hearing as required by Rule 29(4) of the Refugee Protection Division Rules, SOR/2002-228 ("Rules").
[3] The document was an original summons issued by a court in Pakistan to Mr. Khan in respect of the 1994 killing of the Shia doctor. Counsel for Mr. Khan advised the RPD that the document had just been received from Pakistan. The panel refused to accept the document. Its reasons for this decision, given orally, were:
PRESIDING MEMBER: I understand. I understand that the member has the discretion. And the discretion is solely placed on certain documents that were not in existence - which probably are within that period of time. If this document was in existence since 1994, it should have been presented in accordance to the rules. So I'm not accepting it, Counsel.
[4] In its written reasons, the panel expressed its reasons to be as follows:
As for the disclosure, which was dated 1994, counsel's submission was that the claimant had not produced it earlier. However the panel finds that since the document had been in existence since that date, the panel would not allow it to be disclosed at the outset of the hearing, as counsel had ample time to disclose the document in accordance with Rule 29.
[5] The relevant rules are Rules 29 and 30 which are as follows:
| 29(1) If a party wants to use a document at a hearing, the party must provide one copy to any other party and two copies to the Division, unless these Rules require a different number of copies.
29(2) If the Division wants to use a document at a hearing, the Division must provide a copy to each party.
29(3) Together with the copies provided to the Division, the party must provide a written statement of how and when a copy was provided to any other party.
29(4) Documents provided under this rule must be received by the Division or a party, as the case may be, no later than (a) 20 days before the hearing; or (b) five days before the hearing if the document is provided to respond to another document provided by a party or the Division.
30. A party who does not provide a document as required by rule 29 may not use the document at the hearing unless allowed by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including
(a) the document's relevance and probative value; (b) any new evidence it brings to the hearing; and (c) whether the party, with reasonable effort, could have provided the document as required by rule 29. [underlining added]
|
29(1) Pour utiliser un document à l'audience, la partie en transmet une copie à l'autre partie, le cas échéant, et deux copies à la Section, sauf si les présentes règles exigent un nombre différent de copies.
29(2) Pour utiliser un document à l'audience, la Section en transmet une copie aux parties.
29(3) En même temps qu'elle transmet les copies à la Section, la partie lui transmet également une déclaration écrite indiquant à quel moment et de quelle façon elle en a transmis une copie à l'autre partie, le cas échéant.
29(4) Tout document transmis selon la présente règle doit être reçu par son destinataire au plus tard :
a) soit vingt jours avant l'audience; b) soit, dans le cas où il s'agit d'un document transmis en réponse à un document reçu de l'autre partie ou de la Section, cinq jours avant l'audience.
30. La partie qui ne transmet pas un document selon la règle 29 ne peut utiliser celui-ci à l'audience, sauf autorisation de la Section. Pour décider si elle autorise l'utilisation du document à l'audience, la Section prend en considération tout élément pertinent. Elle examine notamment : a) la pertinence et la valeur probante du document; b) toute preuve nouvelle qu'il apporte;
c) si la partie aurait pu, en faisant des efforts raisonnables, le transmettre selon la règle 29. [Non souligné dans l'original.]
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[6] Rule 30 provides a sanction for the untimely disclosure of documents. Late produced documents may not be used without permission of the RPD. In deciding whether to grant such permission, the RPD is obliged to consider any relevant factor, including the three factors specifically enumerated in Rule 30. The rule balances the needs for timely disclosure and orderly hearings with the requirements of procedural fairness.
[7] In the present case, neither the transcript of the proceedings nor the written reasons of the panel show that the panel considered the relevant factors, including the relevance and probative value of the summons, and whether, with reasonable effort, it could have been provided earlier. Rather, the panel considered the simple fact that the document had been in existence since 1994 to be determinative. In so concluding, the panel incorrectly interpreted Rule 30 and failed to exercise properly the discretion conferred upon it by Rule 30.
[8] As to the materiality of such error, the RPD drew an adverse inference from the absence of "any court documents about the [1994] incident" and went on to find that it did not believe Mr. Khan was ever a witness to the 1994 incident, which was the central event in his claim. In that circumstance, I am satisfied that the panel's failure to properly consider the admissibility of the summons was a material error.
[9] I have considered the submissions of the Minister that the panel's decision should not be set aside in light of other credibility findings made by the panel. I am not prepared to speculate, however, on what the outcome would have been had the panel not committed a reviewable error with respect to the central element of Mr. Khan's claim.
[10] Counsel posed no question for certification and I am satisfied that no serious question of general importance arises on this record.
ORDER
[11] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board dated October 21, 2004 is hereby set aside.
2. The application is remitted for redetermination before a differently constituted panel of the Refugee Protection Division.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9315-04
STYLE OF CAUSE: FARHAT KHAN ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 27, 2005
APPEARANCES:
LORNE WALDMAN FOR THE APPLICANTS
ANSHUMALA JUYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN AND ASSOCIATES FOR THE APPLICANTS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA