Date: 20041203
Docket: IMM-6482-03
Citation: 2004 FC 1701
BETWEEN:
SARDAR MUHAMMAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] These are the reasons of the Court on the merits of the judicial review. The Court had previously issued an interim order permitting the Applicant to file further evidence from former counsel attesting to the lack of receipt of those documents directed by the Board to be served on counsel and the Board's request for post-hearing submissions.
[2] The Applicant's current counsel filed an affidavit of Lani Gozlan, former counsel confirming that:
. . . our office did not receive a letter from the Immigration and Refugee Board regarding a request for post hearing submissions or a copy of a May 28, 3003 TJP letter and an August 10, 2002 e-mail to Geoff Zerr. In fact, both counsel and the Applicant learnt of this request upon receipt of the reasons for the negative decision.
[3] The Board acknowledged in its reasons the importance of this evidence:
The May 28, 2003 letter was clearly relevant to our determination of the claimant's identity as a member of the TJP and the Shia sect.
[4] The adverse effect on the Applicant of not having the opportunity to comment on this evidence is obvious from the Board's reasons where it favoured evidence submitted at the hearing over that evidence submitted post-hearing. The Board concluded:
The panel is not satisfied, on a balance of probabilities, that the claimant is a member of the Shia sect or a member of the TJP.
[5] The Board's decision must be quashed. The evidence which the Applicant did not have an opportunity to address went to the core of the Board's decision. Since this panel has made an important finding, even though on an incomplete record and through no fault of its own, it would be preferable that a different panel consider the application.
[6] For these reasons an order will issue quashing the Board's decision and remitting the matter to be considered by a differently constituted panel.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6482-03
STYLE OF CAUSE: SARDAR MUHAMMAD v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, August 4, 2004
Written representations - November 17, 2004
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE PHELAN
DATED: December 3, 2004
APPEARANCES:
Mr. Robert I. Blanshay FOR THE APPLICANT
Ms. Pamela Larmondin FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Robert I. Blanshay
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT