Ottawa, Ontario, October 24, 2005
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Applicant, Mr. Moshiur Ahmmed, is a Bangladeshi citizen who bases his Convention refugee claim on an alleged fear of persecution by reason of his political opinion. The Applicant was a member of the Awami League (AL) party, in opposition to the ruling government coalition, and was also a newspaper reporter.
[2] In a decision dated November 12, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") determined that the Applicant was neither a Convention Refugee nor a person in need of protection. The Board accepted that the Applicant's father was involved in the liberation of Bangladesh and also supported AL. However, due to a lack of corroborating evidence and several adverse credibility concerns, the Board was not satisfied that the Applicant had a political profile that would be of interest to his alleged persecutors.
[3] The Applicant seeks judicial review of this decision.
Issues
[4] The issues in this judicial review are:
- Did the Board err in refusing to admit certain documents into evidence?
- If the Board erred, was the error such that the decision should be overturned?
Issue #1: Did the Board err in refusing to admit certain documents into evidence?
[5] At the commencement of the Board hearing, two separate questions of admissibility of documents arose. The first question related to a package of documents filed two days before the hearing (the "Late Documents"). The other question arose with respect to a package of documents (the "Missing Documents") that the Applicant thought had been submitted. Early in the hearing, but after the Board had considered and admitted the Late Documents, it became apparent that the Missing Documents had not been received by the Board. Included in these documents were two letters that addressed directly the political profile of the Applicant. Counsel to the Applicant requested that these documents be admitted. The Board's response was:
At this point I am not going to accept them. I will ask the claimant these questions, and if they are referred to at that point we will see if they would clarify his political profile.
[6] At the close of the hearing, counsel once again addressed the documents, and, in particular, one of the two letters that spoke of the Applicant's activities in the AL and his activities during the election. He asked the Board to reconsider the exclusion of this one letter. The Board refused:
I think I made my ruling earlier that I wasn't going to take any documents, and I stand on that, because I think the claimant had ample opportunity to present his documents.
. . .
I have accepted documents which are presented on August 31st, 2004, and I have been abundantly - - I have been fair in accepting, I don't know how many pages there are, but there are some articles which were dated August 22nd. I understand. I also accepted pictures which were available to you, sir, and a letter which was available to you since 2003. I think on my part I have discretion and I used my discretion to accept those documents. But, it does not go on and on, and I've been very fair. I have noted your objection, but I still stand on my decision.
[7] Admissibility of documents to a Board hearing is dealt with in s. 29 and s. 30 of the Refugee Protection Division Rules, SOR/2002-228 (the "Rules"). The relevant portions of those Rules 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(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(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.] |
[8] In sum, the scheme of the Rules provides that late documents may be filed with the leave of the Board and that, in considering whether to allow documents to be filed, the Board must consider the factors set out in Rule 30. The Rule gives the Board considerable discretion to accept or reject late-filed evidence. Assuming that the Board has addressed its mind to the factors outlined above, this Court should not intervene lightly in the Board's exercise of discretion.
[9] What is clear from reading the transcript of the proceedings is that the Board considered all of the factors set out in Rule 30 for the Late Documents. However, the same cannot be said for the Board's consideration of the admission of the Missing Documents. In oral submissions, the Respondent concedes that the two letters included in the Missing Documents address the Applicant's political profile, a matter that was front and centre in the Board's rejection of his claim. In other words, the relevance of these particular documents is acknowledged. In spite of this, neither the transcript nor the reasons contained in the decision provide any evidence that the Board considered the relevant factors, including the relevance and probative value of the two letters in question. Thus, I conclude that the Board failed to exercise the discretion conferred on it under Rule 30 and, in failing to do so, erred.
[10] Further, in this case, the materiality of the letters in question is evident. The Board appears to have accepted that the Applicant had political affiliations with the AL, particularly through his father. The decision seems to have turned on the degree of the Applicant's profile rather than only its existence. In this context, the letters are particularly important. It follows that a rejection of the letters should only have been done with a careful weighing of the relevant factors.
[11] As noted, the Board did consider the Rule 30 factors in ruling on the admission of the Late Documents. The Respondent submits that this demonstrates that the Board put its mind to the correct test for both the Late Documents and the Missing Documents. I cannot agree. The two sets of documents were considered separately in the context of the hearing. The request to admit the Late Documents was made and considered at the outset of the hearing, with the reasons showing a consideration of all the relevant Rule 30 factors. The fact that the Missing Documents were, for whatever reason, absent from the information with the Board was not discovered until later in the hearing. Upon noting the absence of these documents in the record, the Applicant's counsel made a distinct request to admit them. In response, the Board considered the request and dealt with it as shown in the excerpts above. I can see no consideration of the Rule 30 factors and, in my view, I cannot import those considerations from a completely separate ruling.
Issue #2: If the Board erred, was the error such that the decision should be overturned?
[12] The question that follows from the conclusion on this first issue is whether, in this case, the decision should be quashed. The Respondent submits that, in light of the number of credibility concerns found by the Board, the decision should not be set aside. In this case, I cannot agree.
[13] There are cases where it is pointless to send a matter back to a decision maker because, even with the error corrected, the outcome of a case would be "inevitable" (see, for example, Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) at para. 9). Here, however, I can only speculate on what factors act against the interest of admitting the letters and, if admitted, what weight the Board would have placed on these letters. Given the materiality of the letters to the claim, I am not able to say that the outcome of the case is "inevitable" (Yushchuk v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 1324 (F.C.) (QL) at para. 29).
Conclusion
[14] In conclusion, the Board erred by not exercising the discretion conferred on it by Rule 30. In this case, the matter should be remitted for re-determination by a different panel of the Board. Neither party requested that I certify a question of general importance; none will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is allowed and the matter referred back to a different panel of the Board
for re-consideration;
2. No question of general importance is certified.
"Judith A. Snider"
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-10426-04
STYLE OF CAUSE: MOSHIUR AHMMED v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 17, 2005
REASONS FOR ORDER
AND ORDER BY: SNIDER, J.
DATED: October 24, 2005
APPEARANCES BY:
Micheal Crane FOR THE APPLICANT
Matina Karvellas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada