Federal Court Decisions

Date: 20060324

Docket: IMM-2997-05

                                                                                                                      Citation: 2006 FC 380

Ottawa, Ontario, March 24, 2006

PRESENT:      THE CHIEF JUSTICE

BETWEEN:

CHRISTOPHER AYALOGU, EVELYN AYALOGU, ELIZABETH AYALOGU

FRANCIS-XAVIER AYALOGU, KATE AYALOGU

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

            UPON this application for judicial review of the negative decision, dated April 29, 2005, by the Refugee Protection Division that the applicants, who are citizens of Nigeria, are neither Convention Refugees nor persons in need of protection;

            UPON the applicants' attempt to introduce a letter from a Nigerian friend purporting to describe the circumstances of the alleged assassination in 2004 of the brother of the applicant Christopher Ayalogu;

            UPON the acknowledgement of both parties that the letter was produced for the first time by the applicants at the hearing of April 13, 2005 and not twenty days before the hearing as required by Rule 29 of the Refugee Protection Division Rules, SOR/2002-228 ("the Rules");

            UPON the Court's review of the transcript of the hearing where the member stated: "if the letter has not been produced by now, I'm not going to look at it." (page 674 of the tribunal record);

            UPON the presiding member's failure to consider the letter's "relevance and probative value" as required by Rule 30 (a) of the Rules: Behaz v. Canada(Minister of Citizenship and Immigration), 2005 FC 791 at paragraph 25 and Ahmmed v. Canada Canada(Minister of Citizenship and Immigration), 2005 FC 1433 at paragraph 8;

            UPON the hearing of March 20, 2006; and

            UPON the respondent's letter, filed on March 22, 2006, acknowledging the presiding member's failure to apply Rule 30;

            IT IS HEREBY ORDERED that:

1.          This application for judicial review is granted and the matter is referred to a different member of the Refugee Protection Division for rehearing and re-determination.

"Allan Lutfy"

FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                  IMM-2997-05

STYLE OF CAUSE:                 CHRISTOPHER AYALOGU AND OTHERS

                                                v.

THE MINISTER OF CITIZENSHIP AND                                      IMMIGRATION

PLACE OF HEARING -          OTTAWA, ONTARIO

DATE OF HEARING: MARCH 20, 2006

REASONS FOR ORDER:       THE CHIEF JUSTICE

DATED:                                    MARCH 24, 2006

APPEARANCES:

MS. SILVIA MAICUNAS FOR THE APPLICANTS

MS. LYNN MARCHILDON                                       FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

MS. SILVIA MAICUNAS FOR THE APPLICANTS

BARRISTER AND SOLICITOR

OTTAWA, ONTARIO

MR. JOHN H. SIMS, Q.C.

ATTORNEY GENERAL OF CANADA                                  FOR THE RESPONDENT