Date: 19990325
Docket: IMM-1337-98
BETWEEN:
ABUL KASHEM MOHAMMED ALAUDDIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] This is an application for a judicial review of a decision of the Immigration and Refugee Board (Refugee Division) dated February 25, 1998, wherein the Refugee Division determined that the applicant was not a Convention refugee.
Facts:
[2] The hearing of the Immigration and Refugee Board was held on October 19, 1998.
[3] At the very end of the hearing there were some discussions between the two members of the Board, the Appeals officer, and the counsel for the claimant about the necessity to get the confirmation of whether or not the applicant was issued an arrest warrant.
[4] The presiding member said1:
| ... I think that both the examinations have been very thorough and I am not sure that I'd be further ahead at this stage with observations. And if we get the confirmation, then we can take it from there. |
| APPEALS OFFICER So then (inaudible)? |
| BARKER(applicant's counsel)Now will you get the confirmation through the embassy? |
| APPEALS OFFICER No. Do you know how we do this? |
| BARKER You do through |
| (inaudible). |
| APPEALS OFFICER No, we actually don't. It goes through our people in Ottawa. |
| BARKER Yes. |
[5] However, at the very end the presiding member also said2:
| Mr. Aladdin, we've come to the end of the hearing. So I want to thank you for your testimony. The Board is going to reserve its decision until such time as we get confirmation of whether or not you were issued an arrest warrant. When we get that confirmation from Bangladesh, and as soon as we get it, we will notify your counsel. |
| This hearing is concluded pending acquisition of the information request. |
[6] Following the discussions and the conclusion quoted earlier, the applicant was left under the impression that the Board, or the Appeals Officer would obtain the confirmation regarding the warrant.
[7] On February 11, 1998, applicant's counsel sent a letter by fax to the Immigration and Refugee Board. In this letter, second paragraph on page 2 the counsel said:
| The panel required validation of the FIR submitted in evidence. The Claimant who has very little English was under the impression that Immigration was checking the validity of the FIR independently of the Claimant. He has only now this week faxed to his Bangladesh lawyer for an appropriate validation to be faxed back to us. |
| I would therefore submit that provided the validation of the FIR satisfied you, that the Claimant will be determined a credible witness and entitled to be further determined a Convention refugee. |
[8] On February 17, 1998, the applicant's counsel sent a new letter to the Immigration and Refugee Board by fax with a copy of the letter received by facsimile transmission on February 13, 1998, from the claimant's lawyer in Bangladesh indicating that pursuant to the FIR issued December 16, 1996, a warrant was instituted against the claimant under the Special Powers Act.
[9] Counsel for the applicant and for the defendant agreed that the panel did not receive the applicant's evidence before rendering their decision.
[10] On February 25, 1998, the Immigration and Refugee Board rendered its decision.
[11] The Board says on page 2 of its decision:
| The panel requested further information on an arrest warrant which the claimant said was issued for his arrest. Over three months have elapsed and no information has been received. The panel cannot wait any longer for that information. We have accepted the claimant's testimony that a warrant was issued for his arrest. The submissions of counsel have been carefully considered in these reasons. |
[12] On page 4 of the decision the Board says:
| There is no evidence to suggest that he would be unduly punished. If, as he said, he was charged under the Special Powers Act (SP), that does not mean that the punishment he would receive would be so severe as to amount to persecution. |
[13] In the letter dated February 13, 1998, sent by the Bangladesh lawyer to Mr. Barker, counsel for the applicant, it is clearly mentioned:
| ... Mr. A.K.M. Alauddin may be sentenced to life imprisonment or may be hanged. For the reason that, the verdict under the Special Power Act depend totally on the desire of the Government. Except the favour of the Government it is impossible to win the case by any lawyer in those circumstances. |
[14] On page 3 of the decision the Board says:
| The Panel accepts the claimant's evidence as being credible. |
[15] I am convinced that if the information contained in the February 13 letter from the lawyer in Bangladesh had been provided to the Board they could have made another decision.
[16] The Board failed to consider the totality of the evidence in not considering the document that was provided to them by the applicant.
[17] We do not know, and apparently nobody knows, what happened and why those two letters of February 11, 1998 and February 17, 1998, were not provided to the Board before they rendered their decision.
[18] The panel made a reviewable error in creating a confusion at the very end of the hearing asking for a confirmation on the warrant and making a decision before receiving that particular piece of information.
[19] The Board violated the duty of fairness by rendering a decision without waiting for the applicant's evidence, which they had specifically requested of him and which they had been informed by the February 11, 1998, would be forthcoming very shortly.
[20] I am convinced that the Board has committed a reviewable error, and its decision must be set aside.
[21] For these reasons, the application for judicial review is allowed and the matter is returned to a differently constituted board for rehearing and redetermination in accordance with the law. The case raises no question of general importance.
"Pierre Blais"
Judge
TORONTO, ONTARIO
March 25, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1337-98 |
| STYLE OF CAUSE: ABUL KASHEM MOHAMMED ALAUDDIN |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, MARCH 23, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: BLAIS J. |
DATED: THURSDAY, MARCH 25, 1999
APPEARANCES: Ms. Janet Bomza
For the Applicant
Ms. Geraldine MacDonald
For the Respondent
SOLICITORS OF RECORD: Janet L. Bomza
| Barrister & Solicitor |
| 2303-180 Dundas St. W., |
| Toronto, Ontario |
| M5T 1Z8 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990325
Docket: IMM-1337-98
Between:
| ABUL KASHEM MOHAMMED ALAUDDIN |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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