Ottawa, Ontario, February 7, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Sirak Abebe Ayele says that he wed his ex-wife's sister in October of 2002. He then sponsored his new wife's application for permanent residence in Canada. A visa officer rejected his wife's application for permanent residence on the ground that the marriage was not genuine and was entered into for immigration purposes. Mr. Ayele appealed that decision to the Immigration Appeal Division of the Immigration and Refugee Board (IAD).
[2] The IAD was skeptical of Mr. Ayele’s situation. It found it to be highly unusual for a person to marry the sibling of a former spouse and also found that the nature of Mr. Ayele's relationship with his former wife was unusual and not credible.
[3] After hearing Mr. Ayele's testimony, the IAD was anxious to conclude the hearing and to dismiss the appeal. In the words of the presiding member, "[i]t will be a waste of the tribunal's time to continue to indulge the appellant in this waste of taxpayer’s money". And so the IAD refused to hear a witness that Mr. Ayele wished to call. The witness was described to be Mr. Ayele's tenant and roommate who would have testified about Mr. Ayele's living arrangement. This would reasonably be expected to touch directly upon Mr. Ayele's relationship with his former wife. The evidence was, therefore, relevant.
[4] The duty of fairness requires that a party to a proceeding should have the opportunity to present his or her case fully and fairly. This generally includes the right to call witnesses in order to establish the evidentiary basis of a claim or defense.
[5] On this application for judicial review of the decision of the IAD, the Minister does not take issue with the general principle that an appellant before the IAD should be allowed to adduce evidence from witnesses with relevant testimony. Rather, the Minister says that the IAD refused to allow the witness to testify because Mr. Ayele was in breach of Rule 37 of the Immigration Appeal Division Rules, SOR/2002-230 (Rules). Alternatively, the Minister argues that any breach of procedural fairness was not material to the decision of the IAD.
Turning to the Minister’s first submission, Rule 37 is as follows:
[6] In my respectful view, the Minister’s reliance upon Rule 37 in order to justify the refusal of the IAD to hear the witness is misplaced for two reasons. First, at the outset of the hearing, after hearing submissions with respect to Mr. Ayele’s late disclosure of information, including late disclosure of witness information, the presiding member ruled "I will allow you to deal with the witness, but obviously the identity and the credibility of the witness will be an issue". Thus, any hurdle posed by Rule 37 was overcome when the IAD ruled it would exercise its discretion to allow the witness to testify. Second, when the IAD later ruled it would not allow the witness to testify it did not refer to Rule 37. The reasons given by the IAD for refusing the witness were as follows:
PRESIDING MEMBER: Okay. Thank you. You’ve done a good job with what you have. But the fact still remains that it’s not enough. The appellant is calling the roommate for the purposes of corroborating his testimony. Even if the witness corroborates the testimony, in assessing the testimony it’s not credible. So, there’s no point calling the witness and even if it is characterized as a breach of natural justice, there is no prejudice suffered when the evidence is of no use and calling the witness is futile.
So, I will dismiss the appeal and I will give my reasons right away. Thank you, sir. [underlining added]
[7] In my view, the above passage is wholly inconsistent with any reliance upon Rule 37.
[8] Given that Rule 37 was not relied upon, and the evidence the witness was expected to give was relevant, I find it was a breach of procedural fairness for the IAD to refuse to hear this witness.
[9] Turning to the alternate issue of materiality there are, in my view, four points to be made. The first, and most important, point to be made is that it is not within the purview of a tribunal bound by the requirements of procedural fairness to dispense with those requirements because, in its view, the result of the hearing will be the same. Rather, it is for a court reviewing a decision of a tribunal that has erred to determine whether, as a matter of administrative law, the consequences of a failure to comply with the requirements of procedural fairness are such that the discretionary remedy available to the reviewing court should be withheld. See: Mobile Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at paragraphs 52 and 54.
[10] Second, the withholding of relief in the face of a breach of procedural fairness is exceptional. The right to a fair hearing has been described as "an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have”. See: Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 at page 661.
[11] Third, one can never rule on the credibility of evidence that has not yet been heard. The presiding member violated this principle when he stated that even if the witness corroborated Mr. Ayele’s testimony that subsequent testimony would not be credible.
[12] Fourth, the essence of adjudication is the ability to keep an open mind until all evidence has been heard. The reliability of evidence is to be determined in the light of all of the evidence in a particular case. This is the reason why an adjudicator must remain open to persuasion until all of the evidence and submissions are received. Evidence, that at first blush may seem implausible, may later appear plausible when set in the context of subsequent evidence. It is, at the least, suggestive of an impermissibly closed mind to state that "there's no point calling the witness […] when the evidence is of no use and calling the witness is futile".
[13] It follows from these observations that I am not prepared to speculate upon what the result might have been had the IAD not breached the requirements of procedural fairness. Because the IAD breached the duty of procedural fairness by refusing to hear a witness who was expected to give relevant evidence that would have supported Mr. Ayele's appeal, the application for judicial review is allowed.
[14] Counsel posed no question for certification, and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed, and the decision of the Immigration Appeal Division dated April 21, 2006 is hereby set aside.
2. This matter is remitted for redetermination before a differently constituted panel of the Immigration Appeal Division.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3463-06
STYLE OF CAUSE: SIRAK ABEBE AYELE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 9, 2007
APPEARANCES:
REZAUR RAHMAN FOR THE APPLICANT
JENNIFER FRANCIS FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARRISTER & SOLICITOR FOR THE APPLICANT
OTTAWA, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA