Toronto, Ontario, October 6, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns a citizen of Afghanistan who claims refugee protection from the Taliban.
[2] The Applicant was not represented by counsel in making his claim before the Refugee Protection Division (RPD), however, he was assisted in doing so by a relative. The RPD member who conducted the hearing of the claim became unavailable to render a decision. When this fact became known, the Applicant was given a choice: request a de novo hearing, or have another RPD member render a decision on the record of the hearing conducted. The Applicant chose the latter option.
[3] Subsequent to making the choice, the Applicant was granted legal aid and his Counsel immediately made three separate requests of the RPD to address the Applicant’s claim by convoking a de novo hearing. The RPD failed to heed these requests and, on the record, an RPD member rendered the decision under review.
[4] In my opinion, Counsel’s request for a de novo hearing must be regarded as a withdrawal of the Applicant’s consent to have a decision rendered on the record; for the RPD to have proceeded in the face of this request is a denial of natural justice.
ORDER
Accordingly, I set aside the RPD’s decision and refer the matter back to a differently constituted panel for re-determination.
There is no question to certify.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-359-09
STYLE OF CAUSE: JAMSHID SHIR AHMAD v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 5, 2009
APPEARANCES:
|
Omar Shabbir Khan
|
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David Cranton |
SOLICITORS OF RECORD:
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Omar Shabbir Khan Barrister & Solicitor Hamilton, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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