ALI ISIK Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 718

Federal Court Cour fédérale Date: 20110617 Docket: IMM-6953-10 Citation: 2011 FC 718 Toronto, Ontario , June 17, 2011 PRESENT: The Honourable Justice Johanne Gauthier BETWEEN: ALI ISIK Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] Mr.

Ali Isik seeks judicial review of the decision of the Refugee Protection Division [RPD] rejecting his claim made pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act , SC 2001, c 27. [ 2 ] Although the applicant raised many issues with respect to this decision, the Court will only briefly discuss the question of procedural fairness, given that it is sufficient in the particular circumstances to justify setting aside the decision. [ 3 ] The basic facts of the case are not relevant.

The following circumstances, on the other hand, are relevant. [ 4 ] At the beginning of the hearing, as is now the normal process, the RPD identified the main issues to be addressed, namely, credibility and failure to claim protection in the United States . [ 5 ] The applicant was represented by a legal student who, at the beginning of the hearing, sought permission to call as a witness one of the applicant’s nephews who was present at the hearing, despite the fact that a written request to that effect had not been sent 20 days in advance as required by the applicable rules of practice. [ 6 ] This witness was described as an “accepted refugee” who was to testify about some communication he had with the applicant before the departure [1] and that the refugee claims of the nephew and applicant were related “[i]n terms of their basis”.

[7] No more details were given and from the exchange one could, at best, reasonably deduce that this evidence was meant tocorroborate some of the applicant’s testimony, although it is not clear what part exactly. Certainly, the nephew was still in Turkey whenthe applicant said he was first arrested and beaten by the police because he was a Kurd and an active supporter of the DemocraticSociety Party (Kurdish party).

The applicant also testified that he did not make a claim in the United States because the nephew he spoketo in order to get help before leaving Turkey was located in Canada and the applicant knew absolutely no one in the United States. [8] Towards the end of the hearing, the RPD noted that there was time to hear the nephew but it also noted: Do not do it for me. I do not think it is necessary. So if you do not want to forget it. Just go to submissions.

Are you going to do oral?[2] [9] After this exchange, the student went on to make his oral submissions. [10] In its decision, which is primarily – if not entirely – based on lack of credibility, the RPD starts by noting that the applicantfailed to provide corroborative evidence of his detention.

It again states later on that “the Panel can make a negative inference as tocredibility from the applicant’s failure to corroborate his allegations […] the Panel has done so in this case”. [11] In Sivaraj v Canada (Minister of Citizenship and Immigration) (1996), 120 FTR 136, 36 Imm LR (2d) 45 [Sivaraj] atparagraph 3, Justice McKeown stated: It is clear that the Board cannot discourage testimony on a point and then rely on the absence of evidence on it in its decision. The Boarddissuaded the applicant from pursuing evidence of his work as a seaman.

It cannot then rely on the absence of the passport to say he wasnot a seaman (see Li v. The Minister of Citizenship and Immigration, July 20, 1994, Court File A-1657-92 (F.C.T.D.), [1994] F.C.J. No.1109). The matter must be returned to the Board for this reason alone.

In Kaur v Canada (Minister of Employment and Immigration) (1993), 21 Imm LR (2d) 301, 41 ACWS (3d) 382 [Kaur] Justice MarcNoël (as he then was) quashed a decision rejecting an applicant’s claim as a Convention refugee on the basis that the applicant’stestimony was not credible, particularly because the applicant “presented no corroborative testimony to support her allegations”. In thatcase, the presiding member had suggested that if the applicant’s son was only to be called to corroborate the testimony of the applicant,his testimony could be dispensed with.

He noted, at paragraph 7, “[a]fter suggesting that the corroborative testimony of the Applicant'sson was not necessary, it was no longer open to the Board to rule against the Applicant on the basis that her evidence was not supportedby corroborative testimony.” [12] In Veres v Canada (Minister of Citizenship and Immigration), (FC), [2001] 2 FC 124, [2000] FCJ No1913 (QL) [Veres] Justice Denis Pelletier (as he then was), after citing Sivaraj and Kaur, above, confirmed that the RPD can direct whichevidence it wishes to hear from the mouth of a witness and which it waives hearing.

When it says that it does not need to hear from awitness, it cannot subsequently complain that it has not heard from the witness.

Obviously in Veres, the circumstances my learnedcolleague had to deal with were quite different, but the point made at paragraph 32 of his decision that “[t]he price of setting the agendais to accept the responsibility for the items which are missed” is an important one that can apply to comments such as those made in thiscase, especially now that the claimants generally present their case only after the RPD has set out the issues to be dealt with and carriedout its own cross-examination. [13] As evidenced by the two cases relied upon by the respondent (Ndombele v Canada (Minister of Citizenship and Immigration),2001 FCT 1211, particularly paragraph 22 where the affidavit of a witness who did not testify had been filed, and Singh v Canada(Minister of Employment and Immigration) (1994), 50 ACWS (3d) 651, [1994] FCJ No 1367, where the main reason for refusing therefugee claim appears to have been the absence of critical aspects of his story from his personal information form) one must alwaysexamine the particular facts of each case to see if what was said and done was fair. [14] That said, the Court strongly believes that the RPD should refrain from taking a position on the necessity of presenting awitness unless it knows exactly what facts the witness will testify about and in what specific respect this evidence is meant to corroboratea claimant’s testimony or story.

If a counsel simply inquires about the advisability of presenting a witness, the RPD can always refuse totake a position on the basis that it has yet to complete its evaluation of the evidence. If it chooses to take a stand, it must be fully awarethat its decision will have consequences. [15] In this particular case, the Court finds that the RPD ought to have known that its comment that the evidence was not necessarywould clearly impact on the legal representatives acting in this case and it is clear that it did so without knowing the full extent of thefacts on which the proposed witness was meant to testify.

[ 16 ] Even if the RPD did rely on other issues in its reasons, the Court is not convinced that this breach of procedural fairness had no impact whatsoever on the ultimate decision. The Court must thus set aside the decision. [ 17 ] The parties did not present any question for certification and the Court is satisfied that this case turns on its own facts. [ 18 ] The application is granted. ORDER THIS COURT ORDERS that the application is granted.

The matter shall be remitted to a differently constituted panel for consideration. “Johanne Gauthier” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6953-10 STYLE OF CAUSE: ALI ISIK v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: June 16, 2011 REASONS FOR ORDER: GAUTHIER J. DATED: June 17, 2011

APPEARANCES : Mr. Lorne Waldman FOR THE APPLICANT Ms. Neeta Logsetty FOR THE RESPONDENT SOLICITORS OF RECORD : Waldman & Associates Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT