Date: 19980820
Docket: IMM-348-98
BETWEEN:
MOHAMMAD YUNUS SARDER,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
AMENDED REASONS FOR ORDER AND ORDER
(Pursuant to Rule 397(2))
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Applicant wishes to file an affidavit exhibiting two very recent clippings from Bangladesh newspapers, which are said to show that the verification process engaged in by the Immigration and Refugee Board was fundamentally flawed in that the verifier, in Bangladesh, is partisan, with an interest opposed to the Applicant's political position. It is material which obviously, given the current nature of the events it describes, was not and could not have been before the Board.
[2] The answer to such request is that material which was not before the Board ought not to be admitted at this stage, for the task of the judge, hearing an application such as this, is to take into account only material which was before the Board and by that means determine if the Board made a reviewable error. Indeed, as Mr. Justice Teitelbaum pointed out in Quintero v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 251 at 257, "It is not for a Judge on judicial review to assess documents not produced before the Board to conclude that the Board rendered its decision in a manner not in accordance without the law or with a proper appreciation of the facts.".
[3] Counsel for the Applicant refers to Nguyen v. Canada (Minister of Employment and Immigration) (1994), 107 D.L.R. (4th) 186, in which Madame Justice Reed departed from the established rule in the interest of justice. In that instance the applicant was granted leave to file an affidavit to which was attached a transcript of the hearing which took place before the Board. The transcript was relevant in that the Board purported to base its decision, which contained copious quotations, on its own notes. The transcript gave a different view of what actually occurred at the hearing. Madame Justice Reed felt the transcript of the hearing was exactly the material, given the nature of the arguments made by the parties, that the Court could order to be filed, pursuant to the Immigration Rules. However, in the present instance, the material which the Applicant now wishes to file does not fall within that category. It is material which was neither before the Board nor generated as a result of the Board's hearing.
[4] Even though the material which the Applicant now wishes to file might have had some relevance had it been before the Board, I must keep in mind that the judicial review process is to look at the decision of a tribunal in the light of the material which was before the tribunal at the time and then to decide whether or not there are grounds for review. From that perspective the subsequent evidence which the Applicant wishes to file is irrelevant for judicial review is not an appeal, where there might be leave to file newly discovered evidence, but rather is a review process: see Asafov v. Canada, an unreported 18 May 1994 decision of Mr. Justice Nadon in file IMM-7425-93.
[5] In the result the motion brought by the Applicant, for leave to file what is, in effect, fresh evidence, is dismissed.
ORDER
[6] The Applicant's motion to file a further affidavit, to be included in the Applicant's Reply Record, is denied. The Applicant may have until 1 September 1998, to serve and file the Applicant's Reply Record.
(Sgd.) "John A. Hargrave"
Prothonotary
20 August 1998
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: August 13, 1998
COURT NO.: IMM-348-98
STYLE OF CAUSE: Mohammad Yunus Sarder
v.
MCI
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated August 13, 1998
WRITTEN SUBMISSIONS BY:
Mr. Anthony Norfolk for Applicant
Ms. Sandra Weafer for Respondent
SOLICITORS OF RECORD:
Anthony R. Norfolk
Barrister & Solicitor
Vancouver, BC for Applicant
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada