Date: 19990722
Docket: IMM-3904-98
BETWEEN:
JAVAD JAMALI BAYRAMI and
ASHRAF AHMADZADEH KABOUTARI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicants, citizens of Iran, seek judicial review of a decision of the Convention Refugee Determination Division, Immigration Refugee Board (the "Board") dated July 13, 1998 wherein they were found not be Convention refugees.
[2] The issues are whether the failure of the Board to produce the second daughter"s PIF and allowing into evidence the first minor daughter's PIF is contrary to natural justice and the denial of fair hearing.
[3] There were other issues raised by the applicants which do not have to be dealt with in light of my decision with respect to the denial of a fair hearing and natural justice, but I will comment briefly on one issue: the statement of facts.
[4] Applicants' counsel asked, at the beginning of the hearing on May 26, 1997, for the Board to produce the minor daughter"s PIF. The Board requested the Refugee Office to obtain for applicants' counsel the RCO and had still not obtained it by the date of the next hearing, January 21, 1998, and again repeated that it would be obtained.
[5] When the hearing resumed for the final time on March 24, 1998, the second daughter"s PIF was still not available and the Board and RCO could not remember promising to produce it. Counsel pointed out the earlier objections to the Board proceeding without the second daughter"s PIF being made available. The Board never made any statement on the relevance of the second daughter"s PIF, nor did it give any reasons for not producing it, except that their notes did not record counsel"s objections at both earlier hearings. And the RCO said it was unavailable as of the date of March 24, 1998. The transcript clearly discloses that applicants' counsel objected to entering one daughter"s PIF without the other. The Board never ruled on whether it was appropriate to allow the first daughter"s PIF in, when the second daughter"s PIF was unavailable. In the peculiar circumstances of this case, the foregoing constitutes a breach of natural justice.
[6] Mr. Justice Décary sets out the remedy when there has been a denial of fair hearing in Silch v. The Minister of Employment and Immigration (1993) 18 Imm. L.R. (2nd) 239 at p. 243; he quotes from the Supreme Court of Canada in Cardinal v. Kent Institution (1985) 2 F.C.R. 643, where it was made clear that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would have likely have resolved in a different decision. The right to a fair hearing must be regarded 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, It is not for a Court to deny that right and speculate as to what the result might have been might have been had there been a hearing.
[7] Accordingly, the decision of the Board must be set aside. The Board also made misstatements of facts and, in particular, the Board failed to offer the applicants an opportunity to explain the difference in their PIF and the port of entry notes.
[8] The application for judicial review is allowed. The matter is returned to a differently constituted Board to be determined in a manner not inconsistent with these reasons. The decision of the Board dated July 13, 1998 is set aside.
William P. McKeown
____________________
JUDGE
OTTAWA, Ontario
July 22, 1999.