Badal v. Canada (Minister of Citizenship and Immigration)

IMM-1105-02

2003 FCT 311, O'Reilly J.

14/3/03

11 pp.

Applicant, 71-year-old citizen of Iran arrived in Canada in 1998, claimed refugee status based on alleged fear of persecution in Iran because of religion--Applicant participated in two hearings before Immigration and Refugee Board and, in both cases, Board found applicant not Convention refugee--Applicant seeking third hearing on basis Board made various errors in determining claim--Applicant's family Christian--Applicant said family had various problems with regime in Iran after Islamic revolution--Whether Board breached duty of fairness by making negative credibility findings in absence of Mr. Badal's testimony--Relying on Khalof v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 282 (F.C.T.D.), applicant argued credibility findings should not be based solely on review of transcript--In Khalof, Gibson J.'s reasoning raises two distinct legal questions: first, as to admissibility, transcripts of previous hearings generally admissible before Board; second, as to fairness, whether applicant had opportunity to introduce any new evidence and make submissions on entirety of evidence before Board--If so, then process fair--No reason Board should not be able to consider transcript of previous hearing and make finding of lack of credibility based on transcript--Such findings have to be carefully explained and can only be made after thorough review of evidence--In present case, applicant had opportunity to introduce evidence and make oral and written submissions to Board--Board's consideration of transcript from first hearing not unfair-- Reliance on transcript to reach conclusion "insufficient credible or reliable evidence" supporting applicant's claim permissible--No breach of duty of fairness--Whether Board erred in law or breached duty of fairness in relying on reasons of previous panel--Board can rely on fact-finding of another panel--Board may also admit in evidence and read written reasons of previous panel dealing with same applicant--If Board does, must determine whether reasonable observer would think Board had carried out thorough, independent and impartial analysis of all evidence--Must be clear Board considered matter afresh--Equally, Board must not simply attach to decision reasons of another panel--Here, Court ordered reconsideration of evidence--Failure of applicant to testify did not relieve Board of obligation to assess all of evidence, including transcript from first hearing--Here, reasonable observer would conclude Board simply relied on previous panel's assessment of applicant's testimony instead of conducting own assessment--Mere reference to observa-tions of previous panel does not satisfy obligation to explain negative credibility finding--Application for judicial review allowed.