[2000] 4 F.C. 708
IMM-6423-98
Amer Afzal (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Afzal v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.—Montréal, January 12; Ottawa, June 19, 2000.
Citizenship and Immigration — Immigration practice — Applicant claiming well-founded fear of persecution based on political grounds if returned to Pakistan — Claim denied by Refugee Division — Tribunal not satisfied with documentation provided by applicant’s counsel at refugee hearing, asking for more material — Preferred Research Directorate’s opinion as based on information from neutral source — Not convinced applicant facing charges of murder in Pakistan — Refugee Division not bound by legal, technical rules of evidence under Immigration Act, s. 68(3) — Tribunal entitled to investigate issue to satisfy itself — Case law on necessity for reopening hearing reviewed — Reopening of hearing best practice — Issue of availability of First Information Reports should have been addressed at reconvened hearing.
This was an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board (the Tribunal) denying the applicant’s claim that he had a well-founded fear of persecution based on political grounds if he were to return to Pakistan. The applicant, who has been an active member of the Pakistan People’s Party (PPP) since 1991, was accused of a murder, committed on August 15, 1997, against a member of an opposing clan. He claimed his innocence. At the refugee hearing, the Tribunal asked counsel for the applicant to produce certain documents, including a letter from his solicitor in Pakistan, explaining that the applicant could not have access to a copy of the first information reports (FIR) filed with police. The panel was not entirely satisfied with that letter and required further documentation. Shortly after the hearing, the Tribunal was apprised of a response to a request for information from the Research Directorate, Immigration and Refugee Board. The response was to the effect that, in Pakistan, an accused has a right to get a copy of his FIR and that his lawyer can also obtain a copy from the police or, if the case has already gone to court, from the court house. In reply, the applicant’s lawyer submitted a letter from a retired Pakistani High Court Judge, Mr. Bahtti, stating that, while a citizen has a right to full disclosure, in practice suspects are afraid to contact the police for fear of being arrested on the spot. The Tribunal preferred the opinion prepared by the Research Directorate as it was based on information from a neutral source. It did not believe that the claimant was facing charges in Pakistan. Two issues were raised herein: (1) whether the Tribunal could request additional documentation, and (2) whether the hearing should have been reconvened.
Held, the application should be allowed.
(1) Sections 67 through 69 of the Immigration Act indicate the manner in which Parliament intended refugee claims to be dealt with. The procedural vehicle is the hearing of a claim by the Refugee Division at which the claimant is present, has a reasonable opportunity to present evidence, question witnesses and make representations. In that context, Parliament has indicated a measure of flexibility, particularly in section 68 of the Act, providing that all proceedings before the Refugee Division shall be dealt with informally and expeditiously. Moreover, subsection 68(3) provides that the Refugee Division is not bound by any legal and technical rules of evidence and subsection 68(4) authorizes it to take notice of any facts that may be judicially noticed or other generally recognized facts and any information within its specialized knowledge. The Tribunal was not confined to taking in and considering the claimant’s evidence on his alleged murder charge. It can, if it is concerned with an issue, investigate it in order to satisfy itself.
(2) The only way for the Refugee Division, after the end of a hearing but before decision, to consider new evidence beyond that of which it might take judicial notice was by reopening the hearing, and it should have done so. Based on the scheme of sections 67 to 69 of the Act, the Federal Court of Appeal has recognized as a rule that information acquired by a tribunal after the hearing of a refugee claim should be put into evidence at a reconvened oral hearing in order that the claimant may exercise the rights Parliament accorded under subsection 69.1(5) of the Act. It was also recognized that, in limited circumstances, information acquired after a hearing could be considered and relied upon provided there was consent by the parties and the rules of natural justice were followed in terms of a realistic opportunity to comment. However, a reopening of a hearing is the best practice and in accord with the intention of Parliament buttressed by the Supreme Court of Canada decision in Singh et al. v. Minister of Employment and Immigration. The issue of availability of the FIR should have been addressed at a reconvened hearing after the Tribunal had received the Documentation Centre’s Information Report and Mr. Bahtti’s comment. This conclusion was based on a number of reasons including the fact that the limitations set out in two recent Federal Court decisions were not observed in that the applicant had not given a proper waiver or full consent. Also, the nature of the evidence was critical to the applicant’s claim and was the basis upon which the Tribunal concluded against him. Moreover, the circumstances in which FIRs are available is not a matter within the Tribunal’s specialized knowledge, as demonstrated by the fact that evidence was sought on the point by the Tribunal itself. Finally, the nature of that evidence, in this case proof of foreign law and practice, should be established at a hearing providing the claimant with an opportunity to cross-examine, lead other evidence on the point and make submissions.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 67 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 68 (as am. idem; S.C. 1992, c. 49, s. 57), 68.1 (as enacted by S.C. 1992, c. 49, s. 58), 69 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), 69.1 (as enacted by S.C. 1992, c. 49, s. 60).
CASES JUDICIALLY CONSIDERED
APPLIED:
Salinas v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 247 (1992), 93 D.L.R. (4th) 631 (C.A.); Szylar v. Canada (Minister of Employment and Immigration) (1994), 79 F.T.R. 47 (F.C.T.D.); Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404 (1991), 78 D.L.R. (4th) 522; 48 Admin. L.R. 152; 13 Imm. L.R. (2d) 163 (C.A.); Yushchuk v. Minister of Employment and Immigration (1994), 83 F.T.R. 146; 25 Imm. L.R. (2d) 241 (F.C.T.D.); Sorogin v. Canada (Minister of Citizenship and Immigration) (1999), 163 F.T.R. 116 (F.C.T.D.); Albert v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 42 (T.D.) (QL).
CONSIDERED:
Kuslitsky et al. v. Canada (Minister of Citizenship and Immigration) (1998), 148 F.T.R. 136 (F.C.T.D.).
REFERRED TO:
Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.
APPLICATION for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board denying the applicant’s claim that he had a well-founded fear of persecution based on political grounds if he were to return to Pakistan. Application allowed.
APPEARANCES:
Raffaele Mastromonaco for applicant.
Christine Bernard for respondent.
SOLICITORS OF RECORD:
Raffaele Mastromonaco, Dorval, Quebec, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Lemieux J.:
INTRODUCTION
[1] Amer Afzal, the applicant, challenged a November 23, 1998 decision of the Refugee Division of the Immigration and Refugee Board (the Tribunal). The Tribunal did not recognize the applicant’s claim that he had a well-founded fear of persecution based on political grounds if he were to return to Pakistan.
[2] The applicant challenges the Tribunal decision in two important ways. First, the Tribunal, it is said, overstepped its role which is to evaluate a claim based on the evidence presented. The Tribunal should have been satisfied the applicant was falsely accused of murder. Instead, the Tribunal pulled him into a legal debate on the accessibility to an accused of first information reports (FIR). Second, the applicant says the Tribunal unfairly imposed on him the obligation to rebut a response obtained from the IRB’s Documentation Centre, attached too much weight to it and, as a result, ignored the substantial evidence he had presented.
[3] The applicant is an active member of the Pakistan People’s Party (PPP) since 1991 and the Tribunal so found. He claimed to be the son of a powerful leader of the Malik clan in his village. The Maliks traditionally have supported the PPP. The opposing clan, the Kashmiris have usually lent their support to the Pakistan Muslim League (PML).
[4] On August 15, 1997, Mohammad Ashraf, a member of the Kashmiri clan, was killed during a clash between the two clans. The applicant was accused of that murder. He claims he was not present on August 15, 1997 during that clash and says the reason he was accused was because of his involvement in the PPP.
The Tribunal hearing and decision
(1) Some procedural steps
[5] I note from the record, the Tribunal heard Mr. Afzal’s claim on May 7, 1998 and on July 15, 1998. At the May 7, 1998 hearing, the Tribunal had asked counsel to Mr. Afzal to produce a few more documents. One of those produced was a letter from Raja Muhammad Nisar Khan, Mr. Afzal’s solicitor in Pakistan; it was entered into the record as Exhibit P-23 and is found at page 254 of the certified record. That letter is dated May 13, 1998 and is addressed to Mr. Afzal referring to his request that he obtain and provide Mr. Afzal a copy of FIR filed with the police in connection with the August 15, 1997 incident alleging he was involved in a case under section 302 of the Pakistan Penal Code. This is what Mr. Khan said to Mr. Afzal:
I regret to inform that under the criminal procedure code of this country a copy of any police record can be made available only after a case has been lodged in the court to a defence attorney, and that also after informs the court that he has been mandated to defend the accused.
As you have not authorized me to defend in the court, therefore I shall not be able to provide you the above. On the request of your father, I contacted local police authorities to enquire about case, but they have not provided any information due to the reasons mentioned above. However, police was of the opinion that I must provide Mr. Amer Afzal first for investigation, then they will decide.
In the above circumstances, it is almost impossible to provide you the required documents. Please keep in touch with me. When I receive any intimation, I will inform you.
[6] Other material received by the Tribunal after the May 7th hearing consisted of original newspaper clippings from Pakistan reporting the August 15, 1997 death.
[7] The transcript of the hearing of July 15, 1998 (certified record pages 267 and 268) contains an exchange between the presiding member and Mr. Afzal. The presiding member noted Mr. Khan said he could not get a copy of the procedures against him because he had not been mandated to defend him. The presiding member asked whether he had been given this mandate. Mr. Afzal said he had not adding “he was not given opportunity to defend. In order to do so, I have to go back and give my arrest”.
[8] There was further discussion between Mr. Afzal, the refugee claim officer (RCO) and the presiding member as to which came first: the arrest or the mandate to the lawyer. The RCO added “we may have further documents pretty soon, coming on that topic” and he mentioned a telephone conference call “we had last week, I think, with a Mr. Rahman … and a paper, a summary will be provided pretty soon, as soon as possible on that topic”.
[9] At the end of the hearing of July 15, 1998, the presiding member said the panel was not entirely satisfied with the letter from Mr. Khan (Exhibit P-23) “because it’s still somewhat mysterious as to why no documentation can be produced by the courts” (certified record, page 281). The presiding member said “so, unfortunately, today we’re not prepared to end the hearing or take a determination. We do require further documentation”. He concluded at page 285 of the certified record “so the hearing is adjourned for today”.
[10] After the adjourned hearing of July 15, 1998, the following transpired:
(1) On July 17, 1998, Mr. Afzal’s counsel submitted to the Board further documentation;
(2) On September 15, 1998, the Tribunal sent to Mr. Afzal’s counsel a copy of a document entitled “Response to Information Request PAK 29687.E” indicating the panel would consider it adding “any evidence you wish to adduce or arguments in this regard may be submitted before October 9, 1998”;
(3) On September 30, 1998, the claimant’s counsel wrote to the presiding member acknowledging the September 15, 1998 letter saying he was a bit surprised after receiving the letter because he was under the impression the case had been completed. He added (certified Tribunal record, at page 242) “[n]ow at this stage to introduce a new statement and that also based on a testimony of a lawyer from Pakistan, about whom we do not know that in what context or for what motive he did make such a lop-sided statement seems unfair”. However, he said he had contacted a retired judge of the Pakistan High Court and enclosed a copy of his reply saying the essence of Mr. Bahtti’s response is that:
a) It is only when a case proceeds in court that the Right to Full Disclosure, under which copies of FIR etc. are definitely available and at any earlier stage, even if such a right does exist, it is like non-existent, for reasons he has elucidated in full detail;
b) the factual practice of such a right is another story and his opinion makes an interesting reading.
He concluded by saying “I sincerely hope that with all the facts available, the panel would now be able to render a decision and hopefully a positive one”.
(2) The Tribunal’s decision
[11] The Tribunal rendered its decision on November 23, 1998.
[12] The Tribunal began its analysis with the following proposition:
In view of the centrality to the claim of the murder charges allegedly pending against the claimant in Pakistan, it was surprising to the panel that he presented no legal documents to corroborate this allegation.
[13] The Tribunal stated, however, the applicant filed as Exhibit P-9 a letter written by Mr. Raja Mumtaz Ahmed Khan, dated April 9, 1998 (certified record page 217). Mr. Khan is an advocate and president of the PPP in the Jhelum district. The Tribunal quoted the following extract from that exhibit:
It is also certified that Mr. Amer [the claimant] had faced hardships in the area and the political opponents i.e. Pakistan Muslim League had made every effort to destroy his future. It is on record that police had registered a fabricated case of murder against him under section 302 whereas he was not even present at the time of bradri clashes. [Emphasis mine.]
[14] The Tribunal also mentioned Exhibit P-12(2), an article from the Daily Paigham, in Lahore, dated July 29, 1997 ((sic) August 17, 1997—see page 259 of the certified record), which reports that a clash between rival clans, the Kashmiris and the Maliks, took place in which Muhammad Ashraf was killed. It states the police registered a case against Malik Amer Afzal under section 302 and adds:
According to the residents of the area Malik Amer Afzal were [sic] not present in the village during the incident but he was in Jehlum due to his personal work.
[15] The Tribunal continued its reasoning by writing the following:
In spite of the two pieces of evidence cited above, the panel believed its expectation that the claimant should produce court and/or police documents relating to the alleged charges of murder against him, to be reasonable. The claimant, however, argued that in Pakistan, no court documents will be released to an individual charged with a crime, or to his lawyer, until the matter has come before the courts or until the accused has surrendered to police.
The claimant alleges that because he has absconded from police, he cannot obtain police or court records. [Emphasis mine.]
[16] The Tribunal said that shortly after the hearing, it was apprised of a response to a request for information. That request for information is dated July 13, 1998 and is from the Research Directorate, Immigration and Refugee Board, Ottawa and the subject is the following:
Pakistan: Update to Response to Information Request PAK 19026.E of 14 November 1994, on whether an accused or his/her lawyer can obtain a copy of his/her FIR, and if so, under what circumstances, from which police or court jurisdiction, and what notations would appear on the FIR showing that it had been legally obtained.
[17] The Tribunal quoted the text of the Research Directorate’s response and I do the same:
The following information was provided in a 9 July 1998 presentation by Mujeeb ur-Rehman, a Supreme Court advocate of Pakistan, that was held at the Immigration and Refugee Board office in Calgary. The Research Directorate participated via conference call. Mujeeb ur-Rehman is an independent legal practitioner who has been practising law for 26 years, has his own law practice and is not affiliated with any law firm or human rights organization. Rehman is also a scholar of Islamic jurisprudence and a human rights activist. He has spoken to the IRB in the past.
Rehman stated that any order passed in any court in Pakistan is a public document and copies of it can be obtained from the court Copying Agent by any individual for a minimum charge, not above the means of the common citizen. However, there are certain documents that only the accused can obtain.
The accused has a right to get a copy of his/her FIR and/or arrest warrant. His/her lawyer can also request his clerk to obtain a copy of the FIR from the Superintendent of Police or, if the case has already gone to court, from the court house. Copies of the FIR and/or arrest warrant are certified by the court Copying Agent under the Law of Evidence.
FIRs and arrest warrants are retained for a minimum of three years.
Please note that the Research Directorate was unable to obtain a copy of the Law of Evidence.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. [My emphasis.]
[18] The Research Directorate says additional sources consulted were the University of Ottawa Law Library, the Research Directorate’s “Pakistan” legislation file, a Pakistani text on the Code of Criminal Procedure and an internet reference link, WNC.
[19] The Tribunal sent a copy of the Research Directorate’s response to both counsel at the hearing who were given an opportunity to make comments in writing.
[20] Counsel for the applicant, as noted, responded on September 30, 1998, submitting a letter from a retired judge of Pakistan’s High Court, Mr. Raja Aziz Bahtti. That letter is dated September 28, 1998 and is found at page 244 of the certified tribunal record and is entitled “Ref: Right to full disclosure under the Penal Code of Pakistan and its factual practice”.
[21] I quote the entire text of that letter:
Thank you for consulting me on the above subject. In my practice as an Advocate, I am regularly involved in proceeding where the use of documents such as FIR and Arrest Warrants are an issue, especially in cases where the police has apprehended a citizen without proper arrest warrants or conducted a search without authority.
In law it is true that a citizen has the right to full disclosure, but it is almost non-existent as in most of the cases citizens are afraid to contact the police themselves for fear of being arrested on the spot. Whenever, such documents are requested, they are requested through an attorney where a citizen can afford one. Insofar as the providing of an attorney if cannot afford himself the right again is almost non existent. When an attorney approaches the police, on behalf of his client, for such documents he is required to produce what we call Vakaltnama whereby the client is deemed to have retained the services of that attorney. In such cases also, the police often asks the whereabouts of his client because otherwise it is against the law as harbouring a fugitive is illegal.
I can assure you that when a case has gone before the court of law, such a right is invariably exercised. It is only in such cases that one can say that the Right to Full Disclosure is available and, in use. [Emphasis mine.]
[22] The Tribunal made this comment about Mr. Bahtti’s letter:
Briefly, Mr. Bahtti alleges that in Pakistan, when a lawyer presents himself at a court asking for documents pertaining to a client, he will be asked to disclose his client’s whereabouts and, since prior to receiving these documents harboring a fugitive is a crime, the lawyer may be forced to break the law by refusing to disclose his client’s whereabouts. Therefore, it becomes impossible for lawyers to obtain legal documents concerning their clients.
According to Counsel’s exhibit, while full disclosure is a legal requirement in Pakistan, in practice, compliance with this principle is uncommon. [Emphasis mine.]
[23] The Tribunal assessed what it called “conflicting evidence it received in Exhibits A-26” (the Research Directorate’s response) and Mr. Bahtti’s letter. In making this assessment, the Tribunal took into consideration the fact the Research Directorate’s response was prepared from information received from a neutral source, namely, “Mujeeb ur-Rehman, a Supreme Court advocate in Pakistan, is an independent legal practitioner who has practised for 26 years. He is not affiliated with any law firm or human rights organization. Mr. ur-Rehman is also a scholar of Islamic jurisprudence and a human rights activist. There is no reason for Mr. ur-Rehman, to present evidence contrary to the interests of this or any refugee claimant”.
[24] The Tribunal said the information contained in Exhibit A-26 establishes that an individual accused in Pakistan of murder could obtain documentary evidence of these charges in the form of police report (FIR) and/or court documents through his or her lawyer. The Tribunal said “we do not believe that the justice system in Pakistan would deny access to such documents to the legal representative of the accused”.
[25] Concerning Mr. Bahtti’s advice, the Tribunal said it considered it and noted this document came from Pakistan in the form of a faxed message to counsel. The Tribunal said “we find the document to have been written for the purposes of the claim. The document does not rebut the findings contained in Exhibit A-26”.
[26] The Tribunal went on to say it had special knowledge of Pakistan and wrote:
We have seen court and police documents presented as evidence in other refugee claims made by citizens of Pakistan, including cases lodged against members of the PPP for charges of murder.
For all the above reasons, we do not believe that the claimant faces charges in his country.
[27] As noted, the Tribunal did not dispute the fact the applicant was a member of the PPP. The Tribunal added this:
The documentary evidence, however, does not establish that all members of this party regardless of their rank and personal situation are currently at risk of persecution in Pakistan.
The claimant did not provide generally credible or trustworthy evidence in support of his allegation that he would be persecuted were he to return to Pakistan.
There is not a reasonable possibility that the claimant would be persecuted were he to return to his country.
Amer AFZAL is, therefore, determined not to be a “Convention refugee”.
ANALYSIS
The Tribunal’s request for additional documentation
[28] The principal provisions relating to the conduct of hearings before the Tribunal are found in sections 67 [as am. by R.S.C., 1985 (4th Suppl.), c. 28, s. 18] and 68 [as am. idem; S.C. 1992, c. 49, s. 57] and subsections 69.1(1) [as enacted idem, c. 49, s. 60] to 69.1(5) [as enacted idem] of the Act [Immigration Act, R.S.C., 1985, c. I-2]. These provisions read:
67. (1) The Refugee Division has, in respect of proceedings under sections 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
(2) The Refugee Division, and each member thereof, has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of a hearing,
(a) issue a summons to any person requiring that person to appear at the time and place mentioned therein to testify with respect to all matters within that person’s knowledge relative to the subject-matter of the hearing and to bring and produce any document, book or paper that the person has or controls relative to that subject-matter;
(b) administer oaths and examine any person on oath;
(c) issue commissions or requests to take evidence in Canada; and
(d) do any other thing necessary to provide a full and proper hearing.
68. (1) The Refugee Division shall sit at such times and at such places in Canada as are considered necessary by the Chairperson for the proper conduct of its business.
(2) The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
(4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge.
…
(5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto.
…
69.1 (1) Subject to subsection (2), where a person’s claim to be a Convention refugee is referred to the Refugee Division pursuant to section 46.02 or 46.03, the Division shall, as soon as is practicable, commence a hearing into the claim.
(2) Where a person’s claim to be a Convention refugee is referred to the Refugee Division pursuant to section 46.02 or 46.03, the Division shall, if the Minister so requests in writing at the time of the referral, provide the Minister with the information referred to in subsection 46.03(2) and, as soon as is practicable after the expiration of the period referred to in subsection (7.1), commence a hearing into the claim.
(3) The Refugee Division shall notify the person who claims to be a Convention refugee and the Minister in writing of the time and place set for the hearing into the claim.
(5) At the hearing into a person’s claim to be a Convention refugee, the Refugee Division
(a) shall give
(i) the person a reasonable opportunity to present evidence, question witnesses and make representations, and
(ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations; and
(b) may, if it considers it appropriate to do so, give the Minister a reasonable opportunity to question the person making the claim and any other witnesses and to make representations concerning the claim.
[29] The underlying question raised in this judicial review application relates to the role of the Tribunal in examining this claim. Did it cross the line when, on the basis of the evidence filed by the applicant, it was not satisfied that no FIR or charge had been produced and filed to substantiate his claim he was accused of murder.
[30] Sections 67 through 69 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60] of the Act indicate the manner in which Parliament intended refugee claims to be dealt with. The procedural vehicle is a hearing of a claim by the Refugee Division at which the claimant is present, has a reasonable opportunity to present evidence, question witnesses and make representations. The contemplated hearing is an oral hearing and such procedure is in full accord with the Supreme Court of Canada decision in Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
[31] Yet, in that context, Parliament has indicated a measure of flexibility, particularly in section 68, providing that all proceedings before the Refugee Division shall be dealt with “as informally and expeditiously as the circumstances and considerations of fairness permit”. Moreover, subsection 68(3) provides that the Refugee Division is not bound by any legal and technical rules of evidence and subsection 68(4) authorizes it to take notice of any facts that may be judicially noticed or other generally recognized facts and any information within its specialized knowledge.
[32] I do not agree with counsel for the applicant that the Tribunal was confined to taking in and considering the claimant’s evidence on his alleged murder charge. The RCO has a role here (see section 68.1 [as enacted by S.C. 1992, c. 49, s. 58] as to the powers of the RCO) and this central issue was a principal focus of the hearings.
[33] Salinas v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 247(C.A.) is authority for the proposition that the Tribunal can, if it is concerned
[34] Mr. Justice Denault in Szylar v. Canada (Minister of Employment and Immigration (1994), 79 F.T.R. 47 (F.C.T.D.), confirmed the right of a Tribunal to ask the Documentation Centre for additional information concerning the status of the law in Poland when the hearing had concluded and was reserved. I am in complete agreement with his reasons. In that case, as here, the Tribunal gave notice to the applicant. However, in that case but not here, a new hearing was held.
Should the hearing have been reconvened?
[35] The second question which arises is whether the Tribunal went about receiving the additional documentation in the correct manner. Factually speaking, it is important to recall that the unsatisfactory state of the evidence had been identified at the hearing and the presiding member adjourned the July 15, 1998 hearing because of this fact.
[36] In Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404 the Court of Appeal set aside a Board decision where, following the conclusion of the hearing, it received a large quantity of evidence, as a result of its own inquiries and upon which it relied; the applicant, who had received notice of the information, had requested a reopening of the hearing but this request was denied. Mr. Justice Hugessen said this at pages 410-411:
The members of the panel obviously misapprehended the nature of the power conferred by subsections 68(4) and 68(5). By its terms, subsection 68(4) is limited to facts which may be judicially noticed, generally recognized facts, and information or opinion that is within the Board’s specialized knowledge. By no stretch of the imagination, could the details of the charges and of the dispositions against the persons involved in the Nigerian blackout of October 1988, or the details of the publication schedule of the Nigerian Daily Times fall into any of those categories.
While it is possible, as argued by counsel for the Minister, that subsection 67(2) gives to the Board the power to institute inquiries on its own, it is clear that such powers may only be exercised “for the purposes of a hearing”. More specifically, the power given by paragraph 67(2)(d) and relied on by counsel may only be invoked if “necessary to provide a full and proper hearing”.
But there is more. Subsection 69.1(4) specifically requires that the Refugee Division hold its hearings in the presence of the claimant. A consideration of the scheme of sections 67 to 69.1 inclusive makes it abundantly clear that the Board is only to proceed to the determination of refugee claims by way of hearing. In the context, this must mean an oral hearing. The Board has no power to take evidence other than at a hearing and, absent a proper waiver, such hearing must be in the presence of the claimant. [Emphasis mine.]
[37] This view was reiterated in part by the Federal Court of Appeal in Salinas, supra, where Mr. Justice Stone wrote at page 253:
Nor, in our view, was the Refugee Division functus officio. It had yet to make a determination of the claim. Until it did, the proceedings were still pending and finality had not been reached. In order to arrive at its decision, the Refugee Division could exercise the powers conferred by and under the statute provided it did so properly by giving the respondent an opportunity to be heard at the reconvened hearing. That it did. Inquiry into any change of conditions in the respondent’s homeland comes within the general mandate of the Refugee Division in determining the claim. The Division should be allowed to complete its statutory task.
In our view the issue has already been implicitly decided for this Court in Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404 where Hugessen J.A. held for the Court that the only way for the Refugee Division, after the end of a hearing but before decision, to consider new evidence beyond that of which it might take judicial notice was by reopening the hearing, and that it should do so. This Court’s decision in Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 relied on by the Motions Judge, applies only where the Refugee Division has already reached a decision. In summary, we can see no basis for finding that the Refugee Division lacked jurisdiction or exceeded its jurisdiction by deciding to reconvene the hearing into the respondent’s claim to be a Convention refugee in order to hear evidence of any change of conditions in Panama. In short, no sound reason has been shown to exist for allowing any interference with the decision to reconvene. [Emphasis mine.]
[38] Justice Denault in Szylar, supra, noted in the case before him a hearing had been reconvened by the Board to consider the after-hearing acquired evidence.
[39] In Yushchuk v. Minister of Employment and Immigration (1994), 83 F.T.R. 146 (F.C.T.D.). The Court, dealt with a problem of evidence being submitted post-hearing but before decision by the claimant which had been refused by the Board. Mr. Justice Nadon was of the view the Board ought to have reopened the hearing to consider that additional documentation.
[40] In Kuslitsky et al. v. Canada (Minister of Citizenship and Immigration) (1998), 148 F.T.R. 136 (F.C.T.D.), Mr. Justice Dubé allowed a judicial review in a case where the nationality of the person was at issue and raised at the hearing; a “fragile and obscure” consent to verify documentation was given by the refugee claimant which occurred post-hearing and copy sent to the claimant but the hearing not reopened.
[41] Dubé J. concluded at paragraph 11 [page 141]:
In the circumstances, it seems plain to me that absent formal consent between the parties to this procedure being adopted, the Refugee Division quite simply could not obtain a document after the hearing and base its decision on that document without first affording the applicants an opportunity to make representations or cross-examine the author. That procedure amounted to a denial of natural justice.
[42] Madam Justice Tremblay-Lamer in Sorogin v. Canada (Minister of Citizenship and Immigration) (1999), 163 F.T.R. 116 (F.C.T.D.), had to consider a similar issue as in Kuslitsky, supra, i.e. doubts about a person’s nationality and agreement at the hearing to have the RCMP examine the document with the right of the applicant to make submissions within ten days of the receipt of the RCMP’s report. The applicant was sent a copy of the RCMP’s report but said he did not receive it; the Tribunal rejected his claim.
[43] Madam Justice Tremblay-Lamer said the strictness of Lawal, supra, had been tempered through the repeal [S.C. 1992, c. 49, s. 60] of then subsection 69.1(4) [R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act which read:
69.1 …
(4) A hearing into a claim shall be held in the presence of the claimant.
In Lawal, supra, Mr. Justice Hugessen referred to this section and introduced it by saying “but there is more”.
[44] Madam Justice Tremblay-Lamer expressed herself in the following way [at paragraphs 9-11, pages 120-121]:
However, as counsel for the respondent submits, s. 69.1(4) was repealed after Lawal, so in his opinion, it would now be acceptable to have a more formal procedure, whereby evidence may be filed outside hearing where the parties consent to such a procedure and where the rules of natural justice are observed by allowing the claimant to comment on that evidence.
The repeal of s. 69.1(4) certainly relaxed the rule established by Lawal, since the panel is no longer required to hold a hearing in the claimant’s presence. Parliament thus prefers a more flexible procedure. In my view, as long as the rules of procedural fairness are observed and the parties consent, the scheme of the Act allows for proceeding in this manner, since Parliament expressly provided that the Refugee Division is not bound by the formal rules of evidence.
While reopening the hearing is always the most appropriate procedure, the circumstances might be such that this procedure would be impracticable or would prevent the panel from acting expeditiously. I therefore accept a departure from this procedure provided that the applicant consents to it and is not prejudiced by it in any way. However, should the applicant object to it, the panel should reopen the hearing. [Emphasis mine.]
[45] Mr. Justice Rouleau recently considered a similar point in Albert v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 42 (T.D.) (QL). After the hearing but before decision, a RCO staff member sent the applicant’s counsel a reply to an information request prepared by the Documentation Centre “which the RCO Section is filing in this case”. The applicant objected to the receipt of the evidence but had an opportunity to comment on it, an opportunity he availed himself of.
[46] Mr. Justice Rouleau dismissed the judicial review. He endorsed the more flexible approach reflected in Sorogin, supra; he looked at the evidence and came to the conclusion the additional evidence had no serious impact on the decision. He cautioned, however, in these terms [at paragraph 37]:
If I had the slightest suspicion that there had been a lack of fairness or infringement of natural justice in the case at bar, or that the reopening of the hearing or a re-hearing could have had any influence on the final decision, I would have allowed the plaintiffs’ submissions. Referring to Sorogin, supra, which now provides a more flexible procedure, I am persuaded that there is no basis for granting the remedy sought by the plaintiffs.
CONCLUSION
[47] Lawal and Salinas, supra, based on the scheme of sections 67 to 69 of the Act, recognize as a rule that information acquired by a tribunal after the hearing of a refugee claim should be put into evidence at a reconvened oral hearing in order that the claimant may exercise the rights Parliament accorded under subsection 69.1(5) of the Act.
[48] Recently, this Court recognized in Sorogin and Albert, supra, that in limited circumstances information acquired after a hearing could be considered and relied upon provided there was consent by the parties and the rules of natural justice were followed in terms of a realistic opportunity to comment. Sorogin was based on the repeal of subsection 69.1(4) but I note that in Lawal, Mr. Justice Hugessen mentioned the possibility of a proper waiver.
[49] I underscore the limitations to such a procedure because it is clear from a reading of Sorogin and Albert, supra, a reopening of a hearing is best and in accord with the intention of Parliament buttressed by Singh, supra.
[50] I am satisfied in this case the issue of the availability of the FIR should have been addressed at a reconvened hearing after the Tribunal had received the Documentation Centre’s Information Report and Mr. Bahtti’s comment. I arrive at this conclusion for the following reasons:
(1) the Tribunal itself contemplated a reopened hearing to consider this information since on July 15, 1998, it simply adjourned the hearing. Yet, it did not reconvene and adversely determined the applicant’s claim;
(2) the limitations in Sorogin and Albert, supra, were not observed; it cannot be said the applicant gave a proper waiver or full consent. I note that counsel for Mr. Afzal protested the procedure but faced by the Tribunal’s imperative, responded with Mr. Bahtti’s letter;
(3) the nature of the evidence was critical to Mr. Afzal’s claim and was the basis upon which the Tribunal concluded against him;
(4) the circumstances in which FIRs are available is not a matter of the Tribunal’s specialized knowledge—that is why evidence was sought on the point by the Tribunal itself. In Lawal, the Federal Court of Appeal came to a similar conclusion;
(5) the nature of this evidence, in this case proof of foreign law and practice, a central point which was the basis of the Tribunal’s decision, should be established at a hearing providing the claimant an opportunity to cross-examine, lead other evidence on the point and make submissions.
DISPOSITION
[51] For all of these reasons, this judicial review application is allowed, the Tribunal’s decision is set aside and Mr. Afzal’s claim is to be reconsidered by a differently constituted panel.
[52] In Yushchuk, supra, Mr. Justice Nadon had certified a question but the appeal was discontinued. I certify the following question:
Did the Refugee Division in this case have the statutory authority to receive the new post-hearing prior decision evidence submitted to and, if so, did it comply with the rules of natural justice or fairness in the circumstances.