CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Nagulesan v. Canada (Minister of Citizenship and Immigration)
IMM-6816-03
2004 FC 1382, Gauthier J.
7/10/04
7 pp.
Judicial review of Refugee Protection Division's (RPD) decision rejecting claims under Immigration and Refugee Protection Act, ss. 96, 97--On August 5, 2003, a few days after hearing, applicant hand delivering to RPD letter addressed to presiding member indicating desire to file additional evidence to corroborate testimony with respect to presence in Sri Lanka after 1987 and deaths of father, two brothers--Proposed evidence attached to letter, which also indicated member had requested such corroborative evidence during hearing--Letter bearing receipt stamp of Immigration and Refugee Board for August 5 at which time decision not yet issued and presiding member not functus officio--Letter, documents neither in certified copy of record nor referred to in decision--Decision discussing at length fact applicant failed to file evidence establishing presence in Sri Lanka after 1987 and evidence corroborating deaths--Application allowed --No duty on applicant to obtain further confirmation documents properly filed after obtaining confirmation of receipt--Continuing obligation to consider evidence submitted by applicant until RPD functus officio--Refugee Protection Division Rules, r. 37 requiring party to apply under r. 44 to submit evidence after hearing--Pursuant to r. 44 application must normally be made in writing and must indicate decision party wants RPD to make and give reason why--As August 5 letter satisfying requirements of r. 37, RPD had to deal with applicant's request--Failure to deal with new evidence breach of procedural fairness--Refugee Protection Division Rules, SOR/2002-228, rr. 37, 44--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97.