Digests

Canada (Minister of Citizenship and Immigration) v. Tiky

IMM-5693-00

2001 FCT 980, Blais J.

31/8/01

20 pp.

Judicial review of Immigration and Refugee Board's denial of application to vacate respondent's Convention refugee status--Applicant alleging respondent obtained refugee status by fraudulent means, misrepresentation, suppression, concealment of material facts--Respondent subject of immigration inquiry since July 1996--Allegedly committed act, omission outside Canada constituting war crime or crime against humanity within meaning of Criminal Code, s. 7(3.76)--Allegation based on information respondent committed mass murders, aggravated assaults against civilian population in zonal council of Gurage in town of Wollisso, Ethiopia during Red Terror campaign--Also based on information respondent tortured, or gave orders to torture, Dessalegn Mammo, Hommo Worku--At pre-hearing conference, documentary evidence reviewed, agreement reached as to relevant documents for vacation application hearing--Applicant to provide to Board by July 6, 2000 specific references to relevant passages of letter dated October 7, 1998 from appeals officer, Mary Heyes, to which attached transcripts of sittings of inquiry, and from letter dated January 19, 2000 from hearing officer, Robert Bafaro, to which attached transcripts of sittings of inquiry--Respondent already in possession of attachments--Also agreed only relevant passages provided in advance would be considered by Board--Applicant twice requested extension of July 6, 2000 deadline, but extension denied both times--Board denied motion to admit additional documentation at hearing on grounds--Applicant submitting Board fettered discretion, breached rules of natural justice, fairness by refusing to allow applicant to tender evidence at vacation hearing because not complying with Board's Practice Direction by providing précis of all of anticipated evidence, and not submitting material within time frame specified by Board's Practice Direction, Rules pertaining to service--Immigration Act, s. 69.3(1) requiring Board to afford Minister reasonable opportunity to present evidence--Convention Refugee Determination Division Rules, r. 28(4) providing evidence in support of motion shall be introduced by affidavit, unless Board decides that, in interests of justice, evidence should be introduced in some other manner--R. 40 permitting Board to waive compliance where satisfied no injustice likely to be caused or proceeding not unreasonably impeded--Board discounted evidence of Hommo, Mammo because not called to testify at vacation application, but accepted conclusion of another witness that respondent decent man, although that witness also not testifying--Stating evidence of two witnesses at inquiry inconsistent with information in declarations--Board erred in relying upon testimony of what happened at inquiry when refused to allow hearings officers to tender exact evidence--Not entitled to rely on respondent's testimony regarding inquiry to bolster respondent's credibility and discredit evidence contained in statutory declarations submitted by applicant--Not open to Board to consider respondent's testimony about what witnesses had testified to at immigration inquiry concerning respondent when Board refused to admit transcripts of immigration inquiry pertaining to testimony of witnesses--Board erred in refusing to admit evidence at hearing, particularly in rejecting evidence already filed with Board and disclosed to respondent years before--Board not stating in reasons for excluding evidence why evidence not relevant to respondent's vacation application--Application allowed--Convention Refugee Determination Division Rules, SOR/93-45, rr. 28(4), 40--Immigration Act, R.S.C., 1985, c. I-2, s. 69.3 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18)--Criminal Code, R.S.C., 1985, c. C-46, s. 7(3.76) "crime against humanity" (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1).