Category: Natural Justice

The Court set aside a decision because the tribunal failed to consider the applicant's submissions.

The Court found a breach of natural justice: 36 In my opinion, the IAD breached the principles of procedural fairness by failing to provide applicant's counsel with an opportunity to fully address the substantive issues in the appeal. The IAD requested submissions with respect to the stay issue and adjourned the hearing without allow-ing counsel to address the merits of the appeal.

The Court set aside a refusal to reopen: 15 I have considerablsympathy for the predicament facing the IAD here. It received a nearly il-legible hand-written note from Mr. Skerritt alleging a failure to receive notice. To its credit, the IAD characterized the note as an application to reopen the appeal and it seriously considered whether it ought to do so. However, the downe side of the IAD's generosity from Mr. Skerritt's point of view is that he never had a chance to put better evidence (e.g., an affidavit) or fuller submissions to the IAD before it dealt with the question whether it should reopen the appeal.

In Canada v Atabaki 2007 FC 1170 the Court set aside a decision where the Refugee Protection Division had accepted the claimant as a Convention Refugee. The Court held that the Minister, once he filed notice pursuant to section 170, had the right to participate in all aspects of the claim, both inclusion and exclusion and that the tribunal erred in restricting his participation to exclusion and denying the Minister the right to question on inclusionary issues.

The Court set aside a refusal to grant citizenship. The Court held that the judge had erred because having requested evidence to meet the broad residency test the judge applied the strict test without explaining why he did not apply the other test

The Court set aside a decision that the applicant was inadmissible pursuant to section 39 holding that the applicant was denied fairness because she was not given an adequate opportunity to respond because the fairness letter was not clear.

The Court found a breach of fairness due to the non disclosure of the CBSA brief and the fact that the brief fettered the discretion of the officer.

The Court found a breach of natural justice in the denial of an adjournment where the applicant did not formally request one but where the tribunal proceeded in circumstances where it was clear that the applicant who did not understand english could not understand the evidence used against him.

The Court set aside a refusal to reopen. The applicant had obtained new evidence after the refusal that had undermined the previous decision: So it is in this case. The Panel had every reason to consider the original police report to be forged. Had it had information that it was not forged, Ms. Lopez Diaz may or may not have been found to be credible. It is not for this Court to say (Cardinal v. Kent Institution, [1985] 2 S.C.R. 643). If she had been found credible, then the Panel would have been obliged to consider state protection, and perhaps the internal flight alternative.[17] The Minister submits that the application to reopen is an abuse of process in that an application for leave and for judicial review of the Panel’s original decision was dismissed. Reference was made to my decision in Skandrovski v. Canada (Minister of Citizenship and Immigration), 2005 FC 341, 29 Admin. L.R. (4th) 70. However, reliance thereon is misplaced. I said it would not do to have the Board unwittingly and unknowingly in effect review a decision of this Court not to grant leave. That is not what happened in this case. The “new facts” which were put before the Panel on the application to reopen were not before the Court in the application for leave. As I said in para. 16 of Skandrovski: That is not to say that there is no room for an application to reopen a claim if leave were denied by this Court. New facts could come to light. […] That is exactly what happened in this case; new facts which were brought to the attention of the Board. The decision under review is wrong in law. These are issues of natural justice.

The Court found the tribunal's reasons inadequate.