CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Fani v. Canada (Minister of Citizenship and Immigration)
IMM-3758-01
2002 FCT 754, Kelen J.
9/7/02
9 pp.
Judicial review of dismissal by Immigration and Refugee Board (Appeal Division) (IAD) of appeal without oral hearing with respect to applicant's evidence, credibility--Applicant citizen of Iran--Became involved with recognized Iranian terrorist group supported by Iraq--Lived for five years in terrorist camp in Iraq where allegedly worked as driver, translator--Involved in at least one military action, failed 1990 military campaign--In 1993 decided to leave terrorist group--Claimed refugee status based on support for terrorist group--In 1996 found to be Convention refugee--In 2000 Minister of Immigration issued opinion pursuant to s. 19(1)(f) that applicant's admission to Canada detrimental to national interest--Subsequently adjudicator found applicant to be person described in s. 19(1)(f)(iii)(B), issued deportation order --On appeal IAD bifurcated hearing process because applicant filed "notice of constitutional question"--According to schedule IAD set, constitutional question to be dealt with by written submissions and, depending on nature of ruling, oral hearing would be scheduled to deal with equitable branch of appeal--After parties filed written submissions on constitutional question, IAD rendered decision not only on constitutional issues, but on question of mixed law and fact of whether applicant "member" of terrorist organization--Failed to conduct oral hearing which it had expressly agreed to do after disposing of constitutional questions--Moreover found applicant not credible without providing applicant with opportunity to present viva voce evidence--Respondent relying on Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 for submission breach of natural justice not entitling applicant to relief sought as nonsensical to compel IAD to reconsider mixed law and fact issue when result inevitable based on admissions from applicant--Result of question of mixed law, fact not inevitable--Possible IAD could find reasonable grounds to believe applicant not "member" of terrorist group--Applicant entitled to hearing before IAD on question of mixed law, fact--Cannot conclude applicant's chances of succeeding "hopeless"--Appeal allowed--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(f)(iii)(B) (as am. by S.C. 1992, c. 49, s. 11).