At times I am guilty of “over-thinking” the problem. Spending a bit too much time looking at the evidence and attempting to speculate on the “holes” in the evidence. It would appear that I have done just that with respect to the recent oddity in the Registry record. On the other hand, it turns out I was right in at least one important speculative aspect.
At any rate, the Registry has now updated and there are a number of records. I followed up by requesting copies of the materials submitted by the government from my attorney’s office, as my attorney is out of the office this week.
The Respondent’s council conveniently enough noticed the omission of the medical file in the “certified tribunal record” because it was missing the medical file. Conveniently enough she happened to have a copy of my medical file, which she submitted to the court and apologized for the oversight.
Just for the record, there is a reasonable sized section in ENF 9: Judicial Review which is the CIC document describing the process, with particular emphasis on the responsibilities of CIC to comply with the legal requirements. Dry reading, I’m going to reproduce the bulk of it here because it will help establish context for my comments:
The order granting leave for judicial review constitutes an order pursuant to Rule 17 of the Federal Court Immigration Rules whereby the tribunal (decision-maker) is required to produce the tribunal record within the time frame specified in the Court order. In cases where the Minister or an officer designated by the Minister is the decision-maker, the Rule 17 order will be directed to the CIC or the CBSA office responsible for making the decision.
Upon receipt of the order granting leave, the decision-maker or the official assigned to the task must immediately prepare and send two certified copies of the tribunal record to the Court Registry and one certified copy to each of the parties (the applicant’s counsel and the Department of Justice). The tribunal record will consist of the following documents numbered consecutively:
(a) the decision or order that is the subject of the application and the written reasons, if any, or a notice that no written reasons were issued;
(b) all papers relevant to the matter that are in the tribunal’s possession or control;
(c) any affidavits or other documents filed or considered during the course of any hearing, interview or process that resulted in the decision or order; and
(d) a transcript if there is one of any oral testimony given during the hearings, interviews or processes that led to the decision or order.
It is imperative that the tribunal record is produced as aforementioned no later than the date specified in the Court order. All papers relevant to the matter specified in paragraph (b) above refer to all the file material that the decision-maker referred to, considered or relied upon before making their decision. Such material would normally include the officer’s summary report or interview/review notes, submissions and any documents submitted by the client and or counsel and any other file material referred to or considered by the decision-maker, including FOSS or CAIPS notes. Any material or file information that was not considered by the decision-maker or postdates the decision date is not required and should not be included in the tribunal record. The person preparing the tribunal record should consult with the decision-maker where there are doubts as to what material was considered in making the decision that is being challenged.
There are a few key points here: first, the tribunal record has to be prepared by the tribunal (CIC in this case) and not casually submitted from materials that just happened to be sitting on the desk of legal counsel.
Second, it’s a certified copy – how can counsel certify that these are the materials that were reviewed by the officer in rendering her decision? This seems dubious at best.
Third, the medical records included – as I suspected they would – material that would not have been considered in the initial rejection (e.g., the medical that I had done in February for the new application.) Indeed, CIC’s counsel wasn’t even discreet about including it as it is the first material one sees when one opens up the supplementary materials.
Of course, this is the same barrister who argued in previous filings that we had inappropriately submitted materials that were not before the decision maker. Indeed, I just commented on this fact in the CAIPS notes. Perhaps I have a delusional sense of fairness, but I would think that the government cannot both argue we are barred from submitting new material at the same time they are submitting new material. Of course, the court should not consider the new material – but the government has certified that this is material considered in making their decision!
I cannot imagine the Court won’t notice this poorly executed legerdemain. I would think there are two likely outcomes: either refuse to consider any of the new material, which seems to make sense but for which I have not yet found supporting case law, or all the new material will be considered. I suppose there are other options: basically various forms of sanction. I’ve never read of a case in which CIC submitted new materials to the Court.
So, bottom line: there was no second court order, it was just fulfillment of the first order. However, CIC’s counsel did manage to “sneak in” the new medical, thus reinforcing the idea that this is all just a waste of time for the Court. Thus, I am guilty of over thinking the problem. It is an easy mistake to make while caught up in this imbroglio.
I’ll find out more next week when my attorney returns, because it really is up to him on how to deal with this latest development.