Federal Court Decisions

Date: 20050309

Docket: IMM-2416-04

Citation: 2005 FC 345

Toronto, Ontario, March 9^th, 2005

Present:           The Honourable Mr. Justice Campbell                                

BETWEEN:

ELIAS CUICAHUA CAMANO

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                In the present case, the Applicant, who is a citizen of Mexico, claims refugee protection based on a well founded fear of corrupt government and police officials in Mexico. The Applicant's claim was rejected by the Refugee Protection Division (RPD) in a decision rendered February 17, 2004. A central argument made by Counsel for the Applicant is that the hearing conducted before the RPD was unfair. I completely agree.

[2]                On the date set for hearing, the Applicant appeared before the RPD and requested an adjournment due to the fact that, at that moment, he was unrepresented by counsel. The RPD rejected the application for an adjournment, and in deciding to proceed, made the following statement:

The claimant is a repeat claimantand is certainly not ignorant of the process and ways and means to secure Counsel. Furthermore, the claimant seems to have a history of delay and has been here some five years. There is no reason whatsoever which would lead us to reasonably grant a request for adjournment and once again postpone this hearing.

[Emphasis added]

(RPD decision, p.2)

[3]                Counsel for the Applicant argues that the RPD's rejection of the application for an adjournment was founded on erroneous grounds. In particular, Counsel for the Applicant argues that there is no evidence to support the findings that the Applicant is a "repeat claimant" and has a "history of delay".

[4]                It is not disputed that the Applicant first made a refugee claim on April 12, 1999. In his evidence before the RPD, the Applicant stated that his first contact with the refugee protection system after making his claim was in December 2000. I accept Counsel for the Applicant's statements at bar that, in 1999, inland refugee claims were in a serious backlogged position, and consequently, extensive delays were experienced before claims were accepted and referred on for hearing. The claimant's evidence before the RPD is that he only made one refugee claim, being that made in April 1999, and action on this claim ultimately resulted in the Applicant's appearance before the RPD for hearing.

[5]                The principal problem in a conduct of the present case is that the Tribunal Record before me is deficient. The Record does not provide any documentation to confirm the particulars of the Applicant's claim between April 1999 and November 2002. There is no evidence that the RPD had any better record before it at the time it declined the Applicant's application for an adjournment. Consequently, I find that the RPD's criticisms with respect to the Applicant's conduct are not only unsupported by the evidence, but are remarkably unfair. It is clear from the transcript of the hearing before the RPD that, from the very outset, the RPD had a bad opinion of the Applicant, and the hearing, in which the Applicant was unrepresented, was conducted accordingly. The ultimate result was that the Applicant's claim for refugee protection was denied.

[6]                I find that the RPD's erroneous findings made in rejecting the Applicant's application for an adjournment resulted in a manifest unfairness to the Applicant in the conduct of the hearing which followed. As a result, I find that the RPD's decision was rendered in breach of due process, and, thus, was rendered in reviewable error.

                                               ORDER

Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.

"Douglas R. Campbell"

                                                                                                   J.F.C.                         

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-2416-04

STYLE OF CAUSE:               ELIAS CUICAHUA CAMANO

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       MARCH 9, 2005

REASONS FOR ORDER

AND ORDER BY:                             CAMPBELL J.

DATED:                                              MARCH 9, 2005

APPEARANCES:

Neil Cohen	FOR THE APPLICANT
David Tyndale	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Neil Cohen Barrister & Solicitor Toronto, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT