Date: 200500503
Docket: IMM-4089-04
Citation: 2005 FC 603
BETWEEN:
JUNIOR HERMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
INTRODUCTION
[1] A member of the Immigration and Refugee Protection Board (the Member) refused a short postponement of the commencement of the Applicant's hearing despite knowing that the Applicant was represented, that counsel had requested the short postponement, that the Applicant wanted and expected her counsel to be present and that counsel was in transit to the Board's hearing.
[2] Since this matter will be remitted back to the Board, the Court will not comment on other aspects of the judicial review raised by the Applicant.
BACKGROUND
[3] The Applicant is a citizen of St. Lucia who applied for refugee status. The grounds of her application were a fear that her father's family will persecute or seriously harm her over the land owned by her father.
[4] Throughout the refugee process, the Applicant was represented by counsel. On February 3, 2004, the Applicant filed a Notification of Counsel changing the name of her counsel. This Notification may have lead to some of the confusion involved in the events on the day of the hearing. In any event the Applicant's original counsel continued to represent her up to the day of the hearing and subsequently.
[5] The hearing of the refugee claim was scheduled for 1:30 p.m. on March 12, 2004.
[6] While the evidentiary record is somewhat deficient, it appears that, on the morning of the hearing, counsel phoned the Board requesting a postponement of the start time by one-half hour to 2:00 p.m. Counsel apparently had a filing deadline at the Federal Court which, in her view, necessitated the delay. It is not clear whether the Board clerk knew the reason for the postponement but counsel expected to be advised if the postponement was not granted.
[7] At 1:35 p.m. the Member opened proceedings, remarked on counsel's absence and said that since counsel had not provided a reasonable explanation, the case would proceed.
[8] The Member then took over the proceedings, engaged exclusively in questioning the Applicant on her application and engaged in cross-examination on matters of credibility and plausibility.
[9] Counsel arrived at the Board at approximately 2:00 p.m. (the precise time is in question but is of little relevance to this decision). The hearing had been concluded by that time and the Member, having announced that the application would be dismissed, had retired to write the reasons for that decision.
[10] Counsel was advised by Board staff that she had not been advised that her postponement request had been denied because her name had not been entered in the Board's computer as counsel.
ANALYSIS
[11] The Member's refusal to postpone the start time of the hearing was based upon the inadequacy of the reasons for which postponement was sought. The reasons for postponement was the convenience of counsel because she had not organized her filing with the Federal Court sufficiently to be able to attend the scheduled hearing.
[12] The Court finds no fault in the Member's conclusion that counsel had not, in these circumstances, provided a reasonable explanation for the postponement. However the Member did not go on to consider other factors relevant to a request for postponement.
[13] The factors to be considered are set forth in Rule 48(4) of the Refugee Protection Division Rules.
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(4) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the proceeding;
(d) the efforts made by the party to be ready to start or continue the proceeding;
(e) in the case of a party who wants more time to obtain information in support of the party's arguments, the ability of the Division to proceed in the absence of that information without causing an injustice;
(f) whether the party has counsel;
(g) the knowledge and experience of any counsel who represents the party;
(h) any previous delays and the reasons for them;
(I) whether the date and time fixed were peremptory;
(j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and (k) the nature and complexity of the matter to be heard. |
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(4) Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où a besoin d'un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d'aller de l'avant en l'absence de ces renseignements sans causer une injustice;
f) si la partie est représentée;
g) dans le cas où la partie est représentée, les connaissances et l'expérience de son conseil;
h) tout report antérieur et sa justification;
i) si la date et l'heure qui avaient été fixées étaient péremptoires;
j) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable ou causerait vraisemblablement une injustice;
k) la nature et la complexité de l'affaire.
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[14] This Rule largely reflects the Federal Court of Appeal's reasoning in Siloch v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 10 (F.C.A.) and Sandy v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 1468.
[15] Most particularly, the Member did not consider that the Applicant wanted counsel present, that counsel had been retained for a long period of time, that counsel was on her way to attend and that the delay was for only about one-half hour. The Member did not consider the prejudice to the Applicant by being denied the right to counsel.
[16] Whatever may be said about counsel's actions or the reasonableness of the explanation for postponement, the critical matter is that the Applicant, who is wholly innocent in this matter, suffers the consequences of the denied postponement.
[17] The Board must, as a minimum, have regard to the relevant factors and consequences of a refusal to postpone. The failure to do so, in this case, results in an unjustified denial of the right to counsel and constitutes a breach of procedural fairness.
[18] The unfairness is evident in the manner in which the proceeding was conducted. It may have been thought necessary to engage in the type of questioning conducted by the Member precisely because no counsel was present. However the transcript discloses an unsophisticated Applicant who exhibited little understanding of what was at issue and what was transpiring.
CONCLUSION
[19] For these reasons, the application for judicial review is granted, the matter is remitted to the Board in order that the application for refugee status may be determined by a different member(s) of the Board.
[20] There is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4089-04
STYLE OF CAUSE: JUNIOR HERMAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 22, 2005
REASONS FOR ORDER: Phelan J.
DATED: May 3, 2005
APPEARANCES:
Ms. Stella Iriah Anaele FOR THE APPLICANT
Ms. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Stella Iriah Anaele
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT