PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
ARTEM DKUKIC
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated September 12, 2005, in which the Board found that the applicant's claim had been abandoned.
[2] The applicant, Melinda Biro, is a citizen of Hungary. She came to Canada in 2001. In 2005, the applicant filed a claim for refugee protection based on political opinion. Her Personal Information Form (PIF) completed in May 2005, stated that her claim was based on her sexual orientation. The applicant is a lesbian.
[3] A hearing was scheduled for July 13, 2005. The applicant's immigration consultant, Artem Djukic, was already proceeding with another hearing at that time. He sent a letter to the Immigration and Refugee Board (IRB) on June 7, 2005, advising that he was unable to attend the hearing, as he was already attending another matter. The IRB replied to his letter on June 20, 2005, advising counsel that his request for a postponement was denied.
[4] The applicant personally attended the hearing on July 13, 2005, and the presiding member agreed to postpone the hearing until July 29, 2005. Her advisor wrote the IRB, in a letter dated July 18, that he would be away in Europe for medical reasons until September. The letter stated that he had approached three other consultants about taking the applicant's case, to no avail. The letter also offered alternative dates in September, October, November, and December 2005, when he would be available.
[5] The hearing was not changed, and the applicant appeared on July 29, 2005. She advised that she would not proceed without her advisor, as she had already paid him, and did not want to proceed alone. She referred to the alternative dates provided by her counsel. The Presiding Member did not postpone the hearing, but rather commenced abandonment proceedings, and set down a date for a show cause hearing on August 24, 2005.
[6] On August 24, 2005, prior to the advisor returning from his medical treatment, the applicant attended a show cause hearing, which was intended to give her the opportunity to demonstrate why her claim should not be abandoned. The applicant reiterated that she was not willing to proceed without her advisor, and the claim was declared abandoned by the Board.
[7] The Board found that the applicant, and her advisor, had a duty to take the scheduling as a peremptory date, and a show cause date, seriously. The Board found that, if the applicant's advisor was unavailable on the scheduled dates, it was incumbent on him to find an alternative. The Board concluded that the applicant could have proceeded without a representative; that there had been a lack of due diligence on the part of both the applicant and her advisor to be prepared for the scheduled hearings, and declared the claim abandoned.
[8] The applicant argues that her right to a fair hearing, and her right to rerpesentation, have both been violated.
[9] In addition, the applicant argues that the Board's decision was made in a perverse and capricious manner, without due regard to the evidence before the panel.
[10] Finally the applicant argues that her claim cannot have been abandoned without giving her the opportunity to explain why the claim should not be abandoned.
[11] At the outset, I note that the respondent submits that the applicant's advisor, Mr. Djukic, has no standing, and argues that his name should be struck from the style of cause.
[12] The test for allowing Mr. Djukic's name from the style of cause is whether he is directly affected by the matter in which the relief is sought. Under s. 18.1(1) of the Federal Courts Act, R.S.C. 1985 c. F-7, a person directly affected may bring an application for judicial review.
[13] The respondent argues that the decision only affects Ms. Biro's status in Canada, and her ability to continue with her claim, and therefore Mr. Djukic is not directly affected by the matter. I disagree with the respondent's submissions. The applicants raise arguments regarding the reasonable accommodation of counsel with a disability, when the IRB is scheduling a hearing. I am of the opinion that the outcome of this matter could directly affect the IRB scheduling procedure for counsel with a disability. The question in the present matter does not merely concern Ms. Biro's status in Canada, but concerns her right to a fair hearing, and her right to representation. Mr. Djukic's concern, which could be directly affected by the outcome of the present matter, is whether the IRB should take into consideration his disability, when scheduling hearings. Accordingly, Mr. Djukic's name need not be struck from the style of cause at this time.
[14] The applicant submits that she and her advisor were diligent; that the IRB failed to take into account their efforts to obtain alternative representation and offer of alternative dates; also, that the IRB failed to take into account his medical condition, which required him to travel to Europe for treatment, when scheduling the July 29, 2005 hearing, as well as the show cause hearing on August 24, 2005. It is further submitted that the IRB completely ignored the letter dater July 18, 2005, which detailed his absence from Canada, his attempts to secure alternative representation, and a number of dates on which he would be available for a hearing.
[15] I agree with the applicants. I am of the view that both the applicant and her advisor acted in a diligent manner. The applicant did not fail to attend any of the scheduled hearings - she attended, and stated that she was not willing to proceed without representation. The IRB knew he was double booked for her first hearing; he duly notified the IRB that he was unavailable in the letter dated July 18, 2005. He stated in the letter that he had contacted others to take the applicant's case, but they were also unavailable. He also offered a number of dates on which he would be available, including the whole month of December, 2005. I amof the opinion that counsel acted in a diligent manner throughout the proceeding.
[16] The abandonment decision, which is challenged in the present matter, concluded that the applicants did not act in a duly diligent manner throughout the proceedings. The Board went so far as to accuse the applicants of not taking scheduled dates and times seriously. The evidence does not support this conclusion - the applicants were both aware of the scheduled dates, and notified the IRB of the existing an potential conflicts within a reasonable period of time. If a decision is made without due regard to the evidence before a Board, then the decision is patently unreasonable, and can not be allowed to stand (see Owusu-Ansah v. Canada(Minister of Employment and Immigration), (1989) 8 Imm. L. R. (2nd) 106 (FCTD)).
[17] The respondent maintains that the IRB's "fast-track" policy should outweigh any scheduling concerns on the part of the applicants. I am not of this view, an opposite conclusion is warranted - if the applicants have acted in a duly diligent manner, attempted to procure alternative counsel, and notified the IRB of conflicts in a reasonable manner, then the fast track policy should not be interpreted so narrowly to prevent scheduling accommodations, especially for counsel who is seeking medical treatment for a disability such as polio.
[18] This application for judicial review is allowed. The applicant should not be refused the right to a fair hearing. The absolute disregard of Mr. Djukic letter, dated July 18, 2005, is disconcerting, and I would hope that such blatant disregard is not standard practice for future scheduling of IRB hearings, the need to fast-track the hearings should not deprive parties of their right to representation and equitable treatment.
JUDGMENT
The application for judicial review is allowed. No question of general importance is certified. The matter is remitted to the Immigration and Refugee Board and a new date for a hearing is to be set.
"Paul U.C. Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5989-05
STYLE OF CAUSE: Melinda Biro, Artem Djukic v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Mr. Rocco Galati Galati, Rodrigues and Assoc.
|
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| Ms. Melitta Johnson
|
SOLICITORS OF RECORD:
| Galati, Rodrigues and Assoc.
|
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| John H. Sims, Q.C., Deputy Attorney General of Canada
|