Date: 19981109
Docket: IMM-791-98
BETWEEN:
MANJIT SINGH ATWAL,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
[Delivered orally at Toronto, Ontario,
on October 8, 1998, as edited]
SIMPSON, J. (orally on October 8, 1998)
[1] The Applicant seeks judicial review of a decision of the Immigration and Refugee Board (the "Board") dated February 10 and March 25, 1998 (the "Decision"). In its Decision, the Board concluded that the Applicant had abandoned his claim to be a Convention refugee.
Proceeding's History
[2] The Applicant's convention refugee hearing was originally scheduled for November 10, 1997. However, counsel for the Applicant, Roger Rowe, was retained after the first hearing date was set, and Mr. Rowe could not attend on November 10 because of previous professional commitments. Accordingly, Mr. Rowe wrote to the Board requesting an adjournment of the hearing date. His request was denied. Mr. Rowe wrote a second letter requesting an adjournment, and this was hand-delivered by the Applicant when he appeared before the Board on November 10, 1997. The Board granted the adjournment at the hearing, and the matter was re-scheduled for January 28, 1998, on a peremptory basis because Mr. Rowe had not attended on November 10, 1998.
[3] For reasons which will be discussed below, Mr. Rowe and the Applicant left the hearing on January 28, 1998, prior to its completion. Thereafter, a notice to appear (the "Notice") dated January 30, 1998, was mailed to the Applicant pursuant to section 69.1(6) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and Rule 32 of the Convention Refugee Determination Division Rules (the "Rules"). The Notice informed the Applicant that a hearing into the abandonment of his claim (the "Abandonment Hearing") was scheduled for February 10, 1998. The Board decided that a copy of the Notice would not be sent to Mr. Rowe.
[4] Mr. Rowe could not attend the Abandonment Hearing because he received only three days' notice of the hearing date from the Applicant, and because he was representing another client before the Immigration Review Board on that day. As he was unavailable, Mr. Rowe retained another lawyer, Mr. Edmund Clark, to represent the Applicant at the Abandonment Hearing. Both Mr. Clark and the Applicant attended the Abandonment Hearing on February 10, 1998.
[5] By reasons given orally at the Abandonment Hearing, and in written reasons dated March 25, 1998, the Board determined that the Applicant's claim for Convention refugee status had been abandoned. A notice of abandonment dated March 27, 1998, was mailed to the Applicant.
The Hearing on the Merits on January 28, 1998
[6] This hearing began at 1:00 p.m. before two members of the Board. At the outset, the Board indicated that it would treat the Applicant's personal information form ("PIF") as his sworn evidence and indicated that its contents need not be repeated in oral testimony. However, the Board also advised that the Applicant's credibility remained in issue. Against this background, the following exchange occurred:
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Presiding Board Member: Do you want some time, counsel? |
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Counsel (Mr. Rowe): I don't need any time, I am indicating how I intend to proceed with the presentation of the case and on my review of the PIF narrative, there are some details that need clarification. I propose to begin my examination in-chief accordingly. |
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Presiding Board Member: The Panel is not interested in events before 1995 -- 1996. I mean, there is one paragraph I believe in '95 -- well, after August '95, paragraph 5. |
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Counsel (Mr. Rowe): The concern is that many of the incidents preceding that time period the Panel has indicated are directly relevant to the Claimant's claim and lay the foundation for understanding, and textualizing (sic) the incidents that post-dated the date indicated by the Panel, therefore I'm concerned when the Panel says they aren't interested in. |
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Presiding Board Member: I'm not saying that we are not interested in it, we have it before us, we have read it. It's sworn that it's true and accurate and the Panel feels there's no need to go through this here at the hearing since the focus of refugee determination is on the present and immediate future and not in the past, I should say, the history, just the very current history, events that prompted the Claimant to leave when he did. |
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Counsel (Mr. Rowe): If the Panel is prepared to state for the record they accept as fact ... |
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Presiding Board Member: We are not giving a ruling on the credibility during the hearing. |
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Counsel (Mr. Rowe): (Inaudible). If the Panel is prepared to accept as fact, on the record, the incidents as related up to the date indicated by the Panel as the cut-off date, then I can proceed to focus on the issues post-dating the date. But to the extent everything remains open, then I am duty bound as his counsel to make sure the bases are covered. |
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Presiding Board Member: We are not accepting anything as fact, we do not make a ruling and unless counsel has additional information to offer us on the first 11 paragraphs, I for one -- and I'll ask my colleague to speak for herself -- I have absolutely no difficulty following the background information as provided in the first 11 paragraphs. |
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Counsel (Mr. Rowe): ... In conducting my examination in-chief I'll try as much as possible to avoid duplication. But as the Claimant's counsel I believe that there are some aspects in the paragraphs preceding the date indicated by the Panel that need to be addressed. |
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Presiding Board Member: Proceed, counsel. If you feel they are absolutely important, then proceed. Just so long as it is understood we are not going to have a verbatim recitation. |
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[7] After this exchange, Mr. Rowe conducted an examination-in-chief of the Applicant, which concluded at approximately 4:20 p.m. During the examination, the Board twice asked Applicant's counsel to focus on the issues it found of interest. This resulted in the interruption of Mr. Rowe's prepared examination-in-chief, and he objected on the basis that, as counsel, he controlled the presentation of the case. The Board replied that it, not counsel, controlled the hearing.
[8] The atmosphere which developed during the examination-in-chief is illustrated by the exchange which followed the Board's second and final interruption. It reads as follows:
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Presiding Board Member: Counsel, we are not interested in this line of questioning. Would you please proceed with more recent events. |
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Counsel (Mr. Rowe): The questions that I ask I believe are necessary to ensure that all of the relevant information to the claim is adduced in evidence. |
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Presiding Board Member: It's already in the PIF. I think at this point we are taking a 15 minute break. |
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Presiding Board Member: We are back on the record; same parties are present. Counsel, we are satisfied with your client's testimony for the event of '92 and '93, and if you could please proceed to October '96. |
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Counsel (Mr. Rowe): No, I am not going to proceed to October '96 yet. |
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Presiding Board Member: I believe it's in your client's best interest to address the concerns of the Panel. |
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Counsel (Mr. Rowe): At the break -- I was finishing off my submissions that were interrupted at the break. Right, (sic) at the break Panel indicated that they weren't interested in the questions I was asking at the time, that that information was already in the PIF. |
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First of all, information was not already in the PIF, it's relevant to credibility on objective basis as are just about every one of the questions I've asked since I started. I object again to the interruption from the Panel and the impeding effect it's having on the presentation of this case. I again invite the Panel, which is within its jurisdiction to do, to find as fact -- to make the findings of fact in respect of the incidents 1 through 13 paragraphs of the PIF narrative. I am aware of what is in the best interest of my client, I fully intend to canvas the issues of October 1996 and all the issues that the Panel identified at the outset of the hearing. The Panel is not prepared to do so, then I'll continue in this vein and I find the atmosphere of the hearing hostile. Those are my submissions. |
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Presiding Board Member: There is no finding of fact. Continue, counsel. |
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[9] The events which led to the Abandonment Hearing began when Mr. Rowe completed his examination-in-chief at 4:20 p.m., and the Board proposed a 15-minute break. This indicated to Mr. Rowe for the first time that the Board intended to sit beyond 4:30 p.m. Counsel for the Respondent conceded before me that this was the Board's normal adjournment time. Mr. Rowe then advised the Board that he had other commitments and had to leave shortly. He asked that the matter be adjourned to another day and his request was promptly refused.
[10] The transcript makes it plain that the Board was unwilling to adjourn for two reasons. Firstly, it felt that Mr. Rowe had been discourteous in not notifying the Board earlier that he needed to leave at about 4:30 p.m., and, secondly, the Board blamed him for the length of the hearing because he ignored the panel's request to abbreviate his examination-in-chief. The transcript also makes it plain that the Board refused the adjournment without asking what Mr. Rowe's commitments were, and, equally, counsel did not explain his need to depart.
[11] In an increasingly acrimonious exchange, in which there was yelling and a threat to report Mr. Rowe to the Law Society of Upper Canada, nothing was accomplished. The Board refused to adjourn, and Mr. Rowe said he could not stay. Eventually, at approximately 4:45 p.m., Mr. Rowe said "I am prepared to set an adjournment date; if the panel can't do that, then I am withdrawing and I am advising my client to come with me". This prompted the following dialogue directly between the Presiding Board Member and the Applicant:
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Presiding Board Member: Sir, at this point I am addressing myself to the Claimant ... |
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Claimant: I agree with my lawyer. |
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Presiding Board Member: The Panel has made a ruling that the hearing is continued. |
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Claimant: Whatever my lawyer says ... |
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Presiding Board Member: If you leave this room, the Panel will commence abandonment proceedings. |
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Counsel (Mr. Rowe): Thank you. |
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Claimant: I agree with my lawyer. |
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Presiding Board Member: I will just repeat again that if you leave this room, sir, we will be starting abandonment proceedings. |
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Counsel (Mr. Rowe): Thank you. Okay, thank you, Mr. Interpreter. |
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Presiding Board Member: It is noted for the record it's almost ten to five. Do you want to close the door, we will set this down for abandonment proceedings. |
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[12] The transcript discloses that, after Mr. Rowe departed with the Applicant, the Board commenced abandonment proceedings. It scheduled a show cause or, as I have described it, an Abandonment Hearing, 13 days hence on February 10, 1998. The Board also decided that the Notice of the Abandonment Hearing would be sent to the Applicant but not to his lawyer, Mr. Rowe, even though rule 35(2) of the Rules requires notice to counsel.
[13] This appears to have been done because the Board concluded that Mr. Rowe had "withdrawn" from the proceedings. What Mr. Rowe said was "I am prepared to set an adjournment date; if the panel can't do that then I am withdrawing and I am taking my client with me". It was clear that Mr. Rowe was using "withdraw" as a synonym for "leave". He was leaving the hearing that day. He clearly wanted the hearing to continue on another day and, most importantly, he never indicated that he had ceased to represent the Applicant. As well, the Applicant left with Mr. Rowe, indicating that he continued to value Mr. Rowe's representation and was not prepared to proceed without his counsel.
[14] The failure to send the Notice to Mr. Rowe is significant, because the Notice stated that, if the proceeding was not ordered abandoned on February 10, 1998, the Applicant was expected to be prepared to conduct the hearing on the merits to completion on that date. In the result, the Notice was sent to the Applicant on January 30, 1998, and he received it on February 5, 1998. Thereafter, he met with his lawyer Mr. Rowe on February 7, 1998. However, by that time, Mr. Rowe had only three days' notice of the Abandonment Hearing, and, due to a scheduling conflict created by another hearing, he could not attend the Abandonment Hearing. He therefore retained Mr. Clark to appear in his stead.
The Abandonment Hearing - February 10, 1998
[15] Mr. Clark did not fare well at the outset of the Abandonment Hearing, and it was partly because his initial submissions did not make it clear that he had been retained by Mr. Rowe as his agent to represent the Applicant on the issue of abandonment, but that he was not retained to appear on the merits of the case. Eventually, these matters were clarified, but only after the Presiding Member had told Mr. Clark to state his position in "30 words or less", and only after Mr. Clark was six times denied a two-minute adjournment so that he could consult with the Applicant.
[16] The Applicant testified as follows both about his decision to leave the hearing with Mr. Rowe on January 28, 1998, and about his future intentions regarding his refugee claim:
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Claimant: When my counsel left and I could not have said anything without my counsel, I didn't want to, and therefore I had to go. I wanted to put up all my case through my counsel. |
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Counsel (Mr. Clark): And may I ask a question following that, Madam Member? |
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Presiding Board Member: Yes. |
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EXAMINATION BY: COUNSEL (Mr. Clark) |
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Q: Were you at the time, sir, acting on the advice of your counsel? |
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A: I am proceeding in the case with the advice of my counsel. I brought him to help him and I needed his help. |
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Q: The Panel was asking about January 28th. |
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Q: At the time that you left under those circumstances, were you acting under the advice of your solicitor? |
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A: No, I got up of my own free will, because once my counsel left, what was I to do here without him? |
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Q: Do you know why your counsel left? |
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A: I don't know, there was a lot of time taken and also they were blowing hot and cold, I exactly do not know because I don't understand English. But my decision was that if my counsel is not here, what would I achieve by being here, but it was the wrong treatment being given. |
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A: Like if I am being pressurized, it was a pressure on me to understand things. When Roger Rowe was asking questions then he was jumped at by others about his questions and then I had this understanding that things are not proceeding as quietly or usually. |
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Q: And when you say he was jumped at by others, who are you talking about? |
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A: When the counsel was asking me questions then they were saying why are you -- the counsel was to convey all my story to them but they were not listening, so what could he do? |
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Q: When you say "they", who are speaking of, sir? |
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A: I am talking of my Panel, they were not understanding my story properly, or to listen to my whole story as to what my problem was. They were not giving me full hearing to listen to all my problems, so (inaudible); three, four hours after also if there is nothing coming out of that, obviously it was something wrong was happening to me, it was not the -- justice being given to me. |
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RCO I have a question then to ask him in regards to that. |
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COUNSEL (Mr. Clark) Please. |
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Q: Did you think the hearing was over the last day? |
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A: No, no, there were -- maybe my counsel also had to have some more questions, no I didn't think it was over. |
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Q: So, if you think the Panel was not understanding your story properly why didn't you stay to have them hear it properly until they understood it? |
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A: That was the dispute that day. I wasn't asked. |
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Q: Was it your understanding, sir, that your counsel did not wish to stay past twenty past four in the afternoon? |
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A: The counsel left this place ten to five. It was then minutes to five when he left. |
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Q: You didn't understand my question clearly. If you don't understand my question, you have to let me know and I'll find another way to ask it. |
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At twenty after four in the afternoon on January the 28th was it your understanding that your counsel did not wish to continue the hearing at that point? |
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A: My counsel did say that by 4:30 the hearing should have been over, that you are extending the time and he said it at your face that this is being done wrongly. |
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Q: Did your counsel at any time ask for an adjournment? |
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A: I've not understood that. |
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Q: Did your counsel at any time ask that the hearing be adjourned, or recessed at that time to come back another day to finish the hearing? |
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A: About this I don't recollect very well whether he said or not. I cannot say for sure whether he said that or not. |
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Q: So what did you think was going to happen after your counsel left? |
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A: Then my case should go on and I should be given opportunity for justice. |
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(my emphasis)
[17] With regard to his intentions on February 10, 1998, the Applicant testified that he was ready to have the balance of his claim on the merits heard on that day. However, four pages earlier in the transcript, he had indicated that he wanted to put his "main" case forward through Mr. Rowe. On reading the transcript as a whole, it is not clear to me whether the Applicant changed his mind and agreed to proceed on the merits without counsel on February 10, 1998, in response to perceived pressure from the Board, or whether he misunderstood the question. Regardless, the fact remains that the Board was left with a clear statement that the Applicant was ready to continue with a hearing on the merits of his claim on February 10, 1998.
Conclusions About the Conduct of These Proceedings
[18] Both Mr. Rowe and the Board can be faulted for not discussing the reasons for Mr. Rowe's inability to stay after 4:30 p.m. on January 28, 1998. However, the Board's fault constitutes an error because it is required by Rule 13(4) of the Rules to understand all the circumstances before it rules on an adjournment. In my view, it breached this obligation by failing to explore Mr. Rowe's reasons for seeking the adjournment before refusing his request.
[19] As well, the Board's refusal of the adjournment appears to have been a retaliatory move to chastise Mr. Rowe for ignoring its direction to abbreviate his examination-in-chief. This attitude was unjustified. While the Board controls the procedure, it cannot prevent a counsel from representing his or her client unless the representation involves irresponsible undue repetition or irrelevant material. That was not the case here. Credibility remained an issue, and Mr. Rowe was concerned that the Board not misinterpret the PIF to the Applicant's disadvantage. His concern stemmed in part from the fact that he had not prepared the PIF. Accordingly, he was entitled to examine on the full PIF without suffering repercussions.
[20] It is clear that the Board's normal day ends at approximately 4:30 p.m. In these circumstances, unless the Board gave reasonable notice of its intention to sit late or unless, as is often the case, all parties consented, or unless the Board explored Mr. Rowe's reasons for leaving and found them to be insufficient, the Board was not entitled to force the matter on until 6:00 p.m. This is particularly so given that cross-examination by the Refugee Claimant Officer (the "RCO"), the Board's questions, re-examination and submissions were all outstanding. In these circumstances, it was unlikely that the hearing would have been finished by 6:00 p.m. in any event. The transcript discloses that the Board recognized this fact.
[21] The Board displayed a serious lack of judgment when it proceeded with the abandonment proceedings at a time when it was still angry with Mr. Rowe. This may explain why it gave fairly short Notice of the Abandonment Hearing to the Applicant and no notice to Mr. Rowe. These procedural choices seriously prejudiced the Applicant's ability to proceed on the merits on February 10, 1998, either with Mr. Rowe or with another counsel. The result was that, at the Abandonment Hearing, the Board would very likely be able to order that the Applicant's refugee claim had been abandoned. Essentially, the Board "set up" the Applicant to fail at the Abandonment Hearing.
[22] At the Abandonment Hearing, the Board's frustration with Mr. Clark is perhaps understandable but its continual refusal to allow him two minutes to clarify matters with the Applicant was arbitrary and unwarranted.
[23] The proceedings clearly had an adverse effect on the Applicant. Although his English is good, it is not perfect and an interpreter was present at both hearings. He could not understand everything, but it was clear to him that, on January 28, 1998, the Board had not proceeded "quietly or usually".
[24] Finally, the Board was not justified in treating January 28, 1998, as a peremptory hearing date. It is my opinion that peremptory orders arising from counsel's failure to appear should be reserved for situations where a counsel, who is on record when a hearing date is set, then fails to appear.
The Board's Decision
[25] Section 69.1(6) of the Act deals with the abandonment of a refugee claim. It reads:
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Where a person who claims to be a Convention refugee |
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(a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim, |
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(b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or |
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(c) in the opinion of the division, is otherwise in default in the prosecution of the claim, |
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the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned and, where it does so, the Refugee Division shall send a written notice of its decision to the person and to the Minister. |
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[26] The Board opened its Decision with a finding that the Applicant's claim was abandoned because he was not prepared to proceed on the merits at the Abandonment Hearing. This conclusion cannot stand for two reasons. Firstly, it involves a material factual error. As I noted above, there was some evidence from the Applicant to the effect that he was ready to proceed without counsel on February 10, 1998, and this relevant evidence was ignored. As well, if the Applicant was not ready, it is my opinion that the Board was responsible for the inadequate notice which made that situation a virtual certainty. It was not reasonable to assume that, on three days' notice, the Applicant could have obtained the services of Mr. Rowe or a new counsel to proceed both with the Abandonment Hearing and the merits, which included, inter alia, re-examination and final submissions.
[27] The balance of the Decision criticizes Mr. Rowe's conduct and his submissions. In my view, these criticisms have no bearing on the Applicant and, as such, are irrelevant to the issue of the Applicant's abandonment.
[28] It is clear to me on the Applicant's evidence that he did not abandon the proceedings when he withdrew on January 28, 1998. His evidence is clear that he thought the matter would continue. In my view, the Board also erred by disregarding this material fact.
[29] Counsel for both parties have indicated that, if this application for judicial review were to succeed, they could see no purpose in a re-hearing of the abandonment issue. I agree, and, accordingly, this matter will be sent back for a re-hearing of the Applicant's refugee claim ab initio on its merits before another panel of the Board and with the assistance of another RCO.
[30] The matter of costs will be argued immediately after these reasons are delivered and will be dealt with in my order at the conclusion of these proceedings.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 9, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MANJIT SINGH ATWAL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-791-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 24, 1998 and
October 8, 1998
REASONS FOR ORDER: SIMPSON, J.
(Delivered orally at Toronto, Ontario on October 8, 1998, as edited)
DATED: November 9, 1998
APPEARANCES:
Rocco Galati for Applicant
David Tyndale for Respondent
SOLICITORS OF RECORD:
Rocco Galati for Applicant
Barrister & Solicitor
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada