Ottawa, Ontario, March 31, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), wherein the Board determined that the applicant was not a Convention refugee nor a person in need of protection according to sections 96 and 97 of the Act, respectively.
[2] One month before his first scheduled hearing date, the applicant signed a confirmation of readiness and availability to proceed with the hearing into his refugee claim scheduled for March 2, 2005. One day before the hearing, his refugee lawyer notified the Board that the applicant had not been in contact with him and that he was withdrawing as the applicant's counsel of record. At the hearing, the applicant appeared without counsel and requested additional time to retain new counsel. The Board adjourned the applicant's hearing for 1½ months later and put him on notice that this hearing would proceed on a peremptory basis at that time with or without counsel. When the applicant appeared on April 20, 2005, once again, he did not have counsel. The following exchange took place between the presiding member of the Board and the applicant:
Presiding Member: Good afternoon. We are on record; my name is Bing Wong (ph) panel member at the IRB at a hearing. I think I met the claimant on March 2nd 2005.
Claimant: Yes, that's right.
Presiding Member: And you told me at that hearing date that your counsel withdrew.
Claimant: Yes.
Presiding Member: And you were not prepared to proceed without counsel.
Claimant: That's right.
Presiding Member: And so I set this hearing today peremptory with the understanding that we will proceed today with or without your counsel. You were instructed to retain new counsel in time for 1:30 p.m., April 20, 2005.
Claimant: That's right.
Presiding Member: Okay. Or proceed without counsel. So, are you ready to proceed?
Claimant: Yes.
[3] The sole issue before this Court is whether the Board breached the principles of natural justice and procedural fairness in failing to adjourn the hearing when it saw that the applicant did not have counsel.
[4] The applicant submits that, following the Supreme Court of Canada's decision in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, there is an absolute right to counsel at refugee hearings.
[5] The issue in G.(J.), above, was whether the state was required to provide legal aid funding to parents when seeking to remove a child from their custody. Chief Justice Lamer held at paragraph 107 that "(...) s. 7 should not be interpreted as providing an absolute right to state-funded counsel at all hearings where an individual's life, liberty, and security is at stake and the individual cannot afford a lawyer (...)." The Chief Justice then proceeded to outline the procedure that should be followed when an unrepresented parent in a custody application seeks state-funded counsel. Once a judge is satisfied that a parent has exhausted all possible avenues for obtaining state-funded legal assistance, the judge should consider whether the parent can receive a fair hearing through a consideration of three factors: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent. If the judge is not satisfied that the parent can receive a fair hearing, the judge should order the government to provide the parent with state-funded counsel.
[6] As it is clear from the decision, which provides that state-funded legal aid is only constitutionally mandated in some cases, the right to counsel is not absolute. In immigration matters specifically, this Court has repeatedly held that the right to counsel is not absolute: Mervilus v. Canada(Minister of Citizenship and Immigration), 2004 FC 1206, [2004] F.C.J. No. 1460 (F.C.)(QL) at paras. 17-25 where Justice Sean Harrington reviews the law regarding the right to counsel. What is absolute, however, is the right to a fair hearing. To ensure that a hearing proceeds fairly, the applicant must be able to "participate meaningfully": Canada(Minister of Citizenship and Immigration) v. Fast (T.D.), 2001 FCT 1269, [2002] 3 F.C. 373 (F.C.) at paras. 46-47.
[7] Therefore, in certain circumstances, the absence of counsel may result in such unfairness during the hearing that Court intervention is warranted. I am not satisfied, however, that the matter at hand represents such a case. I believe that the applicant was indeed afforded a fair hearing.
[8] I would note first that it is clear from the transcript that the applicant unmistakably indicated that he was ready to proceed without counsel at the hearing of April 20, 2005. Moreover, no adjournment was requested and, contrary to the applicant's suggestion, there is no indication that he was under any pressure to proceed. He cannot now complain about his choice when he had every opportunity to do so at the hearing.
[9] Additionally, I am satisfied that the Board took the necessary precautions to ensure that the applicant was able to participate meaningfully and that the hearing proceeded fairly. There was an interpreter present. The presiding member explained the manner of proceeding, the burden of proof, the five Convention refugee grounds and the definition of a person in need of protection as well as the importance of credibility in very straightforward terms. During the hearing, the Board took the necessary time to ensure the applicant understood the materials, for example, his personal information form. The Board noted the evidence which was previously submitted by the applicant's former counsel. The Board also gave the applicant the opportunity to introduce his own documentary evidence. Finally, on more than one occasion, the Board asked the applicant if he understood what was asked of him, to which he consistently replied in the affirmative.
Presiding Member: (...)So do you have any questions concerning that Convention refugee or a person in need of protection part?
Claimant: I don't think so.
Presiding Member: (...) So, are you ready to proceed?
Claimant: Yes.
Presiding Member: Do you understand what you need to do today?
Claimant: Yes.
(...)
Presiding Member: Okay. In that case then are you comfortable proceeding?
Claimant: Yes.
[10] In sum, the transcript shows that special attention was paid to ensuring that the applicant understood the issues at hand and that, as an unrepresented claimant, he received a fair hearing.
[11] For these reasons, the application for judicial review is dismissed.
JUDGMENT
The application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3477-05
STYLE OF CAUSE: JAVIER ARMAS AUSTRIA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 29, 2006
REASONS FOR JUDGMENT: TREMBLAY-LAMER J.
APPEARANCES:
| Mr. George J. Kubes
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| Mr. David Cranton
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SOLICITORS OF RECORD:
| George J. Kubes Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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