Ottawa, Ontario, August 25, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision dated January 18, 2006 of the Refugee Protection Division of the Immigration and Refugee Board (the Board) which found that the applicant is not a Convention refugee or person in need of protection. The only issue is whether the Board illegally refused the applicant’s request for an adjournment so that the applicant could be represented by counsel, if counsel received approval from legal aid to act on this case.
FACTS
[2] The applicant, a 31 year-old male citizen of Saint Lucia, claimed refugee protection on September 5, 2005 based on a fear of harm from criminal elements if returned to his country of origin.
[3] Before his hearing, the applicant was advised of his right to counsel:
i. the Board advised the applicant of his right to be represented by legal counsel by way of a Notice to Appear for a Conference under section 20 of the Refugee Protection Division Rules, SOR/2002-228 dated October 28, 2005. The Notice clearly instructed that if the applicant were to retain counsel, he must immediately notify the Board of counsel’s contact information in accordance with subsection 4(4); and
ii. The Refugee Protection Officer (RPO), who convened the pre-hearing conference on November 9, 2005 in accordance with his duties under section 16 of the Refugee Protection Division Rules, advised him orally of his right to counsel.
[4] In December 2005, the applicant was referred to Mr. Midouin, a lawyer who agreed to act for the applicant if legal aid provided funds. At the applicant’s hearing on January 17, 2006, an assistant to Mr. Midouin, Ms. Houessou, appeared before the Board and applied to adjourn the hearing to allow:
i. sufficient time for Mr. Midouin to determine whether Legal Aid Ontario would pay for his legal services; and
ii. sufficient time for the applicant to undergo psychiatric assessment based on Mr. Midouin’s subjective belief that such evaluation was warranted.
[5] The Board rejected the oral application for adjournment, but invited Ms. Houessou to act as the applicant’s counsel for the purpose of the hearing.
[6] By decision dated January 18, 2006 the Board rejected the applicant’s refugee claim, concluding that:
i. there was not more than a mere possibility that he would be persecuted on a Convention ground, or risk to life or danger of torture or cruel and unusual treatment or punishment in Saint Lucia; and
ii. the applicant’s oral evidence was not credible in key aspects because it was inconsistent with his personal information form (PIF).
ISSUE
[7] The issue raised is whether the Board breached its duty of procedural fairness to the applicant by refusing to adjourn his hearing, thereby depriving him of his right to counsel.
STANDARD OF REVIEW
[8] The question of procedural fairness is one the Court must decide as a matter of law on a correctness standard. See Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100.
RELEVANT LEGISLATION
[9] The legislation relevant to this case is the Refugee Protection Division Rules, SOR/2002-228 and the Immigration and Refugee Protection Regulations, SOR/2002-227, the relevant excerpts of which are reproduced following these reasons at Appendix “A”.
ANALYSIS
Issue: Did the Board breach its duty of fairness by refusing to adjourn the applicant’s hearing, depriving him of right to counsel?
(a) Counsel first consulted one month prior to hearing
[10] The applicant initially consulted counsel, Mr. Midouin, in late December 2005. The applicant did not notify the Board that counsel may act for him. Nor did Mr. Midouin inform the Board that he would act if the applicant obtains a certificate from Legal Aid Ontario, that he intended to seek an extension of time to file an amended PIF statement, or that he sought to adjourn proceedings until the applicant could be examined by a mental health practitioner. Mr. Midouin’s assistant, Ms. Houessou, informed the Board of these facts for the first time on the day of the hearing when she made an oral application under subsection 48(3) of the Refugee Protection Division Rules for an adjournment.
[11] Ms. Houessou stated that the applicant did not inform Mr. Midouin of his hearing date until the day before, for which reason there was insufficient time for counsel to request an adjournment in advance. The Court finds that Mr. Midouin should have informed the Board of the applicant’s pending retainer and his correspondence with Legal Aid Ontario following his first meeting with the applicant in December 2005.
(b) Board invited, and then considered that Ms. Houessou agreed to act as counsel
[12] When the Board denied Ms. Houessou’s request for an adjournment, the Board suggested she act as counsel for the applicant. Ms. Houessou responded in a tentative manner, as evidenced at pages 162-163 of the tribunal record:
By presiding member (to counsel):
[…] So what do you want to do? Do you want to be an observer? Or the second thing you can do – you have the choice of either being an observer or if you want to act for the claimant, you would be allowed to seek clarification once we have asked some questions. If you think something is unclear from the answers, you can do so on his behalf and you can ask him questions […] Now, usually when we have a claimant who does not have a counsel, we ask him at the end of the hearing to make a statement on his behalf, which we will do of the present claimant. If you want to add something after that, you would be allowed to do so. So would you like to be an observer, or would you like to accept this role?
By counsel (to presiding member):
I think I accept the role.
[13] The Court finds that Ms. Houessou did not, and could not act as counsel for the applicant at his hearing. Ms. Houessou was not prepared to act as counsel at the hearing, only to request an adjournment. Moreover, Ms. Houessou is not a lawyer, immigration consultant, or authorized person to act as counsel before the Board. See section 2 and subsection 13.1(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended.
(c) Board’s legal duty to consider several factors in deciding whether to grant an adjournment
[14] In Ramadani v. Canada (Minister of Citizenship and Immigration) (2005), 137 A.C.W.S. (3d) 383 (F.C), my colleague Madam Justice Carolyn Layden-Stevenson articulated the Board’s duty, before denying an application to adjourn, to turn its mind to the relevant factors set out by the Federal Court of Appeal in Siloch v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76 (F.C.A.). At paragraph 11 of Ramadani, Layden-Stevenson J. stated:
¶ 11 In my view, the RPD must, at a minimum, indicate that it has had regard to the relevant factors enumerated in Siloch, supra, before arriving at a negative decision. Its failure to do so constitutes a reviewable error. I note that my colleagues Madam Justice Heneghan and Mr. Justice O'Keefe arrived at a similar conclusion in Dias v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 125, 2003 FC 84 and Sandy v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1770, 2004 FC 1468.
[15] In Siloch, as above, the Court of Appeal considered the predecessor legislation (Immigration Regulations) to the Refugee Protection Division Rules now in force, and set out eight factors that may be relevant to the Board’s discretion to grant an adjournment:
1. whether the applicant has done everything in her power to be represented by counsel;
2. the number of previous adjournments granted;
3. the length of time for which the adjournment is being sought;
4. the effect on the immigration system;
5. would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry;
6. the fault or blame to be placed on the applicant for not being ready;
7. were any previous adjournments granted on a peremptory basis;
8. any other relevant factors.
[16] These factors parallel those set out in the Refugee Protection Division Rules. Subsection 48(4) states:
48. […]
(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.
(d) The Board’s Reasons for denying adjournment
[17] The Board’s reasons for refusing the adjournment are set out at page 3 of its reasons for decision:
The claimant chose to go without counsel and had a conference with a Refugee Protection Officer, who filled him in on the procedure and provided him with a disclosure package pertaining to his case.
At his hearing, however, a lady by the name of Sophie Hanouessou [sic] turned up, stating that she represented a counsel, who is waiting for approval of legal aid but who would then represent the claimant. She also stated that the counsel had told her that the claimant, in his opinion, needs psychiatric treatment. She submitted no letter from counsel, nor did she provide a medical certificate. Since the claimant in his conference with the Refugee Protection Officer had already told the Board that he is prepared to proceed without counsel, and did not inform the Board subsequently that he would or was in the process of retaining a counsel, I decided to proceed with the hearing. I stated, however, that Ms. Hanouessou [sic] could act as counsel informally, asking questions of the claimant and also making submissions on his behalf. I also stated at the outset that though we were proceeding with the hearing I would evaluate the situation should the claimant’s conduct make it necessary.
However, the claimant understood all the questions that were put to him. He provided answers in a manner that suggested he had understood the questions and had no difficulty in answering them. There was no evidence at the hearing from the claimant’s conduct, words or demeanour that he was unable to respond to questions or provide testimony, or that he did not understand the proceedings.
[…]
Further reasons are disclosed by the Board in the transcript of hearing (at pages 159-161 of the tribunal record):
By presiding member (to counsel):
[…] Now, we have had no indication so far from the evidence that the claimant has any health problems. The Personal Information Form has not been filled out very diligently, but this happens in many refugee cases. We have had the letter from the mother, from the other lady about the fear, but we have had nothing except your statement based on the opinion of the lawyer who has not informed us of anything about the claimant’s need to see a mental health specialist. I should point out to you that even when we have persons under treatment and even if we have persons in the hospital, we have gone to the Royal Ottawa Hospital. We have gone to various hospitals and we have had hearings there. In all such cases, we take into consideration the state of mind of the claimant […] Merely saying that a person is in need of a doctor does not qualify […]
By presiding member (to RPO):
… [W]e don’t know when this Legal Aid would be given. We don’t know when he might be able to see a psychiatrist. I don’t see any evidence here that tells me that we cannot proceed.
(e) Board did not consider all relevant factors in deciding to deny an adjournment
[18] In applying the eight factors enumerated by the Federal Court of Appeal in Siloch, as above, the Board only considered two factors:
1) whether the Applicant has done everything in his power to be represented by counsel; and
2) whether the fault or blame is properly placed on the Applicant for not being ready with counsel.
[19] Both of those factors weigh heavily against the Applicant’s request for an adjournment. However, the Board must consider all of the relevant factors and did not consider the following factors:
1) the number of previous adjournments granted (which were none);
2) the length of time for which the adjournment is being sought (this information was not sought by the Board);
3) the effect on the immigration system (no comment by the Board);
4) would the adjournment needlessly delay, impede, or paralyse the conduct of the inquiry and
5) were any previous adjournments granted on a peremptory basis.
[20] All of these factors may weigh in favour of granting an adjournment. The Board does not appear to have taken these factors into account.
[21] In my decision Antypov v. Canada (Minister of Citizenship and Immigration) (2004), 135 A.C.W.S. (3d) 300 (F.C.), I considered whether the denial of an adjournment by the Board so that the Applicant could obtain counsel constituted a breach of the rules of natural justice. In that case, and in much of the jurisprudence where the denial of an adjournment for this purpose was not considered a breach of the rules of natural justice, the Applicant had demonstrated a pattern of delaying the proceedings and had already been granted adjournments on previous occasions. In the case at bar, this is the first time the Applicant has sought an adjournment. While the Applicant had ample time to make arrangements for counsel and was negligent in doing so the Board is still obliged to consider and weigh these other factors.
[22] As indicated above, the Board erred in finding that Ms. Houessou was acting as counsel for the Applicant at the hearing. This influenced the Board’s decision to deny the adjournment. Ms. Houessou did not provide the Applicant with his right to legal counsel since she was not prepared for the hearing, and only prepared to request an adjournment on behalf of the Applicant’s intended counsel. Moreover, she was not a lawyer or otherwise qualified under the law to act as counsel. For these reasons, this application for judicial review must be allowed and the matter referred back to the Board for redetermination.
[23] I am satisfied that this case does not raise a question of general importance not already decided, so I will not certify a question.
JUDGMENT
THIS COURT ORDERS that:
1. The application for judicial review is allowed, and the matter is referred back to the Board for re-determination by a differently constituted panel.
2. No question of general importance is certified.
APPENDIX “A”
1. Immigration and Refugee Protection Regulations, SOR/2002-227
|
Interpretation
2. The definitions in this section apply in these Regulations.
[…]
"authorized representative" means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003.
[…]
DIVISION 4 REPRESENTATION FOR A FEE
13.1 (1) Subject to subsection (2), no person who is not an authorized representative may, for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.
[…] |
Définitions
2. Les définitions qui suivent s'appliquent au présent règlement.
[...]
"représentant autorisé" Membre en règle du barreau d'une province, de la Chambre des notaires du Québec ou de la Société canadienne de consultants en immigration constituée aux termes de la partie II de la Loi sur les corporations canadiennes le 8 octobre 2003.
[…]
SECTION 4
REPRÉSENTATION CONTRE RÉMUNÉRATION
13.1 (1) Sous réserve du paragraphe (2), il est interdit à quiconque n'est pas un représentant autorisé de représenter une personne dans toute affaire devant le ministre, l'agent ou la Commission, ou de faire office de conseil, contre rémunération. […] |
2. Refugee Protection Division Rules, SOR/2002-228
|
INFORMATION AND DOCUMENTS TO BE PROVIDED TO THE DIVISION Claims for Refugee Protection
[…]
4. […]
Claimant's counsel
(4) A claimant who is represented by counsel must, on obtaining counsel, provide the counsel's contact information in writing to the Division and the Minister. If that information changes, the claimant must without delay provide the changes in writing to the Division and the Minister.
[…]
REFUGEE PROTECTION OFFICERS Duties
16. The duties of refugee protection officers are, as directed by the Division, to
(a) review files to identify issues in a claim or other matter;
(b) conduct research and collect and provide information;
(c) hold interviews, prepare reports and make recommendations;
(d) participate in hearings and conferences;
(e) present evidence and call and question witnesses;
(f) make representations to the Division; and
(g) do any other thing that is necessary to ensure a full and proper examination of a claim or other matter.
[…]
CONFERENCES Requirement to participate at a conference
20. (1) The Division may require a party to participate at a conference to discuss issues, relevant facts and any other matter in order to make the proceedings more fair and efficient. […]
[…]
NOTICE TO APPEAR Notice to appear
22. The Division must notify a party in writing of the date, time and location of a proceeding.
[…]
How to Make an Application
Form of application and time limit
44. (1) Unless these Rules provide otherwise, an application must be made in writing and without delay. The Division may allow a party to make an application orally at a proceeding if the party with reasonable effort could not have made a written application before the proceeding. […]
[…]
Application to change the location of a proceeding
47. (1) A party may make an application to the Division to change the location of a proceeding. […]
[…]
CHANGING THE DATE OR TIME OF A PROCEEDING Application to change the date or time of a proceeding
48. (1) A party may make an application to the Division to change the date or time of a proceeding.
Form and content of application
(2) The party must
(a) follow rule 44, but is not required to give evidence in an affidavit or statutory declaration; and
(b) give at least six dates, within the period specified by the Division, on which the party is available to start or continue the proceeding.
If proceeding is two working days or less away
(3) If the party wants to make an application two working days or less before the proceeding, the party must appear at the proceeding and make the application orally.
Factors
(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.
Duty to appear at the proceeding
(5) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the date and time fixed and be ready to start or continue the proceeding. |
RENSEIGNEMENTS ET DOCUMENTS À FOURNIR À LA SECTION Demande d'asile
[…]
4. […]
Coordonnées du conseil
(4) Dès qu'il retient les services d'un conseil, le demandeur d'asile transmet les coordonnées de celui-ci par écrit à la Section et au ministre. Dès que ces coordonnées changent, le demandeur d'asile transmet les nouvelles coordonnées par écrit à la Section et au ministre.
[…]
AGENT DE PROTECTION DES RÉFUGIÉS Fonctions
16. L'agent de protection des réfugiés exerce, selon les instructions que lui donne la Section, les fonctions suivantes:
a) l'examen du dossier afin de déterminer les points litigieux soulevés dans une demande d'asile ou dans toute autre affaire;
b) la recherche, l'obtention et la transmission des renseignements;
c) la conduite d'entrevues, la rédaction de rapports et la formulation de recommandations;
d) la participation à des audiences et à des conférences;
e) la présentation de la preuve ainsi que la convocation et l'interrogatoire des témoins;
f) la présentation d'observations à la Section;
g) l'accomplissement de toute autre tâche nécessaire à l'examen approfondi d'une demande d'asile ou de toute autre affaire.
[…]
CONFÉRENCE Convocation à une conférence
20. (1) La Section peut exiger qu'une partie participe à une conférence pour discuter des points litigieux, des faits pertinents de l'affaire ou de toute autre question afin que les procédures soient plus équitables et efficaces. […]
[…]
AVIS DE CONVOCATION Avis de convocation
22. La Section avise les parties par écrit des date, heure et lieu d'une procédure.
[…]
Comment faire une demande
Forme de la demande et délai
44. (1) Sauf indication contraire des présentes règles, toute demande est faite sans délai par écrit. La Section peut permettre que la demande soit faite oralement pendant une procédure si la partie n'aurait pu, malgré des efforts raisonnables, le faire par écrit avant la procédure. […]
[…]
Demande de changement de lieu d'une procédure
47. (1) Toute partie peut demander à la Section de changer le lieu d'une procédure. […]
[…]
CHANGEMENT DE LA DATE OU DE L'HEURE D'UNE PROCÉDURE Demande de changement de la date ou de l'heure d'une procédure
48. (1) Toute partie peut demander à la Section de changer la date ou l'heure d'une procédure.
Forme et contenu de la demande
(2) La partie:
a) fait sa demande selon la règle 44, mais n'a pas à y joindre d'affidavit ou de déclaration solennelle;
b) indique dans sa demande au moins six dates, comprises dans la période fixée par la Section, auxquelles elle est disponible pour commencer ou poursuivre la procédure.
Procédure dans deux jours ouvrables ou moins
(3) Si la partie veut faire sa demande deux jours ouvrables ou moins avant la procédure, elle se présente à la procédure et fait sa demande oralement.
Éléments à considérer
(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 la partie 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.
Obligation de se présenter aux date et heure fixées
(5) Sauf si elle reçoit une décision accueillant sa demande, la partie doit se présenter à la date et à l'heure qui avaient été fixées et être prête à commencer ou à poursuivre la procédure. |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1109-06
STYLE OF CAUSE: DAVID MODESTE and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 17, 2006
APPEARANCES:
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Mrs. Negar Achtari
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Mr. Alexandre Kaufman
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SOLICITORS OF RECORD:
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Law Offices of Negar Achtari
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John H. Sims, Q.C. Deputy Attorney General of Canada
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