Date: 20061026
Docket: IMM-6970-05
Citation: 2006
FC 1291
BETWEEN:
BOGUSLAW RAJKOWSKI,
BARBARA RAJKOWSKI,
KAROL SZYMON RAJKOWSKI and
ANNA ZUZANNA RAJKOWSKA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
I. Introduction
[1]
These
reasons follow the hearing on the 23rd of October, 2006, of an
application for judicial review of a decision of the Refugee Protection
Division (the “Tribunal”) of the Immigration and Refugee Board, dated the 25th
of October, 2005, wherein the Tribunal determined the applicants not to be
Convention refugees or persons otherwise in need of like protection. At the
close of the hearing, I advised Counsel that the application for judicial
review would be dismissed. These are my reasons for reaching that conclusion.
II. Background
[2]
The
applicants are husband and wife and their two children. The principal applicant
is Boguslaw Rajkowski. The applicants are citizens of Poland, of Roma ethnicity. The principal
applicant bases his claim on his treatment in Poland, by reason of his ethnicity. The other applicants
base their claim on that of the principal applicant.
[3]
The applicants
came to Canada from the village of Dolnoslaskie in Poland. They were all born in Poland. The principal applicant
alleges that he was assaulted by two men who smashed his accordion. He further
alleges that he was despised because of his ethnicity and treated as if he were
a thief by the police and others in their small farming community. The
principal applicant attests that, in April, 2004, he received a letter
threatening to kill him and his family if they did not move out of Poland. He alleges that he reported
the threat to the police but that the police ignored him. The other applicants
cited examples of discrimination, persecution, harassment and threats that they
faced in Poland.
[4]
The
applicants were granted Canadian Visitor Visas to attend a christening of the
principal applicant’s grand daughter. They came to Canada in June of 2004. They made their claims
for protection in September, 2004.
III. The Decision Under Review
[5]
The
Tribunal was satisfied that the applicants are who they claim to be and that
they are citizens of Poland. It found them not to be
Convention refugees or persons otherwise in need of like protection because
they do not have a well-founded fear of persecution in Poland based on a
Convention ground they would not be subjected personally to a risk to their
lives or to a risk of cruel or unusual treatment or punishment, if they were
returned to Poland and that there is no substantial ground for a belief that
their removal to Poland would subject them personally to a danger of torture.
[6]
In support
of its decision, the Tribunal determined that the behaviour and actions of the
applicants did not support a finding of a subjective fear on their part. The
Tribunal further found that the applicants’ fear lacked an objective basis on
the ground that state protection in Poland
was reasonably available to them.
IV. The Issue
[7]
Counsel
for the applicants, before the Court; put forward a single “central” issue on
this application for judicial review, that being, whether the applicants were
provided natural justice and procedural fairness. The applicants appeared
before the Tribunal on three separate occasions, the first being on the 16th
of June, 2005, the second being on the 21st of July, 2005, and the
third being on the 4th of October, 2005. Only on the last of the
three appearances, was the substance of the applicants’ claims examined.
[8]
While the
adequacy of the Tribunal’s reasons for rejecting the applicants’ claim was
raised in the applicants’ memorandum of argument, it was not pursued as an
issue at the hearing.
[9]
In essence
then, the sole issue before the Court was whether or not the applicants were
afforded natural justice and procedural fairness with respect to their claims.
V. Analysis
A. Standard of Review
[10]
Issues of
natural justice and procedural fairness do not attract a pragmatic and
functional analysis. The standard of review on such issues is correctness.
B. The Process with respect to the applicants before the
Tribunal
[11]
The
applicants are neither sophisticated nor well-educated. They do not speak
English. On all three appearances before the Tribunal, they were not
represented by counsel although they did have with them a “friend” who spoke
both polish and english. A review of the transcript indicates that the friend’s
english was not sophisticated or particularly fluent.
[12]
For the
first appearance of the applicants before the Tribunal, on the 16th
of June, 2005, no transcript is included in the Tribunal Record. Counsel, when
questioned at hearing, were unable to provide any explanation as to why a
transcript was not included. The only document relevant to that hearing to
which the Court was taken appears at page 112 of the Tribunal Record and is
entitled Hearing Information Sheet. That document would appear to have been
completed by the presiding member. It notes that the applicants were present,
that the hearing lasted 25 minutes that the hearing was adjourned because the
applicants were “not prepared to go without counsel,” and that they were
instructed to retain and instruct counsel by the 21st of July, 2005
or “…go ahead without”.
[13]
The
applicants’ friend filed an affidavit in this proceeding in which he attests:
I accompanied the Rajkowskis to their
hearing, on June 16, 2005. There was no interpreter present, so the Board
member spoke with me. I explained that I had found a lawyer to represent the Rajkowskis,
but that the lawyer needed a postponement of the hearing to prepare. The Board
member stated several times that it was not necessary for the Rajkowskis to
have a lawyer. She said that the hearing was not between the lawyer and the
Board member. It was between the claimants and the Board member. She said that
there was no need to waste $3,000. She said my English was good enough and that
I could represent them if there were any questions. She said that she would
hold on to the file and that we would have the hearing in a few weeks. She then
rescheduled the hearing for July 21, 2005. She said that she would be the
member and that the hearing must take place on that date.
[14]
The
second hearing before the Tribunal took place on the 21st of July,
2005. A different Tribunal member presided. Again, there was no interpreter
although on this occasion, a transcript was made and it appears in the Tribunal
Record.
[15]
The
transcript discloses an exchange between the Tribunal member and the
applicants’ friend in which the Tribunal member indicates that it would not be
necessary for the applicants to have a lawyer. The Member continues:
You have the right to have a lawyer. You
could have a lawyer if you want but it’s at your expense but it’s not
necessary.
[16]
The
applicants’ friend indicated that the applicants were ready to proceed on that
date, notwithstanding that they did not have a lawyer to represent them.
Nonetheless, the interpreter arrived too late. In the result, the hearing was
once again postponed, this time to the 4th of October, 2005.
[17]
On the 4th
of October, the applicants once again appeared before the Tribunal, and once
again, they were without a lawyer to represent them. On this occasion, an
interpreter was present. The applicants’ friend explained the situation to the
presiding member in the following terms:
So I came here and I asked if he could
postpone until I can collect from our friends to get a lawyer and she says my
[sic] all means there is no need for the lawyer. That’s [sic]was her advice
because it’s a matter between you sir, and them. So she says to spend that kind
of money there [sic] is not necessary to have a lawyer and that’s why we
decided to proceed without the lawyer.
[18]
That being
said, the issue of the cost of the lawyer was clearly a significant
consideration in the minds of the applicants and their friend.
[19]
Once
again, early on in the hearing on the 4th of October, 2005, the
following exchange took place between the Tribunal member and the principal
applicant:
Presiding member: You are ready to
proceed without counsel?
Male claimant: Yes.
President member: You
know that you are entitled to counsel at your own expense but you are ready to
proceed without counsel?
Male claimant: Yes, I am
ready. I want to finish it.
[20]
The
transcript discloses that the presiding member at the October 4th
hearing was at pains to explain the process during the course of the hearing
and to do his best to ensure that the applicants understood what was going on.
This is reinforced by the following paragraph contained in the Tribunal
member’s reasons for decision:
The claimants were not represented by counsel.
Thus, I ensured that the following procedural safeguards were in place. I
explained to the claimants before commencement of the hearing, the Convention
grounds and the meaning of the consolidated grounds and relevant legal tests. I
also explained the procedural issues and what onus they had to meet. The
claimants were given an opportunity to review their Personal Information Forms
(PIFs). They were confident in proceeding without the help of counsel and
affirmed that they understood the explanation provided.
[21]
Before the
Court, counsel for the applicants urged that the applicants were denied natural
justice and procedural fairness in that they were counselled by the Tribunal
members before whom they appeared that a lawyer was not necessary to represent
them, that they relied to their detriment on that advice, in particular on the advice
that they received at their first hearing, and that the unexplained absence of
a transcript for their first hearing prejudiced their ability to establish
their case before this Court. I reach a different conclusion.
[22]
In Austria v. Canada (Minister of Citizenship and
Immigration), my
colleague Justice Tremblay-Lamer wrote at paragraph 3 of her reasons:
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.
[23]
Madam
Justice Tremblay-Lamer continued at paragraphs 6-9 of her reasons:
As it is clear from the decision, which
provides that state-funded legal aid is 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:…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”…
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.
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.
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 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.
[citations omitted]
[24]
I am
satisfied that, with the exception of providing the applicants an opportunity
to introduce their own documentary evidence, and the reality that here, the
applicants never had counsel and therefore, evidence was never previously
presented on their behalf by former counsel, exactly the same might be said
here. I am not satisfied that those two exceptions resulted in an unfair
hearing. In essence, the applicants got the hearing that they asked for and I
am simply not satisfied that they were misled or misadvised by the Tribunal
into proceeding without counsel.
VI. Conclusion
[25]
In the
result, this application for judicial review will be dismissed.
[26]
At the
close of the hearing, as earlier indicated, I advised counsel that this
application would be dismissed. Neither counsel, when consulted, recommended
certification of a question. The Court itself is satisfied that no serious
issue of general importance arises on the particular facts of this matter. No
question will be certified.
“Frederick
E. Gibson”
Toronto,
Ontario
October
26, 2006
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