Sandy v. Canada (Minister of Citizenship and Immigration), 2004 FC 1468

Date: 20041021

Docket: IMM-8486-03

Citation: 2004 FC 1468

BETWEEN:

                                                  DIANE (MAGDALENE) SANDY

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

O'KEEFE J.

[1]                This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated October 7, 2003, wherein it was determined that the applicant is not a Convention refugee or person in need of protection.

[2]                The applicant requests:

1.          An order setting aside the decision of the Refugee Protection Division of the Immigration and Refugee Board, dated October 7, 2003.

2.          An order referring the applicant's claim to Convention refugee status and protection to a differently constituted panel of the Refugee Protection Division for a re-determination in a manner consistent with any reasons for decision or such directions as given by this Honourable Court.

Background

[3]                The applicant, Diane Sandy, requests judicial review of a decision that she is not a Convention refugee. She is a citizen of Grenada, who is claiming a fear of persecution by reason of membership in a particular social group: women subject to domestic abuse.

[4]                The applicant grew up at St. George's on the island of Grenada, in a house with five siblings. When she was fourteen years old, her parents separated. When she was fifteen, her mother began seeing another man named Coleridge Watson ("Watson"). The applicant says he became dominating and would "lash" her for no reason.

[5]                When she was sixteen, the applicant says that Watson began to come into her room and "interfere" with her at nighttime. He took advantage of her because she was the eldest. He told her that she had to do what he asked. Her mother worked nights, so the applicant and her siblings would be at home alone with Watson. She says he started by making comments, and touching her breast. When she confronted him, he said he would buy her things, and that she should not behave this way.

[6]                On one occasion while the applicant was sleeping, Watson began fondling her. She awoke to find him with his trousers down and his hands on her. She attempted to scream and he covered her mouth. As time passed, the attacks got progressively worse, until he was "forcing intercourse" with the applicant.

[7]                As a result of the attacks, the applicant's grades fell, and she began to go out at night and stay with friends or relatives to avoid Watson. Eventually, she approached her mother and told her what was happening. Her mother beat her with a piece of firewood and told the applicant that she should be ashamed since Watson had been taking care of the family. Her mother told her that she should not say nasty things about Watson. Eventually, Watson found out what she said and she was beat again, this time with a hose.

[8]                By the time she was twenty, he was attacking her two to three times per week and the beatings continued. When she was twenty-one, she became pregnant, and went to a midwife in the next village. The midwife "gave [her] something to drink very hot with some bush mixture and because it was early pregnancy [she] past [sic] on the fetus."

[9]                A week after the visit to the midwife, she ran away from home. Watson found her at her friend's home and started to beat her in front of the whole family. She ran from the home and hid in the bush, where she remained until the next morning. In the morning, she returned to her friend's home and her friend's brother took her to the police station in St. Georges. The police station was a waste of time. The applicant says that the police scolded her for running away from home and spoke of disobedient children. One policeman said that Watson was a good man and if he beat her, then he had a good reason to do so.

[10]            She began to live with her friend and got a job as a sales clerk at a health food store. She met a man named Selwyn at the supermarket in 1995. They began calling each other and eventually began dating.

[11]            The applicant and Selwyn began living together in St. Georges. Selwyn started to leave at night and come home smelling of perfume and alcohol, with lipstick on his clothing. Whenever the applicant questioned him, he would become angry. Initially, he would curse her, then began pulling her hair, and eventually began punching and kicking her.

[12]            On one occasion in January 1997, Selwyn kicked her several times, and punched her in the face. She went to the police station at St. Georges and the police wrote her information down. They said they would file a report and follow up. Nothing happened and after the applicant returned twice more to the station to check on the 'follow-up', she realized nothing was going to happen. One of the officers even said that a man had the right to put the licks to them (women) because women have to know their place.

[13]            At the end of February 1997, Selwyn, now her common-law husband, stole some money from her. She left and he begged her to come back. She says that, "after he begged me and begged me, I went back as a fool." She says that Selwyn threatened to kill her if she was ever with another man. When she asked for her money back, he said that the money was his, began to attack the applicant, grabbed a cutlass, and held it to her throat. She told him to keep the money and offered more money that she had hidden in the home. A neighbour heard the argument and came over to the home. The neighbour confronted Selwyn, and Selwyn turned to attack the man with the cutlass. That night the applicant went once more to the police station.    She showed them marks and bruises on her skin, and they wrote down what she said. However, once again, the police did not help her or follow up on the report.

[14]            The applicant decided to leave Grenada. One of the applicant's cousins gave her the ticket money to leave the country. Selwyn continued to make threatening phone calls, which said that if he saw the applicant he would chop her up.

[15]            The applicant came to Canada on March 17, 1997. She has a two year old Canadian son. She recently learned she could claim refugee status in Canada. She made a refugee claim on October 7, 2002.

[16]            She went to Legal Aid in July of 2003. Her notice to appear was for September 3, 2003, when her hearing date would be set. She found out about the hearing in mid-August.

[17]            She spoke with counsel on August 26, 2003 and provided him with her notice to appear on September 3rd. The counsel was not available on that date, and a peremptory hearing was scheduled for October 2, 2003. Counsel was also unavailable on that date, and a postponement was requested by her counsel on September 24, 2003. The postponement request was denied without reasons.

[18]            On September 30, 2003, Legal Aid approved representation of the applicant at her hearing by her chosen counsel and provided her with a copy of the authorization. Counsel provided her with a letter dated October 1, 2003, stating that he was unavailable for the hearing and that he was officially retained as counsel for the applicant.

[19]            The applicant attended the October 2nd hearing alone. When asked whether she was ready to proceed with the hearing (even without counsel), she said she tried to be polite and replied, "not to the fullest". The hearing finished in one hour.

[20]            On October 7, 2003, the Board found the applicant not to be a Convention refugee. She received the reasons rejecting her claim on October 14, 2003.

[21]            The Board found that the applicant had not rebutted the presumption of state protection for Grenada. There is no need to discuss all elements of the decision, as the judicial review is based only on procedural fairness and right to counsel.

Issues

[22]            The applicant raises three issues:

1.          Did the Board breach its duty of procedural fairness in denying the applicant's request for an adjournment of the October 2nd hearing or in the conduct of the hearing?

2.          Did the Board fetter its discretion in dismissing the applicant's application for adjournment of the October 2nd hearing?

3.          Did the Board deny the applicant a fair hearing by failing to provide her with a proper opportunity to make submissions?

[23]            The applicant stated that while she recognizes that the right to counsel is not absolute, the Board's powers are subject to its overriding duty of fairness and to the statutory provisions governing its procedures. The applicant says that the Board erred in its exercise of discretion with respect to both fairness and the legislative provisions.

[24]            The applicant argued Siloch v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 10 (F.C.A.) which provides the following factors to be considered with respect to the right to counsel:

1.          Whether the applicant has done everything in his or her power to be represented by counsel;

2.          The number of previous adjournments granted;

3.          The length of time for which an adjournment has been 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 there any other previous adjournments granted on a peremptory basis; and

8.          Any other relevant factors.

[25]            The applicant cited Dias v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 125 (F.C.T.D.), which cites Siloch with approval, and goes on to say that, "failure to consider the above noted factors in the exercise of its discretion to adjourn a refugee claim for counsel amounts to a breach of procedural fairness."

[26]            In Dias, supra, one of the issues was a suggestion that the claimant had caused an undue delay in the processing of her claim and this Court (Heneghan J.) still found that procedural fairness had been breached. The applicant says that there was no such delay in the current case.

[27]            The respondent said that the Board did not act unreasonably in denying the applicant's postponement request. The respondent said that the applicant had plenty of time to retain and choose counsel from Legal Aid. The respondent argued that the applicant could have chosen alternative counsel who would have been able to appear at the hearing in October. The respondent argued that the fact that the applicant chose a counsel who, from the outset, knew he was unavailable to appear on the date set for the hearing and who accepted a retainer knowing that he could not attend on that date, does not mean that the Board denied the applicant procedural fairness.

[28]            The respondent noted that the Board received the postponement request from counsel one day before the hearing date on October 1st. The respondent submitted that the applicant cannot blame the Board for her own procrastination (see Aseervatham v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 804 (F.C.T.D.) at para 24.), which states:

I agree with the plaintiff that two different situations may arise, namely that of a claimant who obtains counsel once the date of the hearing is fixed and that of a claimant who is already represented by counsel, and the latter is summoned to set a hearing date. In the first case, the claimant must suffer the consequences of his procrastination. In the second case, it is right and proper that the tribunal should consider the counsel's availability before setting a peremptory date. That is precisely what the Refugee Division undertook to do in the case at bar. It made an effort to accommodate Mr. Allen's availability before setting a date.

[29]            The respondent also noted that in a letter date October 11, 2002, the Board specifically informed the applicant of her rights and duties, including the right to be represented by counsel.

[30]            The applicant argued that, in her counsel's initial letter to the Board on August 26, 2003, it was apparent that the applicant had already commenced the retainer process with counsel prior to the hearing date being scheduled. The applicant stated that to accept the Board's logic that counsel ought to have declined, and that the applicant should have sought new counsel, is not possible. The applicant initially contacted Legal Aid in July of 2003, and her counsel was not actually officially retained until September 30, 2003. The applicant argued that to expect her to find new counsel in three weeks is impossible.

[31]            The respondent went on to note that the right to counsel requires the applicant to make a choice from among those counsel who are ready and able to appear on his or her behalf (see Aseervatham, supra, and Dadi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1243 (F.C.T.D.)). In Dadi, supra,, this Court found that a three week delay to give an applicant an opportunity to give a new lawyer time to prepare was not unreasonable.

In the circumstances of this case, on April 17, 1998, the panel granted the applicant an adjournment of his case until May 6, 1998, so that his new lawyer could prepare; the panel also delayed the start of the hearing of May 6, 1998, so that the applicant could contact his lawyer who had not appeared; after a 40-minute wait, during which the applicant did reach his lawyer's secretary and was told to go proceed without him if he did not show up within 15 minutes, the panel finally asked him if he agreed to have his case proceed without his lawyer, which he did without hesitation. Under all these circumstances and having regard to the above statutory provisions, case law and authorities, I am of the opinion that the applicant-who was found not credible-was not denied natural justice or procedural fairness. I therefore see nothing procedural in this case, in which the applicant was given a full hearing and did not establish any prejudice, to warrant this Court's intervention.

[32]            In documentation that the applicant was given and urged to read at the October 2nd hearing, the following section appeared:

(3) Getting Counsel - Because the date set today is peremptory, any counsel you choose to represent you must be available and ready to proceed on that day. The Division will not grant a postponement if the counsel you choose is not available that day or does not have time to prepare your case. It is your responsibility to find counsel who is available and ready to proceed on that day. Since counsels are often booked weeks or months in advance, if you retain counsel, you should do so as soon as possible, so the counsel you choose will be available when you want him/her. If you retain counsel, you should inform the Division in writing as soon as possible.

[33]            The presiding member also orally explained to the applicant the meaning of the word "peremptory" at the hearing.

[34]            The respondent submitted that the adjournment or postponement of a hearing is discretionary, and that the fact that the applicant did not have counsel is just one of the factors for the Board to consider under the Board Rules R. 48(4):

(a) in the case of a date and time that was fixed after the Division consulted, or tried to consult, another 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 the 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 or complexity of the matter to be heard.

[35]            The respondent argued that the hearing, scheduled on October 2nd was peremptory, which militates against the granting of an adjournment (see Tokar v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 107 (F.C.T.D.)).

[36]            The applicant says that the peremptory nature of the hearing is only one of the factors that the Board must consider (see Siloch, supra). The Board gave no consideration to the factors that (a) the applicant had been "fairly diligent" (the Board's words); (b) reasonably proximate alternate dates had been provided by counsel; and (c) the other factors outlined in Siloch, supra.

[37]            With respect to the peremptory nature of the hearing, the applicant also cited Gargano v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1385 (F.C.T.D), which states: "Although the Board's hearing was set down peremptorily, this fact alone is not determinative ... The right to a fair hearing takes precedence over the need for a quick and speedy hearing." (see also R. v. Secretary of State for Home Department, exp Tarrant, [1984] 2 W.L.R. 613 (Q.B. Div. Ct), cited with approval in Gargano).

[38]            The applicant went on to argue that the Supreme Court of Canada's decision in Baker v. Canada (Minister of Employment and Immigration) [1999] 2 S.C.R. 817, has heightened the content of the duty of fairness. The applicant cited the criteria from Baker, supra:

(a) the nature of the decision;

(b) the nature of the statutory scheme;

(c) the importance of the decision to the individual(s) affected;

(d) the legitimate expectation of such individuals; and

(e) the choice of procedure by the decision maker.

[39]            The applicant cited R. 48(4) of the RPD Rules, and says that, although Siloch, supra, remains good law, the aforementioned factors are expressly set out to aid a tribunal in deciding adjournment applications.

[40]            The applicant noted that some of the factors are similar to the Siloch, supra, factors and also noted that the significance of the RPD Rules is their codified nature. The respondent agreed with the importance of the Rules.

[41]            The applicant submitted that the Board erred in refusing to consider whether or not an adjournment would unreasonably delay the proceedings or likely cause an injustice (factor (j) supra), and noted that the Board, based on a claim in October 2002, could not even schedule a hearing date until September 2003, eleven months later. The applicant stated that alternate hearing dates offered by her counsel existed in November and December 2003.

[42]            The applicant also argued that the Board failed to consider the nature or complexity of the matter to be heard (factor (k), supra). The applicant stated that the only issue was state protection. The applicant submitted that the issue of state protection is typically addressed through documentary evidence, and documentary evidence is typically filed by counsel. The applicant did not have any documentary evidence of her own.

[43]            The respondent argued that some of the RPD Rule 48(4) factors mitigate in the respondent's favour. The respondent stated that the applicant had more than enough time to retain counsel, and prepare herself for the proceeding (factor (d) supra).

[44]            The respondent also cited factor (j), stating that the applicant's counsel did not provide his availability at the September assignment hearing. In fact, he was not available for, and did not attend the hearing.

[45]            The respondent, like the applicant cited factor (k) as well. The respondent stated that the case was not complex, as credibility and state protection were the only issues.

[46]            The applicant submitted that natural justice affords a party a reasonable opportunity to summarize the evidence and make arguments and submission at the conclusion of the case. The applicant stated that the Board's unwillingness to assist the unrepresented applicant in notifying her of this opportunity, and, if necessary, giving her some guidance, amounted to a breach of natural justice.

[47]            The respondent stated that the applicant was provided with an adequate opportunity to be heard and that the applicant's argument for natural justice does not raise a serious issue. The respondent noted that it is well established that the onus is on a refugee claimant to present a valid claim and satisfy the Board that he or she meets the requirements for refugee protection. The presiding member was under no duty to specifically notify the claimant of her right to make submissions (see Brad v. Canada (Minister of Employment and Immigration), [2003] F.C.J. No. 1035 (F.C.T.D.)).

[48]            The respondent also noted that the presiding member asked the applicant if she had anything to add after the Refugee Protection Officer made her submissions. The applicant responded in the negative. The respondent stated that this question would have allowed the applicant to make oral representations at the end of the hearing, in accordance with R. 60 of the RPD Rules.

Analysis and Decision

[49]            I will deal first with Issue 1.

[50]            Issue 1

Did the Board breach its duty of procedural fairness in denying the applicant's request for an adjournment of the October 2nd hearing or in the conduct of the hearing?

There is no dispute that a refugee claimant's right to counsel is not absolute. As well, the Board has a discretion to allow or deny an adjournment request as the Board has the right to control its own procedure.

[51]            On the other hand, the Board cannot overlook the rules of procedural fairness or its own rules when it is deciding whether or not to grant an adjournment.

[52]            In Siloch, supra, the Federal Court of Appeal stated:

It is also well settled that in exercising his discretion to grant an adjournment under subsection 35(1) of the Regulations the Adjudicator must direct his attention to factors such as:

a)             whether the applicant has done everything in her power to be represented by counsel;

b)             the number of previous adjournments granted;

c)             the length of time for which the adjournment is being sought;

d)             the effect on the immigration system;

e)             would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry;

f)             the fault or blame to be placed on the applicant for not being ready;

g)             were any previous adjournments granted on a peremptory basis;

h)             any other relevant factors.

[53]            Rule 48(4) of the Refugee Protection Division Rules, S.O.R./2002-228 contain similar factors and read as follows:

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.

[54]            I have reviewed the transcript of the hearing and I cannot determine that the Board member gave consideration to all of the factors listed above. Further, there are no written reasons or notes to show how the Board member came to a decision to deny the adjournment. The only factors considered by the Board were that the hearing date was set on a peremptory basis and the conduct of counsel. The Board did not consider the other factors. Based on the facts of this case, this was an error on the part of the Board. I am of the view that this error constituted a breach of the duty of procedural fairness owed to the applicant (see Dias v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 125 (QL) F.C.).

[55]            I need not deal with the other issues raised by the applicant.

[56]            The application for judicial review is therefore allowed and the matter is remitted to a different panel of the Board for redetermination.

[57]            The respondent did not wish to submit any proposed question of general importance for my consideration.

[58]            The applicant shall have one week from the date of these Reasons to submit any proposed serious question of general importance for my consideration and the respondent shall have five days from the receipt of the applicant's question to make any submissions.

[59]            The applicant requested costs on a solicitor and client basis. The respondent opposed this request. After considering the submissions of the parties, I am not prepared to award costs on a solicitor and client basis. Any award of costs is based on the Court ordering costs "for special reasons." I do not believe that the failure to grant an adjournment nor the Board's conduct in this case give rise to "special reasons" so as to allow the Court to order costs. It follows that the Board's conduct does not justify the applicant an award of costs on a solicitor and client basis.

"John A. O'Keefe"

                                                                                                   J.F.C.                           

Toronto, Ontario

October 21, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-8486-03

STYLE OF CAUSE: DIANE (MAGDALENE) SANDY

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   OCTOBER 7, 2004

REASONS FOR ORDER BY:                     O'KEEFE J.

DATED:                     OCTOBER 21, 2004

APPEARANCES BY:

Avi J. Sirlin                 

FOR THE APPLICANT

Amina Riaz

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Avi J. Sirlin

Toronto, Ontario

FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE RESPONDENT

FEDERAL COURT

Date: 20041021

Docket: IMM-8486-03

BETWEEN:

DIANE (MAGDALENE) SANDY

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                                                 

        REASONS FOR ORDER