Date: 20100108
Docket: IMM-2132-09
Citation: 2010 FC 22
Ottawa, Ontario, January 8, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SHAUN
XENON KHAN
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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 (Act) for judicial review
of a decision of the Immigration Appeal Division of the Immigration and Refugee
Board dated April 1, 2009 (Decision), in which the Board dismissed the
Applicant’s appeal from the removal order issued against him. The oral review
conducted by the Board occurred as a result of an application of the Canadian
Border Services Agency (CBSA) pursuant of section 26 of the Act on the basis that
the Applicant had breached numerous conditions of his stay of removal.
BACKGROUND
[2]
The
Applicant is a citizen of the United Kingdom (U.K.) who became a permanent
resident of Canada in 1990. The Applicant
came to Canada with his father, mother
and siblings.
[3]
The
Applicant was convicted of armed robbery in 1999 and ordered deported from Canada. He appealed this
deportation to the Immigration Appeal Division (IAD). He was granted a five year
stay of the deportation order with terms and conditions.
[4]
Much
later, the Applicant received a phone call from the IAD advising him of a
scheduled review for his stay on March 26, 2009. The Applicant attended this
hearing and was informed shortly thereafter that his appeal had been dismissed.
DECISION UNDER REVIEW
[5]
The
Board listed the conditions of the stay of removal that the Applicant had
allegedly breached. These conditions included:
a.
Not
providing evidence of compliance of his stay of removal when requested, as
required by conditions 7 and 8;
b.
Failing
to produce a copy of a valid passport, contrary to condition 2;
c.
Failing
to provide evidence of a serious attempt to resolve the Applicant’s outstanding
charge in Alberta and to
“clarify the disposition with respect to the fail to comply charge in British
Columbia,”
as required by condition 13;
d.
Failing
to report to the Bond Reporting Centre on April 4, 2008 and October 3, 2008, as
required by condition 9;
e.
Failing
to report his new and outstanding charges, as required by condition 5;
f.
Failing
to attend a counsellor to “address his unresolved psychological issues and
maximize his rehabilitation,” pursuant to condition 10.
[6]
The
Board noted that the Applicant had requested either an extension of his stay of
removal (in order to comply with its terms and conditions) or, in the
alternative, that the appeal be allowed. The Minister asked that the
Applicant’s appeal be dismissed.
[7]
The
Board noted that the Applicant had previously been ordered deported because he had
stolen a motor vehicle and robbed a convenience store at knifepoint. The
Applicant had been granted a five year stay in 2003 because of the
consideration of the best interest of a child directly affected by the
proceedings.
[8]
The
Board noted that the Applicant has not had any full-time employment in the last
five years. He lives with his mother and her friend, and is supported by his
mother and his siblings.
[9]
Based
on section 68.3 of the Act, the Board can, at any time, reconsider an appeal of
a removal order. In so doing, the Board must consider the factors listed in Chieu
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002]
S.C.R. 84. Such factors include:
a.
The
seriousness of the offences leading to the deportation order;
b.
The
possibility of rehabilitation;
c.
The
length of time spent in Canada and the degree to which the appellant is
established here;
d.
The
appellant’s family in Canada and the dislocation to the family that deportation
would cause;
e.
Support
available to the appellant within the family and within the community; and
f.
Potential
foreign hardship the appellant will face in the country of removal;
[10]
The
Board noted that its assessment was guided by subsection 3(1)(h) of the
Act which includes the objective to “protect the health and safety of Canadians
and maintain the security of Canadian society.” The Board also explained that
it was “alert, alive and sensitive” to the best interests of any child directly
affected by the removal of the appellant, as required by Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39
(QL).
[11]
The
Board considered the Applicant’s argument that he had not supplied a letter of
compliance because he had not received such a request. The Board noted that the
notice sent to the Applicant had been returned to the sender. The Board
concluded that the Applicant had moved within the period of the five-year stay
of removal and had not informed the appropriate authorities of his change of
address. Consequently, the Applicant had breached conditions 7 and 8 of his
stay of removal.
[12]
Moreover,
the Applicant had not brought his passport to the hearing to prove that he had
extended it. The Applicant argued that he had given copies of his passport to
the CBSA and the IAD. However, there was no copy on the Applicant’s file; nor
did the Minister’s counsel have a copy. The Board doubted the truth of the
Applicant’s explanation of submitting copies of his passport because he was
unable to explain when and where these copies were submitted. Consequently, the
Board doubted the Applicant’s credibility with regard to this portion of his
testimony. The Board concluded that the Applicant had breached condition 2 of
his stay of removal.
[13]
The
Applicant testified that he had given his previous counsel the documents which
demonstrated that his outstanding issues in British Columbia and Alberta had been
stayed. The Applicant said that his counsel then provided these documents to
the IAD and CBSA. However, the Applicant did not keep a copy of this
documentation for himself.
[14]
Again,
the Board could not find a copy of these document’s on the Applicant’s file,
nor were they in the possession of the Minister’s counsel. The Board determined
the Applicant’s testimony was not credible because he was unable to discuss the
contents of these documents and had neglected to secure a copy for the hearing.
[15]
With
regard to the outstanding warrant in Alberta, the Applicant conceded
that he had not taken any action other than to contact a lawyer who demanded
$5,000 to proceed. Consequently, the Board found that the Applicant had
breached condition 13 of his stay of removal.
[16]
The
Board concluded that the Applicant’s “inaction and disregard” to this condition
of his stay was “the most damaging” to his request to extend his stay or allow
his appeal, especially since the Applicant had “five years to settle
this matter and provide evidence as such” (emphasis in original).
[17]
The
Board noted that there was no evidence to support the Applicant’s claim that he
had reported in writing on April 4, 2008 and October 3, 2008. The Board was unconvinced
that the Applicant had reported because the Applicant had not provided any
supporting documents and he was found to be lacking in credibility in other
parts of his testimony. Consequently, the Board concluded that the Applicant
had breached condition 9 of his stay.
[18]
The
Applicant admitted that he had not reported his new criminal charges to the
CBSA because he did not know it was required. However, the Board noted that the
Applicant stated that he had “read the conditions outlined in his stay of
removal many times.” Therefore, the Board found that the Applicant had breached
condition 5 of his stay.
[19]
The
Applicant claimed he had attended some counselling sessions, but that he had
stopped attending because the sessions were “not helping.” The Applicant was
unable to provide any documentary evidence that he had attended counselling.
Moreover, he was unable to provide the Board with a name or address of the
counsellor he had allegedly visited. The Board found that the Applicant had
breached condition 10 of his stay.
[20]
The
Board noted that the Applicant lacked plausible explanations for many of the
breaches of conditions of his stay, and that in some instances he had attempted
to avoid responsibility.
[21]
The
Applicant requested that the Board allow his appeal because he had not incurred
any further convictions. However, the Board concluded that the Applicant had
failed to understand that he had rendered the stay ineffective because of his
disregard of the conditions of the stay. The Board found that “in the five
years he has been on the stay, he has [not] changed or rehabilitated himself.” Moreover,
the Board determined that “his blatant disregard of the generosity of the Court
is indicative of a person who does not respect authority and an extension of
his stay in my view would serve no purpose.”
[22]
The
Board considered the time the Applicant has spent in Canada, his family
in Canada, his establishment in Canada, and the hardships he
and his family would endure if he was removed. However, the Board found
insufficient humanitarian and compassionate grounds to warrant allowing the
appeal or extending the Applicant’s stay.
[23]
The
Board noted that the Applicant had “never held a long-term job,” and had been
unemployed for the past five years. The Board noted the Applicant’s interest in
starting a family business, but found that “actions speak more than words.” The
Board determined that in the five year reprieve granted to the Applicant he had
failed to become established and to become a contributing member of society.
[24]
The
Board also considered the Applicant’s student loan debt and the debt he owed to
his counsel. It also noted that the Applicant was being audited by Revenue Canada for irregularities
on his tax return. The Board found that the Applicant’s “disregard of his
financial responsibilities… [is] evidence of the fact that the appellant has
not demonstrated that he is a good citizen.”
[25]
The
Board took note of the Applicant’s family in Canada, and found it “telling”
that they were not present at his review hearing and had not submitted any
documentary support for him, as they had done in the past. As a result, the
Board inferred that the Applicant was not as close with his family as he had
led it to believe. Although the Board accepted that the Applicant’s removal may
cause some emotional difficulties for his family, it noted that no evidence had
been presented as to why the Applicant’s family could not visit him in the U.K.
[26]
The
Board determined that the Applicant would suffer some hardship due to the
separation from his family, but that this was not sufficient to outweigh his
breach of conditions of his stay and his lack of rehabilitation. Moreover, the
Applicant had no children and was not in a relationship, so there were no
children whose interests would be directly affected by the Board’s decision.
ISSUES
[27]
The
Applicant submits the following issue on this application:
1.
Did
the Board breach the principles of procedural fairness by conducting the
hearing without providing fair notice to the Applicant;
STATUTORY PROVISIONS
[28]
The
following provision of the Act is applicable in these proceedings:
|
Humanitarian and compassionate
considerations
25. (1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
|
Séjour pour motif
d’ordre humanitaire
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
STANDARD OF REVIEW
[29]
A
standard of correctness is the appropriate standard for the review of issues involving
procedural fairness and natural justice. See Sketchley v. Canada (Attorney General), 2005 FCA 404, 263
D.L.R. (4th) 113 at paragraph 46, and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraphs 126 and 129. As such, correctness is the appropriate
standard when considering whether the Board breached procedural fairness by: a)
not providing fair and reasonable notice to the Applicant; b) depriving him of
the opportunity to respond; and c) depriving him of the chance to be represented
by counsel.
ARGUMENTS
The Applicant
Procedural fairness
[30]
The
Applicant submits that he was handed a copy of the CBSA’s letter at the start
of the hearing. He had not previously seen this letter and informed the hearing
officer of this fact. With the letter was an envelope addressed to the Applicant
upon which was stamped “Returned Mail,” which had been received by the CBSA. As
a consequence of not having received this letter, the Applicant says he only
became aware of the hearing when he phoned his case officer.
[31]
The
Applicant contends that he reported his change of address to the CBSA, but that
he was unaware that he needed to report his change of address to the IAD as
well. Accordingly, the Applicant says he was not aware of the nature of the
proceedings that occurred. The Applicant testified that he did not know what a
“Statement of Compliance” was, and he did not understand what the Member was referring
to from the outset of the hearing.
[32]
The
Applicant says his lack of comprehension became obvious during the course of
his testimony. He submits that the lack of family support at the hearing and his
lack of documentation at the hearing to support his claim demonstrate that he
did not understand the seriousness and formality of the hearing.
[33]
Once
the Applicant informed the Board that he had not received the notice of
hearing, the Board gave him a copy of the document and gave him “a couple of
minutes” to look it over. He was then told that he would be given an
opportunity to respond to what the Board had written.
[34]
The
Applicant submits that procedural fairness was breached because he was not
given adequate or reasonable notice of the purpose of the hearing. Furthermore,
the Applicant contends that the Board’s failure to notify him of its intention
resulted in his being denied the opportunity to respond to the Minister’s
concerns.
[35]
The
Applicant submits that the case at hand is similar to that of Stocking v.
Canada (Minister of Citizenship and Immigration)(1998), 153 F.T.R. 198, 47
Imm. L.R. (2d) 104 in which it was held that:
If the Board wishes to review the
original stay it has the jurisdiction to do so, however, the rules of natural
justice require that the applicant be notified of the Board’s intent and be
given the opportunity to respond.
[36]
The
Applicant concedes that the facts of Stocking and the case at bar are
somewhat different, but submits that the principle from Stocking also applies
to his case. As in Stocking, the Applicant’s failure to object to the
oral review at the hearing does not deprive him of his right to raise
procedural fairness and natural justice concerns as part of this application.
The Applicant submits that this is compounded by the fact that he was not
represented by counsel at the hearing and had no understanding of any
expectations the Board had for him at the review.
[37]
The
Applicant submits that the Board should have adjourned the hearing once he
indicated that he was not represented by counsel. The Applicant cites and
relies on Mallette v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1400, 51 Imm. L.R. (3d) 267 for the
proposition that although the right to counsel is not absolute, refusing a
postponement is reviewable if certain factors exist, including: a) the case is complex;
b) with serious consequences; and c) the applicant does not have the resources
– either intellect or legal knowledge - to properly represent himself.
[38]
The
Applicant submits that these factors are present in the case at hand, as they
were in Mallette. The Applicant says his case is complex, and includes
the issue of outstanding charges and warrants in Alberta and B.C.
Moreover, the consequences of this hearing are clearly serious, since a
negative decision would likely lead to deportation. Finally, the Applicant
submits that he did not have the legal knowledge to represent himself. This is
demonstrated by the fact that the Applicant did not adduce any documentary
evidence at the hearing and directed his family not to attend.
[39]
The
Applicant believes that the Board’s failure to provide an adjournment in order
for him to retain counsel deprived him of a fair hearing. He submits that this
finding can be made even when the Applicant has not requested an adjournment,
as in Mallette. Accordingly, the Board should have offered this option
to him when it realized that he had not received written notice of the hearing
and was unrepresented by counsel.
[40]
These
procedural breaches impacted the outcome of the hearing. The Applicant says he made
numerous steps to comply with the conditions of his stay, including: a) having
his passport extended; b) providing documents to his previous counsel; c)
reporting as required in April and October; and d) attending counselling.
However, the Board rejected what the Applicant said because he could not supply
documentary evidence to corroborate these claims and he was unable to provide
details. The Applicant submits that the Board discredited him because of his failure
to produce documents regarding his compliance with the terms of his stay.
[41]
The
Applicant argues that the outcome of the hearing would likely have been
different if the Board had followed the requirements of procedural fairness and
the Applicant had: (1) been given reasonable notice of the purpose of the
hearing; (2) been given the opportunity to respond to the Minister’s concerns;
and (3) been represented by counsel.
The Respondent
[42]
The
Respondent notes that the Applicant does not take issue with the Board’s
finding that he breached the conditions of his stay. While the Applicant
attempts to give some explanation for these breaches, the Board found these
explanations were not credible, based on an absence of documentary evidence.
[43]
If
the Applicant did not receive the letter informing him of the purpose of the
hearing, it was because he had breached the conditions of his stay and failed
to inform the authorities of his current address. The Respondent submits that
the Applicant’s failure to comply with this condition of his stay now precludes
him from raising lack of formal written notice as an issue.
[44]
The
Respondent further submits that the Applicant either knew, or ought to have
known, of the purpose of the hearing. The Applicant admits that he received a
telephone call in which he was told that he was “required to attend at the IAD
for a review of my stay.” Furthermore, in his affidavit, the Applicant swears
that he met with a lawyer the day previous to the IAD hearing regarding his new
criminal charges.
[45]
Moreover,
no evidence has been adduced to show that the Applicant asked the IAD for an
adjournment or that he lacked the intellect necessary to represent himself.
[46]
Consequently,
the Respondent submits that the Applicant knew or should have known that the
hearing could result in the dismissal of his appeal. He should not now be
allowed to have the Decision reconsidered because he did not act with due
diligence or, in the alternative, was wilfully blind. The Respondent submits
that such a finding would create an incentive for applicants to treat IRB
hearings with a lack of seriousness.
ANALYSIS
[47]
As
Justice Tremblay-Lamer pointed out in Mallette at paragraph 14, the
right to counsel is not absolute and the relevant jurisprudence suggests that a
decision is only invalid should the absence of counsel deprive the applicant of
his or her right to a fair hearing.
[48]
In
the present case, the Applicant says he did not receive notice of what he would
be faced with at the hearing and that, although he understood he was attending
a review of his stay, he did not understand the process of the hearing, nor the
potentially serious consequences. He also now says he did not understand that he
might have to produce evidence to demonstrate his compliance with the terms of
the stay and that:
Had I appreciated the seriousness of the
proceeding, I would certainly have sought an adjournment in order to retain
counsel and/or to obtain documentary evidence of all the steps that I have
taken to abide by the conditions of my stay.
[49]
It
is clear that the application by the Minister from October 2008 to bring the
Applicant to an oral hearing was sent to the Applicant, although he claims not
to have received it. A copy was sent to the Applicant’s address but, in breach
of one of the conditions imposed for the stay, the Applicant had failed to
notify the IAD that he had changed his address. The letter was returned. It
seems that the Applicant did not receive this notice of the hearing and information
regarding its purpose because he breached one of the conditions for the
granting of the stay.
[50]
However,
besides this attempt to communicate with the Applicant, there are various other
ways that the Applicant may have had notice of what would be dealt with at the
hearing to review the stay:
a.
The
terms of the stay itself gave the Applicant notice that the IAD would
reconsider his case and that it “may change or cancel any non-prescribed
conditions imposed, or it may cancel the stay and then allow or dismiss the
appeal.”;
b.
A
new notice signed and dated October 27, 2008 was prepared with the Applicant’s
current address on it, but the statement that the document was provided only
shows that it was hand-delivered to the Minister’s counsel. However, there is
insufficient evidence for the Court to conclude whether the Applicant actually
received this notice or, indeed, whether it was even sent to him;
c.
The
Applicant had two telephone conversations with officers to tell him about the
meeting although we have no evidence of whether he was told about what would,
or could, transpire at the hearing;
d.
The
Applicant has also provided evidence of what he understood about the hearing.
At the hearing itself, there were various exchanges about what was taking
place.
[51]
The
issue of notice is complicated in this case by the fact that the Applicant
failed to receive formal notice of the hearing because he changed his address
and, in breach of his stay conditions, failed to inform the IAD. There is some
evidence that he informed Greater Toronto Enforcement Centre of his change of
address and failed to understand that he should have notified both agencies of
any such change.
[52]
The
Applicant states in his affidavit that he did not understand he had to bring
documentary evidence with him to the hearing and that he thought he simply had
to update the Board. At some point in the hearing he says that “[i]t was
evident to me at this point that I did not appreciate the seriousness of the
review” and “[a]t this stage of the proceeding I became extremely nervous as I
began to understand that this proceeding was not at all what I expected.”
[53]
These
post-decision assertions were not supported by any request during the hearing
for an adjournment to allow the Applicant to provide documents and secure the
assistance of legal counsel. However, he says that it should have been obvious
to the IAD that he was out of his depth and was unable to represent himself.
[54]
This
assertion is by no means clear on the evidence and it is difficult to determine
whether the Applicant needed legal counsel at the time, or has simply made such
an assertion following the decision to remove the stay.
[55]
Justice
Harrington summarized the relevant jurisprudence in Mervilus v. Canada
(Minister of Citizenship and Immigration) 2004 FC 1206, 262 F.T.R. 186 at
paragraphs 20-25:
20 The right to
counsel is not absolute; what is absolute, however, is the right to a fair
hearing. Le Dain J. explains the importance of a fair hearing as follows in Cardinal
v. Director of Kent Institution, [1985] 2 S.C.R. 643:
... the denial of a right to
a fair hearing must always render a decision invalid, whether or not it may
appear to a reviewing court that the hearing would likely have resulted in a
different decision. The right to a fair hearing must be regarded as an
independent, unqualified right which finds its essential justification in the
sense of procedural justice which any person affected by an administrative
decision is entitled to have. It is not for a court to deny that right and
sense of justice on the basis of speculation as to what the result might have
been had there been a hearing. [page 661]
21 The
case law of our Court and of the Federal Court of Appeal in immigration matters
is to the effect that when the absence of counsel results in depriving the
individual of his right to a fair hearing, the decision is invalid (see Castroman
v. Canada (Secretary of State), [1994] F.C.J. No. 962 (F.C.T.D.); Nemeth,
supra; McCarthy v. M.E.I., [1979] 1 F.C. 121 (F.C.A.); Gargano
v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1385
(F.C.T.D.); De Sousa v. Canada (Minister of Employment and Immigration),
[1988] F.C.J. No. 569 (F.C.A.)).
22 In
Gargano, supra, the applicant, a drug addict, had a very lengthy
criminal record. A deportation order had been issued against him; at the appeal
hearing he asked for yet another adjournment (the second) to retain counsel.
The Board refused. Cullen J. determined that considering the applicant's
incapacity to represent himself and considering the seriousness of a
deportation order, it had been unfair to deny him the adjournment to retain new
counsel.
23 Glen
Howard v. Presiding Officer of Inmate Disciplinary Court of Stony Mountain
Institution, [1984] 2 F.C. 642 (F.C.A.) is a prison law case cited in many
immigration decisions. In that case, Thurlow J.A. sets out the elements which
must be considered in determining if the absence of counsel gives rise to
procedural unfairness:
... it appears to me that
whether or not the person has a right to representation by counsel will depend
on the circumstances of the particular case, its nature, its gravity, its
complexity, the capacity of the inmate himself to understand the case and
present his defence. The list is not exhaustive. And from this, it seems to me,
it follows that whether or not an inmate's request for representation by
counsel can lawfully be refused is not properly referred to as a matter of
discretion but is a matter of right where the circumstances are such that the
opportunity to present the case adequately calls for representation by counsel.
24 In
certain cases, the right to counsel can be likened to the right to be heard.
Again in Glen Howard, supra, Thurlow J.A. writes:
In this context, any right a
person may have to the assistance of counsel arises from the requirement to
afford the person an opportunity to adequately present his case. This
particular point was observed by Goodridge J. in In re Prisons Act and in re
Pollard et al. [Supreme Court of Newfoundland, February 20, 1980, unreported.]
when he noted in parenthesis: "Jeopardy, of course, is not the full test,
in a broader sense one is really talking about a person having the right to be
heard by a tribunal."
25 The
following principles can therefore be drawn from the case law: although the
right to counsel is not absolute in an administrative proceeding, refusing an
individual the possibility to retain counsel by not allowing a postponement is
reviewable if the following factors are in play: the case is complex, the
consequences of the decision are serious, the individual does not have the
resources - whether in terms of intellect or legal knowledge - to properly
represent his interests.
[56]
I
am mindful of the fact that this was the first review of the stay conditions
that the Applicant had faced. In Mallette, Justice Tremblay-Lamer
granted an application for judicial review in a situation where the applicant
had already gone through a review hearing in which a breach of conditions has
been clearly established by the Minister, and the Board decided that cancelling
the stay would be too harsh.
[57]
In
the present case, however, the Applicant has not been able to establish all of
the factors that Ms. Mallette established before Justice Tremblay-Lamer:
16 While
she was formally notified twice that the Board intended to review the
applicant's compliance with the conditions attached to the stay of execution of
her deportation order, it is evident that she understood the purpose of the
hearing to be a yearly review of her progress in recovery, similar to her
monthly stay interviews. It is for this reason, she says, that she did not
bring a lawyer to represent her.
17 In her affidavit, the
applicant states that about 10 minutes into the hearing, she began to feel
nervous and confused. She did not understand several of the questions being
asked of her and was surprised at being asked about her past convictions and
past immigration hearings.
18 Approximately 27
minutes into the hearing, the following exchange took place between Ms. Julie
Ryan, counsel on behalf of the Minister, and the applicant:
Ms. Ryan: On
page 5 we have the Certificate of Conviction for that charge. Did you get this,
the Record? It was sent to your old address.
Applicant: No
I did not. If I had known this, I would have brought a lawyer.
19 Moreover, a review of
the transcript indicates that she had trouble with her memory, did not understand
basic questions asked of her and that she broke down on a number
of occasions. She was not able, in any way, to argue her case. The
consequences of the decision are very serious. If she is deported, the
applicant, after having lived in Canada for the better part of almost 20 years, will
be deported to Scotland where she has no relatives that she knows of,
at the age of 61 years old. This will also interrupt any progress she has made
with her drug addiction and general rehabilitation.
20 The Board's failure to
provide an adjournment in order that the applicant might retain counsel
deprived her of the right to a fair hearing.
[Emphasis added
throughout]
I do not believe that the Applicant faced
similar struggles to those experienced by the applicant in Mallette.
[58]
Applying
the principles set out by Justice Harrington in Mervilus, I have come to
the following conclusions on the facts of this case:
1.
The
consequences of the Decision are serious because the Applicant faces
deportation;
2.
The
case which the Applicant had to make before the IAD was not complex. As the
transcript shows, he merely had to answer questions about what he had done to
fulfill the conditions of the stay and, for the most, he was able to answer the
questions put to him at the IAD hearing;
3.
There
is nothing to suggest that the Applicant was lacking the capacity to represent
himself in terms of answering the questions and addressing the conditions of
the stay or did not understand what was being asked of him or its significance;
4.
The
Applicant did not request an adjournment to retain counsel. He has merely
asserted after the Decision that, had he appreciated the seriousness of the
proceeding, he would have sought an adjournment in order to retain counsel and
obtain documentary evidence. In the full context of this case, I cannot accept
that the Applicant could have failed to appreciate what might happen as a
result of a review of his stay conditions. The terms of the stay itself make it
clear that the stay may be cancelled and the appeal dismissed;
5.
There
is no evidence before me that the Applicant has any support from his family;
6.
Bearing
in mind what the Applicant must be taken to have known about his case, I cannot
accept that he did not know enough to ask for an adjournment to retain counsel
at the hearing. In his affidavit, the Applicant appears more concerned to
retain counsel so that he can try to avoid the consequences of facts that are
clearly established. Also, bearing in mind the way the Applicant conducted
himself at the hearing (as revealed by the answers he gave in the transcript) I
cannot accept that, reasonably speaking, the IAD should have realized he could
not address the conditions of his stay on his own behalf and needed counsel.
Even now, it is not clear how the Applicant takes issue with any of the IAD’s
findings. He was able to give explanations for the breaches, although the IAD
did not find his answers credible;
7.
The
Applicant has not produced sufficient evidence to show me that if this was sent
back for reconsideration, he could produce anything in terms of documentation
and/or family support that, reasonably speaking, would make any difference to
the IAD’s decision.
[59]
In
sum, I cannot say that procedural fairness has been breached in this case.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
- The application
for judicial review is dismissed.
- There is no
question for certification.
“James
Russell”
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