Date:
20120801
Docket:
IMM-8823-11
Citation:
2012 FC 956
Ottawa, Ontario,
August 1, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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MIRIAM CHANTAL SALAZAR NINO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2009, Ms Miriam Chantal Salazar Nino claimed refugee status in Canada out of fear of her ex-boyfriend, Garcia, in Mexico. Garcia asked Ms Salazar Nino to deliver a
package for him, and she agreed. However, she then refused to deliver more. She
later learned that Garcia was a drug dealer with connections to police, and
that he had killed people, including young women, who refused to help him
distribute drugs. Fearing repercussions for defying Garcia, Ms Salazar Nino stopped
going to work. Garcia looked for her at her workplace and at home and, when he
found her, he threatened and raped her. After she fled to her grandparents’
home, Garcia visited her parents’ house and threatened her father. Ms Salazar
Nino then fled to Canada.
[2]
A
panel of the Immigration and Refugee Board rejected Ms Salazar Nino’s refugee
claim. The Board found that her claim was not connected to a ground recognized
by the Refugee Convention. It also concluded that Ms Salazar Nino had not
sought the protection of state authorities in Mexico, and that she could have
lived safely in Mexico City.
[3]
Ms
Salazar argues that the Board’s conclusions were unreasonable. In addition, she
maintains that the Board treated her unfairly at her hearing by effectively
forcing her to proceed without the assistance of counsel. Her counsel sent a
last-minute fax indicating that he could not attend the hearing. The Board told
Ms Salazar Nino that she had a choice – either proceed without counsel or
abandon her claim. She opted to go ahead.
[4]
I
agree with Ms Salazar Nino that the Board treated her unfairly. In effect, the
Board denied her an adjournment without balancing the relevant factors.
[5]
Given
my conclusion on the issue of fairness, I need not deal with Ms Salazar Nino’s
suggestion that the Board’s decision was unreasonable.
[6]
The
sole issue, therefore, is whether the Board unfairly refused an adjournment.
II. The Board’s decision
to deny an adjournment
[7]
At
the outset of the hearing, the Board informed Ms Salazar Nino that her counsel
had sent a last minute fax stating that he had a conference and could not
attend; he did not provide alternative dates for a hearing. The Board felt
this was not a reasonable amount of notice. It also noted that this was the
second request for a postponement in this case. The Board stated: “I have
basically decided to proceed with your hearing.” The Board then asked Ms
Salazar Nino whether she wished to proceed without counsel. If she did not,
the Board would declare her claim abandoned. She stated that she would go ahead
without counsel.
III. Did the Board treat
Ms Salazar Nino unfairly?
[8]
The
Minister concedes that the Board denied Ms Salazar Nino an adjournment, but
argues that the Board accorded her a fair hearing of her claim, even in the
absence of counsel. The Board spoke slowly and informed her of the issues that
arose in her case – these included identification, countries of reference,
subjective fear, delay, nexus, state protection, internal flight alternative,
generalized risk, and credibility.
[9]
In
addition, the Minister submits that, even if Ms Salazar Nino was treated
unfairly, the Board’s decision should not be overturned because the outcome of
the hearing was “inevitable”: Yassine v Canada (Minister of Employment and
Immigration), 27 Imm LR (2d) 135 (CA).
[10]
I
disagree.
[11]
According
to the Refugee Protection Division Rules, SOR/2002-228, the Board must
consider any relevant factors in deciding whether to grant an adjournment,
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;
(e) the
knowledge and experience of any counsel who represents the party;
(f) any
previous delays and the reasons for them;
(g) whether
the date and time fixed were peremptory;
(h) whether
allowing the application would unreasonably delay the proceedings or likely
cause an injustice; and
(i) the
nature and complexity of the matter to be heard.
[12]
These
factors are mandatory: Sandy v Canada (Minister of Citizenship and
Immigration), 2004 FC 1468; Siloch v Canada (Minister of Employment and
Immigration), [1993] FCJ No 10 (FCA).
[13]
Here,
the Board considered the timing of the request and the fact that there had been
a previous postponement of the hearing. Had it considered the other relevant
factors, it would have noted that Ms Salazar Nino was to blame for neither
adjournment. The first resulted from her counsel’s illness, and the second was
due to his unavailability. Ms Salazar Nino was also present and ready to
proceed. In addition, hers was a fairly complex case, raising difficult legal
issues such as nexus, state protection and internal flight alternative. She
could not have been expected to make any meaningful submissions on those
issues, especially through an interpreter. Proceeding in the absence of counsel
created a risk of injustice.
[14]
It
was unfair, therefore, for the Board to have proceeded without considering the
consequences for Ms Salazar Nino.
[15]
Generally
speaking, when an applicant has been treated unfairly, a new hearing is
required, unless the outcome is a foregone conclusion: Cardinal v Director
of Kent Institution, [1985] 2 S.C.R. 643, at paras 201-202; Mobil Oil
Canada Ltd et al v Canada-Newfoundland Offshore Petroleum Board, [1994] 1
SCR 202; Yassine, above.
[16]
Here,
I am not persuaded that the outcome of a new hearing is inevitable. The issues
before the Board were complex. Legal submissions on them could have made a real
difference in the outcome. Therefore, a new hearing is required.
IV. Conclusion and Disposition
[17]
The
Board erred by failing to consider the relevant factors when it denied an
adjournment of Ms Salazar Nino’s hearing. In doing so, it treated her unfairly.
Accordingly, I must allow this application for judicial review and order a new
hearing before a different panel of the Board. Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2. No
question of general importance is stated.
“James W. O’Reilly”
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