Date: 20110708
Docket: IMM-7024-10
Citation: 2011 FC 852
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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KERNAN CLEVE CHARLES
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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
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made
orally on November 8, 2010 by the Immigration and Refugee Board, Refugee
Protection Division in Toronto, Ontario, finding the applicant not to be a
Convention refugee or a person in need of protection.
BACKGROUND
[2]
The
applicant is a 25-year old citizen of Dominica who came to Canada on a
study permit in 2006 to attend George Brown College. While at
school he met his future wife, Darlene Peters, who he married on January 31,
2009. He had his first child on March 25, 2009 and graduated from George Brown
in April.
[3]
In
May 2010, the applicant was charged with two counts of domestic assault and three
counts of sexual assault. While in detention, he learned of the possibility of
making a refugee claim and initiated one in May 2010. He says he was targeted
by gangs in Dominica and does not
want to be part of the violent, gang lifestyle which is prevalent there. The Refugee
Protection Division (RPD) of the IRB received his refugee claim on May 26,
2010. On May 27, 2010, a Notice to Appear on July 7, 2010 was sent to the applicant’s
home address. The applicant had multiple correct addresses. Some of the
materials from the RPD were sent to his wife’s address but he was not permitted
to contact her. In early July the applicant requested a legal aid certificate
from Legal Aid in the name of a lawyer he had heard about in detention – Ms.
Roth. Ms. Roth works as part of Bellissimo Law Group. However, Ms. Roth does
not have a Legal Aid account and the applicant was not told he could obtain a
blank certificate. The applicant submitted Counsel Contact Information for Ms.
Roth on July 15, 2010 and on July 19, 2010 the RPD contacted the offices of
Bellissimo Law Group. Ms. Roth advised Legal Aid that she had not spoken with
the applicant. By letter dated August 23, 2010, the RPD requested that the
applicant amend his PIF as it was not signed. This request was also sent to the
applicant’s home address as well as to Ms. Roth. She advised the RPD that her
offices were not retained.
[4]
On
September 24, 2010, and while still in detention, the applicant received his
first correspondence from the RPD. It sent him the Claimant’s Confirmation of
Readiness, the Notice to Appear and the remainder of the RPD’s disclosure. He was
released on October 4, 2010 and made immediate contact with Ms. Roth on October
6, 2010. He was advised to obtain a Legal Aid certificate in Mario Bellissimo’s
name. He did so and spoke with Ms. Roth again on October 13, 2010. Ms. Roth
followed up with the Registrar of the RPD on Monday, October 18, 2010 and was
told that a scheduling conference was set for October 21st. At the
time of hearing, the applicant had only a Legal Aid certificate for an opinion.
The applicant thus attended the hearing of the 21st alone thinking
he would only be attending a scheduling conference. At the start of the hearing
he provided his Claimant’s Confirmation of Readiness to the RPD.
[5]
At
the beginning of the hearing, the applicant requested that the hearing be
postponed. He said he was not prepared to proceed and did not have counsel. He explained
he was waiting for the legal aid certificate to come through.
DECISION UNDER REVIEW
[6]
The
Board decided not to postpone the hearing date and went on to hold that there
was no reasonable explanation for the fact that the applicant waited several
years after arriving in Canada to make his refugee claim. It noted the
admission in the applicant’s PIF that he came to Canada for a better
life and confirmed that he testified the same. The Board found this indicated
that the applicant is an economic migrant who does not have a well-founded fear
of persecution and does not face a risk of torture, a risk to his life or cruel
and unusual treatment.
[7]
The
applicant’s fear of gang activity was not found to be related to a Convention
ground or substantiated by persuasive testimony. He did not explain how the
risk is not one faced by others in Dominica.
ISSUES
[8]
The
determinative issue raised in this application is whether the Board denied the
applicant procedural fairness by not postponing the refugee hearing.
ARGUMENT & ANALYSIS
Standard of Review
[9]
Where
procedural fairness is in question, the proper approach is to ask whether the
requirements of natural justice in the particular circumstances of the case
have been met. A standard of review analysis is not required: Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392 at paras 52 and 53. Deference to the
decision-maker is not at issue. See: Ontario
(Commissioner Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin
L.R. (5th) 278 at para. 37 and Bowater Mersey Paper Co. v.
Communications, Energy and Paperworkers Union of Canada, Local 141, 2010
NSCA 19, 3 Admin L.R. (5th) 261 at paras. 30-32.
Did the Board deny the
applicant procedural fairness by not postponing the refugee hearing?
[10]
The
applicant claims that in considering the factors set out in Rule 48(4) of the Refugee
Protection Division Rules, the Board neglected to take into account the
totality of evidence surrounding why the applicant was unable to obtain counsel
prior to the hearing. Among other things, this included difficulties retaining
counsel due to a mix up with Legal Aid and a lack of time to gather evidence. Taken
together, this undermined the applicant’s ability to properly present his case
and thus denied the applicant procedural fairness.
[11]
The
respondent submits that the Board dealt with the request for a postponement in
a fair and reasonable manner, considered all of the necessary factors pursuant
to Rule 48(4), weighed these factors and justifiably denied the postponement. The
respondent argues that because claimants are not entitled to a postponement this
Court should only, interfere with the Board’s refusal to grant one in
exceptional circumstances.
[12]
The
respondent points out that the Board did fix a date and time for the hearing
and that a letter dated September 24, 2010 was sent to the applicant to
indicate that the hearing would take place on October 21, 2010. The applicant
was asked to reply to this form by mailing in the Confirmation of Readiness and
it was received late from the Board. The respondent submits the applicant was
aware that his claim would proceed. Moreover, the applicant applied for refugee
protection earlier, in the spring of 2010, and was aware that a hearing would
eventually take place.
[13]
Rule
48(4) establishes a number of factors that the Board must consider, if
relevant, when deciding whether or not to grant a postponement:
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(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.
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(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.
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[14]
In
the case at bar, the Board demonstrated its understanding of the applicability
of Rule 48 and did make reference to some of the factors. But, I agree with the
applicant that it failed to properly consider the totality of evidence so as to
apply the relevant factors in a meaningful way.
[15]
For
example, it did not address the timing of the application for postponement
pursuant to 48(4)(a). The applicant made the request orally at the time of the
hearing. The applicant was not in a position to know to request this in advance
because he was advised by his counsel, who was so advised by the Registrar,
that he would only be attending a scheduling conference. Although this
information was not raised prior to the Board deciding not to postpone, on a
recess towards the end of the refugee hearing the applicant spoke with his
counsel and then explained the situation to the Board. The Board had an ongoing
obligation to consider this new information and erred by not doing so.
[16]
As
per 48(4)(d), the Board acknowledged the applicant’s efforts to be ready
through his attempts to obtain Legal Aid and did show an understanding as to
the mix-up the applicant had with Legal Aid. Nonetheless, the Board concluded
that the Legal Aid certificate need not have expired. Parts of the transcript provide
context:
CLAIMANT: […] And can I just explain something?
PRESIDING MEMBER: Please?
CLAIMANT: And when I did, when I contacted legal aid I
did the interview and when I did the interview I gave her personal name Erin
Christine Roth, and apparently her name was not a part of the list of the
lawyers that actually take legal aid because she is with that group. And I
only found out when I released [sic] because I kept reapplying while I was in
custody and they would not get back to me so I did not know what was going,
what exactly was going on. When I contacted her the office told me that
they cannot really do anything about me right now until they get that
certificate. So I can explain to them and they told me to contact legal aid
but I did not do so until I got released. And then I finally contacted legal
aid and they told me that my certification was expired but they could renew it
as long as I get the lawyer’s name, which Mario Bellissimo. And I finally gave
it to them and I think that is why the process has taken a little bit.
[Emphasis added.]
PRESIDING MEMBER: And when did you do
that?
CLAIMANT: When did I call Legal Aid?
PRESIDING MEMBER: Yes.
CLAIMANT: Soon as I came out, soon as I got released,
when I got released.
PRESIDING MEMBER: And is that when you
found out that your certificate had expired?
CLAIMANT: Yes when I called, that is when they informed
me and told me that my certificate was expired and I was like really. And they
said well your lawyer’s name is not n file. So I had to get the Mario
Bellissimo. I did not know his name was on the file until I telephoned by
lawyer and they explained to me and I finally gave that to legal aid. And now
it is in the process. But apparently they did not give her the full
certification so she has to write a letter saying that she received the
certificate that they gave her but it is not eleigible fully to do…so…
PRESIDING MEMBER: It will take more time
is what you are telling me.
CLAIMANT: Yes, so she said it is going to take a few
weeks. I do not know how long, she said probably two weeks.
[17]
Had
the applicant been more persistent with calling Legal Aid while he was in
detention, it is possible that he may have been able to obtain the
certificate earlier than after his release. However, this is speculative and as
the transcript illustrates, the applicant did make a number of attempts. It
appears as though the difficulty rested with Legal Aid and it should not be
attributed to the applicant, especially as he was in custody and may have had
less access to resources than had his situation been different. The applicant’s
diligence was further reinforced by the immediacy with which he secured counsel
after his release. I therefore find that the Board failed to appropriately
consider these factors when assessing the request to postpone the hearing.
[18]
In
considering 48(4)(b), the time the applicant had to prepare for the proceeding,
the Board stated the following: “It has been now several months since you
commenced the claim so you have had some time to prepare”. In reaching this
conclusion, the Board failed to appreciate that the applicant was in detention
until shortly before the hearing and had difficulty retaining counsel, as
discussed above. The Board also ignored the applicant’s testimony that he was
not prepared:
PRESIDING MEMBER: […] but what you are
basically saying is you do not have a counsel, you tried to get legal aid and
that you are not prepared.
CLAIMANT: Yes.
The applicant stated this also at the beginning
of the hearing. Having reviewed the record, I agree with the applicant that in
this case, his being in detention had a direct effect on how well he could
fully prepare.
[19]
Further,
the Board failed to even mention whether the applicant had sufficient time to
gather evidence pursuant to 48(4)(e). This was a relevant factor, especially
given the applicant’s detention and considering that the applicant did not
submit any documentation or have his own copy of his PIF. Linked to this is the
fact that the applicant received notice of the hearing approximately 20 days
before the hearing, again while still in detention. As mentioned above, other items
of correspondence were sent to other of his addresses where they appear not to
have been received by him.
[20]
In
considering whether the applicant had counsel as per 48(4)(f), the Board
correctly noted that the applicant was unrepresented. While this Court has recognized
that right to counsel is not absolute (Sandy v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1468 at para. 50), at the hearing, the
applicant testified that he was in the process of obtaining the Legal Aid
certificate that would take approximately two weeks and that would result in
allowing him the representation he clearly sought. The Board erred in not taking
into account the timing of the hearing vis-à-vis his release from detention,
together with the fact that this was the first time the applicant had requested
the adjournment. See: Modeste v. Canada (Minister of Citizenship
and Immigration),
2006 FC
1027 at para. 21; Golbom v. Canada
(Minister of Citizenship and Immigration), 2010 FC
640 at para. 13.
[21]
The
respondent is correct to note that the Board’s decision with respect to
granting postponements or adjournments is discretionary in nature and there is
no presumption of entitlement: Sierra v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1048 at para. 56. At the same
time, however, and as articulated by the Supreme Court of Canada at paragraph
28 in Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, 243 N.R. 22, “The values underlying the duty of procedural
fairness relate to the principle that the individual or individuals affected
should have the opportunity to present their case fully and fairly […]”.
[22]
The
Board did not properly consider the totality of evidence or sufficiently
analyse all relevant factors so as to ensure that the applicant in this case
had the opportunity to present his case fully and fairly. In so doing, the
Board engaged in a cursory analysis pursuant to Rule 48(4) and breached
procedural fairness. This application must be granted and the matter returned
to a differently constituted panel for the applicant to have the hearing with
representation that he was denied.
[23]
No
questions were proposed for certification and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is granted. No questions are
certified.
“Richard
G. Mosley”
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