Date: 20071003
Docket: IMM-5562-06
Citation: 2007 FC 1006
Toronto, Ontario, October 3,
2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
CHI FAT ALFRED LAW
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 (the Act), for judicial review of a
decision of the Immigration Appeal Division of the Immigration and Refugee
Board (the “IAD) dated April 28, 2006, wherein the IAD upheld an immigration
officer’s inadmissibility determination.
[2]
The applicant was granted permanent residency in
Canada on August 6, 1997 with
his wife and children. After landing, the applicant left Canada to attend to matters in Hong Kong.
[3]
Since landing, the applicant has entered Canada on February 7, 2001 and January 6,
2005, and alleges that he would come to Canada once or twice a year and stay “a few months.”
[4]
On January 6, 2005, an immigration officer found
the applicant inadmissible, pursuant to s. 41(b) of the Act, given that there
were grounds to believe he was a permanent resident who had failed to comply
with the residency obligation of s. 28 of the Act requiring that a permanent
resident be physically present in Canada for at least 730 days during the
previous five-year period.
[5]
The immigration officer also found there were
insufficient humanitarian and compassionate grounds to justify the retention of
the applicant’s permanent resident status.
[6]
The applicant appealed the immigration officer’s
decision on January 20, 2005.
[7]
In a decision dated April 28, 2006, the IAD
upheld the immigration officer’s decision and concluded that there were no
humanitarian and compassionate considerations meriting special relief from the
s.28 residency obligation.
[8]
The IAD indicated that while the applicant had
submitted a letter from his wife dated February 26, 2006, indicating that she
had terminal cancer and that if the applicant were to lose his permanent
resident status his children would be orphaned upon her death, she subsequently
submitted a second letter on March 3, 2006 stating that she had provided the
first letter under duress. The IAD found the wife’s second letter to be more
credible. In the second letter, the applicant’s wife indicated that it was her
parents who took care of her and her children, and that the applicant had never
done so.
[9]
At the hearing the applicant attempted to
counter his wife’s second letter by asserting that because of her illness, his
wife was depressed, extremely negative, and irrational. However, he did not
provide any medical evidence to substantiate this claim.
[10]
The applicant filed an application for judicial
review on October 13, 2006.
[11]
The present case involves determining the
content of the procedural rights to be afforded to an unrepresented party
before the IAD. The applicant submits that the IAD violated principles of
procedural fairness by failing to indicate to the self-represented applicant
the possibilities of cross-examining the author of an adverse document. I
disagree for the following reasons.
[12]
As an administrative body, the IAD is master of
its own procedure and therefore, this Court should be reticent to intervene in
its procedural choices (Aslani v. Canada (Minister of Citizenship and
Immigration Canada), [2006] FC 351, [2006] F.C.J. No. 422
(QL), at para. 21). In Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, at para. 16, Sopinka J. indicated:
We are dealing
here with the powers of an administrative tribunal in relation to its
procedures. As a general rule, these tribunals are considered to be masters in
their own house. In the absence of specific rules laid down by statute or
regulation, they control their own procedures subject to the proviso that they
comply with the rules of fairness and, where they exercise judicial or
quasi-judicial functions, the rules of natural justice.
[13]
In the case of the IAD, the Immigration and
Appeal Division Rules grant broad and unfettered discretion in choosing the
applicable procedure:
[…]
57. In the
absence of a provision in these Rules dealing with a matter raised during an
appeal, the Division may do whatever is necessary to deal with the matter.
[…]
[14]
In determining the content of participatory
rights, L’Heureux-Dubé J. noted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (QL), at para. 21, that “the concept of
procedural fairness is eminently variable and its content is to be decided in
the specific context of each case.” She went on to indicate at para. 22 “[…]
that the purpose of the participatory rights contained within the duty of
procedural fairness is to [provide] an opportunity for those affected by the
decision to put forward their views and evidence fully and have them considered
by the decision-maker.”
[15]
Thus, the IAD is to be shown much deference in
its choice of procedure so long as that procedural choice permits those who are
affected by its decision to present their case.
[16]
Specifically, in the context of the procedural
rights afforded to a self represented party, this Court has held that an
administrative tribunal has no obligation to act as the attorney for a claimant
who refused counsel, and that:
[…] it is not the
obligation of the Board to “teach” the Applicant the law on a particular matter
involving his or her claim. (Ngyuen v. Canada (Minister of Citizenship and Immigration), [2005] FC 1001, [2005] F.C.J. No. 1244 (QL), at para. 17)
[17]
However, while administrative tribunals are not
required to act as counsel for unrepresented parties, they must still ensure
that a fair hearing takes place. In Nemeth v. Canada (Minister of Citizenship and
Immigration), [2003] FCT 590, [2003] F.C.J. No. 776
(QL), at para. 13, O’Reilly J. asserted:
[…] But the Board’s
freedom to proceed in the absence of counsel obviously does not absolve it of
the over-arching obligation to ensure a fair hearing. Indeed, the Board’s
obligations in situation where claimants are without legal representation may
actually be more onerous because it cannot rely on counsel to protect their
interests.
[18]
It has also been recognized that an
unrepresented party “[…] is entitled to every possible and reasonable leeway to
present a case in its entirety and that strict and technical rules should be
relaxed for unrepresented litigants […]” (Soares v. Canada (Minister of Citizenship and
Immigration), [2007] FC 190, [2007] F.C.J. No. 254
(QL), at para. 22).
[19]
Therefore, it is evident that the specific
content of procedural rights afforded to unrepresented parties is
context-dependent. The paramount concern is ensuring a fair hearing where the
unrepresented party will have the opportunity to fully present their case.
[20]
In the present instance, the applicant was
provided with a fair hearing and an opportunity to fully present his case. He
was questioned on his wife’s second letter and permitted to make explanations
as to its content. The applicant indicated that his wife was sick, depressed,
irrational, and under the persuasion of her own family. The IAD found the
second letter more convincing than the applicant’s explanations, as was open to
it to conclude.
[21]
Furthermore, concessions were in fact made to
the applicant in order to permit him to present his case in a full and fair
manner. He was permitted by the IAD to call two witnesses even though proper
notice had not been given.
[22]
Therefore, in my view, in the present context,
the IAD had no obligation to indicate to the applicant the possibility of
cross-examining the author of an adverse document.
[23]
For these reasons, the application for
judicial review of the Immigration Appeal Division
decision is
dismissed.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review of the Immigration Appeal Division decision is dismissed.
“Danièle Tremblay-Lamer”
Email this Content