Date:
20130130
Docket:
IMM-4453-12
Citation:
2013 FC 102
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, January 30, 2013
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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SARA CRUZ TELEZ
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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 subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision by the Refugee
Protection Division of the Immigration and Refugee Board (RPD) dated April 19,
2012, rejecting the applicant’s refugee claim.
I. Issue
and standard of review
[2]
The
only issue in this case concerns the allegation of a breach of the rules of
natural justice arising from the RPD’s refusal to grant the applicant a
postponement of the hearing. In this respect, te RPD’s decision is not entitled
to deference and the applicable standard of review is correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, at paragraph 43,
[2009] 1 S.C.R. 339, Sketchley v Canada (Attorney General), 2005 FCA 404 at
paragraphs 52-54, [2006] 3 FCR 392).
II. Analysis
[3]
For
the following reasons, I am of the opinion that the RPD’s decision to deny the
postponement request was unreasonable and that the denial resulted in a breach
of the rules of natural justice.
[4]
The
applicant is represented by Stéphane Handfield. The hearing for the claim was
initially scheduled for November 15, 2011. It was then adjourned on a peremptory
basis to March 26, 2012. The morning of the hearing, Éric Taillefer appeared
before the RPD and requested that the hearing be postponed on the ground that
Mr. Handfield was unable to attend.
[5]
The
Board member denied the postponement, but adjourned the hearing for around an
hour to give Mr. Taillefer time to review the file and prepare. The hearing
continued. Mr. Taillefer then asked the Board member permission to make written
submissions after the hearing, which was granted.
[6]
In
its decision, the RPD explained why it did not grant the postponement request. The
RPD indicated that Mr. Taillefer raised the unavailability of Mr. Handfield without
providing a specific reason. It added that Mr. Taillefer never mentioned that
Mr. Handfield was ill, contrary to the allegations in the written submissions
that Mr. Taillefer sent to the RPD after the hearing, and that it was therefore
an “untruth”. The RPD accepted that it was a second postponement request based
on Mr. Handfield’s unavailability and that the hearing date had been scheduled on
a peremptory basis. The RPD then made the following statement:
[6] . . . The
panel is of the opinion that the reasonable attitude of a man skilled in the
art should have been to corroborate his allegations by means of a medical certificate,
if what his representative stated in his submissions were true, which the panel
does not believe, because, at the hearing, he never alluded to impediments for
health reasons.
[7]
I
am of the opinion that, in the specific circumstances of the evidence in the
record, the RPD’s decision to not grant the postponement was unreasonable and
the Board member’s comments were unjust.
[8]
It
is clear from the decision that the Board member was of the opinion that Mr. Taillefer
had provided no reason to justify Mr. Handfield’s unavailability. It is also
clear from the decision that the Board member did not believe that Mr.
Handfield was unable to attend the hearing for health reasons.
[9]
The
hearing transcript makes it possible to review the submissions Mr. Taillefer
made at the beginning of the hearing:
[translation]
BY COUNSEL: (to the
presiding member)
-
Yes,
thank you Mr. Board member. So, you see that I am not Mr. Handfield. He is the
lawyer indicated in Ms. Cruz’s record. He contacted me yesterday afternoon
and asked me to come and postpone this case.
-
In
short, for personal reasons, Mr. Handfield is indisposed today and even
possibly for the rest of the week and is unable to attend. He apologizes, of
course.
-
Good,
myself I am certain that I am not ready to proceed because anyway, I do not
have the file, it is currently in Mr. Handfield’s possession.
-
This
is the second postponement in this case, to my knowledge, today. However, I
will suggest dates that are relatively soon so that we can proceed without the
case being held up (inaudible). I would, however, like to mention that Mr. Handfield
was ready to proceed this morning, there was actually an emergency at the end
of the week that resulted in him being unable to attend today.
. . .
-
Of
course, Mr. Board member (I apologize for interrupting) you are not required to
respect the choice of counsel for Ms. Cruz and I understand that it is (inaudible),
I understand completely. However, there are really circumstances beyond Mr. Handfield’s
control that make (inaudible) . . . .
[10]
The
applicant’s record includes an affidavit of Mr. Taillefer in which he specifies
that he informed the Board member, upon returning from a break, that Mr. Handfield
was unavailable for health reasons. His affidavit contains the following paragraphs:
[translation]
2. On the telephone, on March 26, 2012, Mr. Handfield told me
that he was ill and could not attend his hearing with the applicant. He asked
me to represent him to obtain a postponement and gave me early dates for the
hearing;
. . .
4. On record, I told the panel that I was requesting
a postponement. I explained the situation by indicating that this was beyond
the applicant’s control. Originally, I explained that Mr. Handfield could not
be present for personal reasons;
5. The panel denied the postponement request based
on the fact that the hearing date was peremptory and that the applicant knew that,
and Mr. Handfield too. I asked for a 10-minute adjournment to speak with Mr.
Handfield and the applicant about what was to follow. The adjournment was
granted;
6. Upon returning from the adjournment, I told the
Board member that the postponement was for a medical reason. However, after listening
to the recording, the fact is that we were not being recorded at the time.
[11]
The
record also includes an affidavit of the applicant’s friend Mélanie Da Silveira
Correira, who was present at the hearing and who confirmed that, upon returning
from the break, Mr. Taillefer informed the Board member that Mr. Handfield
was ill.
[12]
In
the written argument that Mr. Taillefer submitted to the RPD after the hearing,
he indicated that Mr. Handfield had been unable to attend the hearing on March 26,
2012, for health reasons.
[13]
In
the circumstances, I am of the opinion that is was unreasonable and unjust for
the Board member to call into question the truthfulness of the ground for the
postponement request raised by Mr. Taillefer on behalf of Mr. Handfield. I
agree that, during his initial intervention, Mr. Taillefer did not specify that
Mr. Handfield was ill. However, he clearly told the Board member that Mr. Handfield
was indisposed and that it was an emergency and circumstances beyond his
control. I therefore believe that it was unreasonable for him to find that Mr. Taillefer
gave no reason to justify Mr. Handfield’s absence. If the Board member
found that Mr. Taillefer’s submissions were too vague, he had only to ask him
to further specify the nature of Mr. Handfield’s unavailability.
[14]
Also,
nothing enables me to call into question the sworn statements of Mr. Taillefer
and Ms. Da Seilveira Correira that confirm that Mr. Taillefer specified,
upon returning from the break, that Mr. Handfield was ill. However, it seems
that this intervention was done before the recording of the hearing had resumed
after the break.
[15]
Finally,
I am of the view that the Board member went a little bit too far by stating
that Mr. Handfield should have submitted a medical certificate to justify
his absence.
[16]
I
acknowledge that the RPD has discretionary authority to determine whether or not
to grant a postponement and that it must consider the relevant elements,
including those listed in section 48 of the Refugee Protection Division
Rules, SOR/2002-228. I also acknowledge that the RPD is master of its
procedure. However, I am of the opinion that, in the particular circumstances
of this case, by rejecting the reasons raised in support of the postponement
request, the RPD failed to consider all of the factors that were relevant for
the purposes for determining whether or not to grant a postponement.
[17]
I
also agree with the principles advanced by the respondent. The denial of a hearing
postponement is not sufficient in itself to set aside the RPD’s decision. The
applicant must demonstrate that the denial of the hearing postponement resulted
in a breach of the principles of natural justice or fairness rules (Wagg v
Canada, 2003 FCA 303 at paragraph 19, [2004] 1 FCR 206; Javadi v Canada
(Minister of Citizenship and Immigration), 2012 FC 278 at paragraph 25 (available
on CanLII); Julien v Canada (Minister of Citizenship and Immigration),
2010 FC 351 at paragraph 28, 366 FTR 160). Furthermore, the right to counsel is
not absolute and the mere fact of having been represented by a lawyer with less
experience does not necessarily lead to a breach of the principles of natural
justice.
[18]
The
applicant must demonstrate that the fact that she had to proceed with a
different lawyer than the lawyer she chose to represent her had an impact on
her ability to submit her evidence or arguments.
[19]
In
this case, the applicant maintains that, in Mr. Handfield’s absence, she was
unable to fairly argue her interests and arguments, namely with respect to the
component of her claim on her fear relating to the fact that she is a woman.
The applicant submits that Mr. Taillefer was not prepared to represent her, did
not know the file, did not have the entire file in his possession, had very little
experience and had no experience in a case like hers.
[20]
The
respondent argues that the refugee claim and evidence do not clearly demonstrate
that the applicant wanted to raise a fear of return based on the fact that she
is a woman. He also contends that the applicant did not specify the evidence
that she wanted to submit in that respect and that could have led the RPD to
recognize that her personal situation as a woman could lead to a risk for her
if she had to return to Mexico.
[21]
I
agree that the applicant’s account attached to her Personal Information Form
(PIF) focuses only on a fear of retaliation for having identified fraud committed
by a colleague.
[22]
Furthermore,
the applicant specified in question 28 of her PIF that she claimed refugee
protection because she feared persecution by reason of her political opinion
and membership in a social group. The documentary evidence she submitted also
contains documents that address the violence against women in Mexico in a
general manner. However, the applicant did not testify on this aspect of her
claim in that there is no evidence that connects the general documentation to
her personal situation. In the written submissions filed after the hearing,
however, the applicant argued her fear related to the fact that she is a single
mother and identified certain elements of the documentary evidence addressing
violence against women.
[23]
In
paragraph 17 of its decision, the RPD stated that the applicant did not testify
regarding the threats or risks related to the fact that she is a woman. That is
exactly what Mr. Handfield indicated by claiming that Mr. Taillefer had
insufficient knowledge of the applicant’s file and that, if he had been present
at the hearing, that component of the fear would have been addressed in the
applicant’s testimony.
[24]
In
light of the record, I believe that it is not impossible that, in the presence
of Mr. Handfield, the applicant would have been asked to testify on the part
of her claim on her fear as a single mother. It is impossible for me to assume
the content of such a testimony and I prefer to err on the side of caution as
the case contains certain elements that suggest that the applicant intended to
raise a fear based on the fact that she is a woman. As this component was not
described in the applicant’s PIF, it is not impossible that Mr. Taillefer did
not think to question the applicant on this point. I therefore am of the opinion
that, in being obliged to proceed in the absence of Mr. Handfield, the
applicant was perhaps deprived of the opportunity to submit evidence to support
her allegation of fear based on the fact that she is a single mother.
[25]
For
all of these reasons, the application will be allowed. I would also like to
note that, despite Mr. Handfield’s absence, the applicant had the opportunity
to testify in detail on her fear based on a risk of retaliation for having
identified fraud committed by a colleague of the Institutional Revolutionary
Party. That component of the decision is not at issue. The matter is therefore
referred back to the RPD for the applicant’s fear based on the fact
that she is a woman to be assessed by a new panel.
[26]
The
parties have not proposed any questions for certification and none arise.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial
review is allowed. The decision is set aside in part and the matter is referred
back to the Refugee Protection Division of the Immigration and Refugee Board for
the applicant’s allegation of risk based on the fact that she is a woman to be assessed
by another panel. No question is certified.
“Marie-Josée Bédard”
Certified
true translation
Janine
Anderson, Translator
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