Docket: IMM-3576-15
Citation:
2016 FC 78
Vancouver, British Columbia, January 22, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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ALIREZA
KALANTARI GHOMI NEJA
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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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JUDGMENT AND REASONS
I.
Overview
[1]
In Lally v Telus Communications Inc.,
2014 FCA 214 at para 27, Justice A.F. Scott stated that it is the
responsibility of an administrative tribunal “to ensure
that self-represented litigants understand the procedure and rules to be
followed from the very commencement of a hearing”.
II.
Introduction
[2]
The self-represented Applicant in this case
understood the matter before the tribunal to be one in regard to his
citizenship application, and, not one in regard to an application to cease the
Applicant’s determination that he is a Convention refugee.
[3]
The Applicant clearly stated in regard to his
comprehension of English that he does “not understand
English very well”, but that he understands. That is not enough
in respect of the legal language used in such a hearing to be considered enough
for the understanding of the legal procedure which the Applicant underwent.
III.
Background
[4]
The Applicant is of the Baha’i faith, a faith
banned in the Islamic Republic of Iran.
[5]
The UNHCR Office in Turkey (Ankara) accepted the
Applicant as a protected person as a result of his Baha’i faith due to the
treatment of Baha’is in Iran.
[6]
The Applicant was landed in Canada; and was accepted
as a permanent resident upon arrival.
[7]
In July 2014, the Applicant wrote an examination,
a step in obtaining citizenship in Canada. In March of 2014, the Applicant
attended an interview with Canada Border Services Agency [CBSA], which he
thought was to further his citizenship application.
[8]
Subsequent to that interview, due to return
trips to Iran by the Applicant, the Respondent applied to the Refugee
Protection Division (RPD) of the Immigration and Refugee Board [IRB] to cease
the Applicant’s refugee status (under subsection 108(2) of the Immigration
and Refugee Protection Act). Therefrom, a hearing at the IRB was scheduled
wherein the Applicant attended without legal representation and without an
interpreter present.
IV.
Analysis
[9]
The Applicant was not aware of the consequences
of the said hearing before the RPD.
[10]
The RPD member, as an outcome of the hearing,
stripped the Applicant of his former refugee status and of his permanent
resident status.
[11]
As the standard of review in respect of matters
of law and procedural fairness is one of correctness, the decision cannot
stand as it is, until the procedural fairness issue is rectified, whatever the
outcome in a new hearing may, then, eventually be.
[12]
A determination process is, by its very nature,
one which must not only give, but be seen to give, fundamental justice in its
application of the law.
[13]
It was incumbent on the Member of the RPD to
ensure that the criteria established in Mervilus v Canada (Minister of
Citizenship and Immigration), 2004 FC 1206 at para 21, for an adjournment
by which to retain counsel be offered to the Applicant. This should have occurred
further to an explanation of the serious consequences to the Applicant in clear
non-legalese language. Also, documents were submitted at the hearing of which the
Applicant had not had a chance to take cognizance.
[14]
In addition, the application of the Respondent
before the RPD did not comply with the Refugee Protection Division Rules:
34(3) and 64(2)(d) in respect of the time limit and of the reception of
documents. The 64(1) Form of Application to vacate or cease refugee protection must
be in writing and made in accordance with this rule.
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Content of application
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Contenu de la demande
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(2) In the
application, the Minister must include
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(2) Dans sa
demande, le ministre inclut :
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(d)
in the case of a person whose application for protection was allowed
abroad, the person’s file number, a copy of the decision and the location of
the office;
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d)
dans le cas de la personne dont la demande de protection a été acceptée à
l’étranger, son numéro du dossier, une copie de la décision et le lieu où se
trouve le bureau qui l’a rendue;
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[Emphasis added.]
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[Je souligne.]
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[15]
At the very outset of the RPD hearing, the
Applicant, a self-represented litigant, when asked if he understands the
proceeding, stated that he understands, “but not very
well”. At the end of the hearing, again, it is significant that the
Applicant clearly responded to a question of the presiding member, “How much did you understand?”; and, the Applicant
responded: “Some of them I didn’t know before.”
The case at the RPD ends as it began, but the Applicant clearly demonstrating
that he did not understand the nature of the proceeding, thinking that the
matter dealt with his Citizenship Application rather than the cessation of his
refugee status.
[16]
It is significant to recall the decision in Li
v Canada (Minister of Citizenship and Immigration), 2015 FC 927 at para 37,
wherein Justice James Russell states:
For self-represented litigants, this may
include an obligation on the Board to explain the process to an applicant and
to clarify the nature of the decision being made. The consequences of the
decision and the complexity of the matter can have an impact in determining
whether a hearing is fair.
V.
Conclusion
[17]
In this case, a new is hearing, whatever the
final outcome will be subsequent to that new hearing; the matter, as it now
stands, is perceived as unfair and is unfair; procedural fairness was absent.
It is for that, and that alone, that it is being sent back to be heard anew by
a different RPD member.
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