Date: 20060328
Docket: IMM-3514-05
Citation: 2006 FC 390
Ottawa, Ontario, March 28,
2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MOHAMMAD FAROOQ CHOHAN
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Mohammad Chohan, seeks to set aside an unfavourable decision of the
Immigration and Refugee Board delivered on May 13, 2005 whereby his refugee
claim was denied.
[2]
The
primary challenge to the Board decision concerns its treatment of a request by
the Applicant’s counsel for a six week adjournment of the hearing to allow for
the gathering of further evidence. That request was denied by the Board and the
hearing proceeded on March 15, 2005. The Applicant contends that this refusal
to grant an adjournment constitutes a breach of the rules of natural justice
because it prevented him from effectively prosecuting his claim.
Procedural Background
[3]
On May 26,
2004 the Applicant’s then counsel submitted a number of documents to the Board
in support of his client’s refugee claim. At that point the hearing was
scheduled for June 17, 2004. Included in that material was a Pakistani police
report, commonly referred to as a First Information Report (FIR). That
document was dated January 12, 2002. The other key document submitted by the
Applicant was an arrest warrant dated April 13, 2002. As well, Muslim League
membership cards were submitted. These documents were intended to corroborate
the Applicant’s testimony about the risk of persecution he faced from the
authorities in Pakistan.
[4]
The Board
hearing did not proceed on June 17, 2004 for administrative reasons, although
the Applicant attended that day with his counsel and was ready to proceed. The
case was put over for hearing to October 7, 2004. When the Applicant attended
before the Board on October 7, 2004 the Board advised that it was postponing
the hearing to January 25, 2005 to allow it to verify the authenticity of some
of the documents the Applicant had submitted, notably the FIR and the arrest
warrant. The record discloses that the official request by the Board for the
verification of these documents was sent to Canadian High Commission in Islamabad on October 15, 2004.
[5]
When the
Applicant attended for hearing on January 25, 2005 the Board advised that the
matter would again have to be postponed because the document verification
report had not yet been received from the Canadian High Commission. The case
was then put over to March 15, 2005.
[6]
On
February 11, 2005 the document verification report was received by the Board
and it indicated that the FIR was “fake”. The report suggests, as well, that
the arrest warrant was “fake”. This report was sent to the Applicant’s counsel
on or about February 21, 2005.
[7]
It appears
from the record that the Applicant’s counsel wrote to the Board on March 10,
2005 to request an adjournment of the hearing to allow him to make enquiries
about the document authenticity issue. The letter stated that the Applicant had
begun the process of making the necessary enquiries but that the process had
not been completed.
[8]
When the
Board hearing commenced on March 15, 2005 it referred to a decision from the
day before denying the Applicant’s adjournment request. The transcript offers
the following history:
I believe your client was requesting some
time to put forth his own investigation. Yesterday I denied that request,
however, we did say that you would like … you should bring forth your request
and we’ll have it on the record.
[9]
Unfortunately,
there is nothing in the record to document the decision which is referred to in
the above passage. However, counsel for the Applicant put on the record his
request for the adjournment stating that he needed the time for “a further enquiry with respect to the
documents”.
He also said that he would likely need about six weeks. The
Board responded with the following comments:
Mr. McCrie, with all due respect to you
as a lawyer, I just feel that we must proceed today. I agree that suggesting
that the Canadian Mission is not an independent body, they’d have no vested
interest in not getting the best information that they would know how.
However, I would suggest that we ask some
questions in this regard, how the claimant obtained the documents, how well he
knows the person who obtained the documents and give him every opportunity,
under oath, to explain to the best of his ability and having clearly, he is now
subsequently called the individual so he must have received some further
information from this individual as to exactly how that individual obtained
those documents. And whether that individual provided him with any suggestions
as to why or how they could have been deemed fraudulent when the Canadian
embassy investigated this issue.
I would say one more thing, that I will
see how the hearing does proceed and in terms if we felt it absolutely
necessary to wait for the verification of the Muslim League membership card
then would adjourn and reserve a decision in that. But at this point in time I
would say that while it is germane in once (sic) sense, in other sense just
mere membership doesn’t necessarily have anything to do with the story that the
claimant has told and the arrests and the torture.
So I feel that we should proceed Mr.
McCrie.
[10]
The
Board’s decision denying the Applicant’s refugee claim turned on its adverse
assessment of his credibility and central to that determination was its finding
that the FIR and arrest warrant were fraudulent. With respect to these matters
the Board held as follows:
At the beginning of the hearing, counsel
for the claimant requested a postponement of six weeks for the claimant to
contact a lawyer in Pakistan to make further enquiries as
to how the FIR was determined to be fraudulent. The panel denied the request
on the basis that the claimant had had three weeks to make his own enquiries.
The claimant was made aware of the findings February 21, 2005 and was aware of
his hearing scheduled for March 15, 2005. The panel prefers the evidence
provided by the Canadian High Commission and accepts their findings that the
FIR and warrant are fraudulent.
Issue
Did the Board’s handling of the Applicant’s request for an
adjournment constitute a breach of the rules of natural justice?
Analysis
[11]
A refusal
to grant an adjournment, where fairness demands it, constitutes a breach of the
rules of natural justice. According to Mullan in Administrative Law (3rd
edition) at para. 170, a breach of this duty occurs where the adjournment is
reasonably required for a party seeking an opportunity to meet a new issue or
to review crucial evidence introduced at the hearing. The authority cited for
this proposition is Pal v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 1301.
[12]
The stated
rationale for declining the Applicant’s adjournment request in this instance
was the fact that he had had the benefit of three weeks to carry out his own
investigation with respect to the impugned documents. Apparently the Board felt
that he or his counsel had been somewhat dilatory in pursuing this investigation
and therefore he was not entitled to any further indulgence. There is another
possible inference to be drawn from the Board’s decision which is that it felt
that any further investigation of this issue was nothing more than a waste of
its time because the Consulate report was unimpeachable.
[13]
The Board
had an obligation to deal with the request for an adjournment in a principled
way. It had granted to itself the benefit of almost 8 months to carry out its
own document assessment and adjourned the hearing twice to obtain those
results. In these circumstances the authenticity of the tendered documents was
fundamental to the Applicant’s case and was a critical aspect of the Board’s
decision. To have denied the Applicant the benefit of a short adjournment was
manifestly unfair and contravened the requirement of s.170 of the Immigration
and Refugee Protection Act (IRPA) that the Applicant be given a reasonable
opportunity to present evidence.
[14]
The
Board’s reasons for denying the adjournment request also failed to address the
factors required by s. 48 of the Refugee Protection Division Rules for
the exercise of the adjournment discretion and, in particular, factors 4(e),
4(h), 4(i), 4(j) and 4(k). Had these factors been considered and applied the
adjournment would also certainly have been granted. It was an error of law for
the Board to have failed to consider those points in the exercise of its
discretion. Because this error is one involving the content of the duty of
procedural fairness the standard of review is one of simple correctness and
does not require a pragmatic and functional approach: see Ha v. Canada (Minister of Citizenship and
Immigration) 2004
F.C.A. 49, [2004] 3 F.C.R. 195, [2004] F.C.J. No. 174 (F.C.A.).
[15]
In the
result, it is unnecessary for me to consider the other arguments advanced by
the Applicants and the decision of the Board is set aside. The matter shall be
remitted for reconsideration by a differently constituted Board.
JUDGMENT
THIS COURT ORDERS that this application is allowed
with the matter to be remitted to a differently constituted Board for
reconsideration.
“
R. L. Barnes ”
Judge
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