Date: 20050210
Docket: IMM-1681-04
Citation: 2005 FC 225
Toronto, Ontario, February 10th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
NEELA BASIL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, a lawyer acting as agent for Counsel for the Applicant appeared at an abandonment show cause hearing before the Refugee Protection Division ("RPD"). The RPD found that the Applicant did show cause, but decided to proceed with the Refugee Protection hearing then and there. It is acknowledged by Counsel for the Applicant in the present Application that the notice of the abandonment hearing includes a statement that the Applicant should be prepared to face such a decision.
[2] Nevertheless, the agent adamantly objected to the RPD proceeding with the protection hearing. The agent explained that he was only instructed to appear on the show cause hearing, and was unprepared to represent the Applicant on the refugee protection claim. It is very important to note that the compulsion placed on the agent by the RPD is as follows:
I gave the option to the claimant that either her case would be declared abandoned or she should be prepared to proceed, so, but I stated to Counsel and the claimant that I am prepared to give him some time so an hour and half was given to the claimant.
(Tribunal Record, p.138 )
[3] From the Tribunal Record it appears that the two primary factors in the mind of the RPD in not granting the agent's adjournment request were expedition (Tribunal Record, p.126), and the view that the Applicant's claim was not "a very complicated case" (Tribunal Record, p. 129).
[4] Counsel for the Applicant in the present Application argues that the dismissive manner used by the RPD in not granting the adjournment, including the offer placed before the agent, which, understandably, he could not refuse in the interests of the Applicant, worked a manifest unfairness. In addition, Counsel for the Applicant argues that, in denying the adjournment, because the RPD did not go through the process of considering the factors outlined in s.48 of the Immigration Rules, the RPD committed a reviewable error. I agree with Counsel for the Applicant on both submissions.
[5] In my opinion, the forcing on of the hearing by the RPD in the circumstances presented to it amounts to a breach of due process. Accordingly, I find that the RPD's decision is rendered in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for re-determination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1681-04
STYLE OF CAUSE: NEELA BASIL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: FEBRUARY 10, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: FEBRUARY 10, 2005
APPEARANCES BY:
Waikwa Wanyoike For the Applicant
Leena Jaakkimainen For the Respondent
SOLICITORS OF RECORD:
Waikwa Wanyoike
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Toronto, Ontario For the Respondent
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