Date: 20050531
Docket: IMM-8489-04
Citation: 2005 FC 769
Ottawa, Ontario, May 31, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MARYLOU ROSARIO QUINDIAGAN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant, Marylou Rosario Quindiagan, seeks judicial review of the September 3, 2004, decision of the Immigration Appeal Division of the Immigration and Refugee Protection Board ("Appeal Division"), rendered by panel member Mona Beauchemin refusing the sponsorship application for landing of the Applicant's husband, Raoul Quindiagan.
[2] By way of relief, the Applicant asks this Court to quash the decision and to remit the matter to the Appeal Division for rehearing.
BACKGROUND FACTS
[3] The Applicant and her husband, Raul Quindiagan, were born in the Philippines, where they were married for the first time in 1994. They have four children, born before their first marriage.
[4] On June 28, 1994, the Applicant came to Canada to live and work as a care giver to her aunt's friend. She was landed in Canada on December 4, 1997.
[5] In 1998, the Applicant returned to the Philippines to marry her husband a second time. She applied on October 27, 1999 to sponsor her husband for landing in Canada. By letter dated November 7, 2002, the Applicant was informed that the visa officer refused the application. This decision was appealed to the Appeal Division and a hearing was held on July 6, 2004. The appeal was dismissed on September 3, 2004.
[6] Leave to bring the within application was granted on January 21, 2005.
IMPUGNED DECISION
[7] Before the Appeal Division, counsel on behalf of the Applicant requested a postponement on the basis that he wished to raise a constitutional question but had failed to complete and serve a notice of constitutional question within the time limit required by section 52 of the Immigration Appeal Division Rules, SOR/2002-230 (the "Rules"). The Appeal Division denied the request.
[8] The Applicant appealed, pursuant to subsection 63(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the "IRPA"), the visa officer's decision to refuse the sponsorship application for landing of her husband. The visa officer concluded that the Applicant's husband was not examined at the time the Applicant applied for permanent residency and was therefore not a member of the family class, pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
[9] The Appeal Division noted that the Applicant testified that her first marriage was secret and performed in another province because her family, particularly her grand-mother, were opposed to it. The Applicant also testified that her uncle, who had married in similar circumstances, was not allowed to sponsor his wife in Canada, which led to her return to the Philippines where a second marriage was performed in 1998.
[10] The Appeal Division took notice of the fact that, when the Applicant's husband applied for his marriage certificate, he was provided with two certificates, one for each marriage. The Appeal Division held that no further evidence had been adduced concerning the legality of the first marriage; it consequently found that there was no reliable evidence allowing it to conclude that the Applicant was not legally married in 1994 in the Philippines.
[11] This led the Appeal Division to question why the Applicant declared she was single in her landing document dated December 4, 1997, and why she indicated that she was never married and had no dependants in her permanent residency application dated February 7, 1997. The Applicant admitted that, at the time when these documents were signed, she was married and had four children. She also explained that she told an immigration officer in Montréal, on May 17, 2002, that she had been ill-advised when completing the documents and thought that admitting to being married and having four children would jeopardize her own application.
[12] The Appeal Division stated that it had no reason to doubt the bona fides of the Applicant's relationship with her husband. However, the Appeal Division held that evidence pertaining to the Applicant's state of mind, which she attempted to provide, was not relevant in the present case due to the fact that the Appeal Division was not called to make a determination on humanitarian considerations. The Appeal Division indicated that the question at issue here was jurisdictional in nature and it was barred from considering humanitarian considerations by operation of section 65 of the IRPA.
[13] The Appeal Division concluded that the appeal should be dismissed for lack of jurisdiction by virtue of paragraph 117(9)(d) of the Regulations. The reason given by the Applicant for having failed to declare her husband in her application, namely that she feared this declaration would jeopardize her own case, is precisely the type of conduct targeted by the exclusionary provision. The Appeal Division finally held that the amendments to paragraph 117(9)(d) of the Regulations, which came into force after the hearing, were considered and found to have no application in the present case.
ISSUES
[14] Only one issue arises in this application: whether the Appeal Division breached the principles of fairness and natural justice by refusing to grant an adjournment to allow the applicant time to properly serve and file a notice of constitutional question?
ANALYSIS
[15] A party seeking to raise a constitutional issue before the Appeal Division must give notice of its intention to do so at least 10 days before the argument is made, as provided by section 52 of the Rules.
| 52. Notice of constitutional question
(1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
Time limit
(4) Documents provided under this rule must be received by their recipients no later than 10 days before the day the constitutional argument will be made.
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52. Avis de question constitutionnelle
(1) La partie qui veut constester la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, d'une disposition législative établit un avis de question constitutionnelle.
Délai
(4) Les documents transmis selon la présente règle doivent être reçus par leurs destinataires au plus tard dix jours avant la date à laquelle la question constitutionnelle doit être débattue.
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[16] In the present case, the time limit set out in subsection 52(4) of the Rules was not respected and the Applicant's counsel requested an adjournment of the appeal for the notice of constitutional question to be completed and served. In deciding whether to grant an adjournment, the Appeal Division must consider any relevant factors including those specifically set out in subsection 48(4) of the Rules, which reads as follows:
| 48. Factors
(4) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the proceeding;
(d) the efforts made by the party to be ready to start or continue the proceeding;
(e) in the case of a party who wants more time to obtain information in support of the party's arguments, the ability of the Division to proceed in the absence of that information without causing an injustice;
(f) the knowledge and experience of any counsel who represents the party;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the proceeding were peremptory;
(I) whether allowing the application would unreasonably delay the proceedings; and
(j) the nature and complexity of the matter to be heard.
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48. Éléments à considérer
(4) Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a besoin d'un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d'aller de l'avant en l'absence de ces renseignements sans causer une injustice;
f) dans le cas où la partie est représentée, les connaissances et l'expérience de son conseil;
g) tout report antérieur et sa justification;
h) si la date et l'heure qui avaient été fixées étaient péremptoires;
I) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable;
j) la nature et la complexité de l'affaire.
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[17] In rendering decisions on procedural matters, the Appeal Division must also remain mindful of subsection 162(2) of the IRPA which imposes an obligation of celerity. It is accepted law that administrative tribunals have the authority to control their procedure and to decide whether or not to grant an adjournment. (Siloch v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 10, online: QL.) The only requirement is that their decisions comply with the rules of fairness and natural justice.
[18] In this case, the Appeal Division found that at the time of the hearing, the case was almost two years old and that no indication was ever given that a constitutional issue might be raised by the Applicant. The Appeal Division noted that several requests for postponement were granted and the Applicant had a number of opportunities before the Tribunal to raise the issue of a constitutional question.
[19] The Applicant does not contest the factual conclusions drawn by the Appeal Division. She, however, takes issue with its decision to deny the postponement request to permit her counsel to complete and serve the notice of constitutional question within the prescribed time limit. She argues that the issues in the present case were of a constitutional nature and were not argued due to the Board's refusal to grant a postponement.
[20] The Applicant contends that the Appeal Division failed to apply the principle, set out in Phui v. Canada (Minister of Citizenship and Immigration), 2002 FCT 791, that an applicant ought not to be deprived of her rights because of an error on the part of counsel where a defect could be corrected without prejudice to the other side. According to the Applicant, the Appeal Division failed to consider the severe prejudice she would incur, the seriousness of the constitutional questions and the lack of prejudice to the Respondent.
[21] The Applicant had many opportunities to raise the issues she judged relevant. Her case was postponed several times for different reasons and she knew for approximately two years that her case was to proceed. The only justification advanced by the Applicant for failure to comply with the regulatory requirements is inadvertence and failure to think of the constitutional arguments earlier. These explanations completely fail to establish the foundation for the Applicant's argument that the Appeal Division acted unfairly or in violation of the principles of natural justice. The Applicant bears the onus of adequately preparing her case and in this instance has simply failed to do so without justification. (Yang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1941, online: QL.)
[22] The Appeal Division is the master of its own procedure. The facts and circumstances of this case do not support the Applicant's contention that the Appeal Division disregarded the principles of fairness and natural justice in rendering its decision. The requirements set out in the Rules were clearly not respected by the Applicant in the present case. I am satisfied the Appeal Division considered and evaluated all relevant factors in coming to its decision. The record provides no foundation for me to find otherwise.
[23] The Applicant also argues that she should not be made to suffer for the procedural defect attributable solely to her counsel and that fairness required that the adjournment be granted.
[24] The Federal Court of Appeal clearly stated in Moutisheva v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 988, online: QL, at paragraph 12, that the general rule is that counsel's conduct cannot be separated from that of the client.
Finally, counsel for a party to a case is that party's agent. He acts on his behalf and as such assumes a number of obligations including those of conduct of the proceedings and receipt and issue of documents required by the proceedings.
[25] The only instance where a Court could disrupt an administrative tribunal's decision due to errors committed by counsel would be in a case where "extraordinary incompetence" on the part of counsel was shown to result in a breach of natural justice. (Gogol v. Canada, [1999] F.C.J. No. 2021, at paragraph 3.)
While certainly some sloppy work was done, the evidence did not indicate such "extraordinary incompetence", to use Justice Rothstein's language in the Huynh case, as would warrant this Court's intervention. (...) The so-called errors made by the lawyer, chosen by the application, were mainly technical ones, none of which prevented the application from receiving a fair hearing, from testifying on her own behalf and from calling a witness to give evidence on her behalf.
[26] It has not been shown, in the circumstances, that counsel for the Applicant has exhibited extraordinary incompetence. The Appeal Division did not err in rejecting counsel's argument that it was his first constitutional argument in 20 years of practice. It is counsel's obligation to be properly prepared. Justice Reed's reasons in Jouzichin, supra at paragraph 2 are particularly relevant on this point:
Also, you cannot separate counsel's conduct from the client's conduct. Now, I know that in some of the immigration cases, where there has been clear incompetence by counsel, some of my colleagues have said that counsel was so incompetent that a breach of natural justice occurred. But, the general rule is that you do not separate counsel's conduct from the client. Counsel is acting as agent for the client and as harsh as it may be the client must bear the consequences of having hired poor counsel.
[27] The errors committed by counsel for the Applicant do not warrant, in the circumstances, the Court's intervention.
[28] The record reflects that Applicant's counsel had sufficient time to prepare his case and consult the IRPA and Rules to ensure that he complied with the procedural requirements. The Appeal Division found that Applicant's counsel had ample opportunity to present his case and make the arguments he saw fit. In concluding as it did, the Appeal Division did not violate the rules of fairness and natural justice and as such committed no reviewable error.
CONCLUSION
[29] For the above reasons, the application for judicial review will be dismissed.
[30] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the IRPA, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
« Edmond P. Blanchard »
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8489-04
STYLE OF CAUSE: Marylou Rosario Quindiagan v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: April 21, 2005
REASONS FOR ORDER and ORDER BY: Blanchard J.
DATED: May 31, 2005
APPEARANCES BY:
Mr. Mark G. Gruszczynski For the Applicant
Mrs. Sherry Rafai Far For the Respondent
SOLICITORS OF RECORD:
Gruszczynski, Romoff For the Applicant
Montréal, Quebec
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
Montréal, Quebec
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