Date: 20041123
Docket: IMM-9349-03
Citation: 2004 FC 1623
Toronto, Ontario, November 23, 2004
Present: The Honourable Mr. Justice O'Reilly
BETWEEN:
MUHAMMAD ASHRAF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Muhammad Ashraf is a citizen of Pakistan. He applied for refugee status here, but a panel of the Immigration and Refugee Board dismissed his claim. Mr. Ashraf argues that he did not have a fair hearing before the Board and asks me to order a new hearing.
[2] In my view, Mr. Ashraf was treated fairly and, therefore, I must dismiss this application for judicial review.
I. Issue
[3] Did the Board treat Mr. Ashraf unfairly when it failed to grant him an adjournment?
II. Analysis
[4] When Mr. Ashraf arrived at the hearing, the Board presented him with some written materials that had not previously been disclosed to him. The Board gave him, his counsel and an interpreter 50 minutes to look over the documents before the hearing began. Mr. Ashraf asked for more time but the Board turned him down.
[5] Mr. Ashraf argues that he was treated unfairly. His counsel had previously written to the Board asking for an adjournment, which was granted peremptorily. In that letter, counsel mentioned in passing that he had not yet received disclosure. The Board did not respond to that letter. It is unclear whether Mr. Ashraf had received disclosure, even if his counsel had not.
[6] The materials in issue were notes of a conversation between Mr. Ashraf and an immigration officer taken when Mr. Ashraf first entered Canada. The Board relied, in part, on discrepancies between those notes and Mr. Ashraf's Personal Information Form when it found that his account of events was not credible.
[7] Disclosure is important to a fair hearing. However, I believe that Mr. Ashraf was treated fairly in the circumstances of this case. The materials disclosed to him at the outset of his hearing amounted to a few pages of notes of his own statements to an immigration officer. The conversation covered basic facts about Mr. Ashraf's personal history. The Board gave Mr. Ashraf an opportunity to review the notes and respond to their contents at the hearing. The circumstances here are much different than those in Ousman v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 714 (T.D.) (QL). There, the Board had given the applicant a mere 15 minutes to consider a large volume of documentary evidence. The Court ordered a new hearing on the grounds that the applicant had not been given an adequate opportunity to respond to the evidence.
[8] The Board's decision whether to grant an adjournment is a discretionary one. It must consider all of the circumstances, including the impact of an adjournment on the proceedings and the complexity of the case: Refugee Protection Division Rules, SOR/2002-228, Rule 48(4) (set out in the attached Annex); Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560. In the circumstances of this case, I cannot conclude that the Board's discretion was exercised unreasonably. Nor can I find that Mr. Ashraf was treated unfairly.
[9] Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed.
2. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
| Refugee Protection Division Rules, SOR/2002-228
Application to change the date or time of a proceeding
Factors
48(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) whether the party has counsel;
(g) the knowledge and experience of any counsel who represents the party;
(h) any previous delays and the reasons for them;
(i) whether the date and time fixed were peremptory;
(j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and
(k) the nature and complexity of the matter to be heard.
|
|
Règles de la Section de la protection des réfugiés, DORS/2002-228
Demande de changement de la date ou de l'heure d'une procédure
Éléments à considérer
48(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) si la partie est représentée;
g) dans le cas où la partie est représentée, les connaissances et l'expérience de son conseil;
h) tout report antérieur et sa justification;
i) si la date et l'heure qui avaient été fixées étaient péremptoires;
j) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable ou causerait vraisemblablement une injustice;
k) la nature et la complexité de l'affaire.
|
|
|
|
|
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9349-03
STYLE OF CAUSE: MUHAMMAD ASHRAF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 16, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: O'REILLY J.
DATED: NOVEMBER 23, 2004
APPEARANCES BY:
Ms. Christina Gural FOR THE APPLICANT
Mr. Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROBERT GERTLER AND ASSOCIATES FOR THE APPLICANT
Etobicoke, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
[1][2][3]A.B.C.
FEDERAL COURT
Date: 20041123
Docket: IMM-9349-03
BETWEEN:
MUHAMMAD ASHRAF
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Email this Content