Date: 20041012
Docket: IMM-10246-03
Citation: 2004 FC 1399
Ottawa, Ontario, October 12, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
VASILE TIMIS
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for an adjournment and an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board. The panel determined that Mr. Timis, a Romanian citizen, was not a Convention refugee or a person in need of protection. Before the panel, Mr. Timis was represented by counsel. In December of last year, without a solicitor of record, he himself submitted an application for leave and an application for judicial review. One month later, Mr. Timis submitted an applicant's memorandum, on its face very polished. The application for leave was granted in July and the hearing date for the application for judicial review was set for October 5, 2004.
[2] It is mentioned in the file that an order sent by registered mail, addressed to Mr. Timis, was returned marked "moved, address unknown." Nevertheless, the Registry was able to contact a friend of Mr. Timis, who told him that Mr. Timis did not speak French or English and that, accordingly, he would need the services of an interpreter. Subsequently, the Minister contacted the Registry in writing to tell him that Mr. Timis had submitted an affidavit entirely in French, and sworn in French, and that his application for leave and his memorandum were also in French.
[3] Mr. Timis came to the judicial review hearing accompanied by a female friend, a Canadian resident from Romania, who acted as an interpreter.
[4] Mr. Timis's friend began the hearing by asking the Court to grant an extension of time because Mr. Timis's counsel was on vacation. When it was pointed out that there was no solicitor of record, Mr. Timis said, as we might have guessed, that a lawyer had been responsible for his application and that this lawyer did not want to be on the record. The lawyer Mr. Timis was referring to was not the same lawyer who had represented him before the panel. Mr. Timis did not know the name of the lawyer or his phone number. The only detail that Mr. Timis could provide to the Court regarding his lawyer was that he thought his name was Russian. According to Mr. Timis, his lawyer had been on vacation for three weeks. However, no notice of appearance had ever been filed before the Court.
[5] Adjournments are governed by section 36 of the Federal Court Rules, 1998. Subsection 36(1) states that a hearing may be adjourned by the Court on such terms as the Court considers just. According to the practice directions issued by the Federal Court Trial Division in 1993, parties who have been given hearing dates will only receive an adjournment in exceptional cases (Martin v. Canada (MEI) (1999), 162 F.T.R. 127 (F.C.T.D.); Ismail v. Canada (AG) (1999), 177 F.T.R. 156 (F.C.T.D.). It is important to note that this is not a case where a party was abandoned by his counsel at the last minute. Mr. Timis represented himself at each stage after the panel's decision, which was again confirmed when he contacted the Court in July to inform it that he would need an interpreter at the hearing.
[6] Given the circumstances, I refused to grant an adjournment. The right to counsel is not an absolute right.
[7] With regard to the merit of the panel's decision, the Court asked Mr. Timis whether he had other information to add to his memorandum. Mr. Timis's interpreter, who is not herself a gypsy, said that she could sympathize with his situation and the expectation upon his return that he would have amassed a fortune while he was abroad.
[8] Mr. Timis's application was dismissed because of a lack of credibility. Many reasons were given by the panel, such as the lack of knowledge of the language and customs of the gypsies, which led it to determine that Mr. Timis was not a gypsy.
[9] Further, in the applicant's many statements, particularly in his stowaway form, Mr. Timis stressed that he lacked employment because of his disability rather than his gypsy nationality. In his information form, he only mentioned his gypsy nationality as it related to the circumstances which led to his disability.
[10] In my view, the most important aspect of the panel's decision is actually the following:
The panel believes that the claimant is not credible owing to this confusion in the testimony.
[11] It has been consistently held by our courts that the panel has a well-established expertise when deciding questions of fact, and particularly in assessing the credibility of refugee claimants. Accordingly, in order for the Court to be able to set aside a finding of fact by the panel, it must be established that this finding is patently unreasonable (Aguebor v. Canada (MEI), (1993) 160 N.R. 315 (C.A.); Gjergo v. Canada (MEI), 2004 FC 303).
[12] It is not enough for the Board's decision to be wrong in the eyes of the Court; for it to be patently unreasonable, the Court must find that it is clearly irrational. In this case, there is nothing unreasonable about the panel's decision; accordingly, the decision must be upheld.
ORDER
The application for judicial review is dismissed. No question is certified.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10246-03
STYLE OF CAUSE: VASILE TIMIS
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 5, 2004
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATE OF REASONS: OCTOBER 12, 2004
APPEARANCES:
Vasile Timis REPRESENTING HIMSELF
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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