[1] Three days before his refugee hearing, Selvan Masila Mani discovered that the immigration consultant that he thought would be representing him at the hearing would not be appearing. He appeared before the Refugee Protection Division of the Immigration and Refugee Board on his own, for what he understood was to be a hearing into the merits of his refugee claim. He told the Board that while he had expected to be represented at the hearing, he was prepared to proceed on his own. The presiding member then questioned Mr. Masila Mani about the history of his claim. The hearing concluded with a finding by the Board that Mr. Masila Mani's refugee claim had been abandoned.
[2] Mr. Masila Mani seeks to have this decision set aside, asserting that the procedure the Board followed in coming to its decision on the abandonment question was seriously flawed, that the Board erred in failing to adjourn the refugee hearing, and that the abandonment decision was unreasonable in all of the circumstances.
BACKGROUND
[3] Mr. Masila Mani is a citizen of Malaysia. He entered Canada on March 5, 2002, and commenced an application for refugee protection that same day. He is not unfamiliar with the refugee process, having previously made an unsuccessful refugee claim.
[4] Legal Aid referred Mr. Masila Mani to a lawyer to assist him with his refugee application. This lawyer did not accept legal aid, however, and Mr. Masila Mani could not afford to pay the lawyer on his own. As a result, he completed his Personal Information Form without legal assistance, and submitted the form to the Board within the stipulated time frame.
[5] In April of 2002, Legal Aid referred Mr. Masila Mani to a second lawyer. On May 18, 2002, Mr. Masila Mani was married, and he began working shortly thereafter. This resulted in the termination of his social assistance, which, in turn, meant that he was no longer eligible for legal aid. Mr. Masila Mani 's second lawyer advised him that he could no longer represent him, as he worked exclusively in a legal aid clinic.
[6] Mr. Masila Mani worked part-time in Montreal, and his wife lived and worked in Toronto. Consequently, he travelled back and forth between Montreal and Toronto on a regular basis. After he changed addresses in Montreal, Mr. Masila Mani advised both the Board and Citizenship and Immigration Canada of his new address in Montreal, and of the fact that he was frequently travelling between Montreal and Toronto. Mr. Masila Mani deposes that he was told that as long as he could be reached at his new address in Montreal, there was no need for him to do anything further.
[7] Mr. Masila Mani also deposes that in September of 2002, he retained an immigration consultant to represent him with respect to his refugee claim. He says that he paid the consultant a $200 retainer in September of 2002, and a further $200 in November of 2002. Mr. Masila Mani signed an authorization to allow the consultant to represent him, and the consultant advised him that he would notify the Immigration and Refugee Board accordingly.
[8] Although one letter to Mr. Masila Mani from the Board was returned, indicating that he had moved, Mr. Masila Mani deposes that he did receive the "Notice of Hearing" dated February 28, 2003. This Notice advised him that his refugee hearing would be held on April 28, 2003. This was the first date set for the hearing, and Mr. Masila Mani submits it was not set on a peremptory basis.
[9] After indicating the date set for the refugee hearing, the Notice of Hearing advised Mr. Masila Mani that:
If you fail to appear at that time and place, the Refugee Protection Division (RPD) may, after giving you a reasonable opportunity to be heard, determine your claim to be abandoned.
[10] Mr. Masila Mani immediately notified the immigration consultant of the hearing date, and faxed him a copy of the letter. The consultant told Mr. Masila Mani that they should meet closer to the hearing in order to prepare. Mr. Masila Mani called the consultant back some time later, and arranged to meet with him on April 25, 2003. During this meeting, the consultant informed Mr. Masila Mani that he had made a mistake recording the time of Mr. Masila Mani's hearing, and that he would not be able to attend the hearing because of a prior commitment. The consultant then gave Mr. Masila Mani a sealed envelope to present to the Board member at the hearing.
[11] That same day, a "Notification of Counsel or Change of Counsel" form was filed with the Board. Under the heading "My Counsel is:" the name, title, address, telephone number, fax number and e-mail address of the immigration consultant appear. This information appears to have been inserted on the form by a rubber stamp.
[12] Mr. Masila Mani attended the April 28 hearing, and provided the Board member with the sealed envelope given to him by the consultant. In the envelope was a letter, dated April 25, 2003, which states:
Mr. Masila Mani came from Toronto today. He was expecting me to represent him on 28th of April, 2003, but I do not have a mandate to do so, and therefore was never contacted by the IRB. He will ask you for a new date. Should you accept the following dates (close) are available.
The letter then lists a number of available dates over the ensuing weeks.
[13] Mr. Masila Mani informed the Board that the consultant's letter was inaccurate in two respects: he had in fact retained the consultant, and he had done so in September of 2002.
[14] The Board member then asked Mr. Masila Mani if he was ready to proceed with his refugee hearing. Mr. Masila Mani responded that he was prepared to proceed without representation. The Board then examined Mr. Masila Mani quite extensively, not about the events giving rise to his refugee claim, but rather about the history of his claim and the steps that Mr. Masila Mani had taken to move the case forward. When he had completed his examination, the presiding member took a short recess, and then advised Mr. Masila Mani that " ... the panel would start abandonment proceedings against you." The Board member then told Mr. Masila Mani that he would hear what Mr. Masila Mani had to say as to why the claim should not be found to have been abandoned.
[15] Mr. Masila Mani explained that he always intended to proceed with his refugee claim. He testified that he had not waited until the last minute to retain the immigration consultant, despite what the consultant's letter suggested. Indeed, Mr. Masila Mani said that his wife, who was not present at the hearing, had attended a meeting with the consultant the previous autumn, and would be able to testify to that effect. Further, in his affidavit, Mr. Masila Mani deposes that he could have obtained cancelled cheques from his bank that would have established that the consultant was in fact retained the previous Fall.
THE BOARD'S DECISION
[16] After hearing from Mr. Masila Mani, the Board rendered an oral decision, stating:
Now I did consider, sir, your answer when I asked you if you're ready to proceed without a counsel today, and including the readiness to proceed. When I consider all the explanations you have provided to me today, based on which the panel believes that you were negligent in your affairs, and no evidence filed on your behalf for the hearing at all besides the PIF to date. And you had been also changing your counsels [sic] from time to time since March 2002. And the last mandate which is not clear and ambiguous in many ways from [the immigration consultant]. All this indicates to me that your claim to be abandoned.
[17] Mr. Masila Mani subsequently received a written "Decision Notice", which states:
You and your counsel (sic) appeared at that hearing but did not show reason why the RPD should not declare your claim to be abandoned.
ACCORDINGLY, THE REFUGEE PROTECTION DIVISION DECLARES YOUR CLAIM TO HAVE BEEN ABANDONED.
ISSUES
[18] Mr. Masila Mani raises three issues on judicial review:
A. Was the procedure followed by the Board in relation to the issue of abandonment flawed, resulting in a breach of natural justice?
B. Did the Board err in law when it denied the applicant's right to a fair hearing by denying a reasonable request for an adjournment?
C. Did the Board err in law when it unreasonably declared the refugee claim to be abandoned?
Although I have some concerns as to the reasonableness of the Board's abandonment decision, I am satisfied that this application can be disposed of on the basis of the first issue, and that it is not necessary to address the other two.
ANALYSIS
[19] The first issue identified by Mr. Masila Mani relates to a question of natural justice or procedural fairness. Questions of procedural fairness are reviewed against a standard of correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174.
[20] Rule 58 (2) of the Refugee Protection Division Rules, SOR/2002-228 allows the Board to consider issues of abandonment at a hearing specially convened for that purpose, or "...immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so." [My emphasis]
[21] In this case, Mr. Masila Mani had no reason to believe that the issue of abandonment would be raised at the hearing on April 28, 2003. Indeed, the Notice that he received from the Board advised him that abandonment proceedings could be taken against him if he failed to appear at the date set for his hearing. Mr. Masila Mani did what he was asked to do: he appeared on the date set for his refugee hearing, and was ready to proceed on that date, notwithstanding his lack of representation.
[22] There is clearly a disagreement between Mr. Masila Mani and the immigration consultant as to when, or indeed if, the consultant was retained to act in relation to Mr. Masila Mani's refugee claim. In coming to its conclusion that Mr. Masila Mani had not pursued his refugee claim with diligence, the Board chose to prefer the unsworn evidence contained in the consultant's letter, which suggested that Mr. Masila Mani had not tried to retain the consultant until the last minute, to the sworn testimony of Mr. Masila Mani that he had retained the consultant the previous Fall.
[23] I note that there is some inconsistency between the statement of the consultant that he did not "have a mandate", and the fact that the consultant's stamp is shown on the appearance form filed with the Board three days before the date set for applicant's refugee hearing. Nevertheless, this is a question that goes to the weighing of the evidence, and is a matter for the Board.
[24] More importantly, however, it is clear from both the testimony and the affidavit of Mr. Masila Mani that he had access to evidence, including the testimony of his wife and documentary evidence in the form of cancelled cheques, that could demonstrate that the immigration consultant had indeed been retained several months before the hearing date. He did not, however, have either his wife or the cancelled cheques with him at the hearing, nor was there any reason that he should have, as he had not had any indication from the Board prior to the hearing that the issue of abandonment might arise. Although Mr. Masila Mani did not expressly ask that the hearing be adjourned in order to allow him to adduce this evidence, he did advise the Board member that he was prepared to arrange to have his wife testify, if necessary.
[25] As was noted by Justice O'Reilly in Nemeth v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 776, the Board's obligation to ensure a fair hearing may be more onerous in situations where claimants appear without counsel.
[26] In all of the circumstances of this case, it was a breach of procedural fairness for the Board to find that Mr. Masila Mani's refugee claim had been abandoned, with all of the negative consequences that such a finding entails, without having first given him fair notice that the issue of abandonment was "on the table", and the meaningful opportunity to adduce whatever evidence that he might have to demonstrate that he had pursued his claim with diligence.
[27] For these reasons, the decision of the Board should be set aside, and the matter remitted to a differently constituted panel for redetermination.
CERTIFICATION
[28] Mr. Masila Mani proposes a question for certification relating to the interpretation of Rule 58 (2) of the Refugee Protection Division Rules. I am not persuaded that the proposed question would be dispositive of Mr. Masila Mani 's case in light for my reasons for allowing this application, and I decline to certify the question.
O R D E R
THIS COURT ORDERS that:
1. For the reasons set out above, this application is allowed, and Mr. Masila Mani's refugee claim is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3795-03
STYLE OF CAUSE:
BETWEEN:
SELVAM MASILA MANI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 26, 2004
REASONS FOR ORDER AND ORDER : The Honourable Madam Justice Mactavish
DATED: March 12, 2004
APPEARANCES:
Jackie Esmonde FOR PLAINTIFF / APPLICANT
Marcel Larouche FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Roach, Schwartz & Associates FOR PLAINTIFF/APPLICANT
Morris Rosenberg FOR DEFENDANT/
Deputy Attorney General of Canada RESPONDENT
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