Date: 20011029
Docket: IMM-6291-00
Neutral citation: 2001 FCT 1165
BETWEEN:
ALEXANDER KRUGLOV and ELENA GRUGLOVA
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision given by the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 6, 2000. It determined that these applicants were not Convention refugees.
[2] The applicants request that the Board's decision be quashed or set aside. It was submitted that their request for an adjournment on the date of the hearing was rejected out of hand and that the Tribunal breached its duty of fairness.
[3] It is conceded that they received notice on Friday, October 13, 2000, that their hearing would be held on Tuesday, October 17, 2000, in Newfoundland. The applicants arrived initially in Montreal and spent some time in the Ottawa and Montreal areas before moving to Newfoundland. They had retained Immigration International to act on their behalf and sometime after a conference in April of 2000, while residing in Newfoundland, a dispute arose between the applicants and Mr. Mochkarovsky. They wished to contact Mr. Bell but Mr. Mochkarvosky apparently prevented them from contacting his associate. When they finally did manage to meet with Mr. Bell, he invited them to either attend at the police station and report the conduct of his associate or that he would attempt to correct the unfortunate situation.
[4] On Friday, October 13, 2000, two days before the hearing, the male applicant met with Mr. Bell for approximately 35 minutes and it is alleged that for the first time he was made aware of document RUS 34083, a critical document relied upon by the Board in its decision. He alleges that he did not understand the contents of this document and he was only able to briefly discuss its contents with Mr. Bell. There is no doubt from the transcript that this document was relied upon by the Board in rendering its decision.
[5] At the opening of the hearing the applicants requested an adjournment to properly retain and instruct new counsel. This was denied and the matter proceeded with the applicants being unrepresented. In its decision not to grant the adjournment the Tribunal indicated that the applicants made no effort to seek other counsel, that they had met with Mr. Bell prior to the hearing and that they must have been properly prepared for the session. The decision was based primarily on credibility of the applicant, Mr. Kruglov.
[6] The only issue argued before the Court was whether or not the Board committed a reviewable error of law and breach of natural justice when it denied an adjournment to the applicants.
[7] The applicants acknowledge that the decision to grant a postponement is discretionary; however, they submit that when considering a request it must be based on the factors enumerated in section 13(4) of the CRDD Rules and the principles of natural justice. The applicants rely on Gargano v. Canada (Minister of Citizenship and Immigration) (1994, 25 Imm. L.R. (2d) 292. This jurisprudence seems to indicate that when a fair hearing has been denied, the decision must always be rendered invalid, whether or not it may appear to a reviewing court that the hearing may have resulted in a different decision.
[8] The applicants submit that they received the notice of hearing only two working days before the actual date of their appearance before the Tribunal. They had never requested any previous adjournment. The information which was relied upon by the Board at the hearing was complex and the applicant did not have sufficient time to review the information in preparation for their session. Finally, there is no doubt they were not familiar with the process.
[9] Correspondence between these applicants and Mr. Bell may have offered some explanation as to the difficulties that arose between Immigration International, their consultants, and these applicants. But the Tribunal refused to review or entertain the filing of this letter.
[10] Finally, the applicants submit that they were not given an opportunity to present their case in full and that the Board placed undue emphasis on its own procedural administrative concerns and did not fairly exercise its discretion to grant an adjournment and breached the rules of natural justice.
[11] In my view, the Board failed to properly consider the applicants' application for an adjournment. It exercised its discretion improperly and breached the principles of natural justice by proceeding with the hearing in the absence of counsel. Rule 13(4) of the CRDD Rules states:
The Refugee Division, in determining whether a hearing shall be postponed, or in determining pursuant to subsection 69(6) of the Act whether an adjournment of a hearing would unreasonably impede the proceeding, may take into consideration, where applicable,
(a) the efforts made by the parties to proceed expeditiously;
(b) the nature and complexity of the issues relevant to the proceeding;
(c) the nature of the evidence to be presented, and the likelihood of causing an injustice to any party by proceeding in the absence of the evidence;
(d) counsel's knowledge of, and experience with, similar proceedings;
(e) the amount of time already afforded the parties for preparation of the case;
(f) the efforts made by the parties to be present at the hearing;
(g) the efforts made by the parties to make an application for a postponement or adjournment of the hearing at the earliest opportunity;
(h) the number of, and reasons for, any previous postponements or adjournments granted;
(i) whether the hearing was set peremptorily; and
(j) any other relevant facts.
[12] I am satisfied that the Board did not consider all of these aspects but it appeared to focus on the applicant's decision to dismiss counsel two days before the hearing.
[13] It is obvious to the Court that these applicants received very little notice of the hearing date. This clearly hampered efforts to resolve their problems with counsel and did not allow them time to prepare the case themselves. Most of the documents submitted at the hearing were lengthy and were in English and therefore even more difficult for the applicants to understand. There is not doubt that the applicants lacked experience in similar hearings. It is obvious they were even unfamiliar with the process necessitated for requesting an adjournment. Though there is evidence they had requested a change of venue, having moved from the Montreal-Ottawa area to Newfoundland, there is absolutely no evidence that any other adjournment had ever been requested or granted.
[14] There is no evidence before that these parties or their initial counsel, at any point, attempted to delay the process.
[15] Consequently, the decision of the CRDD is hereby set aside and this matter shall be returned for a rehearing before a differently constituted panel.
JUDGE
OTTAWA, Ontario
October 29, 2001
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