Kandasamy v. Canada (Minister of Citizenship and Immigration), docket IMM-4825-99

Date: 20000913

Docket: IMM-4825-99

BETWEEN:                                     

     RATNANATHAN KANDASAMY

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

     REASONS FOR ORDER

HANSEN J.

[1]      The applicant, a permanent resident of Canada, was ordered deported on April 6, 1998 as a result of criminal convictions. On August 3, 1999 the Immigration and Refugee Board, Appeal Division ("IAD") dismissed the applicant's appeal of the deportation order. The issue on this application for judicial review is whether the IAD breached the principles of natural justice when it refused to grant an adjournment to the applicant and proceeded to hear the appeal in the absence of counsel for the applicant.

[2]      At the time of his first appearance in Assignment Court in October 1998 to fix a date for his appeal, the applicant advised the Court the appeal of the criminal convictions was to be heard December 15, 1998. Accordingly, the matter was set over to January 8, 1999. When the applicant appeared in Assignment Court on this date, the criminal appeal had not been heard and it was unclear exactly when it would be heard. As well, there was some question as to whether counsel had been retained to represent the applicant on the IAD matter. A date for the appeal was set peremptorily for April 30, 1999. For administrative reasons, the matter was brought forward in Assignment Court on April 15, 1999 to fix a new date. On this date, an associate of the applicant's counsel on his criminal matters appeared. He stated that a date had still not been set for the hearing of the criminal appeal and on the instructions of the applicant's counsel asked for an adjournment to November 1999. The presiding member stated that a pending appeal on a criminal matter was not an adequate reason to unduly postpone the IAD matter. A new date for the appeal was fixed peremptorily for August 3, 1999.

[3]      At some point in time which remains unknown, the applicant's counsel on his criminal matters advised him he was unable to represent him on August 3, 1999. He referred him to new counsel, Mr. LeRoy, with whom he met on July 22, 1999. Mr. LeRoy advised the applicant he was not available on August 3, 1999 but would represent him if a new date could be obtained. On July 26, 1999, Mr. LeRoy faxed a request for an adjournment to the IAD stating he was not available to represent the applicant on August 3, 1999 and provided a number of dates on which he would be available. On July 30, 1999 the IAD refused this request providing three reasons: the date was fixed on a peremptory basis, the appellant retained counsel at the last minute which was unacceptable, and it was a 1998 appeal.

[4]      Mr. LeRoy appeared before the IAD on August 3, 1999 and again sought an adjournment. He stated he had met with the applicant for the first time on July 22, 1999 and due to prior commitments he was unable to proceed with the hearing. The presiding member agreed to treat Mr. LeRoy's submissions as a further request for a postponement but stated that in his view there were "no grounds to do so" and repeated the reasons for the refusal found in the July 30, 1999 correspondence. Mr. LeRoy withdrew from the proceedings and the hearing commenced in the absence of counsel for the applicant.

[5]      The applicant submits that although the presiding member agreed to hear the renewed request for the adjournment, in effect he did not do so but rather relied on the reasons for the refusal given the week prior. He further submits that at a minimum the IAD ought to have clarified the extent to which the applicant was responsible for the fact he was unrepresented. He submits that in this case the applicant was `left in the lurch" by his counsel. He cited Shirwa v. Canada (Minister of Employment and Immigration) [1994] 2 F.C. 51 for the proposition that where the failure of counsel to attend is not based on any failure on the part of the applicant, it is improper for the tribunal to punish the applicant by denying him his right to counsel.

[6]      The respondent submits the IAD has a duty to dispose of appeals as expeditiously as reasonably possible in the circumstances. Citing IAD Rules 13 and 39, the respondent also submits the IAD in considering whether to grant an adjournment can consider factors such as the amount of time already afforded for the preparation of the case, whether a postponement would unreasonably impede the proceedings, the efforts of the parties to proceed expeditiously, whether the application for postponement was made at the earliest opportunity, and whether the hearing was set peremptorily.

[7]      As stated by Décary J.A. in Siloch v. Canada (Minister of Employment and Immigration) 151 N.R. 76 at page 78:

[8]      In Appeal Division matters, rule 13(4) of the IAD Rules sets out those factors which may be taken into account when exercising its discretion with respect to a request for an adjournment. While it is not necessary to canvas all of the factors set out in rule 13(4) of the Rules, when exercising its discretion concerning a request for an adjournment, it is incumbent upon the tribunal to examine all of the relevant facts surrounding the particular request before reaching a decision.

[9]      Further, as stated by Cullen J. in Gargano v. Canada (Minister of Employment and Immigration) (1994), 85 F.T.R. 49 at page 52 in cases such as this:

[10]      The applicant's framing of his submission would impose a duty on the tribunal to make an inquiry with respect to the reasons for the adjournment. I disagree. A tribunal has an obligation to consider all of the relevant factors but the onus still remains on the applicant to put forward the factual basis for the request.

[11]      In this case, however, there is no factual basis for the allegation the applicant was "left in the lurch" by his counsel. No submissions to this effect were made on August 3, 1999. The record is silent as to when the applicant was informed by his counsel on the criminal matters that he was unable to represent him on August 3, 1999. A consideration of whether a refusal to an adjournment has prejudiced an applicant is predicated on the fact that, as stated in Yung v. Canada (Minister of Employment and Immigration) 167 N.R. 71 at page 74 "... the request was not made for the purpose of delay or by reason of indifference or inattention ...".

[12]      Having regard to the length of time which had elapsed from the date of the first Assignment Court and the submissions of counsel on August 3, 1999, it was open for the IAD to conclude the applicant had waited until the last minute to retain counsel. In the circumstances of this case, the IAD's exercise of its discretion in refusing to grant the adjournment was reasonable.

[13]      The applicant also submits that as the primary factor in the refusal to grant the adjournment was the fact the hearing was set peremptorily, which in itself was questionable, the IAD erred in refusing to grant the adjournment. In my view this is not determinative of the issue. Regardless of what transpired in the procedural history of the case, the tribunal still must consider all of the relevant circumstances surrounding the request for the adjournment at the time the request is made.

[14]      At the hearing of the judicial review, the applicant did not make submissions concerning the second ground raised in his written materials namely whether the tribunal err in law by failing to consider the totality of the evidence. Having reviewed the transcript of the hearing the reasons for the decision, I am not persuaded that the IAD committed any reviewable error. The applicant's submissions in this regard are not persuasive.

[15]      For these reasons, the application for judicial review is dismissed.

[16]      Neither party had a question to submit for certification.

     "Dolores M. Hansen"

     J.F.C.C.