Date: 20000919
Docket: IMM-5064-99
BETWEEN:
PAULO AUGUSTO SOUSA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These reasons confirm those given orally at the conclusion of a hearing of an application for judicial review in Toronto on August 17, 2000 when, as confirmed by written Order thereafter, the Court allowed the application. The Order set aside a decision of the Appeal Division of the Immigration and Refugee Board dated September 20, 1999 when the applicant's request for an adjournment to permit his counsel to appear and represent him was refused by the panel and it proceeded, in the absence of counsel for Mr. Sousa, and cancelled an earlier Order staying a deportation order directed to the applicant, dismissed his appeal, and directed that the Removal Order be executed as soon as reasonably practical.
[2] The basis for allowing the application was my conclusion that in all of the circumstances of the case, the Appeal Division effectively denied the applicant a right to a fair hearing with counsel to represent him and decided to reject the applicant's request for an adjournment, proceeding with the hearing at which the applicant represented himself, and ultimately ruled adversely to him.
[3] The circumstances of this case are these. The applicant, a native of Portugal, was landed in Canada at the age of two in 1974 when he accompanied his mother and five siblings to this country to join his father who had earlier landed. He did not become a citizen and in July, 1996, he was ordered deported because of a background of criminal activity. On appeal to the Immigration Appeal Division, heard in May, 1997, the panel determined, on the basis of subsection 70(b) of the Immigration Act1 that, having regard to all of the circumstances of the case, he ought not to be removed from Canada.
[4] The decision of the panel dated October 10, 1997 required that he re-attend for an oral review of the circumstances of his case in April, 1998. A date for that review was scheduled for April 20, 1998, but the applicant did not attend that day as he was in custody on a new criminal charge. His brother did attend to speak on his behalf, and the tribunal postponed the review to a date to be set by the Registrar. Ultimately, that date was rescheduled to June 9, 1999, a date fixed without the agreement of the applicant's counsel, despite efforts of the Board to seek to confirm a convenient date with counsel. On June 7, 1999, the Board received from counsel for the applicant a request for an adjournment of the hearing scheduled for June 9, 1999 because counsel was still engaged in a continuing murder trial. A member of the Board, not associated with the hearing panel, denied the requested adjournment.
[5] On June 9, 1999, the applicant appeared before the panel himself, and again requested an adjournment so that he could be represented by counsel whom he had retained but who was not able to be present that day because of the continuing murder trial. The panel denied the applicant's request and undertook that reasons for its decision not to grant the requested postponement would be provided in the reasons for decision on the outcome of the review.
[6] At the earlier hearing scheduled in April, 1999 when the applicant was not in attendance but was represented by his brother, the panel in granting an adjournment, indicated to the brother that a new hearing date to be set by the Registrar would be on a peremptory basis. The panel believed it had conveyed an understanding of the significance of that to Mr. Sousa's brother. Subsequently, notice of the hearing fixed for June 9, 1999 was sent to the applicant's counsel, and it also reached the applicant, indicating on its face that the hearing was set on a peremptory basis.
[7] In its decision, dated September 20, 1999, the panel reviewed the circumstances of its refusal of the requested adjournment. It did so by reference to Rule 13(4)(a), (b) and (f) of the Immigration Appeal Division Rules1 which provisions refer to certain factors to be taken into consideration when an adjournment is requested. The decision of the panel is thorough in relation to those various factors, and others referred to in the Rules of the Appeal Division. In addition, the panel emphasized that the applicant was given the opportunity to have breaks during the course of the proceedings to consider his position as the hearing progressed, and the opportunity to submit documents or make further submissions following the hearing. Indeed, the panel received submissions after the hearing, including a submission by counsel for the applicant.
[8] Counsel for the Minister urged that the decision of the panel was a discretionary decision made on a reasonable basis since it was based upon the Rules of the Appeal Division for dealing with requested adjournments. I agree that the decision to refuse the adjournment was reasonable in the sense that it was made with reasons, but in the circumstances of this case the conclusion reached, to deny an adjournment, in my view, denied the applicant a fair opportunity to be represented by counsel. That denied procedural fairness to the applicant at that stage, and subsequent opportunities in the hearing for recesses for the applicant to collect his thoughts, or for post-hearing submissions on his behalf, do not remedy the procedural defect. I am not persuaded, despite argument of counsel for the Minister, that the absence of evidence of prejudice indicated that there was no serious lack of fairness in the process.
[9] The factors which led me to conclude the process was unfair are these. The panel's decision to set the re-hearing on a peremptory basis when the applicant did not appear in April, 1999, because he was then incarcerated, is hard to justify, particularly where the date for the renewed hearing was later set by the Appeal Board without agreement of counsel for the applicant, who was known to the Board's schedulers, and, I infer, known by them to have been engaged in a murder trial that was on-going at the time the date was set and was likely to continue until the end of May. At the date of the hearing, on June 9, that trial was still in progress.
[10] The request by counsel, and by the applicant for an adjournment of the June 9, 1999 date would appear to have been denied on the basis that the hearing had been set down peremptorily. The panel declined to accept the applicant's explanation that he did not understand what "peremptory" meant and that he had not been informed by his brother of what the Board expected because the Board concluded that he should have known or should have found out what the notice of a peremptory hearing meant.
[11] Finally, the applicant had some knowledge in advance of the June 9, 1999 date that the Minister would not be urging his deportation at the hearing. Indeed, in its decision the panel, which was the same one as had considered his appeal originally in 1997, commented thus that in reaching its final conclusion after the June 1999 hearing:
| In coming to this determination, the panel considered that the respondent "with some reservations, recommends that the stay be continued". The respondent recommends so, in light of "the fact that the Appellant has been in Canada for over twenty-four of his twenty-six years" and would, consequently, suffer "severe dislocation and hardship" were he to be removed from Canada. |
| The panel recognizes that the position taken by the respondent is an extenuating circumstance in the appellant's favour. It is significant that the respondent, who had initiated the removal process against the appellant in the first place, now wishes to place it on hold. However, the panel must give consideration to all the circumstances of the case, not only to the position of the respondent. The panel finds that, of greater significance than the circumstances which show that the appellant's removal would cause him and his family severe dislocation and hardship, are the circumstances which show that the appellant has not rehabilitated himself to such a degree as to extrapolate that he is not likely to re-offend. It is, consequently, a material concern that the safety of the public, which the panel must also consider, would be compromised, were the stay of execution of the Deportation Order to be contained. |
[12] In my view, the circumstances of this case are clearly within the principle supported by Calles v. Canada (Minister of Employment and Immigration)1 where the Court intervened and set aside a decision of an adjudicator who refused an adjournment in circumstances which clearly showed the applicant had done everything in his power to be represented by legal counsel and that a short adjournment would enable that to be accomplished. In Gargano v. Canada (Minister of Citizenship and Immigration)1, my colleague Mr. Justice Cullen set aside a decision of the Refugee Board where the Board had failed to provide a requested adjournment in order that the applicant might retain counsel. He found that the decision in that case resulted in a denial of a fair hearing and a breach of the rules of natural justice, despite the Board's having set down the hearing peremptorily.
[13] In the result, I concluded that in all of the circumstances, the Board's decision resulted in procedural unfairness by denying an adjournment so that the applicant's counsel could attend and represent him, where counsel was already retained but not able to attend a hearing fixed unilaterally by the Board, because of professional commitments that could not be avoided. In those circumstances, the resulting decision of the Board was set aside and the matter was remitted to the Board for reconsideration by a differently constituted panel.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
September 19, 2000
__________________
1 R.S.C. 1985, c. I-2 as amended.
2 SOR/93-46.
3 (1990), 131 N.R. 69, 12 Imm. L.R. (2d) 48, [1990] F.C.J. No. 918 (F.C.A.).
4 (1994), 85 F.T.R. 49, (1994), 25 Imm.L.R. (2d) 292, [1994] F.C.J. No. 1385 (T.D.).
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