Date: 20020307
Docket: IMM-5212-00
Neutral citation: 2002 FCT 259
Toronto, Ontario, Thursday the 7th day of March 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
UMER ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Umer Ali is a citizen of Pakistan who sought status as a Convention refugee based on his claim to a well-founded fear of persecution in Pakistan on the grounds of religion and membership in a particular social group, namely Sunnis who have converted to the Shia faith. He brings this application for judicial review of the September 5, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") that he is not a Convention refugee.
[2] While Mr. Ali raised a number of issues, I have only found it necessary to consider one issue: whether the CRDD erred in denying Mr. Ali a requested adjournment and then proceeding with the hearing in circumstances where Mr. Ali was unrepresented.
THE FACTS
[3] Mr. Ali arrived in Canada at Montreal on January 7, 1999 and claimed refugee status on that date. Mr. Ali then applied for and received legal aid and by January 12, 1999 he informed the CRDD that he had retained counsel. His Personal Information Form ("PIF") was prepared on February 20, 1999 and submitted to the CRDD on February 22, 1999.
[4] Counsel for Mr. Ali requested of the CRDD and was granted a transfer of Mr. Ali's file from Montreal to Toronto. On June 7, 1999, Mr. Ali then applied for his file to be transferred back to Montreal. This second request was denied, and a hearing was scheduled before the CRDD for November 10, 1999. Mr. Ali then changed counsel, and at that new counsel's request the hearing was rescheduled on a peremptory basis for November 22, 1999. Such request was sought on the ground that new counsel was unable to attend on November 10, 1999. Almost immediately after the new date was set Mr. Ali's counsel requested another adjournment, citing a scheduling mistake on her part. That request was granted and on November 15, 1999 the hearing was rescheduled for December 6, 1999, again on a peremptory basis.
[5] Mr. Ali then changed counsel again, meeting with that counsel on or about November 20, 1999. Later, on Friday, December 3, 1999 the newest counsel faxed a request to the CRDD for a postponement of the hearing. Such request did not reach the CRDD until the start of the hearing on Monday, December 6, 1999.
[6] At that time Mr. Ali appeared, without counsel, and requested an adjournment because he did not want to appear without counsel. After hearing from Mr. Ali, the CRDD refused to postpone the hearing and proceeded. Mr. Ali participated in the hearing without the benefit of counsel. The CRDD found Mr. Ali not to be a Convention refugee.
THE CRDD'S DECISION
[7] With respect to the decision not to postpone the hearing, the panel found Mr. Ali was not diligent in pursuing his claim, and that his explanation for changing counsel from his second to third counsel was neither reasonable nor acceptable. The CRDD observed that Mr. Ali "blamed" his lawyers without taking any personal responsibility for the delay.
[8] The CRDD characterized Mr Ali's explanation for changing to his third counsel to be the result of a lack of interpretation facilities and language difficulties encountered with his second counsel. The CRDD noted that the majority of claims before the CRDD involve claimants who cannot communicate with their counsel in their own language and so must rely on interpreters, and further observed that counsel that practise refugee law make provisions for interpreters, the costs of which are funded by Legal Aid.
[9] In its oral reasons, given at the hearing, the CRDD stated that it found Mr. Ali to be less than truthful as to why he wanted a postponement, and pointed to discrepancies in Mr Ali's evidence relating to whether he had notified the CRDD about his final change of counsel, and the third counsel's reasons for requesting the adjournment. The CRDD also noted that Mr. Ali was able to produce documents he said he did not have, once he learned that the hearing would proceed.
[10] The CRDD then went on to conclude that:
In the opinion of the panel, the claimant has an obligation to pursue his claim diligently. Given that the claimant had 14 years of education and his demonstrated sophistication, it is the finding of the panel that the claimant was offering a pretext of not being guided by anybody, including his counsels [sic], respecting his obligations in pursuing the claim.
The panel acknowledges that a claimant has the right to choose a counsel. In the case at hand, Mr. Berger was the third lawyer after the claimant had changed his lawyer for the second time for a reason that the panel found not reasonable. If the third lawyer chosen by the claimant is unable to appear on the set hearing day for whatever reason, it is unreasonable for the claimant to expect that the Board would conform to the demands of one particular lawyer. To do so would unreasonably impede the proceedings of the Refugee Division whose mandate is to hold hearings expeditiously, keeping in view the efficiency of the process but in fairness to the claimant. The claimant should make a choice from those lawyers (belonging to the same legal firm or to another firm) who are ready and able to appear on his behalf on the set date. Given all of the above, it is the opinion of the panel that the claimant's actions are not indicative of one who was pursuing his claim diligently. On the contrary, it appears to the panel that the claimant, not desiring to proceed, was changing counsels to obtain delay. It is the opinion of the panel that there was no breach of natural justice caused by denying the postponement and the claimant proceeding without his counsel.
THE RELEVANT LEGISLATION
[11] Both the Immigration Act, R.S.C. 1985, c. I-2 ("Act") and the Convention Refugee Determination Division Rules, SOR/93-45 (" Rules") contain provisions dealing with adjournments.
[12] Subsection 69(6) of the Act provides:
| The Refugee Division shall not adjourn any proceedings before it, unless it is satisfied that an adjournment would not unreasonably impede the proceedings.
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La section du statut ne peut ajourner une procédure que si elle est convaincue que l'ajournement ne causera pas d'entrave sérieuse.
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[13] Rule 13(4) of the Rules provides:
| 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.
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Pour déterminer si elle fera droit à une demande de remise de l'audience ou pour déterminer, conformément au paragraphe 69(6) de la Loi, si l'ajournement de l'audience causera ou non une entrave sérieuse à la procédure, la section du statut peut prendre en considération, le cas échéant :
a) les efforts déployés par les parties pour procéder avec célérité;
b) la nature et la complexité des questions qui se rapportent à la procédure;
c) la nature des éléments de preuve devant être présentés et le risque de causer une injustice à l'une ou l'autre des parties en procédant en l'absence de ces éléments de preuve;
d) les connaissances et l'expérience du conseil en ce qui concerne les procédures du même genre;
e) le délai déjà accordé aux parties pour la préparation de l'affaire;
f) les efforts déployés par les parties pour être présentes à l'audience;
g) les efforts déployés par les parties pour demander à la première occasion la remise ou l'ajournement de l'audience;
h) le nombre de remises ou d'ajournements antérieurs accordés, ainsi que les motifs les justifiant;
i) le fait que l'audience a été ou non fixée de façon péremptoire;
j) tout autre fait pertinent.
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ANALYSIS
(i) Standard of Review
[14] In Mangat v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1301 (F.C.T.D.) Justice Gibson considered the standard of review to be applied to the exercise of discretion by the CRDD as to whether to grant an adjournment, and concluded that the standard of review was reasonableness simpliciter. Justice Gibson went on to conclude that, given the potentially immense consequences of the refusal to grant an adjournment, where the granting of an adjournment is not proscribed by subsection 69(4) of the Act, the CRDD should be generous in the exercise of its discretion to grant adjournments in circumstances where there is no evidence of bad faith on the part of the party requesting the adjournment.
[15] Having regard to the principles expressed by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, I too am satisfied that the decision should be reviewed against the standard of reasonableness simpliciter, and that the CRDD should be generous in the exercise of its discretion where there is no evidence of bad faith.
(ii) Was it Reasonably Open to the CRDD to Refuse the Adjournment?
[16] The overriding factors relied upon by the CRDD in refusing the adjournment were its conclusions that Mr. Ali had not been truthful as to his reasons for seeking an adjournment and that he had not been diligent in pursuing his claim but rather was changing lawyers "to obtain a delay".
[17] If those conclusions were reasonably open to the CRDD on the evidence before it, then its decision to refuse the adjournment cannot be said to be unreasonable and should not be set aside.
[18] With respect to the CRDD's conclusion that Mr. Ali had not been truthful, the first of three reasons given by the CRDD for that conclusion was that Mr. Ali said that he had not advised the CRDD about a change of counsel but this was contradicted by a letter in the file of the CRDD from Mr. Ali advising of the change of counsel. The record of the CRDD contained a notification of change of counsel, apparently signed by Mr. Ali and faxed to the CRDD. However, Mr. Ali's evidence to the CRDD was "So far, I have not sent any information. Whatever has been done is by my daughter". In the face of this testimony and the absence of any evidence to contradict Mr. Ali that the fax was sent by his daughter, this "discrepancy" does not justify a finding of lack of truthfulness. It is difficult to attribute Mr. Ali's remarks to anything other than confusion as there would be no reason to prevaricate on this point.
[19] The second indication of untruthfulness relied upon by the CRDD was that it found that while Mr. Ali initially said he did not have any ID documents because they were still with his first counsel, after he learned that the CRDD was going to proceed Mr. Ali was able to produce the documents.
[20] The transcript reflects that when this apparent discrepancy was put to Mr. Ali he explained that the papers which he initially mentioned were still with his counsel, and that the documents which he produced to the CRDD were different documents that Mr. Ali obtained from Pakistan. While it was open to the CRDD to reject that explanation, the CRDD was obliged to give reasons for not accepting Mr. Ali's explanation. That explanation could not simply be ignored.
[21] Finally, the CRDD found Mr. Ali to be untruthful because when asked why his new counsel was not at the hearing Mr. Ali said that counsel wanted a second application for legal aid to be approved. The CRDD found this to be contradicted by counsel's letter requesting the adjournment which stated that counsel was not able to appear because there was a scheduling conflict.
[22] Before the CRDD was correspondence from Legal Aid Ontario dated November 22, 1999 showing that as of that date certain items had to be dealt with in order to complete Mr. Ali's Legal Aid application. Therefore, there was evidence that matters relating to legal aid had not been finalized. Given that, the fact that Mr. Ali's testimony was that he wasn't sure whether his counsel was busy somewhere else because Mr. Ali had been talking to the lawyer's assistant and the fact that the lawyer may well have had more than one reason for requesting an adjournment, I do not find the CRDD's conclusion of untrustworthiness to be well-founded on this ground.
[23] As none of the reasons cited by the CRDD for finding Mr. Ali to be untruthful were properly grounded in the evidence, the CRDD's conclusion in this regard was unreasonable.
[24] Turning to the second factor relied upon by the CRDD, the lack of diligence and Mr. Ali's change of counsel, Mr. Ali testified under oath that as the first scheduled hearing date approached his first counsel told him that he should retain new counsel. This explanation was confirmed in the letter which Mr. Ali's second counsel wrote to the CRDD when retained requesting the first adjournment. In that letter counsel noted that her predecessor had never done a claim from Pakistan, so that on reflection the first lawyer and Mr. Ali came to the decision that it would be inappropriate for the first lawyer to continue to act so Mr. Ali was referred to new counsel.
[25] After hearing Mr. Ali's testimony on this point the transcript records that the presiding member stated: "Mr. Umer Ali, ... there is the onus upon you. ... You've not shown any diligence whatsoever in pursuing your claim...".
[26] With respect to the second change of counsel, Mr. Ali testified that he was unable to communicate with his second counsel due to language difficulties, that his second counsel had no interpreter present to help, and that Mr. Ali had taken a friend or acquaintance with him to the lawyer to assist with the language problem, but this person could not help because too long a wait was required before seeing counsel.
[27] The presiding member responded to that explanation as follows:
Sir, you had the benefit of two Counsels [sic]. It is your onus upon you to pursue your claim. From what you have told us, it is very clear you have not exercised any responsibility whatsoever in making sure that you have got the requisite documents and you're prepared to proceed and your second Counsel has come before the Board several times for many claims, but the claimants didn't have any knowledge of English. Counsel always can arrange interpreters and you are telling me that you couldn't come with the second Counsel because you didn't have interpretation facilities. It's very hard to believe that, Sir, that the second counsel couldn't provide you interpretation facilities.
[28] The second member then interrupted to the effect that the second counsel had appeared before the CRDD "for Pakistani claims" before.
[29] Correspondence from counsel to the CRDD confirmed that second counsel was retained on or about October 25, 1999. Mr. Ali decided to again change counsel by November 17, 1999 when he signed a notification of change of counsel form.
[30] The CRDD never addressed Mr. Ali's evidence that delay frustrated his friend, the person who was helping Mr. Ali communicate with counsel, so that he would no longer accompany Mr. Ali to his second lawyer. The CRDD chose to disbelieve Mr. Ali's evidence about communication difficulties with that counsel because counsel had handled "Pakistani claims" in the past and because counsel "always can arrange interpreters". The CRDD then concluded that Mr. Ali changed lawyers for purposes of delay.
[31] In my view, the CRDD's conclusion that Mr. Ali was changing lawyers to delay the proceeding is not supported by reasons which stand up to a somewhat probing examination. The direct evidence before the CRDD does not support the conclusion, and it was not valid for the CRDD to infer that because lawyers are generally able to arrange for interpreters that the second lawyer was in fact able to provide interpretive facilities during the relatively short period during which she was retained, and in circumstances where the interpreter Mr. Ali had been using was not able to continue to provide assistance.
[32] Mr. Ali testified that he decided to change lawyers when he read a newspaper advertisement for his third lawyer which advertised that the lawyer had a Pakistani assistant. This evidence was not commented on by the CRDD. The final change of counsel is equally consistent with a desire for ease of communication as with an intent to delay.
[33] I note as well that in refusing the adjournment the CRDD gave no indication that it considered two very relevant factors articulated by the Federal Court of Appeal in Siloch v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 10 (F.C.A.): the length of the adjournment sought, and whether an adjournment of that duration would unreasonably impede the proceedings.
[34] In the result, for the reasons set out above, I find that the decision to refuse an adjournment was made without regard to the totality of the evidence before the CRDD, without reasons which can stand up to a somewhat probing examination, and without consideration of all of the relevant factors.
[35] Having concluded that in the circumstances of this case the CRDD erred in refusing the requested adjournment so as to enable counsel to be present, it follows that Mr. Ali was deprived of his right to a fair hearing. The appropriate remedy is to order a new hearing. See: Siloch, supra.
[36] In the result, the application for judicial review will be allowed.
(iii) Do Special Reasons Exist to Justify an Award of Costs?
[37] Counsel for Mr. Ali sought costs on a solicitor-client, or alternatively, on a party and party basis.
[38] Errors, without more, do not constitute special reasons so as to attract costs under Rule 22 of the Federal Court Immigration Rules, 1993 SOR/93-22. I have not been persuaded that costs are warranted in the present case.
[39] Counsel posed no question for certification arising out of the propriety of the refusal of the adjournment, and no question is certified.
ORDER
IT IS HEREBY ORDERED THAT:
1. The decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated September 5, 2000 is set aside and the matter is remitted for redetermination before a differently constituted panel of the CRDD.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5212-00
STYLE OF CAUSE: UMER ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 5, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: THURSDAY, MARCH 7, 2002
APPEARANCES BY: Mr. Rocco Galati
For the Applicant
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Galati, Rodrigues and Associates
Barristers & Solicitors
637 College Street, Suite 203
Toronto, Ontario
M6H 1B5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020307
Docket: IMM-5212-00
BETWEEN:
UMER ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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