IMM-1650-97
Between:
ZEYNAL CIRAHAN,
Applicant,
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon J.
This
is an application for a stay of execution of a departure order dated October
16, 1997. The applicant is scheduled to be removed from Canada on October 30, 1997 at 7:25 p.m. The departure order was issued after the Convention
Refugee Determination Division (CRDD) decided that the applicant had abandoned
his claim to Convention refugee status. In its reasons the CRDD stated that the
applicant had not filed his Personal Information Form in a timely manner and
could provide no good reason for the delay. The CRDD apparently relied on Rule
14 of the CRDD Rules and subsections 46.03(2), 65(1) and 69.1(6) of the Immigration
Act. Under subsection 65(1) the CRDD, subject to the approval of
Governor in Council, is allowed to make its own rules on proceedings before it.
Specifically, paragraph (a) of subsection 65(1) allows the
Immigration & Refugee Board to make rules:
(a) governing the activities of, and the practice and
procedure in, the Refugee Division and the Adjudication Division, including the
functions of counsel employed by the Board.
Rule
14(2)(b)(iii) of the CRDD Rules states that the applicant must file
the PIF within 28 days of personal service and within 35 days after service
"where the information is filed by prepaid regular mail." Pursuant to
subsection 69.1(6) of the Act, non-compliance with the rules allows the CRDD to
find the proceedings abandoned. Subsection 69.1(6) of the Act reads as follows:
(6) Where a person who claims to be a Convention
refugee
(a) fails to appear at the time and
place set by the Refugee Division for the hearing into the claim,
(b) fails to provide the Refugee
Division with the information referred to in subsection 46.03(2), or
(c) in the opinion of the Division, is
otherwise in default in the prosecution of the claim,
the Refugee Division may, after giving the person a
reasonable opportunity to be heard, declare the claim to have been abandoned
and, where it does so, the Refugee Division shall send a written notice of its
decision to the person and to the Minister.
On
April 7, 1997 the CRDD issued a Notice of Abandonment Decision on Convention
Refugee Claim. This notice informed the applicant that on March 26, 1997 the
CRDD found the applicant to have abandoned his claim for not providing the PIF
in a timely manner.
The
applicant asks for a stay of execution of his impending removal from Canada. The grounds for the stay are the usual: Toth v. Minister of Employment and
Immigration, (1988), 86 N.R. 302 (F.C/A): serious issue to be tried;
irreparable harm, and balance of convenience.
The
CRDD Rules, Immigration Act Regulations and the Act itself grant
significant discretion to the CRDD in deciding these matters. In this matter
the CRDD had the discretion to decide whether the applicant had sufficient
reasons why he did not comply with the seemingly inflexible rules of the CRDD.
It found that he did not and thus made its finding of abandonment. Its reasons
were simple. Merely, that it did not believe that the applicant, having been in
Canada for ten years, could not have known what was expected of him. Perhaps
the applicant should have been more diligent in his efforts to ensure that
information was filed in a more timely manner, however, how could he if he
never received proper notice as he has argued? The discretion of the CRDD to
find proceedings abandoned should be subject to serious scrutiny when such
punctilious decision- making results in the expulsion of a person in the
applicant's position to a country from which his brother and sisters have been
found to be refugees. The CRDD's decision is not supported by any relevant
evidence on file. It simply inferred by the applicant's length of stay in Canada that he should have received notice of the PIF and of the abandonment hearing.
Nonsensical is not the only adjective that comes to mind when reading this
decision. No evidence to contradict application when he says he didn't receive
the PIF, only the CRDD's assertion that he must have!
The
applicant, his wife and child are all Convention refugee applicants. The
applicant's brother and his sisters and family were all found to be Convention
refugees as mentioned and there is no reason to believe that the applicant will
not be found likewise.
Considering
the applicant's position and situation in Canada it is apparent that the
balance of convenience and issue of irreparable harm fall in favour of the
applicant. The CRDD's leap of logic as was expressed in its reasons clearly
establishes that there is a serious issue to be tried. Moreover, the CRDD's
pushing on with the hearing of March 24, 1997 when the applicant had
specifically asked for a Turkish interpreter, and revealed on the transcript
that he was labouring under considerable difficulty understanding the questions
posed to him by the CRDD members raises the serious question of why they forced
their hearing along to an alleged conclusion in light of the applicant's difficulties.
No thanks are due to the applicant's lawyer who fortunately did not represent
him on the present hearing. Counsel here did her best to represent her client,
and with much more competence than what was evinced by the lawyer who prepared
the applicant's documents and faultily appeared for him before the CRDD.
However
the Court's decision is based on the CRDD's failures, despite the lawyer's lack
of competence. As to failure to engage an interpreter, there is jurisprudence
authored by Messrs. Justices Rothstein and McKeown which emphasized the crucial
importance of such services: Garcia v. M.E.I., (1993) 70 F.T.R.
211 at p. 212 and Boateng v. M.E.I., (1993) 71 F.T.R. 161 (both,
Rothstein J) and Azofeifa v. M.C.I., (1994) 89 F.T.R. 147
(McKeown J.). In the latter decision, the Court wrote and is recorded at pp.
149-50:
[6] The
Board has an ongoing obligation during the hearing to ensure that an applicant
does not require an interpreter. There are examples in the transcript of
instances where the applicant appears to have trouble in understanding the
questions, however, the Board pursued these matters until it was satisfied that
she properly understood them. At no stage during the hearing did the applicant
state that she was having problems with English. The first time the question is
raised is in her affidavit in support of her application for judicial review.
There are also contradictions between the affidavits of the refugee hearing
officer (RHO), who is Spanish speaking, and the applicant. In telephone conversations
and meetings outside the hearing the applicant sometimes spoke English and
sometimes spoke Spanish. The applicant states the RHO was not satisfactory in
Spanish while the RHO states that she spoke Spanish at home and was fluent.
While the applicant had been attending an English school for three and one-half
years - grades 9 to 12. If the applicant had given any indication on the record
of wanting an interpreter there would have been reversible error, but the Board
and the RHO were never informed that the applicant had any problems. The
applicant also did not set out any evidence which she might have given had an
interpreter been available, nor did she correct any of her evidence at the
hearing.
The
Federal Court of Appeal has also emphasized the importance to natural justice
of proper interpretation before the CRDD: Ming v. M.E.I., [1990]
2 F.C. 336, (1990) 107 N.R. 296, Tung v. M.E.I., (1991) 124 N.R.
388, and Mosa v. M.E.I., (1993) 154 N.R. 200. The strong
statement of principle in Ming appears at pp. 343 and 344, and
ends with this passage about the importance of proper interpretation:
"This factor assumes special importance in light of the reliance of the
[CRDD] panel on the applicant's credibility in arriving at its
conclusion". So be it also in the instance of the present applicant's
abandonment hearing wherein the panel just flatly disbelieved the applicant
with no good basis for doing so.
That
the request for an interpreter be visible on the record is, of course,
desirable, but such request may not be doubted here. Although the applicant's
lawyer neglected to file, in Court, either as an exhibit to any of the filed
affidavits, or in the applicant's record, a copy of the Personal Information
Form (PIF), yet both counsel had a copy and they agreed that the request for an
interpreter was expressed therein, and that the PIF had been completed with the
help of a Turkish-speaking person. Further the applicant's lawyer who attended
the abandonment hearing also made the request just before the hearing opened,
and it is not recorded in the transcript. The applicant responded to the
presiding member's question to the effect that he understood, but his
performance clearly indicated that he could not understand the abandonment
proceedings at the CRDD. What is frustrating is that, despite the applicant's
clear difficulties, his lawyer was dumb on the issue, and never intervened when
the applicant was in so much difficulty. Of course, the Court must not be
influenced much, or at all, by the poor representational aptitudes of a lawyer
of meagre competence, lest every applicant want one!
During
the hearing, one of the CRDD members allowed that the applicant's status in Canada is "blurry", yet the CRDD insisted on continuing with the hearing.
Consequently, the CRDD failed in its ongoing duty to accord to the applicant a
fair hearing.
The
applicant's lawyer, in drafting or reviewing the applicant's affidavit, omitted
some important times and dates, and failed to have the applicant disclose his
conviction of November 14, 1995, shown as exhibit B to Michel Geoffroy's
affidavit, filed by the respondent with no second page, only a first and third.
However, this matter evinces urgency, if it is not to be moot.
In
circumstances such as mentioned, it was unfair and unnecessary to drive the
applicant right into the ground, as the CRDD did. It would not have killed them
to adjourn his hearing for a couple of weeks so as to make his request for an
interpreter timely, for then he would have complied with the limit of at least
15 days before the hearing in which to make the request. Unfortunately, the
applicant's lawyer, still "asleep at the switch", neglected to
propose any such adjournment, despite the applicant's obvious difficulties, but
that was not the applicant's fault and it ought not to prejudice him.
Now,
the validity of the deportation order herein is not challenged by the
applicant, and the jurisprudence is divided as to this Court's jurisdiction to
stay execution of this, or any, removal order in such circumstances. On the
side of not staying the order's execution are some powerful decisions: Ali
v. M.E.I., 92-T-94 (November 17, 1992), Paul v. M.E.I.,
(1993) 61 F.T.R. 111, Shchelkanov, (1994) 76 F.T.R. 151, Gomes
v. M.C.I., (1995) 91 F.T.R. 264, Fox v. M.C.I., IMM-3135-96
(September 18, 1996). On the side of staying removal orders, despite their
validity but on other grounds of basic justice are: Idemudia v. M.E.I.,
(1993) Imm.L.R. (2d) 267, Haider v. M.E.I., (1993) 58 F.T.R. 168,
and Muñoz v. M.C.I., (1996) 30 Imm.L.R. (2d) 166. Muñoz
is the quintessential example of maladministration which created injustice.
It
may be noted that although neither party provided a book of authorities (but
the respondent hardly had enough time) the respondent's documents, argument and
presentation were of good quality. The respondent has no cause to be
disappointed by counsel's performance. However the real issue, after all the
jurisprudence is argued, is justice - natural or fundamental, however
qualified. This judge acknowledges that, as a general principle, execution of a
removal order is not to be thwarted if it be a valid order. The only
circumstance in which one must not blindly adhere to that principle is one of
maladministration or injustice. It is not fair to deport or otherwise remove a
person upon a valid or unchallenged removal order in circumstances in which he
or she has been treated unlawfully or unjustly. That is maladministration, and
that is sufficient basis for staying or quashing the instrument of injustice,
even if that instrument be quite valid per se, and whether or not
the subject of such treatment be a "good" or "nice" person.
Justice is this Court's business and raison d'être. The rules of
law are the servants of justice not its dominators, unless Parliament has
unambiguously exacted injustice, in which case the judge must either bend as
did most of the old judges of the new Third Reich, or having failed to bend the
law, resign. No matter how competent and punctilious the arguments of a
respondent, if the applicant has suffered injustice, then the Court must
alleviate and redress the injustice, as the law of Canada fortunately permits.
This
applicant was disbelieved for the reason only that he ought to know that which
he could not know, and he was denied the services of an interpreter when he
ought to have been granted an adjournment to obtain such services in compliance
with the rule. That is unjust treatment. It is maladministration. It resulted
from a too-rigid and too-rushed performance by the CRDD panel. This gives good
reason to stay the execution of even a valid removal order, until the applicant
can put his refugee claim on a proper footing again. Were it on such proper
footing the deportation order could not now be executed.
Here,
the applicant not only suffered the insult of a weak lawyer (not his counsel at
this emergency hearing, be it remembered) but he also suffered the injury of
unjust maladministration at the hands of the CRDD panel who declared that he
had abandoned his refugee claim. Perhaps the conclusion would be different if
all the rigid dismissal principles were assiduously applied here, but the
Court's business is elsewhere.
The
applicant's motion is allowed ex debito justitiae. The execution
of the deportation order V021240074, made against the applicant and signed on
"22/03/96" in Montréal shall be stayed until a judge of this Court
makes a decision concerning the applicant's motion for leave and judicial
review in this file, IMM-1650-97, filed on April 25, 1997, against the CRDD's
finding of abandonment. The said deportation order is further stayed if the
judge accords leave until the consequential judicial review be determined and
so on, upon favourable results being obtained on his refugee claim, if such be
the case, so long as the applicant continues to succeed in exerting his case
toward refugee status, but not otherwise. If the applicant succeeds on his
refugee claim, this stay shall become permanent.
F.
C. Muldoon
Ottawa, Ontario
October 31, 1997
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