Date: 20100118
Docket: IMM-2816-09
Citation: 2010 FC 47
Ottawa, Ontario, January 18,
2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
BALVIN
SERVICE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Balvin Service (the “Applicant”) seeks judicial review of the decision of the
Immigration and Refugee Board, Refugee Protection Division (the “RPD”). In its
decision, the RPD determined that the Applicant was not a Convention refugee
nor a person in need of protection pursuant to the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[2]
The
Applicant is a citizen of Jamaica. He was raised in that
country from a young age by an uncle who was a senior member of the Kingston
City Police. He alleges that his family in Jamaica was
affiliated with the People’s National Party (the “PNP”) and this association
gave rise to violence against him by members of the Jamaica Labour Party (the
“JLP”), in light of his uncle’s position with the Kingston City Police.
[3]
The
Applicant first came to Canada from the United States of
America
in 1972. He was deported from Canada in 1974 and sent back to Jamaica. He returned
to Canada in 1975 and
was deported a second time, in 1976. He says that upon his return to Jamaica at this
time, he was attacked and stabbed by a representative of the JLP. He says that
after the first incident, a few months later he was abducted by the JLP,
detained and tortured.
[4]
In
1978, the Applicant left Jamaica and went to London, England, allegedly
to flee the violence and persecution in Jamaica. He stayed in
England until 1995.
In 1995, the Applicant applied for, and received, a visa to return to Canada, in order to
join his pregnant Canadian spouse. He remained in Canada since that
time and now has four Canadian-born children.
[5]
In
2007, the Applicant was convicted of an offence for the cultivation of
marijuana. On August 28, 2008, he was arrested for the offence of possession of
crack cocaine. He was detained in custody because the Immigration Enforcement
Officer had concerns as to whether he would report for removal.
[6]
On
August 30, 2008 the Applicant claimed refugee protection. His claim was
referred to the RPD on September 5, 2008.
[7]
The
Applicant applied for legal assistance through the legal aid program of British
Columbia.
Initially, funding was given to a lawyer to assist in the preparation of the
Applicant’s Personal Information Form (“PIF”). The PIF was submitted to the
Board on November 3, 2008. The Applicant based his claim on membership in a
particular social group and political opinions, both grounds relating to the
profile of his family in Jamaica and risk at the hands
of the JLP.
[8]
On
January 27, 2009, the Registry of the RPD contacted Counsel for the Applicant
concerning proposed scheduling of the hearing of the claim. The Registry
proposed February 12 or 13 for the hearing. Counsel for the Applicant advised
that he needed 4 to 6 weeks to prepare and the Registry tentatively set the
matter down for March 11, 2009.
[9]
The
hearing was scheduled for March 11, 2009, as an expedited proceeding, to be
conducted by video conference.
[10]
On
February 2, 2009, Counsel for the Applicant requested that the Applicant be
allowed to attend in person. This request was denied.
[11]
On
February 10 and February 18, 2009, the Applicant’s Counsel asked for a change
in the date and time of the hearing. The requests were made in writing. These
requests were denied by the Registrar on February 23, 2009.
[12]
The
hearing took place, by video conference, on March 11, 2009. The RPD allowed the
Applicant to submit further documents and submissions following the hearing.
The negative decision was released on May 19, 2009.
Submissions
[13]
The
Applicant argues that the RPD committed breaches of procedural fairness by
denying him an adjournment, thereby compromising his ability to fully, fairly
and adequately present his case, and by failing to allow him to attend
physically, rather than by video conference.
[14]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the RPD
is master of its own procedures and that no breach of procedural fairness
occurred.
Discussion and
Disposition
[15]
Since
the decision of the Supreme Court in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, decisions of administrative tribunals are reviewable upon one of
two standards, that is, reasonableness for questions of fact, mixed fact and
the exercise of discretion, or correctness for questions of law. Questions of
procedural fairness are reviewable upon the standard of correctness; see Sketchley
v. Canada (Attorney
General),
[2006]
3 F.C.R. 392 at paras. 52-55.
[16]
I
am satisfied that, upon reviewing the Tribunal Record and the submissions of
the parties, the RPD did commit a reviewable error in the denial of the
Applicant’s request for an adjournment and that this denial negatively impacted
his ability to present his case.
[17]
The
RPD’s discretion to govern its own procedures, in terms of dealing with
requests for adjournments, is not open-ended but is subject to the guidance set
out in section 48 of the Refugee Protection Division Rules, SOR/2002-228
(the “RPD Rules”),
which provides as follows :
|
Application
to change the date or time of a proceeding
48.
(1) A party may make an application to the Division to change the date or
time of a proceeding.
Form
and content of application
(2)
The party must
(a)
follow rule 44, but is not required to give evidence in an affidavit or
statutory declaration; and
(b)
give at least six dates, within the period specified by the Division, on
which the party is available to start or continue the proceeding.
If
proceeding is two working days or less away
(3)
If the party wants to make an application two working days or less before the
proceeding, the party must appear at the proceeding and make the application
orally.
Factors
(4)
In deciding the application, the Division must consider any relevant factors,
including
(a)
in the case of a date and time that was fixed after the Division consulted or
tried to consult the party, any exceptional circumstances for allowing the
application;
(b)
when the party made the application;
(c)
the time the party has had to prepare for the proceeding;
(d)
the efforts made by the party to be ready to start or continue the
proceeding;
(e)
in the case of a party who wants more time to obtain information in support
of the party’s arguments, the ability of the Division to proceed in the
absence of that information without causing an injustice;
(f)
whether the party has counsel;
(g)
the knowledge and experience of any counsel who represents the party;
(h)
any previous delays and the reasons for them;
(i)
whether the date and time fixed were peremptory;
(j)
whether allowing the application would unreasonably delay the proceedings or
likely cause an injustice; and
(k)
the nature and complexity of the matter to be heard.
Duty
to appear at the proceeding
(5)
Unless a party receives a decision from the Division allowing the
application, the party must appear for the proceeding at the date and time
fixed and be ready to start or continue the proceeding.
|
Demande
de changement de la date ou de l’heure d’une procédure
48.
(1) Toute partie peut demander à la Section de changer la date ou l’heure
d’une procédure.
Forme
et contenu de la demande
(2)
La partie :
a)
fait sa demande selon la règle 44, mais n’a pas à y joindre d’affidavit ou de
déclaration solennelle;
b)
indique dans sa demande au moins six dates, comprises dans la période fixée
par la Section, auxquelles elle est disponible pour commencer ou poursuivre
la procédure.
Procédure
dans deux jours ouvrables ou moins
(3)
Si la partie veut faire sa demande deux jours ouvrables ou moins avant la
procédure, elle se présente à la procédure et fait sa demande oralement.
Éléments
à considérer
(4)
Pour statuer sur la demande, la Section prend en considération tout élément
pertinent. Elle
examine notamment :
a)
dans le cas où elle a fixé la date et l’heure de la procédure après avoir
consulté ou tenté de consulter la partie, toute circonstance exceptionnelle
qui justifie le changement;
b)
le moment auquel la demande a été faite;
c)
le temps dont la partie a disposé pour se préparer;
d)
les efforts qu’elle a faits pour être prête à commencer ou à poursuivre la
procédure;
e)
dans le cas où la partie a besoin d’un délai supplémentaire pour obtenir des
renseignements appuyant ses arguments, la possibilité d’aller de l’avant en
l’absence de ces renseignements sans causer une injustice;
f)
si la partie est représentée;
g)
dans le cas où la partie est représentée, les connaissances et l’expérience
de son conseil;
h)
tout report antérieur et sa justification;
i)
si la date et l’heure qui avaient été fixées étaient péremptoires;
j)
si le fait d’accueillir la demande ralentirait l’affaire de manière
déraisonnable ou causerait vraisemblablement une injustice;
k)
la nature et la complexité de l’affaire.
Obligation
de se présenter aux date et heure fixées
(5)
Sauf si elle reçoit une décision accueillant sa demande, la partie doit se
présenter à la date et à l’heure qui avaient été fixées et être prête à
commencer ou à poursuivre la procédure.
|
[18]
According
to the decision in Chohan v. Canada (Minister
of Citizenship and Immigration), 2006 FC 390 at para. 13, the RPD is
obliged to consider a request for an adjournment in a “principled way” having
regard to the factors identified in section 48 of the RPD Rules.
[19]
In
the present case, the only rationale for refusing the Applicant’s request for a
postponement of the hearing is contained in an entry in the Tribunal Record as
follows:
Counsel agreed on Jan 27/09 to this date.
Moreover, video has been set up already.
[20]
In
the circumstances of this case, I am satisfied that the RPD committed a
reviewable error in refusing the request by Counsel, on behalf of the Applicant
for an adjournment, thereby compromising his ability to fully prepare to
present his case. The RPD made the following comment concerning the manner in
which the Applicant testified:
[23] At the end of the day the panel
questions the lucidity of the claimant. For example, he alleges he now fears
Jamaican thugs in Canada. He testified this was the
reason for him relocating to Nelson, BC. He also testified they tried to kill
him when he was in England.
[21]
I
infer from this remark that even at a subconscious level, the RPD was concerned
about the ability of the Applicant to present his case.
[22]
This
fact, combined with the lack of evidence that the RPD properly considered the
factors in section 48 of the RPD Rules, is enough to justify judicial
intervention in this case. In the result, the application for judicial review
is allowed, the decision of the RPD is quashed and the matter is remitted to a
differently constituted panel of the RPD for re-determination. It is not
necessary for me to address the other arguments that were advanced by the
parties.
[23]
There
is no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is allowed, the decision of the RPD is quashed
and the matter is remitted to a differently constituted panel of the RPD. There
is no question for certification arising.
“E.
Heneghan”
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