Date: 20100311
Docket: IMM-2708-09
Citation: 2010 FC 278
Toronto, Ontario, March 11,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ALLBA
VALENTINA CARDENAS VIGGERS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult female citizen of Mexico. She has
worked as a stewardess and has some knowledge of the English language, there
are no issues as to her mental capacity.
[2]
The
Applicant came to Canada claiming domestic abuse, she appears to have a custody
issue with respect to her former spouse, who she claims to be abusive, and
their children. The Applicant made a refugee claim upon entering Canada and hired
legal counsel who entered into written correspondence with the Immigration and
Refugee Board concerning her claim.
[3]
The
matter came on for an oral hearing before the Board. The transcript of the
hearing indicates that the Applicant arrived at the hearing with legal counsel
and, at the outset of the hearing, to the apparent surprise of her counsel and everyone
else, announced that she had no confidence in her counsel and wished to dismiss
her counsel. The Board asked the Applicant how she would like to proceed, she
answered “alone” and that she would like to proceed on her own. At the
invitation of the Board the Applicant and her dismissed Counsel withdrew and
had discussions. When they returned Counsel told the Board that she had advised
the Applicant of the frailties of proceeding without her knowing the law and
the country evidence.
[4]
The
Board again adjourned to afford the Refugee Protection Officer an opportunity
to explain to the Applicant that the Officer’s role was neutral, and to explain
the claim and the procedure that the hearing would follow. The Applicant agreed
that this had been done.
[5]
The
hearing proceeded with the Applicant acting on her own behalf. While Counsel
for the Applicant before me took me to places in the transcript where Counsel argued
that the Applicant may have been confused or given a better answer, I am
satisfied that the Board took reasonable measures to ensure that the hearing
was conducted in a manner fair to the Applicant.
[6]
Applicant’s
Counsel argued before me that the Board had a positive duty to adjourn the
hearing or at least afford a clear opportunity for the Applicant to request an
adjournment so that other Counsel could be retained to act on her behalf. The
decision of Harrington J. of this Court in Mervilus v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1206 was referred to me and in
particular what he wrote at paragraph 25:
25 The following principles
can therefore be drawn from the case law: although the right to counsel is not
absolute in an administrative proceeding, refusing an individual the
possibility to retain counsel by not allowing a postponement is reviewable if
the following factors are in play: the case is complex, the consequences of the
decision are serious, the individual does not have the resources - whether in terms
of intellect or legal knowledge - to properly represent his interests.
[7]
I
agree with what Harrington J. wrote as far as it went. However this present
case is more like that discussed by Tremblay-Lamer J. in her discussion in Austria
v. Canada (Minister of Citizenship and Immigration), 2006 FC 423. I repeat
what she wrote at paragraphs 6 to 8:
6 As
it is clear from the decision, which provides that state-funded legal aid is
only constitutionally mandated in some cases, the right to counsel is not absolute.
In immigration matters specifically, this Court has repeatedly held that the
right to counsel is not absolute: Mervilus v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1206, [2004] F.C.J. No. 1460
(F.C.)(QL) at paras. 17-25 where Justice Sean Harrington reviews the law
regarding the right to counsel. What is absolute, however, is the right to a
fair hearing. To ensure that a hearing proceeds fairly, the applicant must be
able to "participate meaningfully": Canada (Minister of Citizenship and Immigration) v.
Fast (T.D.), 2001 FCT 1269, [2002] 3 F.C. 373
(F.C.) at paras. 46-47.
7 Therefore,
in certain circumstances, the absence of counsel may result in such unfairness
during the hearing that Court intervention is warranted. I am not satisfied,
however, that the matter at hand represents such a case. I believe that the
applicant was indeed afforded a fair hearing.
8 I
would note first that it is clear from the transcript that the applicant
unmistakably indicated that he was ready to proceed without counsel at the
hearing of April 20, 2005. Moreover, no adjournment was requested and, contrary
to the applicant's suggestion, there is no indication that he was under any
pressure to proceed. He cannot now complain about his choice when he had every
opportunity to do so at the hearing.
[8]
I
am satisfied having read the transcript of the proceedings in the present case
and having heard the submissions of Counsel, that the Applicant was given a fair
and reasonable opportunity to proceed without counsel or not. She chose to
proceed without counsel. Her clear and deliberate choice cannot now be used to
set aside a decision unfavourable to her.
[9]
Applicant’s
Counsel also submitted that the Refugee Protection Officer, in explaining the
procedure to the Applicant, acted in a conflict of interest. This argument is
clearly without merit. The Officer was giving fair and unbiased assistance in
procedural matters.
[10]
The
other arguments raised by the Applicant’s Counsel are without merit.
[11]
There
is no question for certification.
JUDGMENT
FOR THE
REASONS GIVEN:
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is dismissed;
2.
There
is no question for certification;
3.
No
Order as to costs.
“Roger T. Hughes”
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