Date: 20100614
Docket: IMM-5714-09
Citation: 2010 FC 640
Ottawa, Ontario, June 14,
2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ALEXEY GOLBOM,
NADIA GOLBOM,
MARINA GOLBOM, YULIA GOLBOM,
(by her litigation guardians ALEXEY
GOLBOM and MARINA GOLBOM)
and STANISLAV GOLBOM
(by his litigation guardians ALEXEY
GOLBOM and MARINA GOLBOM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (“Board”), dated October 14, 2009, wherein the applicants’ claim to
refugee status pursuant to section 96 and 97 of the IRPA was refused.
[2]
The
applicants raised several issues regarding the Board’s findings that they would
not face persecution if they were to return to Israel and that
they were not persons in need of protection. I advised counsel during the
hearing that I would not interfere with the Board’s decision on those grounds.
Applying the standard of review of reasonableness, the Board’s decision on
those issues “falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law”: Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9, at paras.47 and 53; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, at
para. 46; Kaur v. Canada (Minister
of Citizenship and Immigration), 2010 FC 417, [2010] F.C.J. No. 487,
at para. 14.
[3]
In addition,
the applicants contended in their written submissions that their rights to
procedural fairness had been violated by the refusal of an adjournment of the
hearing and inadequate interpretation when the hearing proceeded over their
objections. Such matters are to be reviewed under the standard of correctness: Sketchley
v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056, at para.53-54; Canadian
Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] S.C.J. No. 28, at para. 100.
[4]
Counsel for the applicants did not press the interpretation issue
at the hearing of this application. I note that a request for Hebrew interpretation
was expressly waived prior to the Board hearing and the hearing proceeded with
Russian interpretation. Having read the transcript of the proceedings, I am
satisfied that the interpretation services were adequate and that there was no
breach of natural justice on this ground.
[5]
The
issue that is determinative of this application is whether the Board member
violated the duty of natural justice by failing to adjourn the hearing so that
the applicants could be represented by counsel.
BACKGROUND
[6]
The
principal applicant Alexey Golbom, his mother Nadia Golbom, his wife, Marina
Golbom, his daughter, Yulia Golbom and his son, Stanislav Golbom, were all born
in the former USSR, in what is
now the Ukraine. They are
Orthodox Christians and ethnic Russians. Alexey’s father was ethnically Jewish
and, therefore, the applicants were seen as Jews and they alleged to have been
subjected to anti-Semitic hatred in the Ukraine. They
immigrated to Israel in 1992,
except Nadia who did so in 1994, and became citizens of that country by the
effect of the law of return.
[7]
In Israel, the
applicants claimed to have experienced discrimination, humiliation, verbal and
physical abuse because of their Russian ethnicity and Orthodox Christian
religion. Their decision to leave Israel crystallized when Yulia
finished her military service and when Stanislav was considered fit to serve
after a medical examination in July 2006 following a second notice for
mandatory military service. The applicants left Israel and arrived in Canada on August
31, 2006. They made an asylum claim shortly after arrival.
[8]
Their
hearing before the Board was originally set for June 16, 2009. Only their
former counsel appeared on that date to request a postponement for medical reasons
relating to two of the applicants. The hearing was rescheduled to be heard on a
peremptory basis to October 14, 2009.
[9]
The
applicants say that a few days before the date of the postponed hearing they
were told by their counsel that they were no longer covered by legal aid and
that he would not represent them unless he was paid a substantial amount of
money in advance. There is no indication that the lawyer requested to be
removed from the record or notified the Board that he would no longer be acting
for the applicants.
[10]
The
applicants attended the scheduled hearing without counsel and requested another
postponement in order to raise funds, possibly with a partial payment
arrangement with Legal Aid Ontario, and hire a lawyer. The Board
member ruled that the ample time the applicants had been given to prepare for
their hearing, their prior preparation by their counsel, their prior disclosure
of evidence and the presence of an experienced Tribunal Officer were sufficient
to proceed with the applicants’ hearing without prejudicing them.
ANALYSIS
[11]
While
the right to counsel is not absolute in immigration matters and tribunals are
masters of their own procedures, administrative tribunals have to respect
procedural fairness when deciding an adjournment request based on the absence
of counsel: Austria v. Canada (Minister of Citizenship and Immigration),
2006 FC 423, [2006] F.C.J. No. 597, at para. 6; Siloch v. Canada (Minister of
Employment and Immigration), (1993) A.C.W.S. (3d) 570, [1993] F.C.J. No. 10
(F.C.A.); Prassad
v. Canada (Minister of Employment
and Immigration),
[1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, at 568-269.
[12]
Factors
to be considered in deciding an adjournment application are set out in
subsection 48 (4) of the Refugee Protection Division Rules (SOR/2002-228),
which reads as follows:
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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.
|
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.
|
[13]
In
addition to these factors, other considerations have been identified as
relevant in the jurisprudence, such as the effort made by an applicant to be
represented and whether the applicant can be faulted for not being ready: Siloch, supra; Modeste v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1027, [2007] F.C.J. No.
1290, at para.15; Sandy v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1468, [2004] F.C.J. No. 1770, at
para.52. The failure to regard all of the relevant factors, whether negative or
positive, in
deciding upon an adjournment in the absence of counsel has been held to constitute
a breach of natural justice: Sandy, supra, at para.
54; Modeste, supra, at paras.18-19; Siloch, supra.
[14]
The
respondent submits that in reviewing whether the Board took all relevant
factors into consideration in denying an adjournment request due to the absence
of counsel, the Court should assess the decision on the basis of the entire
record. The member’s reasons may not have to be as detailed if, for example,
the transcript of the hearing allows the reader to understand the Board’s
decision: Canada (Minister of
Citizenship and Immigration) v. Shwaba, 2007 FC 80, [2007]
F.C.J. No. 119, at paragraph 15.
[15]
In
the present case, a reading of the member’s reasons and of the transcript does
not show that the member took into consideration all of the relevant factors. There
does not appear to have been any consideration of the effort made by the
applicants to be represented by counsel and whether they could be blamed for
his absence. The applicants explained that they had found out about the
unpredicted Legal Aid issue three business days before the hearing and were not
in a position to retain new counsel.
[16]
The
member did not inquire about the length of the adjournment sought by the
applicants or the length of time it would take for them to work out some
arrangement with the Legal Aid Plan, such as a repayment scheme, as they had
suggested. She was reasonably concerned that the applicants had been waiting
for almost three years to schedule their hearing.
[17]
There
is no indication that the member considered the nature and complexity of the
matter to be heard. This was a combined claim of five persons, all of whom
wanted to testify, raising issues such as religious and ethnic persecution and
conscientious objector status. Counsel would have organized the testimony and
argument. The
importance of this consideration is confirmed by a reading of the transcript.
On several occasions, the member expressed her concern and apparent irritation about
the difficulty in dealing with five claimant witnesses.
[18]
The
member placed considerable weight on the presence of a tribunal officer at the
hearing. This was not, in my view, a relevant consideration in determining the
adjournment request. The officer’s role, as accurately stated by the member
herself, was to ensure that she had all the information necessary in order to
make a decision in the applicants’ case, whether counsel were there or not: see
Sanchez v. Canada (Minister of Citizenship and Immigration), 2009 FC
101, [2009] F.C.J. No. 101, at para. 47.
[19]
I
am left with the impression, from reading the transcript, that the refusal to
grant the adjournment stemmed largely from the member’s serious doubts about
the explanation given with respect to the previous postponement sought and
granted in June 2009. Although this is a relevant factor pursuant to subsection
48(4)(h) of the Refugee Protection Division Rules, a refusal to adjourn
must take into account all the other relevant factors, which was not done here.
[20]
In
the result, I am satisfied that the duty of natural justice owed to the
applicants was breached as a result of the failure to adjourn the Board hearing
to allow the applicants to retain counsel. Accordingly, this application will
be granted and the matter remitted to the Board for a new hearing to be
scheduled before a differently constituted panel. No serious questions of
general importance were proposed and none are certified.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application for
judicial review is granted and the matter is remitted to the Board for a new
hearing to be scheduled before a differently constituted panel. No questions
are certified.
“Richard
G. Mosley”
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