Date:
20121029
Docket:
IMM-1705-12
Citation:
2012 FC 1250
Toronto, Ontario, October 29, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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MARTIN BRYNDZA
JITKA BRYNDZOVA
JITKA BRYNDZOVA
REBECA BRYNDZOVA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application for judicial review concerns a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the RPD), dated
January 18, 2012 (the Decision), in which it was found that the Applicants,
citizens of the Slovak Republic, are not Convention refugees or persons in need
of protection pursuant to section 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act). The refugee
claim, based on the Applicant mother’s Roma ethnic identity, was refused by the
RPD because the Applicants failed to rebut the presumption of state protection.
[2]
The
main issue identified in this Application for judicial review is whether the RPD
erred in refusing the Applicants’ request to postpone the hearing for their
claim to a day on which the Applicants’ counsel would be available.
[3]
Jurisprudence
has established that the right to counsel before the RPD is an issue of
procedural fairness (Cervenakova v Canada (Minister of Citizenship &
Immigration), 2012 FC 525 (FC); Li v Canada (Minister of Citizenship
& Immigration), 2011 FC 196 (FC) at para 11). Procedural fairness is a matter
of law and thus a correctness standard is required (C.U.P.E. v Ontario
(Minister of Labour), [2003] 1 S.C.R. 539 (SCC) at para 100; Sketchley v
Canada (Attorney General), 2005 FCA 404 (FCA)).
[4]
For
the reasons which follow, I find that the RPD’s decision to proceed with the
refugee hearing constitutes a breach of procedural fairness because the factors
required to be considered were not considered.
I.
Background
[5]
The
Applicants arrived in Canada on June 20, 2009 and made their claim for
protection immediately. Their refugee claim was referred to the RPD on July 15,
2009 and the Applicants’ Personal Information Forms (PIFs) were filed with the
RPD on July 21, 2009. At the time that the PIFs were filed the Applicants were
represented by counsel obtained through Legal Aid.
[6]
The
Applicants experienced significant problems getting in touch with that counsel
and ultimately lost faith in his representation. On October 27, 2011, the
Applicants were sent a notice to appear at their refugee hearing on November
28, 2011. On October 31, 2011 the Applicants notified the RPD that they had
retained new counsel. New counsel contacted the RPD to request a postponement
because he would not be available at the time scheduled for the hearing. The
postponement request provided six alternative days in February and March of
2012 when counsel could appear on behalf of the Applicants, the first available
date being merely two months away. The RPD refused to postpone the hearing
stating that the Applicants had to choose counsel willing and able to proceed
on the date scheduled.
II. The Refugee Hearing
[7]
On
November 28, 2011 the Applicants attended the hearing without their counsel and
asked that the hearing be postponed. The Applicant father explained to the
Presiding Member that they had to obtain new representation because their
previous counsel had lied to them and could not be contacted or located. The
Applicant stated that he was not ready for the hearing and that he needed more
time: “I have to see somebody who is going to get me ready and tell me how this
hearing is going to go ahead and what’s going to be questions and what’s going
to go on here” (Certified Tribunal Record, p. 272). In fact, the Applicant
stated a number of times that he did not feel prepared to proceed.
[8]
The
Presiding Member responded to the Applicants’ request by inquiring into the
Applicant’s need for counsel:
MEMBER: Well sir, why do you need
to be prepared to give your testimony? You’ve already provided to me in your
Personal Information Form that you fear returning to your country because of
discrimination due to your ethnicity as a Roma.
(Certified Tribunal Record, p.
273)
[9]
The
Presiding Member then made what I consider to be a concerted effort to convince
the Applicants that they were ready and that she could explain to them the
requirements of sections 96 and 97 of the Act. In the course of doing so
the Applicants revealed that their PIF narrative was translated into English by
the Applicants’ previous lawyer and that it was never read back to them. This
did not dissuade the Presiding Member from proceeding with the hearing.
Instead, the Presiding Member explained that the main issue in their claim was
state protection in the Slovak Republic. This was put to the Applicants as
follows:
Now, the questions – I will be
explaining the process as we go along and what I will explain to you is that
the onus – the responsibility of showing that state protection is inadequate in
a country rests on the claimants, which are you and your wife.
The – I will be asking you
questions about what efforts you made to seek state protection in your
particular circumstances because there is a presumption that a state is able
and willing to provide protection to its citizens.
And, I do not find
that you would be prejudiced in any way in proceeding today because there’s very
simple questions that I need to put to you with regards to state protection
because that is a determinative issue.
[Emphasis added]
(Certified Tribunal Record, pp.
275 - 276)
[10]
In
the end result, upon hearing the RPD’s statements, the Applicants did consent
to proceed with the hearing. Counsel for the Respondent argues that this
consent effectively acts as a bar to the present Application in which the
Applicants argue a breach of fairness on the part of the RPD not to have
properly considered the adjournment request. In my opinion, given what I
consider to be the RPD’s inappropriate inducement for the Applicants to
proceed, I find that the consent is irrelevant to the present Application.
III. Factors
Relevant to Exercise of the RPD’s Discretion
[11]
The
Federal Court of Appeal’s decision in Siloch v Canada (Minister of
Employment & Immigration) (1993), 151 NR 76 (FCA) is recognized as the
lead authority on the factors to be considered with respect to applications of
the adjournment of a hearing (see: (Golbom v Canada (Minister of Citizenship
and Immigration), 2010 FC 640 (FC); Ramadani v Canada (Minister of
Citizenship & Immigration) 2005 FC 211 (FC)):
1. whether the
applicant has done everything in her power to be represented by counsel;
2. the number of
previous adjournments granted;
3. the length of time
for which the adjournment is being sought;
4. the effect on the
immigration system;
5. would the
adjournment needlessly delay, impede or paralyse the conduct of the inquiry;
6. the fault or blame
to be placed on the applicant for not being ready;
7. were any previous
adjournments granted on a peremptory basis;
8. any other relevant
factors.
[12]
In
support of the argument that it was a breach of fairness on the part of the RPD
not to have granted the adjournment, Counsel for the Applicants argues that the
Siloch factors clearly favoured the Applicants: (1) the intention to be
represented was evident from the time the Applicants first made their refugee
claim and retained counsel; (2) the Applicants had not sought prior adjournments;
(3) Applicants’ counsel had proposed six alternative dates for the hearing, the
earliest of which was only two months away; (4) there was nothing to indicate
that a two-month adjournment would have a negative effect on the immigration
system; (5) the adjournment would not impede the inquiry but could only assist
as the Applicants’ had identified a serious problem in the way that their PIF
was prepared; (6) no fault could be attributed to the Applicants and their
conduct had caused no delay and was in no way responsible for the fact that
more than two years had passed since the refugee claim was referred to the RPD;
and (7) no previous adjournments were granted on a peremptory basis.
IV. The Denial of the
Request for the Adjournment
[13]
The
RPD’s reasons for deciding to proceed with the hearing despite the Applicants’
request to postpone are set out in the Decision as follows:
Having reviewed the claimants’
request to schedule the hearing to another date, the panel proceeded with the
hearing given that the claims had been referred to the Board on June 21, 2009
and the claimants’ were not disadvantaged in any way in terms of judicial or
natural justice by proceeding. They stated that they needed more time to get
ready because they had never been to court before and they needed to prepare
because this was a very serious matter to them.
I appreciate that the
determination of protection is a very serious matter, however I did not find
the claimants’ explanation of “not feeling ready to testify” was a reasonable
explanation for not proceeding, given that they provided their reasons for
fearing a return to the Slovak Republic to their first counsel who prepared
their PIF in July 2009 and they were not prejudiced in any way by not having
counsel to assist them testify at the hearing.
The claimants were explained the
hearing process, the definition of a Convention refugee and the requirements
under section 97. All issues were explained, particularly that of state
protection and the onus on providing clear and convincing evidence on state
protection rested with them.
(Decision, Certified Tribunal
Record, p. 4)
[14]
Given
that there is no evidence in the transcript of the hearing conducted or in the
Decision under review that the factors set out in Siloch were considered,
I find the denial of the request for the adjournment constitutes a breach of
the duty of fairness which renders the Decision as made in reviewable error.
ORDER
THIS
COURT ORDERS that the Decision under review is set aside
and the matter is referred back for redetermination by a differently
constituted panel.
There is no
question to certify.
“Douglas
R. Campbell”
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