Date: 20110218
Docket: IMM-3732-10
Citation: 2011 FC 201
Ottawa, Ontario, February 18, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
|
|
JASKARAN SINGH DHALIWAL
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Jaskaran
Singh Dhaliwal seeks judicial review of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board. The IAD upheld an exclusion
order issued by the Immigration Division, which had found that Mr. Dhaliwal had
misrepresented material facts by entering into a bad faith marriage for the
purposes of securing permanent residence in Canada.
[2]
At
the conclusion of the hearing, I advised the parties that the application would
be allowed as I was satisfied that Mr. Dhaliwal had been denied a fair hearing
before the IAD. These are my reasons for coming to this conclusion.
Analysis
[3]
As Mr.
Dhaliwal claims to have been denied procedural fairness in this matter, the
task for this Court is to determine whether the process followed by the IAD satisfied
the level of fairness required in all of the circumstances: see Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
at para. 43.
[4]
As
counsel for the Minister put it, this was a “he said/she said” case. The
outcome of the proceedings before the IAD depended entirely upon the relative
credibility of Mr. Dhaliwal and his ex-wife, Ms. Mahli. While Ms. Mahli
testified at some length before the IAD, Mr. Dhaliwal was denied a meaningful
opportunity to fully present his side of the story to the Board.
[5]
Mr.
Dhaliwal and Ms. Mahli had each testified before the Immigration Division with
respect to the circumstances surrounding their marriage and the subsequent
breakdown of the union. The Immigration Division preferred the evidence of Ms. Mahli
over that of Mr. Dhaliwal.
[6]
Hearings
before the IAD are de novo proceedings, and are not restricted to a
review of the evidence that led to the exclusion order. Where new evidence is
adduced on an appeal, the IAD must consider the whole case, including any new
facts put before it: Kahlon v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 104,
7 Imm. L.R. (2d) 91 (F.C.A.).
[7]
Mr.
Dhaliwal appeared before the IAD without the assistance of counsel. He made it
clear to the presiding member that he wished to testify on the appeal, as he
was of the view that all of the relevant facts had not been put before the
Immigration Division. He was denied the opportunity to do so.
[8]
It
is evident from a review of the transcript that the presiding member simply did
not understand how a self-represented litigant could put his own testimony
before the Board without a lawyer present to conduct the individual’s
examination in chief.
[9]
Mr.
Dhaliwal came to the hearing anticipating that the Board member would question
him. While there is no evidence before me that Mr. Dhaliwal had read it, the IAD’s
own “Information Guide” clearly contemplates that self-represented appellants
may ask Board members to ask them the questions that the Member thinks are
needed to decide the appeal: see Information Guide – General Procedures for
all Appeals to the Immigration Appeal Division (IAD), at section 3(1).
[10]
The
presiding member in this case refused to question Mr. Dhaliwal, advising him
that “That is not the way it works”: transcript p. 4. Rather, the member
repeatedly asked Mr. Dhaliwal to explain who would question him in chief if he
were to take the stand. When Mr. Dhaliwal could not provide a satisfactory
answer to this question, the hearing moved on to other matters, and Mr.
Dhaliwal was never given an opportunity to testify as to his version of events.
[11]
The
Board then stated in its decision that Mr. Dhaliwal “was not examined as he had
chosen to act as his own counsel”.
[12]
At
no time did the member ever explain to Mr. Dhaliwal that he could simply take
the witness stand, be sworn in and tell his side of the story. Mr. Dhaliwal
would, of course, then be subject to cross-examination by the Minister’s
counsel.
[13]
There
is no doubt that self-represented litigants can present challenges for
adjudicators, who must be careful not to enter into the fray, or to try to act
as counsel for the self-represented individual. At the same time, adjudicators do
have a positive duty to ensure that all parties, including those who appear
without counsel, receive a
fair hearing.
[14]
In Davids
v. Davids, [1999] O.J. No. 3930, 125 O.A.C. 375, the Ontario Court of
Appeal observed that fairness requires that decision-makers have to “attempt to
accommodate unrepresented litigants’ unfamiliarity with the process so as to
permit them to present their case”: at para. 36.
[15]
Decision-makers
have an obligation to ensure that the self-represented litigant understands the
nature of the proceedings, and to direct the litigant’s attention to salient
points of procedure: Wagg v. Canada, 2004 FCA 303, [2004] 1 F.C.R. 206
(F.C.A.) at paras. 32 and 33. That did not happen here. Indeed, it appears that
the presiding member did not himself understand the procedural options
available when an individual appearing without counsel wished to give evidence
on his own behalf.
[16]
Moreover,
it is evident from a review of the transcript that after this initial error at
the outset of the hearing, the hearing went downhill from there. The presiding
member repeatedly interfered with Mr. Dhaliwal’s cross-examination of Ms.
Mahli. While some of these interventions were undoubtedly justified, on other
occasions Mr. Dhaliwal was prevented from asking what were clearly relevant
questions.
[17]
The
member also denied Mr. Dhaliwal any opportunity to respond to Ms. Mahli’s
testimony. According to the member, Mr. Dhaliwal was not entitled to adduce any
rebuttal evidence responding to Ms. Mahli’s evidence because once he had heard
her testimony, Mr. Dhaliwal’s own evidence would be “spoiled”: transcript at
page 15.
[18]
Counsel
for the Minister acknowledges that the IAD erred by preventing Mr. Dhaliwal
from either testifying on his own account in chief or responding to Ms. Mahli’s
evidence. However, counsel submits that, at the end of the day, Mr. Dhaliwal
was able to get his side of the story before the Board, through both his
written submissions and through the testimony that he had given before the IAD.
[19]
I do
not agree.
[20]
While
the testimony that Mr. Dhaliwal gave before the Immigration Division was indeed
before the IAD, Mr. Dhaliwal had made it very clear that he wished to
supplement that testimony with additional information. He was prevented from
doing so.
[21]
Moreover,
the Board’s reasons explicitly state that any evidence that Mr. Dhaliwal
attempted to adduce through his written submissions was disregarded by the
presiding member. The decision says that “In his written submissions, the
appellant has tried to further rebut Ms. Mahli’s testimony, and, in so doing,
he has attempted on several occasions to enter new evidence which the panel
necessarily must ignore…”: at para.16, emphasis added.
[22]
It
is therefore clear that Mr. Dhaliwal was denied some of the most fundamental
elements of a fair hearing, namely the right to adduce evidence on his own
behalf, and to respond to the evidence against him.
[23]
I do
not accept the Minister’s contention that Mr. Dhaliwal should be deemed to have
waived his right to complain about the procedural unfairness of his hearing. It
is evident from the transcript that he continuously attempted to get his
evidence before the Board, and that he was prevented from doing so by the Board.
He was ultimately forced to accept the directions and rulings of the presiding
member, and to proceed accordingly. The principle of waiver is not engaged in
these circumstances.
[24]
Finally,
I do not accept the Minister’s submission that notwithstanding the breaches of
procedural fairness in this case, there would be no purpose to remitting the
matter to the IAD, as the outcome of any re-hearing would be a foregone
conclusion.
[25]
As a
general rule, a breach of procedural fairness will void the hearing and the
resulting decision: see Cardinal v. Kent Institution, [1985] 2 S.C.R.
643, 1985] S.C.J. No. 78. There, the Supreme Court of Canada observed that the
right to a fair hearing is “an independent, unqualified right which finds its
essential justification in the sense of procedural justice which any person
affected by an administrative decision is entitled to have”. The Court went on
to observe that “It is not for a court to deny that right and sense of justice
on the basis of speculation as to what the result might have been had there
been a [fair] hearing”: at para. 23.
[26]
There
is a limited exception to this rule. That is, a breach of natural justice may
be disregarded “where the demerits of the claim are such that it would in any
case be hopeless”: Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994] S.C.J. No. 14, at
para. 53. This may occur where, for example, the circumstances of the case
involve a legal question which has an inevitable answer: at para. 52. This is
not such a case.
[27]
As
was noted earlier, this is a classic “he said/she said” case. The stories told
by Ms. Mahli and Mr. Dhaliwal differ in many fundamental respects. The
Immigration Division preferred Ms. Mahli’s version of events to that of Mr.
Dhaliwal. The IAD will ultimately have to choose between these competing
stories, but it must do so only after both sides have had a full and fair
opportunity to present whatever relevant evidence they deem appropriate. I
cannot say at this point that the outcome of the proceeding is pre-ordained.
Costs
[28]
Counsel
for Mr. Dhaliwal submits that the breaches of procedural fairness in this case
were so egregious that an order of costs should be made in his favour.
[29]
Costs
are not ordinarily awarded in immigration proceedings in this Court. Rule 22 of
the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22 provides that “No costs shall be awarded to or payable by any
party in respect of an application for leave, an application for judicial
review or an appeal under these Rules unless the Court, for special reasons, so
orders”.
[30]
The
threshold for establishing the existence of “special reasons” is high, and each
case will turn on its own particular circumstances: Ibrahim v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1342, [2007] F.C.J. No. 1734, at para.
8.
[31]
This
Court has found special reasons to exist where one party has acted in a manner
that may be characterized as unfair, oppressive, improper or actuated by bad
faith: see Manivannan v. Canada (Minister of Citizenship and Immigration),
2008 FC 1392, [2008] F.C.J. No. 1754, at para. 51.
[32]
However,
“special reasons” have also been found to exist where there is conduct that
unnecessarily or unreasonably prolongs the proceedings: see, for example, John
Doe v. Canada (Minister of Citizenship and Immigration), 2006 FC 535,
[2006] F.C.J. No. 674; and Johnson v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1262, [2005] F.C.J. No. 1523, at para. 26; Qin v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1154, [2002] F.C.J. No. 1576. In my
view, this is such a case.
[33]
The
mere fact that an immigration application for judicial review is opposed, and
the tribunal is subsequently found to have erred, does not give rise to a
“special reason” justifying an award of costs. However, this is, in my view, an
exceptional case. The breaches of procedural fairness here were so obvious and
so serious that the application for judicial review should never have been
opposed.
[34]
I am
therefore satisfied that special reasons exist justifying an award of costs in
Mr. Dhaliwal’s favour. If the parties cannot agree as to the amount of costs,
the Court may be spoken to.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application for judicial review is allowed, with costs. The decision of the IAD
is set aside and Mr. Dhaliwal’s appeal is remitted to a differently constituted
panel of the IAD for re-determination in accordance with these reasons.
2. No
question arises for certification.
“Anne
Mactavish”
Email this Content