Date:
20130429
Docket:
IMM-6337-12
Citation:
2013 FC 444
Ottawa, Ontario,
April 29, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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CLARKE, PURNELL
(a.k.a. CLARKE, PURNELL ELLIOT)
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Applicant
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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
JUDGMENT AND JUDGMENT
[1]
This
application for judicial review is granted.
[2]
The
Refugee Protection Division of the Immigration and Refugee Board of Canada (the
Board) denied the applicant an adjournment of his hearing to obtain legal
representation.
[3]
The
evidence before the Board was that the applicant has a mental illness and is
incapable of representing himself. At the hearing, his sister, who had been
designated his representative, stated that she had consulted with a lawyer and
expected that he would be present. She learned just prior to the hearing that
the lawyer had a scheduling conflict and requested an adjournment. The Board
gave extensive reasons for denying the adjournment. The Board stated that the
applicant had been represented by an immigration consultant until recently and
had since been advised by a lawyer. It noted that there had been no notice
filed to change the counsel of record. Based on statements from the designated
representative, the Board assumed, through his failure to appear, that the
lawyer considered the Board best suited to take care of the case.
[4]
The absence of legal
representation may render an immigration proceeding unfair if the case is
complex, the consequences of the decision are serious and the individual is
unable to properly represent himself.
[5]
In
the refugee context, there is also Rule 48(4) of the Refugee
Protection Division Rules, SOR/2002-228 which required the Board to 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.
[6]
Though
it has since been repealed, this rule governed at the time of the hearing. It
is a reviewable error for the Board to fail to consider any relevant factors: Vazquez
v Canada (Minister of Citizenship and Immigration), 2012 FC 385, para 13; KCC
v Canada (Minister of Citizenship and Immigration), 2011 FC 852, para 22.
[7]
Of
the above factors, it is most notable that the Board did not consider the
nature and complexity of the proceeding. The Board ultimately found that the
applicant had failed to rebut the presumption of state protection, a legal
matter that neither the applicant nor his designated representative was
qualified to address. The Board also failed to consider that the hearing had
not been fixed peremptorily. Furthermore, there was no basis in the record for
the Board to conclude that the applicant had received adequate legal advice,
let alone infer from the failure of the lawyer to appear that the lawyer
concluded that the Board was best situated to look after the applicant’s legal
interests. This is sheer speculation. The lawyer could have equally failed to
appear because of a scheduling error.
[8]
While
the issue was framed as whether the decision not to adjourn was a reasonable
exercise of discretion, the controlling question must be whether the decision
to proceed, in light of all the circumstances, rendered the hearing unfair. In
my view, it did. The designated representative was not capable of representing
the applicant. It was clear that the representative did not understand what it
was to make submissions, which, at best, amounted to a plea for mercy.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. There is no question for certification.
"Donald J.
Rennie"
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