Date:
20130606
Docket:
IMM-4898-12
Citation:
2013 FC 609
Ottawa, Ontario,
June 6, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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HOWARD SEYMOUR STEPHENS
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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]
Mr.
Howard Seymour Stephens (the “Applicant”) seeks judicial review of the decision
of Carolyn McCool (the “Board Member”), a member of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (IRB), dated April 26,
2012. At the hearing, the Board Member refused to grant a request for a
postponement in light of the fact that the Applicant's counsel was not
present. She concluded in her decision that the Applicant is not a Convention
Refugee or person in need of protection.
[2]
For
the reasons set out below, I find that this application for judicial review
ought to be dismissed. This case also raises a serious issue with respect to
lawyers acting as witnesses, upon which I shall also comment as part of my
reasons.
Background
[3]
The
Applicant, born April 6, 1972, is a citizen of Jamaica. He arrived in Canada on or about July 7, 2005, and claims that he fled Jamaica fearing for his life.
[4]
The
Applicant's refugee claim is premised on a well-founded fear of persecution on
the basis of his perceived political opinion and membership in a particular
social group, as well as on the basis of risk under section 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). The Applicant
states that he was in danger in Jamaica because a businessman gave him a
donation to assist with a youth soccer club that he started in 2004. Due to
rumours that the money was in fact provided by a politician belonging to the
Jamaica Labour Party (JLP) who was vying for political office, the Applicant's
life was allegedly put in great danger by members of a political gang operating
in support of the competing People's National Party (PNP).
[5]
The
Applicant states that he moved from town to town in hiding before procuring the
services of an agent who helped him travel to Canada using false papers. Since
moving to Canada, the Applicant has married. He and his wife each have a child
from a prior relationship and the four live together as a family. The football
club was dissolved when the Applicant left for Canada in 2005.
[6]
The
record contains an affidavit from the mother of a former club member who was
murdered on April 20, 2009, after reportedly resuming operation of the club in
2008. The mother notes that her son had been threatened by the PNP gang, that
the police refused to take action, and that the police have not made any arrest
in connection with her son's murder. She does not directly comment on who she
believes was responsible for the murder or any connection between the death and
the football club, other than stating that the PNP gang threatened her son's
life once he began leading the team.
[7]
After
arriving in Canada in 2005, the Applicant did not make his claim for refugee
protection until September 2011. He states in his affidavit before this Court
that he was told when he first arrived that people from the Caribbean Islands could not make refugee claims. An immigration consultant allegedly told him
he would have to pay $6,000 in order to be represented and, having met his
wife, she applied to sponsor him in 2009. At the time of the Applicant's
hearing, he stated that the spousal application had been refused and was
pending before this Court.
[8]
The
Applicant states that he attempted to file for refugee protection in 2010, but
withdrew the claim on the advice of the woman working at the desk of the
immigration office. According to him, she noted the existence of his
sponsorship application and said that since his sponsorship looked very good, he
should remove his refugee claim. He states that he accepted her advice since
he was not familiar with the refugee system.
[9]
At
the time he submitted his application and signed his Personal Information Form
(PIF) in the fall of 2011, the Applicant was represented by an immigration
consultant, Sandra Bowen. The RPD was advised that, due to disagreements and
conflict between him and the consultant, he had retained Ms. Anaele as counsel
on January 16, 2012; however, a request from Ms. Bowen to be removed as counsel
of record was only received by the IRB on February 29, 2012 and granted on
March 6, 2012.
[10]
On
January 20, 2012, Ms. Anaele submitted a request for a postponement of the
hearing date, which had allegedly been scheduled for March 12 by Ms. Bowen, since
Ms. Anaele would be on vacation at that time. It is not entirely clear from
the record when the Applicant and Ms. Anaele learned of the date scheduled for
the hearing. Regardless, the Applicant attests to the fact that he was not
aware that the hearing had been scheduled when he retained Ms. Anaele.
[11]
A
decision dated January 25, 2012 refused the initial request for postponement,
holding that “claimants must choose counsel willing and able to proceed on the
date scheduled; Guideline 6, Section 2.6” (Certified Tribunal Record (CTR), p.
46). The Applicant did not seek judicial review of this interim decision.
[12]
On
February 6, 2012, both the Applicant and Ms. Anaele were sent a notice to
appear for the March 12 hearing. The notice contained the following statement
and instructions:
You must be present and ready to proceed by the
scheduled start time. If you or your counsel fail to appear as required, the
RPD may, after giving you a reasonable opportunity to be heard, determine your
claim to be abandoned.
[…]
When you hire counsel after a date has already been
set for your hearing, you are responsible for making sure that your counsel is
available and ready to proceed on the scheduled date. The RPD may not change
the date or time of your hearing because your counsel cannot attend, therefore
it may be necessary for you to hire new counsel who is available on the
scheduled date.
[13]
On
the day of the hearing, Ms. Anaele provided the Applicant with a letter stating
that “due to urgent medical reasons” she would not be able to attend the
afternoon hearing and requesting that the hearing be rescheduled for a date in
June 2012. She faxed the same document to the IRB. A review of the fax
suggests it was received at 10:05 a.m. (CTR, p. 60).
[14]
The
request for postponement was denied and the hearing proceeded, with reasons for
the refusal given on the record. The record reveals that the Board Member
considered the following:
i)
Ms.
Anaele’s January 20, 2012 request for postponement due to her holiday schedule
was denied, and the Applicant was required to choose counsel available for the
date;
ii)
The Applicant claimed to have seen Ms. Anaele the morning of the
hearing. He explained that she had decided to help his family despite her
prior plans and that they were prepared to proceed on March 12 (having met the
weekend before). The day of the hearing, however, she was really not feeling
well and planned to visit her doctor. She was at her office for the sole
purpose of giving the Applicant her letter and had her daughter drive her
there.
[15]
The
Board Member found that the request was “not strong enough” to put off the date
of the hearing, noting that she had concerns “about counsel who brings multiple
requests for – that is numerous requests for a postponement of the hearing”
(CTR, at p. 118). She noted that there was no evidence to persuade her that
there were in fact urgent medical reasons for requesting the delay and that the
fact that she was well enough to go in to her office raised questions, despite
the Applicant’s claim that her daughter had driven her.
[16]
An
affidavit submitted to this Court by the Applicant provides an explanation of
the morning’s events, much of which merely recounts relevant information
provided to the Applicant by his counsel. The affidavit suggests that Ms.
Anaele cancelled her vacation plans when the Board refused her initial request
and that, on the day of the hearing, she was very ill but went to her office
for an emergency stay motion.
[17]
The
affidavit states that she was driven to her office very early in the morning by
her children and that, despite completing the stay hearing, she was unable to
go to the afternoon hearing because she was very ill and had an appointment
with her doctor. In addition to faxing the Board and providing the Applicant
with a letter, the affidavit states that Ms. Anaele telephoned the Board and
requested that the acting case officer contact her on her cell phone if there
was a problem with the request for postponement, but that no such call was
made. The affidavit states that the hearing was the first scheduled in the
case and not peremptory and that the process affected the Applicant’s ability
to present his case as it was unfair, unjust and very traumatizing.
[18]
The
Applicant claims in his affidavit that he spoke to Ms. Anaele after the
hearing, while she was at her doctor’s office, and that Ms. Anaele later
informed him that it took her three days to obtain the name of the Board
Member, following which her attempts to contact the Board Member and the acting
case officer went unanswered. The Applicant argues that, due to the absence of
his counsel, he was prevented from bringing out the salient issues in his claim
and from presenting additional documentary evidence.
[19]
A
letter from Ms. Anaele to the chairperson of the IRB, dated March 15, 2012
(Application Record, p. 29), clarifies that the health reasons which prevented
Ms. Anaele from attending the hearing included dizziness, cough and headache. The
letter establishes many of the facts set out in the Applicant’s affidavit, also
indicating that Ms. Anaele was scheduled to see her doctor at 1:15 p.m. and
that, after hearing the stay, she waited for her client (since she was already
at the office and they had planned to meet there prior to the hearing) in order
to explain her medical condition and provide him with the faxed letter. She
further states as follows:
I was not contacted by the IRB as such I presumed
all was well. While at the doctor’s [office] at about 2pm, I decided to
contact my client to find out what happened since nobody had contacted me and
he informed me that the panel member proceeded with the hearing without me
despite my letter.
[…]
I consider the panel member’s conclusion to be
disrespectful of my professionalism and a stain on my reputation. I have 26
years of experience as a lawyer and have been practicing in Ontario for 16
years. I have a good and professional reputation which I have maintained and
intend to continue to maintain. I am a lawyer in good standing with the Law
Society of Upper Canada. I have always attended all the scheduled hearings
except on occasions where I am ill. Furthermore, the fact that I earlier
requested for an adjournment because I was scheduled for a vacation during this
period has nothing to do with my medical condition. There is evidence that I
have cancelled my vacation solely because of this hearing and would have been
available for the hearing if not for my health reasons.
My health is primary to me and I would not have been
able to present the case or represent my client adequately due to my medical
condition on the day of the hearing.
[…]
Decision under
review
[20]
The
Board Member addressed the request for postponement as a preliminary matter,
noting the denied request relating to counsel’s holidays and the events
described by the Applicant. She stated that the request was denied for the
reasons given on the record, which she summarized as follows:
[5] […] The panel noted the history of postponement requests, the
fact that counsel first said that she was going to be on holidays this week,
the lack of information as to the urgent medical matter, and the fact that
counsel had been well enough to meet the claimant in her office the morning of
the hearing.
[6] It was the decision of the panel that in all of these
circumstances, the reasons for a postponement were not sufficient to justify
putting the case off. The postponement request was denied and the hearing was
held, without counsel present.
[21]
With
respect to the refugee claim itself, the Board Member summarized the
Applicant’s allegations, noting that he had submitted it was not possible to
get a copy of the police report he claimed to have made in 2005. She also
summarized the Applicant’s reasons for the long delay in claiming protection in
Canada and his comments on the affidavit provided by the mother of the
murdered Marcellino Almando Johnson, noting that there was nothing tying the
circumstances of Marcellino to the Applicant. She noted also that no evidence
has been provided from anyone who was involved with the football club in or
after 2008. When asked what risk the Applicant would face in Jamaica now,
after seven years, he could only point to the existence of a Don culture in
Jamaica and to the fact that political violence in the country remains as
endemic as ever.
[22]
According
to the Board Member, the determinative issues in the case were those of (a) a delay
in claiming, which goes to subjective fear, and (b) a lack of evidence
demonstrating the objective basis of the claim as it arose in 2004-2005 and as
it is alleged to still exist in 2012. The Board Member concluded that the
Applicant had failed to prove on a balance of probabilities that he was in need
of refugee protection.
[23]
She
noted in respect of the first point that a delay in claiming of six years is
“extremely significant” and fatal to the claim “in the absence of any
explanation which is found to be reasonable” (para 18). The Applicant’s
explanations were held not to be satisfactory as the Board Member found it
unlikely that he would base decisions on when and how to apply on casual advice
rather than seeking out competent advice “either from an official of the
Government of Canada, or from a qualified lawyer, consultant or community
worker” (para 19). The Applicant’s section 96 claim could not succeed due to a
resulting lack of subjective fear.
[24]
With
respect to the Applicant’s section 97 claim, the Board Member concluded that
the Applicant did not believe that he would face the relevant risks due to the
same unexplained delay.
[25]
As
for the evidence provided, the Board Member acknowledged the Marcellino
affidavit and the country conditions, but found that the documentary evidence
simply did not bear out the Applicant’s assertions regarding risk in Jamaica.
Issues
[26]
The
Applicant does not take issue with the Board Member’s substantive finding
relating to his refugee claim. The only question to be addressed on this
application for judicial review is whether the RPD breached its duty of
fairness in refusing the Applicant’s request for postponement.
Analysis
[27]
As
a preliminary issue, the Respondent submits that the Applicant’s affidavit is
based on statements provided to him by his counsel about events that she claims
occurred. In the Respondent’s view, this is totally inappropriate and, as a
result, she suggested that a number of paragraphs in the Applicant’s affidavit
should be struck or given no weight.
[28]
I
entirely agree with the position taken by counsel for the Respondent. Rule 82
of the Federal Courts Rules (SOR/98-106) explicitly forbids a solicitor
from both deposing to an affidavit and presenting argument to the Court based
on that affidavit. When counsel’s own credibility is at issue, it is best for
counsel to testify and to ask another counsel to represent his or her client. Indeed,
this is precisely what the Law Society of Upper Canada recommends in such a
situation. In the Commentary on Rule 4.02(2) of the Law Society of Upper
Canada’s Rules of Professional Conduct (forbidding a lawyer who appears
as advocate to testify before the tribunal), it is stated: “[…] The lawyer
should not in effect appear as an unsworn witness or put the lawyer’s own
credibility in issue. The lawyer who is a necessary witness should testify and
entrust the conduct of the case to another lawyer”.
[29]
In
the case at bar, counsel indirectly infringed Rule 82 by having the Applicant
swear an affidavit based at least in part on information that she provided to
him and of which he had no personal knowledge. This cannot be condoned and is
contrary to the spirit of Rule 82, as it puts counsel in the position of
arguing on the basis of her own evidence: Osagie v Canada (MCI), 2004 FC 1368, at paras 22-23. Genuine affiants should not attempt to
shield themselves from cross-examination by, in effect, appearing as unsworn
witnesses. It is true, as argued by counsel for the Applicant, that some of the
facts upon which he testified are based on documentary evidence, that is, on
letters sent by counsel to the IRB. However, many paragraphs of his affidavit
are based on hearsay, and are not confined to facts within the deponent’s
personal knowledge as required by Rule 81.
[30]
To
the extent that an affidavit purports to provide hearsay evidence, little or no
weight ought to be afforded to it. I also note that Rule 81(2) of the Federal
Courts Rules permits the Court to draw an adverse inference from a party's
failure to provide evidence from persons having personal knowledge of facts
otherwise presented on belief. For those reasons, I agree that paras 19,
20, 21, 23, 25-29, 35 and 40-44 of the Applicant's affidavit must either be
struck or given very little weight, to the extent that they merely replicate
what is already found in the documentary evidence or amount to hearsay.
[31]
With
respect to the applicable standard of review, I also agree with counsel for the
Respondent that the RPD’s decision to postpone or adjourn the Applicant’s
refugee claim calls for deference. The decision of the RPD is a discretionary
one, even if that discretion must be exercised in light of the factors listed
in subsection 48(4) of
the Refugee Protection Division Rules, SOR/2002-228 (now
repealed). Therefore, the Court will not intervene unless it is found that the
RPD was unreasonable in the application of the factors listed in subsection
48(4): see Philistin v Canada (MPSEP), 2011 FC 1333 at para 8; Omeyaka
v Canada (MPSEP), 2011 FC 78 at para 13; Julien v Canada (MCI), 2010
FC 351 at para 33 [Julien]. Even then, the Court will only step in if an
applicant can establish that the refusal to postpone or adjourn a hearing
resulted in a breach of procedural fairness: see Telez v Canada (MCI),
2013 FC 102 at paras 17-18 [Telez]; Javadi v Canada (MCI), 2012
FC 278 at para 25 [Javadi]; Wagg v Canada, 2003 FCA 303 at para
19 [Wagg].
[32]
The
Applicant and the Respondent obviously focus their arguments on different
factors among those set out in Rule 48(4) of the RPD Rules. That
provision reads as follows:
Refugee Protection Division
Rules
(SOR/2002-228)
[Repealed, SOR/2012-256, s. 73]
In force from 2006-03-22 to
2012-12-14
|
CHANGING
THE DATE OR TIME OF A PROCEEDING
Factors
48 (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.
|
CHANGEMENT DE LA
DATE OU DE L’HEURE D’UNE PROCÉDURE
Éléments à
considérer
48 (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.
|
[33]
In her decision, the Board Member summarized her reasons
for refusing the request for postponement as follows:
5 The panel denied the request for a postponement and gave
reasons on the record. The panel noted the history of postponement requests,
the fact that counsel first said that she was going to be on holidays this
week, the lack of information as to the urgent medical matter, and the fact
that counsel had been well enough to meet the claimant in her office the
morning of the hearing.
[34]
It
is true that the transcript of the hearing reveals that the Board Member also
took into consideration the reasonableness of the delay requested, and that the
Applicant was in Canada for six and a half years. Nevertheless, one can safely
assume that the factors summarized in her reasons were the most
important factors underlying her decision to refuse the request for
postponement.
[35]
In my view, these factors were far from being sufficient to
refuse the delay requested. It appears that the Board Member’s decision was
very much tainted by the fact that counsel had previously made a request to
change the date of the hearing because she had planned a vacation before being
retained by the Applicant. In fact, it is clear that counsel did not depart on
her planned vacation and had no apparent reason not to attend the hearing if
not for her ill health. Indeed, the fourth factor outlined by the Board Member
(that counsel was well enough to meet the Applicant in her office the morning
of the hearing) suggests that she accepts that counsel had not gone on
holidays. It was therefore entirely inappropriate to dwell on this factor as
justification to deny the request for postponement on the day of the hearing,
as counsel made herself available when her first request was rejected.
[36]
As for the lack of information regarding her medical
condition, it would obviously have been preferable for counsel to provide
additional information regarding her circumstances. I note, however, that this
Court has found in previous decisions that it may be both unreasonable and
unfair to question the truthfulness of reasons provided by a representative for
another lawyer’s absence: see Telez, above, at para 13. One would
expect that this would apply to at least an equal degree where the reason for
absence is offered by counsel themselves (whether in writing or in person).
Besides, the decision regarding the postponement was made on the spot and the
final decision seems to have been written the day after the hearing, so any
medical document corroborating counsel’s inability to attend the hearing would
most likely have been to no avail if only obtained when she attended her
physician’s office on the afternoon of the hearing. Finally, the fact that
counsel was well enough to meet the Applicant at her office the morning of the
hearing should not necessarily have been held against her. First of all,
although the Board Member was not aware of the stay motion, there is a huge
difference between attending a hearing by phone in one’s office (or attending
at your office to communicate with your client and request a postponement from
the RPD) and representing a client in a formal hearing at the Immigration and
Refugee Board in person. Moreover, an argument could be made that counsel’s
participation in the hearing of a stay motion on behalf of a client speaks to
her professionalism, as time was much more of the essence in such a proceeding
than in the hearing of a refugee claim. As a matter of fact, the same can be
said of her attempt to arrange for a postponement of the hearing before the
Board Member on that same day.
[37]
In addition, the Applicant submits that the Board
failed to consider other relevant factors found in Rule 48(4) of the RPD Rules
before making its decision. For instance, the medical reason clearly amounted
to an exceptional circumstance (Rule 48(4)(a)), there had been no previous
delays in the hearing of the claim (Rule 48(4)(h)), counsel has over 15 years
of experience and no questions were raised regarding her reputation (Rule 48(4)(g)),
the hearing date was not marked peremptory (Rule 48(4)(i)), and the request to
adjourn would not unreasonably delay the proceedings (Rule 48(4)(j)).
[38]
This
is not to say that the Applicant was entitled to a postponement of his
hearing. As previously mentioned, this is a discretionary decision that is
best left to the Board Member. That being said, the Board has an obligation to
deal with a request for an adjournment in a principled way. The Board had an
obligation to consider the factors enumerated in Rule 48(4), and could not
legitimately deny the request solely because counsel had previously made a request
which was refused. While the Board Member did not explicitly say so, her
reasons read as if she did not believe that counsel acted in good faith and
that she was just coming up with another pretext to avoid proceeding on the
scheduled date of the hearing. On the basis of the record before the Court,
and in the absence of any further explanations, the Board Member’s reasons for
refusing to postpone the hearing are therefore unreasonable.
[39]
In
and of itself, however, this is not sufficient to quash the decision. As this
Court stated in Javadi, above, at para 25:
The
Court recalls that the power to grant a postponement request is within the
Board’s discretion. Pursuant to the Federal Court of Appeal’s decision in Vairamuthu
v Canada (Minister of Employment and Immigration) (FCA), [1993] FCJ No 772,
42 ACWS(3d) 108, the Court may only criticize a Tribunal for having denied a
request for adjournment if it is clear that a breach of natural justice or
fairness has resulted from the decision. When a Tribunal refuses an
adjournment, the Court will thus analyze the circumstances specific to each
case in order to determine if there was any breach of the principle of natural
justice (Julien v Canada (Minister of Citizenship and Immigration), 2010
FC 351 at para 28, [2010] FCJ No 403).
[40]
In
the case at bar, the Applicant argues that he was prevented from properly and
fairly presenting his case and denied the opportunity of presenting submissions
and being examined in a way that would have elucidated his claim. The
Applicant also argues that the principles of natural justice were breached when
the Board Member failed to call Ms. Anaele’s cell phone to alert her to the
fact that the request was refused and when the Board failed to immediately
disclose the Board Member’s name in response to Ms. Anaele’s request.
[41]
It
is trite law that the right to counsel is not absolute in the context of
immigration proceedings. The absence of counsel will only render a decision
invalid when such an absence translates into a denial of a fair hearing: see,
for ex., Wagg, above, at para 19; Mervilus v Canada (MCI), 2004
FC 1206 at paras 20-21; Julien, above, at paras 28-29; Guzun v Canada
(MCI), 2011 FC 1324 at para 13; Vazquez v Canada (MCI), 2012 FC 385
at para 10; Tecuapetla v Canada (MCI), 2012 FC 225 at para 25.
[42]
Accordingly,
it is incumbent upon the Applicant to show that he was denied a fair hearing as
a consequence of the hearing proceeding in the absence of his counsel. On that
score, the Applicant utterly fails. Counsel for the Applicant argued vaguely
that she could have examined the Applicant, that she could have explored many
issues, that she could at least have requested the opportunity to file written
submissions after the hearing, but she did not provide any concrete examples of
evidence or arguments that she could have put forward and that could have had
an impact on the final result. To the extent that the determinative issues in
this case were the delay in claiming and the lack of evidence demonstrating the
objective basis of the claim, it is indeed difficult to surmise what exactly
counsel could have said or done to modify the outcome.
[43]
The
onus was on the Applicant to demonstrate that the hearing was unfair as a
result of proceeding without his counsel. He has not discharged that burden.
A careful reading of the transcript shows that the Applicant was given an
opportunity to correct the record at the beginning, and that the Board went
over his affidavit and ascertained the bases of his claim. There is no
indication that he had any difficulty understanding the questions or providing
the information requested. He was also given an opportunity to make submissions
at the end. There are, in short, no indicia that the hearing was anything but
thorough and fair. This is not to say that the Applicant would not have
benefited from his counsel’s presence, but there is no evidence that he was
prejudiced or that a line of argument or a piece of evidence was overlooked as
a result of his lawyer not being present at the hearing.
[44]
Given
that the sole issue raised by the Applicant is an alleged breach of procedural
fairness arising from the RPD’s refusal to grant his request for a change of
time and date of his refugee claim, resulting in his counsel not being able to
attend his hearing, this application for judicial review must accordingly
fail.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application
for judicial review is dismissed. No question is certified.
"Yves de
Montigny"