Date:
20130731
Docket:
IMM-4277-12
Citation:
2013 FC 837
Ottawa, Ontario,
July 31, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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NANDOR DROBINA
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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
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated February 27, 2012, wherein the applicant was determined to have
abandoned his claim.
[2]
The applicant requests that the Board’s
decision be set aside and the matter be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a citizen of Hungary, born in 1986. He is an ethnic Hungarian who
arrived in Canada on May 19, 2009 and seeks refugee status based on persecution
by Hungarian Roma and by his government based on his anti-European Union
political views.
[4]
His
claim was first scheduled to be heard on June 27, 2011. It was postponed as the
applicant did not appear due to illness.
[5]
At
a show cause hearing on July 15, 2011, the applicant appeared but his counsel,
Mr. Artem Djukic, was absent. The Board accepted the applicant’s medical note
for the June 27, 2011, hearing and determined the next date would be set
administratively.
[6]
The
next hearing was on January 16, 2012. The applicant’s counsel appeared but the
applicant did not appear due to car problems.
[7]
At
a show cause hearing on February 6, 2012, the applicant attended but his
counsel did not. The Board accepted his explanation of car troubles for the
previous hearing, but set a new hearing date for February 27, 2012, as
peremptory and advised the applicant it would proceed with or without counsel.
[8]
In
a letter dated February 8, 2012, the applicant’s counsel advised the Board he
had a scheduling conflict and requested a different date, with suggested alternatives
of five dates in April and May 2012. The request was refused and communicated
to the applicant’s counsel on February 14, 2012 and he was told he should
arrange for other counsel to take over the file if he could not attend.
[9]
On
February 27, 2012, the Board proceeded with the hearing with the applicant
present and his counsel absent. After giving the applicant a chance to be
heard, the Board reserved on its decision.
Board’s Decision
[10]
In
a decision made on the same date, the Board determined the applicant’s claim
had been abandoned. Its written reasons begin with describing the chronology of
the file as laid out above.
[11]
The
Board indicated that in refusing the applicant’s request during the hearing for
postponement, he had been cognizant of the balancing act between avoiding a
miscarriage of justice and expeditiously processing claims and alluded to
subsection 162(2) of the Act.
[12]
The
Board applied Refugee Protection Division Rule 48(4), which lays out the
factors to consider in deciding whether to change the date or time of a
proceeding. He noted the date and time had been fixed with the applicant’s
knowledge after he was afforded several previous adjournments and that counsel
had been duly informed of the peremptory date but chose not to attend or secure
new counsel. Counsel made the written adjournment request two days after the
date had been set, and should have anticipated the ruling would not be in his
favour and made alternative plans. The Board indicated it considered the time
the applicant had to prepare for the proceedings and the efforts made. The
applicant’s counsel is very experienced. This was not a complicated matter and
the applicant and his counsel never attended a hearing simultaneously.
[13]
The
Board indicated Rule 48(4) required the Board to consider whether allowing an
application for adjournment would likely cause an injustice, not whether
refusing such an application would cause an injustice. The applicant was given
the opportunity to participate in the February 27th hearing, but refused to
answer questions. When told that leaving the hearing might result in his claim
being declared abandoned, the applicant said “Whatever you decide to do.” and
left.
[14]
The
Board determined it had adhered to Refugee Protection Division Rule
58(2) by giving the applicant an opportunity to explain why the claim should not
be declared abandoned. The Board determined the claim to be abandoned.
Issues
[15]
The
applicant submits the following points at issue:
1. Did the Board err
in law by making a decision that was patently unreasonable?
2. Did the Board err
in law by ignoring relevant evidence, misinterpreting evidence, making
erroneous findings of fact and placing reliance on irrelevant evidence?
[16]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the Board err
in refusing the adjournment and determining the claim to be abandoned?
Applicant’s Written Submissions
[17]
The
applicant argues the Board had agreed as of 2004 to make special accommodations
for his counsel due to his illness, such as not scheduling more than two
hearings per week, only scheduling half day hearings in the afternoon and
scheduling full day hearings to commence at 9:30 a.m. In his letter of February
8, 2012, counsel indicated the February 27, 2012 date had been set in violation
of this agreement. The Board refused this requested adjournment.
[18]
The
Board unfairly denied the applicant his right to counsel by setting a hearing
at 8:30 a.m., when it knew his counsel’s physical frailty made it impossible to
attend at this time. It was a half day hearing scheduled in the morning,
another violation of this agreement. The Board’s reasons fail to mention this
agreement. A failure to take into account contradictory evidence is a
reviewable error. The Board breached almost every aspect of an agreement that
had been in place for almost a decade without acknowledging its existence.
Respondent’s Written Submissions
[19]
The
respondent argues the standard of review for procedural fairness is
correctness. The applicant’s counsel never provided any explanation for failing
to appear on July 15, 2011, or February 6, 2012. The applicant was specifically
told the February 27, 2012, hearing would proceed with or without counsel.
There was nothing to suggest key documents were unavailable or that the
applicant was unable to proceed with his complaint.
[20]
The
respondent argues the right to counsel at the Board is not absolute. This Court
has repeatedly held that the onus is on an applicant to retain counsel that is
competent and available. It is not a breach of natural justice to proceed
without counsel when counsel was unprepared or unavailable. The applicant was
aware the hearing would proceed and was specifically told to retain other
counsel if necessary. The applicant knew the hearing would proceed and chose
not to retain new counsel or proceed without counsel.
[21]
The
respondent argues the Board adhered to its agreement with the applicant’s
counsel. His letter of February 8, 2012, cited no health concerns and simply
cited a scheduling conflict. The agreement was alluded to, but no copy was
provided with the letter. In suggesting alternate dates, the applicant’s
counsel made no reference to the start time. Regardless, the agreement
stipulates that accommodations would be provided only so far as they do not
negatively affect the Board’s decision making ability. Counsel has still
provided no explanation for the two previous absences. The Board considered the
relevant factors outlined in Rule 48(4). There was no need to consult counsel
on the setting of the February 27, 2012 date as it was set with the applicant’s
knowledge, who was specifically told to find counsel who could attend on that
date. At the February 27, 2012 hearing, the applicant was not denied the
opportunity to make new submissions.
Analysis and Decision
[22]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[23]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798 at paragraph 13, [2008] FCJ No 995 and Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 43). No deference is owed to decision makers on these issues
(see Dunsmuir above, at paragraph 50).
[24]
Issue
2
Did the Board err in
refusing the adjournment and determining the claim to be abandoned?
The applicant is correct
that the Board should take into account its agreement with his counsel when
making scheduling decisions. In this case, however, I agree with the respondent
that counsel’s request for an adjournment was unrelated to those
accommodations. His letter mentions the agreement, but his complaint is clearly
due to a scheduling conflict:
It
is further my understanding that at this [February 6, 2012] hearing it was
established that his claim would not be abandoned and a Peremptory Hearing has
been scheduled for February 27, 2012 at 8:30 AM. I am to attend this hearing
with my client, however, there is an unfortunate scheduling conflict on that
date, as I am already booked for a hearing before the RPD on another matter.
Therefore, the agreement is irrelevant
to the Board’s adjournment decision and the Board need not have mentioned it.
[25]
I
would also note that the transcript indicates that the Board nearly determined
the applicant’s claim to be abandoned at the very first hearing on June 27,
2011, but decided not to after hearing submissions from counsel. The applicant
and his counsel were therefore on notice more than six months before the
February 27, 2012, hearing as to the consequences of failing to attend board
hearings or attending without being ready to proceed.
[26]
The
Board’s decision in applying Rule 48(4) was correct. To consider the enumerated
factors:
- Rule 48(4)(a):
The applicant and his counsel were aware of the adjournment to February
27, 2012.
- Rule
48(4)(b): Counsel made the request two days after being informed of the
February 27, 2012 date.
- Rule 48(4)(c):
The applicant had eight months to prepare after his first hearing and
three weeks after being informed of the peremptory date.
- Rule 48(4)(d):
There was no indication the applicant had made any effort to start the
hearing beyond retaining counsel.
- Rule
48(4)(e): There was no mention of a need for more time to gather
information.
- Rule
48(4)(f)/(g): The applicant had experienced counsel.
- Rule
48(4)(h): There had been four previous hearings, none of which had been
attended by both the applicant and his counsel.
- Rule 48(4)(i):
The February 27, 2012 date was peremptory and clearly communicated to the
applicant as such.
- Rule 48(4)(j):
Allowing the adjournment would unreasonably delay the proceedings.
- Rule 48(4)(k):
It was not a particularly complex matter.
[27]
The
applicant can be faulted for not being ready to proceed, given the long delay
and clear instructions that his hearing was peremptory and there is no
indication of efforts to secure other counsel available for the peremptory day.
[28]
I
also do not think the Board failed to consider positive factors as the decision
acknowledges such positive factors as the valid reasons for previous
adjournments and the fact that counsel requested the adjournment shortly after
receiving notice of the February 27, 2012 date.
[29]
The
applicant submitted that he was not given an opportunity to make submissions
relating to the adjournment request and that this constituted a denial of
natural justice or a breach of the duty of procedural fairness. I do not agree.
The applicant’s counsel made a written submission by way of letter requesting
the adjournment and the applicant himself submitted the letter at the hearing
on February 27, 2012.
[30]
The
applicant’s right to a fair hearing was not compromised. He had multiple opportunities
to present his case and when the peremptory hearing proceeded without counsel,
as he had been told it would, he left the hearing.
[31]
The
application is therefore dismissed.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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Refugee
Protection Division Rules,
SOR/2002-228
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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.
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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.
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