Docket: IMM-5114-13
Citation:
2015 FC 90
Toronto, Ontario, December 10, 2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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VLS
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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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JUDGMENT AND REASONS
(Amended by Order dated January 7,
2015)
[1]
This is a judicial review of a decision of the
Immigration Appeal Division refusing an application made pursuant to section 71
of the Immigration and Refugee Protection Act, SC 2001, c 27, to reopen
the applicant’s appeal under subsection 63(3) of the Act of a removal order
made against him.
[2]
These are the reasons for the conclusion stated
at the close of argument, that this application must be allowed.
[3]
VLS came to Canada with his parents when he was
12 years old. He had a daughter with a common law partner. He was convicted
and sentenced to 18 months less 12 days for pre-trial custody, for the sexual
assault of his daughter when she was a minor.
[4]
On April 30, 2012, an admissibility hearing was
held while he was incarcerated and he was issued a removal order. The
applicant submitted a notice to appeal in May 2012, approximately five months
before his release. The hearing date was scheduled for February 5, 2013.
[5]
At the hearing the applicant was not represented.
He requested a postponement. He testified that he had recently spoken to a
lawyer (whom he named), and that he “asked me to get an
adjournment, to ask for an adjournment, so that he can have ample time to
prepare. He said that the minimum time it takes is a month for him to properly
prepare so I should come in and ask for an adjournment, and then call him back
and let him know if I got it that way he could help me.” He further
testified that the lawyer was not going to commit to represent him until he
informed him whether the adjournment has been obtained.
[6]
VLS testified that he had tried “desperately”
to obtain a lawyer following his release from detention in late October 2012,
but had been unable - they told him they did not take legal aid, or were booked
up, or were on vacation.
[7]
The Board Member asked the Minister’s counsel for his position. He said
that he was of two minds. He noted that if the applicant was going to seek humanitarian
and compassionate relief, the Minister had received no disclosure from him. He
also noted that just at the commencement of the hearing the Minister had given
the applicant a copy of the reasons for sentence and it was “very important in terms of the Minister’s
case.” Importantly, he noted that the appeal was a “fairly important matter” and
that the applicant “probably should have
a lawyer to assist him” but that he was opposing the adjournment
request because he was ready to proceed.
[8]
The Board Member refused the adjournment request and stated the
following at the hearing: “I am not
satisfied that you have made reasonable efforts to retain counsel. You’ve had
since May 2012 to do so, and I do not accept that each and every counsel that
you contacted was unavailable to represent you today or on some other occasion
and would have obtained an adjournment for you. So I am dismissing your
application for an adjournment and we are going to proceed.”
[9]
The Board Member expanded his reasons in the written decision dismissing
the appeal:
The appellant has done virtually nothing since he launched an
appeal to be represented by counsel until the week before this hearing and that
effort would appear to have been much too little. The appellant proposes a
postponement to an indefinite date but it was clear he would not be
able to retain counsel without the financial support of his stepmother and
stepsiblings which had not been forthcoming to date. No family members
were present for this hearing, though the appellant said they were aware of
it. He said that he had been turned down for employment insurance and for
social assistance and lost both appeals from those refusals. In these
circumstances, the fault for not having retained counsel lies with the
appellant and I was of the view that postponing this hearing regarding a removal
order grounded on a conviction for a serious offence would amount to
needless delay.
[10]
The evidence before the Panel on the application to reopen showed that
the applicant had obtained a legal aid certificate in April 2012; therefore he
did not need his family’s financial support. It also showed that his stepmother
tried to obtain counsel for him while he was incarcerated and it details his
efforts following release.
[11]
The Panel refused the application to reopen with brief reasons:
The only ground to reopen this appeal is if the panel is
satisfied that the IAD in February 2013 failed to observe a principle of
natural justice. The IAD heard the appellant’s oral application for
postponement, dismissed it, and included reasons for that dismissal in its written
reasons for dismissal of the appeal. Having reviewed the Application
materials, the panel finds that the applicant has not provided persuasive evidence
that the IAD failed to observe a principle of natural justice.
[12]
This Court has stated on many occasions that a failure to consider all
of the factors set out in Rule 48(4) of the Immigration Appeal Division
Rules, SOR/2002-230, constitutes an error of procedural fairness: See for
example Sandy v Canada (Minister of Citizenship and Immigration), 2004
FC 1468, Modeste v Canada (Minister of Citizenship and Immigration),
2006 FC 1027, and Vazquez v Canada (Minister of Citizenship and Immigration),
2012 FC 385.
[13]
Rule 48(4) provides as follows:
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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) the knowledge and experience of any counsel who represents the
party;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the proceeding were
peremptory;
(i) whether allowing the application would unreasonably delay the
proceedings; and
(j) 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) dans le cas où la partie est représentée, les connaissances et
l’expérience de son conseil;
g) tout report antérieur et sa justification;
h) si la date et l’heure qui avaient été fixées étaient
péremptoires;
i) si le fait d’accueillir la demande ralentirait l’affaire de
manière déraisonnable;
j) la nature et la complexité de l’affaire.
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[14]
I agree with the applicant that there is no evidence that the Board Member
gave any consideration to at least two mandatory factors listed in that Rule: The
“nature and complexity of the matter to
be heard” (which were significant given the impact of the
decision on the applicant would result in his removal from Canada), and “any previous delays” (of which
there were none). Moreover, the Board Member was clearly in error in assuming
that he required family financial support to obtain counsel, as he had
previously obtained a legal aid certificate. He was also in error in stating
that the applicant was seeking an indefinite postponement. He was not. It was
open to the Board Member to grant a postponement to a fixed date, preemptory to
the applicant.
[15]
The Panel’s decision to refuse the request to reopen the appeal was
unreasonable. It failed to consider Rule 48(4) or its jurisprudence, and
failed to examine whether the Board Member refusing the adjournment had done
so. Frankly, I am perplexed by the Panel’s statement that the applicant failed
to provide “sufficient persuasive
evidence that the IAD failed to observe a principle of natural justice.” In my view, the failure is obvious on the face of the
decision itself.
[16]
In circumstance such as these where a person appears before the Board without
counsel seeking a postponement, a Member would be well-advised to ask pointed
questions relating to each of the mandatory factors set out in Rule 48 and
then, if the request is to be refused, provide reasons that show that these
responses to those mandatory factors were obtained, considered, and weighed.
[17]
This application must be allowed. The decision to dismiss the
application to reopen is unreasonable because the decision refusing the
postponement of the appeal hearing was a breach of the applicant’s right to
natural justice and a fair hearing because the Board Member failed to consider
and weigh all of the mandatory factors in Rule 48(4).
[18]
No question was proposed to be certified.
[19]
The Certified Tribunal Record contains the Reasons for Sentence
delivered by Mme. Justice Kiteley which was tended by the Minister’s counsel at
the initial Board hearing. Those Reasons are stated to be subject to a
non-publication order to protect the interests of the minor child.
Accordingly, the Court will order that the Certified Tribunal Record filed in this
application be sealed and treated as confidential without a further express
order of the Court.
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