Docket: IMM-7194-14
Citation:
2015 FC 1107
Ottawa, Ontario, September 28, 2015
PRESENT: The
Honourable Mr. Justice Barnes
|
BETWEEN:
|
|
SHAFQAT
MUHABBAT ALI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for the judicial review
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”) which declared the Applicant’s claim to refugee protection
abandoned.
[2]
It is common ground that the Applicant sustained
severe and multiple injuries in a motor vehicle accident in late November 2012.
His refugee hearing was scheduled for April 22, 2013. The Applicant’s immigration
consultant requested an adjournment by letter dated April 1, 2013 supported by
a physiotherapist’s report describing in detail the Applicant’s injuries. The
physiotherapist recommended the adjournment based on the Applicant’s pain and
limited tolerances for sitting, standing, and walking. The Board requested
information about when the Applicant would be able to attend for his refugee
hearing. This was answered with a further letter from the consultant sent on
April 9, 2013 advising that the Applicant was scheduled for a surgical
consultation after which better information would be available. Nevertheless,
the consultant offered tentative dates to proceed, all within the following two
months. The Board appears not to have confirmed the adjournment and,
surprisingly, the consultant failed to make an appearance at the hearing on
April 22, 2013. The Board then initiated abandonment proceedings and dismissed
the claim in a brief decision rendered on May 6, 2014. It is that decision that
is the subject of this review.
[3]
The issues raised by the Applicant concern the
Board’s assessment of the evidence relevant to the abandonment finding, for
which the standard of review is reasonableness.
[4]
The quality of Mr. Ali’s representation before
the Board left much to be desired. His consultant was seemingly negligent in
failing to attend before the Board on the scheduled hearing date of April 22,
2013. It appears he simply assumed that his request for an adjournment would be
granted. He also failed to fully address the Board’s request for more medical
information - in particular, as it related to Mr. Ali’s capacity to attend his
refugee hearing. If the consultant was having difficulty in obtaining the
necessary information, he had a professional obligation to inform the Board.
His representation of Mr. Ali during the abandonment hearing was also profoundly
deficient. When the Board asked the consultant if he had anything to say, he
attempted unsuccessfully to introduce hearsay evidence. When that proved
unsuccessful, he declined to make any further submissions. This was inexcusable
and inexplicable in the face of Mr. Ali’s well documented and very severe
accident-related injuries.
[5]
Notwithstanding the above lapses, the Board had
current, detailed and reliable medical information explaining why Mr. Ali could
not attend the scheduled refugee hearing. The primary report was authored by
Mr. Ali’s physiotherapist less than four weeks before the hearing. The report
indicated that Mr. Ali was in pain with limited tolerances for sitting,
standing, and walking. He remained under active treatment. The physiotherapist
indicated that multiple x-ray, MRI, and CT scans were outstanding and he
supported Mr. Ali’s request for an adjournment. The report detailed multiple
fracture injuries to Mr. Ali’s spine including bilateral transverse process
fractures at C7, endplate compression fractures at T3 and T4, a T5 anterior
vertebral body fracture, a T11 comminuted fracture with 50% retropulsion
(pushed backwards), a right T-12 transverse process fracture, transverse
process fractures at L1 and L2, and an L3 oblique vertebral body fracture. All
of these spinal injuries were surgically managed. In addition, Mr. Ali
sustained occipital, scapular and clavicle fractures.
[6]
A further report produced to the Board two weeks
before the scheduled hearing described the recent discovery of a comminuted
displaced fracture of the left talar neck with a poor prognosis for recovery.
At that time, Mr. Ali’s consultant advised the Board that Mr. Ali was to be
assessed by a surgeon in the following two to three weeks. The consultant,
nevertheless, proposed six tentative dates for rescheduling the hearing
beginning on May 16, 2013 and ending on June 12, 2013. All of those dates and
several others later fell away due to the consultant’s intervening serious
health problem requiring liver transplant surgery.
[7]
The Board’s abandonment finding was based on the
Applicant’s supposed failure to provide sufficient evidence to justify his
failure to proceed with the scheduled hearing, or to explain when he would
otherwise be able to do so.
[8]
Having regard to Mr. Ali’s medical history, it
should have been obvious to the Board that he was in no shape to proceed with
the scheduled hearing. Yet, notwithstanding the physiotherapist’s opinion, the
Board, during its abandonment hearing, pressed Mr. Ali to explain or justify
why he had failed to appear. This is confirmed in the following exchange:
PRESIDING MEMBER: Well you’re asking, you’re
under a burden to appear at this hearing. You’re telling me that you were
unable to appear because of a car accident. I would expect you to be able to
provide proof of that.
CLAIMANT: For the truck accident?
PESIDING MEMBER: Yes.
CLAIMANT: Right now I don’t have it.
PRESIDING MEMBER: This is your opportunity
to show why your claim should not be abandoned. And you’re saying that you have
no evidence to explain to me why you were so absent.
CLAIMANT: At this time I don’t have it.
PRESIDING MEMBER: (Inaudible). Do you any
further and are you ready to proceed with the claim today?
CLAIMANT: Yes.
This exchange, among
others in the transcript, is very strange. The Board knew full well Mr. Ali had
sustained severe injuries in a motor vehicle accident and it did not require
any further explanation on that point. The physiotherapist also advised that
Mr. Ali was not then medically fit to attend a hearing. None of the Board’s
questions to Mr. Ali or his consultant addressed the issue that the Board then
found to be determinative – that being the failure by the consultant to produce
a medical opinion about when Mr. Ali would be medically fit to testify, or to
provide an explanation for why that information could not be obtained. In the
absence of any questioning on these issues by the Board, the finding that no
efforts had been made is unsupported. Even those concerns were mitigated
somewhat when the consultant provided early tentative dates to proceed. Nowhere
in the Board’s decision is that evidence addressed. I would add that the
Board’s statement that the Applicant’s medical reports failed to explain how
his medical condition prevented him from appearing mischaracterizes that
evidence. No reasonable assessment of the physiotherapist’s reports could have
left any serious doubt about the Applicant’s incapacities or the need for an
adjournment.
[9]
The consultant’s incompetence should have been
patently obvious to the Board. That, too, was an issue the Board ought to have
addressed in its reasons. Indeed, having regard to the significance of the
decision the Board was required to make, its cursory treatment of the
evidentiary record was entirely inadequate. Refugee abandonment cases are
deserving of a far deeper evidentiary analysis than was afforded by the Board
to Mr. Ali: see Octave v Canada (Citizenship and Immigration) 2015 FC
597 at paras 24-25, 2015 CarswellNat 1496
per Justice Keith Boswell and Guo v Canada (Citizenship and
Immigration) 2015 FC 533 at para 13, 2015
CarswellNat 1354 per Justice George Locke.
[10]
On the basis of the above, I find the Board’s
decision to be unreasonable and it is set aside. This matter is to be
redetermined on the merits by a different decision-maker.
[11]
Neither party proposed a certified question and
no issue of general importance arises on this record.
Email this Content