Date: 20050209
Docket: IMM-5257-03
Citation: 2005 FC 211
BETWEEN:
FAZLI RAMADANI
MIRADIJE RAMADANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] These are my reasons for allowing, from the bench, the applicants' application for judicial review. On November 10, 2003, the Refugee Protection Division of the Immigration and Refugee Board (RPD) declared the applicants' claim for refugee protection to be abandoned.
[2] The applicants are husband and wife and citizens of the former Yugoslavia. They arrived in Canada on March 30, 2003 and promptly made claims for refugee status. The claims were referred to the RPD on April 10, 2003, and on that day, each of them was asked to complete a personal information form (PIF). The PIFs were to be submitted on or before May 8, 2003.
[3] Unable to speak English, the applicants could not complete the PIFs on their own and sought the assistance of a lawyer who had been recommended to them because of his previous work with Albanian refugees and his ability to communicate in Serbian (the applicants speak Croatian). The applicants claim that they met with the lawyer 20 days before the PIFs were due and that he assured them that everything would be looked after. The completed PIFs were signed on May 21, 2003 and received by the RPD on May 22nd - 14 days beyond the due date. No request was made to the RPD for an extension of time within which to submit the PIFs.
[4] On May 22, 2003, the RPD issued a notice to appear which referred to the applicants' failure to provide the completed PIFs within the 28-day period and indicated that the applicants were required to appear before the RPD, on June 24, 2003, to provide an explanation for this failure. The notice also stated that they had a right to be represented by counsel at the hearing. On May 26th, their lawyer faxed a note to the RPD advising that he had been retained by the applicants but had not yet received permission from legal aid to go beyond preparation of an opinion letter. He further advised that if he got permission to proceed, June 24th was not a suitable date for him. He indicated his availability for June 27, 30, July 2, 3, 4, 14, 15 and 16.
[5] The RPD considered the noted request and on May 30th dismissed it. The notation in the request record for dismissal states: "If counsel is not able to attend, he should appoint a replacement". The request record also contains a notation that "counsel is to be advised of the decision to dismiss the request for an adjournment". There is no indication that the applicants were aware of counsel's request or of the refusal.
[6] On June 16th, the applicants received a note from counsel enclosing the notice to appear and advising them that he had not yet received authorization from legal aid. He further advised that he could not appear on June 24th because of two court matters scheduled on that day in Brampton. He instructed the applicants to appear and request an adjournment to a date when he was available and had received permission from legal aid.
[7] The applicants attended on June 24th and submitted counsel's note to the RPD. The hearing proceeded as scheduled. The RPD found that the applicants had not done everything necessary to fulfill their obligations with respect to the May 8, 2003 deadline for the submission of their completed PIFs. Although the RPD found the actions of counsel to be questionable - failing to request an extension of time within which to submit the PIFs, failing to submit the PIFs within the allotted time, failing to provide an explanation to the RPD as to why the PIFs were submitted late - the RPD concluded that having a lawyer does not remove the obligation on the applicants to submit their PIFs by the due date. In the absence of an acceptable explanation for failing to submit the PIFs on time, the RPD declared the applicants' claims to have been abandoned.
[8] At the hearing of this application, the applicants allege a breach of natural justice on two bases. They submit that the request for an adjournment was not adequately considered and that the refusal to grant an adjournment effectively denied them their right to counsel. Other grounds relied upon in the written submissions were (properly) abandoned.
[9] In my view, the applicants are entitled to succeed on both of their arguments. With respect to their request for an adjournment not being properly considered, the only factor taken into account by the RPD was that the applicants were not in receipt of legal aid. The board observed that there was no guarantee that counsel would appear on their behalf even if an adjournment were granted to one of the dates specified by counsel. It is not disputed that this was an appropriate factor to be considered.
[10] However, the RPD did not consider any of the other factors identified by the Federal Court of Appeal in Siloch v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76 (F.C.A.) - whether the applicants had done everything in their power to be represented by counsel at the hearing; the number of previous adjournments granted (none in this case); the fault or blame to be placed on the applicants for not being ready; whether any previous adjournments were granted on a peremptory basis. The decision not to adjourn affected the applicants' ability to be represented by counsel at the show cause hearing. The consequences of an abandonment decision are not insignificant. It terminates a claim without consideration of its merits; a conditional removal order becomes effective; and, a claimant is barred from seeking refugee protection in the future.
[11] In my view, the RPD must, at a minimum, indicate that it has had regard to the relevant factors enumerated in Siloch, supra, before arriving at a negative decision. Its failure to do so constitutes a reviewable error. I note that my colleagues Madam Justice Heneghan and Mr. Justice O'Keefe arrived at a similar conclusion in Dias v. Canada (Minister of Citizenship and Immigration) 2003 FC 84 and Sandy v. Canada (Minister of Citizenship and Immigration) 2004 FC 1468.
[12] Regarding the allegation that the refusal amounts to a denial of a right to counsel, I am persuaded that the circumstances in this matter fall within the reasoning of the Federal Court of Appeal in DeSousa v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 31 (F.C.A.) and Mr. Justice Rothstein, then of the Trial Division as it was then constituted, in Afrane v. Canada (Minister of Employment and Immigration) (1993), 64 F.T.R. 1 (T.D.). Broadly speaking, in those cases, the claimants were advised by counsel (in letters given to them shortly before the hearing or on the day of the hearing) that counsel would be unavailable for the hearing. The claimants presented these letters to the board at their respective hearings in support of their requests for adjournment. In each case, the requests were denied and the hearings proceeded without counsel. The decisions were subsequently quashed by the reviewing Courts on the basis that the claimants were denied their right to counsel and that the denial constituted a breach of procedural fairness and the principles of natural justice.
[13] I would not go so far as to say that in all cases the mere production of a letter from counsel requesting an adjournment gives rise to a right to an adjournment. The RPD is the master of its own house and has the right to control its proceedings. However, it must, in its deliberations, weigh the factors militating in favour of and against the granting of the requested adjournment. That did not happen here. It is evident from the transcript that the applicants required representation, that they wished to be represented, and that they wanted to obtain representation through legal aid or otherwise. While the respondent's counsel valiantly tried to defend the decision by providing various reasons as to why the RPD could have decided as it did, as I have stated in other matters, the explanations for the decision must somehow be found to exist within the reasons of the decision maker. The manner in which the RPD approached this case amounted to a denial of the right to counsel.
[14] Counsel did not suggest a question for certification and none arises on these facts.
"Carolyn Layden-Stevenson"
J.F.C.
Toronto, Ontario
February 9th, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5257-03
STYLE OF CAUSE: FAZLI RAMADANI, MIRADIJE RAMADANI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 9, 2005
REASONS FOR
ORDER BY: LAYDEN-STEVENSON J.
DATED: FEBRUARY 9, 2005
APPEARANCES BY:
Jack Martin FOR THE APPLICANTS
Bari Crackower FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jack Martin
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT