Date: 1998
Docket: IMM-4854-96
Between:
ALEXANDRU RUS,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision dated December 5, 1996 by the Convention Refugee Determination Division of the Immigration and Refugee Board (the Refugee Division) that dismissed an application to reopen filed by the applicant on November 12, 1996 pursuant to Rule 28 of the Convention Refugee Determination Division Rules.
[2] In its decision dated December 5, 1996, the Refugee Division reproduced, [translation] "with errors and omissions", paragraphs 1 through 11 of the motion to reopen, including the facts on which the motion was based:
[TRANSLATION]
1. The case was set for hearing (for the first time) at 1:00 p.m. on October 3, 1996;
2. At about 11:35 p.m. on September 30, 1996, counsel for the claimant sent a fax to the IRB in which she applied for a postponement due to a scheduling conflict and explained that she was representing another client whose case had been set for the same date and time;
3. At about 8:10 a.m. on Thursday, October 3, 1996, Marc Fourneau called counsel for the claimant to inform her that the application for postponement had been denied.
4. When counsel for the claimant complained about the time that had elapsed between the application for postponement and the response, Mr. Fourneau told her that he had just received the response that very morning.
5. On October 3, 1996, counsel for the claimant appeared before the Board to explain that she was unable to proceed because her application for postponement had gone unanswered, because she had understood it to be granted and because she had accordingly prepared the case that was to proceed.
6. To her great surprise, Régis Dion told counsel for the claimant that he had given the response on Tuesday, October 1, 1996.
7. On October 3, 1996, the members, without asking the claimant if he was willing to proceed without counsel, initiated abandonment proceedings, and a new date was set for him to explain the situation.
7. Counsel for the claimant tried to explain that the new date was pointless, since there was no other explanation to make, but the members, without giving reasons, set the new date for October 28, 1996.
8. On October 28, 1996, counsel for the claimant gave the same explanations and stated that both she and her client were ready to proceed;
9. Even though the parties were ready to proceed, the members opened the abandonment proceedings;
10. On November 1, 1996, the Board gave a decision criticizing the claimant for failing to give valid explanations.
11. The said decision is wrong for the following reasons:
- the application for postponement was made 3 days before the hearing date, but counsel for the claimant received no response until the hearing date;
- on October 3, 1996, the Board did not ask the applicant if he was willing to proceed without representation;
- on October 28, 1996, both the claimant and his counsel were ready to proceed, but the members refused, without giving reasons, to hear the case;
- on October 3, 1996, the case was before the Board for the first time. . . .
[3] In support of this application for judicial review, the applicant submits that he was denied natural justice as a result essentially of the negligence of his former counsel, and that negligence is based on the very facts relied on by said counsel in applying for postponement of the original hearing on October 3, 1996. It should be mentioned at the outset that although he was aware of the facts in question on October 3, 1996, the applicant did not consider it appropriate to drop his counsel, but elected on the contrary to continue to be represented by her at the hearing on October 28, 1996 regarding the question of abandonment of the refugee claim. The instant application does not directly concern the denial of an adjournment on October 3, 1996 on the basis that the applicant was denied natural justice, but the decision of December 5, 1996 dismissing the application to reopen filed by the applicant on November 12, 1996. Thus, to be successful, the applicant must prove that he was denied natural justice at the abandonment hearing itself, namely that of October 28, 1996. In Longia v. Canada (M.E.I.), [1990] 3 F.C. 288, the Federal Court of Appeal noted that the tribunal (the Immigration Appeal Board in that case) had no inherent or continuing jurisdiction to reopen a redetermination hearing of an application for refugee status. The Court of Appeal added the following at page 293:
. . . Indeed, it is now firmly established, in the jurisprudence of this Court, that if the hearing of an application has not been held according to the rules of natural justice, the Board may look at its decision as a nullity and reconsider the matter (see Gill v. Canada (Minister of Employment and Immigration) [[1987] 2 F.C. 425 (C.A.)], Singh [v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 10 (F.C.A.)] and Nabiye [Canada (Minister of Employment and Immigration) v. Nabiye, [1989] 3 F.C. 424 (C.A.)]. . .).
[4] Then, in Shirwa v. Canada (M.E.I.), [1994] 2 F.C. 51, at page 60, Mr. Justice Denault wrote the following about the incompetence of counsel in the context of a refugee hearing:
While each of the foregoing cases involve [sic] a different type of misconduct on the part of counsel, it seems clear that the incompetence of counsel in the context of a refugee hearing provides grounds for review of the tribunal's decision on the basis of a breach of natural justice. The criteria for reviewing such a decision are not as clear, but it is possible to derive a number of principles from these cases. In a situation where through no fault of the applicant the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred (Mathon [v. Canada (Minister of Employment and Immigration) (1988), 38 Admin. L.R. 193 (F.C.T.D.)]).
In other circumstances where a hearing does occur, the decision can only be reviewed in "extraordinary circumstances", where there is sufficient evidence to establish the "exact dimensions of the problem" and where the review is based on a "precise factual foundation." These latter limitations are necessary, in my opinion, to heed the concerns expressed by Justices MacGuigan and Rothstein that general dissatisfaction with the quality of representation freely chosen by the applicant should not provide grounds for judicial review of a negative decision. However, where the incompetence or negligence of the applicant's representative is sufficiently specific and clearly supported by the evidence such negligence or incompetence is inherently prejudicial to the applicant and will warrant overturning the decision, notwithstanding the lack of bad faith or absence of a failure to do anything on the part of the tribunal.
(Emphasis added.)
[5] In the case at bar, no denial of natural justice has been proven in respect of the abandonment hearing on October 28, 1996. As mentioned supra, the applicant elected at that hearing to be represented by the same counsel who had represented him at the adjournment hearing on October 3, 1996, and both of them had a full opportunity to give any reasons that might justify a finding that the refugee claim had not been abandoned. The reasons given by the applicant and his counsel were not found to be sufficient, and the Refugee Division found that the claim had been abandoned. Since that decision involved no breach of natural justice, it could only be the subject of an application to this Court for judicial review. No such application has been made, so the decision that the claim was abandoned remains valid and cannot be rendered invalid by reopening the refugee hearing.
[6] For these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
The
Certified true translation
Stephen Balogh
Date: 1998
Docket: IMM-4854-96
Ottawa, Ontario, the day of 1998
Present: The Honourable Mr. Justice Pinard
Between:
ALEXANDRU RUS,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is dismissed.
JUDGE
Certified true translation
Stephen Balogh