Date: 20031020
Docket: IMM-6343-02
Citation: 2003 FC 1219
Ottawa, Ontario, October 20, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ERKAN OZTURK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated November 12, 2002, wherein the Board determined that the applicant was not a Convention refugee.
[2] Mr. Erkan Ozturk (the "applicant") made a claim for refugee status based on a well-founded fear of religious persecution at the hands of the Sunni Muslims because he is an Alevi. He further requested refugee status on the basis that he is a person in need of protection, claiming he would be subjected to a danger of torture or to a risk to his life or to a risk of cruel and unusual treatment or punishment were he to return to Turkey.
[3] The Board rejected the applicant's claim on the basis that the applicant's testimony was not credible. The applicant does not challenge the credibility findings of the Board but its decision to deny the applicant's adjournment request under section_48 of the Refugee Protection Division Rules, SOR/2002-228 (the "Rules").
[4] Counsel for the applicant requested an adjournment in order to seek a medical evaluation for his client, claiming that the applicant lacked the mental capacity to fully understand the process in which he was involved.
[5] In its oral reasons, the Board gave the following explanation for refusing the applicant's request for an adjournment:
[...] Prior to the hearing counsel asked me for an adjournment on your hearing owing to the fact that he feels that he has had insufficient time to spend with you. He feels that he would like additional time to obtain some more medical information of some sort. I have declined to give you that extension and that is the decision, it doesn't require an explanation but I will give it to you anyhow. You have been in this country for over three years. To me you had ample opportunity to secure and obtain counsel and give instructions to counsel. Only short days before this hearing I received notification from your previous lawyer that she had withdrawn her services. She didn't share the reasons for that with me but they could be many things. It could be the fact that you hadn't paid counsel or that counsel found that she could not get along with you or that you could not get along with her. Nonetheless it is a very short notice for you to fire your lawyer just days before the hearing and to suddenly scramble to obtain another counsel. I find that those actions are more of an indication of somebody who has tried to obtain an intentional delay in a hearing and if rejected [sic] your request for postponement. I rely upon the mandate of this Board to provide fair and timely hearings, which is why your hearing is scheduled this afternoon. [...]
Tribunal Record at 104.
[6] In its written reasons, the Board added the following justifications for its refusal to adjourn. It found that the applicant had not acted diligently in pursuing his claim, his former counsel having had a difficult time getting in touch with him. In addition, it stated that since the applicant had five direct family members who were also making refugee claims, he was informed on the process. The Board further noted that there had been no request for a designated representative.
[7] The respondent raises a preliminary objection based on the failure by the applicant to file his own affidavit based on personal knowledge in support of his application. He submits that this is a fatal flaw and the application should be dismissed for this reason alone. I disagree.
[8] The failure to support an application by an affidavit based on personal knowledge does not result in its automatic dismissal. In the absence of evidence based on personal knowledge, any error asserted must appear on the face of the record (Turcinovica v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 305).
[9] In the case at bar, the pertinent facts upon which the applicant relies clearly appear on the face of the record independently of counsel's affidavit, namely from the Board's reasons for decision and in the transcript of the hearing.
[10] The standard of review to be applied to the exercise of discretion by the Board in granting an adjournment has been considered on many occasions by the Court and it was determined to be reasonableness simpliciter (Ali v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 336; Mangat v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1301).
[11] The applicant submits that the failure for the Board to grant an adjournment constitutes a breach of natural justice or procedural fairness.
[12] First, the Board's oral reasons are based on the assumption that it was the applicant who fired counsel just a few days before the hearing. It inferred that this behaviour was indicative of somebody trying to obtain an intentional delay. However, the affidavit of counsel Ms. Leggett clearly indicates that just a few days before the hearing, she asked the applicant to seek other counsel because she was unable to communicate with him or reach him. Thus, it was unreasonable for the Board to conclude that the applicant was responsible for having to seek new counsel at the last minute.
[13] Furthermore, there is no indication in the Board's reasons that it considered or even acknowledged counsel's concerns with respect to his client's mental health. In my view, an applicant's mental health is of the utmost importance when one is evaluating an applicant's testimony and the credibility of his claim.
[14] A careful reading of the transcript of the hearing confirms that on many occasions the applicant, when asked, was unable to understand the questions, raising a doubt on his capacity to understand the nature of proceedings. If the applicant suffers from diminished mental capacity, his ability to give evidence could be affected as well as his communication skills or memory. Therefore, it was unreasonable for the Board to refuse counsel's request for an adjournment when a medical evaluation could have cast the applicant's testimony in a completely different light. Thus, I agree with the applicant that he was denied procedural fairness.
[15] For these reasons, the application for judicial review is granted and the matter is referred back for redetermination before a differently constituted panel.
ORDER
THIS COURT ORDERS that the application for judicial review is granted and the matter is referred back for redetermination before a differently constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6343-02
STYLE OF CAUSE: ERKAN OZTURK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 14, 2003
REASONS FOR ORDER
AND ORDER BY: TREMBLAY-LAMER, J.
APPEARANCES BY:
Mr. Alex Billingsley For the Applicant
Mr. Tamrat Gebeyehu For the Respondent
SOLICITORS OF RECORD:
Alex Billingsley
Barrister and Solicitor
Cintosun & Associates
100 Adelaide Street West, Suite 408
Toronto, Ontario
M5H 1S3 For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent