Date: 20030127
Docket: IMM-2593-01
Neutral citation: 2003 FCT 84
Toronto, Ontario, Monday the 27th day of January, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
ERNESTO FABIAN DIAS, MARISA SANDRA SOSA DE DIAS,
KEILA JAEL DIAS and DARIO ANDRES DIAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Ernesto Fabian Dias, Mrs. Marisa Sandra Sosa De Dias, Keila Jael Dias and Dario Andres Dias (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated May 8, 2001. The Board's written reasons were dated April 26, 2001. In its decision, the Board determined the Applicants not to be Convention refugees.
[2] The Applicants are citizens of Argentina. Mr. Ernesto Dias, husband of Marisa Sandra Sosa De Dias, was the designated representative of the minor Applicants, Keila Jael Dias and Dario Andres Dias. The Applicants claim to be Convention refugees on the basis of a well founded fear of persecution in Argentina. The Applicants arrived in Canada on September 11, 2000 and claimed Convention refugee status in this country.
[3] On February 21, 2001, preliminary abandonment proceedings were held by the Board since the Applicants had not filed their Personal Information Forms ("PIFs") on time. The Applicants attended, without counsel, and advised the Board that they were in the process of retaining counsel. The notes recorded on the show cause hearing form for the February 21st hearing show that the Applicants were advised about their right to counsel and what constituted counsel. The notes also include reference to Mr. Peter Ivanyi and say "Ivanyi has not yet been granted Legal Aid cert.".
[4] Following the show cause hearing on February 21, 2001, the Board decided to let the Applicants' claim proceed and set a peremptory hearing date for April 9, 2001. The Applicants were advised that the hearing of their Convention refugee claim would proceed on that date.
[5] By letter dated February 23, 2001, Mr. Ivanyi advised the Board that he was in the process of being retained as counsel for the Applicants and since he had a prior court commitment for April 9th, he sought an adjournment of the Applicants' hearing date. He provided six alternate hearing dates. The letter was received by the Board on February 26, 2001. The adjournment request was denied on March 5, 2001, on the basis that the hearing had been scheduled on a peremptory basis and that the right to counsel had been explained to the Applicants on February 21st.
[6] A further adjournment request was made by letter dated March 8, 2001. This request was also denied, for the same reason, that the hearing date had been set on a peremptory basis.
[7] The Applicants appeared before the Board on April 9, 2001. They were in possession of a further letter from their lawyer, Mr. Ivanyi, addressed to the Board and requesting an adjournment. This latest adjournment request was dealt with by the Board at the beginning of the hearing and according to the transcript, the Board indicated that it would take the adjournment request under advisement. A brief adjournment ensued for the Board to consider the request and when the hearing reconvened, the presiding member advised that the hearing would proceed whether the Applicants had counsel available or not. The Board noted that the Applicants had failed to show "persuasive reasons" why the hearing should not proceed. Furthermore, the Board advised that the refugee claims officer, one Mr. McCuaig, was present to assist the Applicants in the presentation of their claim.
[8] The Board heard evidence from the adult Applicants, primarily from the adult male Applicant. Following the presentation of the evidence, including cross examination by the refugee claims officer, the Board determined that the Applicants were not Convention refugees.
[9] The dispositive issue arising from this application for judicial review is whether the Applicants suffered a breach of procedural fairness in consequence of the Board's denial of requests for an adjournment to allow them to be represented by counsel at their Convention refugee determination hearing on April 9, 2001.
[10] The Applicants argue that they have a right to counsel pursuant to sections 30 and 69(1) of the Immigration Act R.S.C. 1985, c. I-2, as amended. In order for this right to be meaningful, a person concerned must have a reasonable opportunity to obtain and instruct counsel. The Applicants argue that the Board breached their rights to retain counsel and to present their case with the benefit of counsel, by improperly narrowing its focus to the fact that a date for the Convention determination hearing had been set on a peremptory basis.
[11] The Applicants, relying on Acquah v. Canada (Minister of Citizenship and Immigration) (1994), 83 F.T.R. 68 say that this is but one factor to be considered by the panel when responding to a request for a postponement. It is not the single or most important factor.
[12] The Respondent, on the other hand, takes the position that the conduct of proceedings before the Board, including accession to a request for a postponement, is a matter wholly within the mandate of the Board. A decision to deny a postponement should withstand judicial intervention. The Respondent relies on Aseervatham v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 254.
[13] I agree with the position taken by the Respondent, and not seriously challenged by the Applicants, that the Board has the right to control its own procedures. However, this is not an absolute right to the exclusion of the right granted the Applicants to retain counsel and to make a full and fair presentation of their case.
[14] In the present case, there is a conflict between these rights. In Acquah, supra, the Court refers to the earlier Federal Court of Appeal decision of Siloch v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76 (F.C.A.), in which Justice Décary set forth a number of factors to be considered by an administrative tribunal in responding to a request for a postponement. These factors are the following:
a) whether the applicant has done everything in her power to be represented by counsel;
b) the number of previous adjournments granted;
c) the length of time for which the adjournment is being sought;
d) the effect on the immigration system;
e) would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry;
f) the fault or blame to be placed on the applicant for not being ready;
g) were any previous adjournments granted on a peremptory basis;
h) any other relevant factors.
[15] In the present case, I find that the Board limited its attention to only one of these factors, that is, the fact that the hearing date of April 9th was set on a peremptory basis. There is no evidence that the Board gave any consideration to the other factors. That was an error in the circumstances of this case and I find that a breach of procedural fairness occurred in relation to the Applicants.
[16] The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for redetermination in accordance with the law. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for redetermination in accordance with the law. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2593-01
STYLE OF CAUSE: ERNESTO FABIAN DIAS, MARISA SANDRA SOSA DE DIAS, KEILA JAEL DIAS and DARIO ANDRES
DIAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JANUARY 16, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: MONDAY, JANUARY 27, 2003
APPEARANCES BY: Mr. Peter Ivanyi
For the Applicants
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Mr. Peter Ivanyi
Rochon, Genova
Barristers & Solicitors
121 Richmond Street West
Suite 903
Toronto, Ontario, M5H 2K1
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030127
Docket: IMM-2593-01
BETWEEN:
ERNESTO FABIAN DIAS, MARISA SANDRA SOSA DE DIAS, KEILA JAEL DIAS and DARIO ANDRES
DIAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER