Date: 20040210
Docket: IMM-1236-03
Citation: 2004 FC 216
Toronto, Ontario, February 10th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
CHARLENE CLAIRMONT and
ELIJAH EHOIZE ESPINOZA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant claims refugee protection as a spousal abuse survivor from Trinidad and Tobago.
[2] The Applicant first personally appeared before the IRB on October 30, 2002 at which time the hearing of her refugee claim was scheduled for December 11, 2002; she was advised she had the right to retain counsel. By letter dated November 20, 2002, a lawyer whom the Applicant consulted wrote to the IRB and asked that the hearing be adjourned to certain dates in February/March 2002 as, assuming he would be retained on legal aid, he was unable to appear on December 11, 2002.
[3] By telephone message to the lawyer from an IRB administrator on December 10, 2002, the lawyer was advised that his application for an adjournment was denied as the hearing was "peremptory".
[4] In my opinion, the failure of the IRB to grant the adjournment request is a breach of due process. On the record, there is absolutely no evidence that the Applicant was guilty of causing any delay in her application proceeding to hearing, and there is no evidence of any reason for why the hearing date should have been considered peremptory. It is important to note that until the day before the hearing, the Applicant was provided with no notice that the matter was considered peremptory, thereby forcing her to proceed with her hearing without the assistance and guidance of counsel. In my opinion, the IRB's conduct and in dealing with the Applicant's right to counsel was entirely unwarranted and unreasonable.
ORDER
THIS COURT ORDERS that
Accordingly, I set aside the IRB's decision and refer the matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1236-03
STYLE OF CAUSE: CHARLENE CLAIRMONT and
ELIJAH EHOIZE ESPINOZA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 10, 2004
REASONS FOR ORDER
AND ORDER BY : CAMPBELL J.
DATED: FEBRUARY 10, 2004
APPEARANCES:
Mr. Robert Young
FOR APPLICANTS
Ms. Alexis Singer
FOR RESPONDENT
SOLICITORS OF RECORD:
Sullivan, Festeryga
Barrister and Solicitor
Hamilton, Ontario
FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040210
Docket: IMM-1236-03
BETWEEN:
CHARLENE CLAIRMONT and
ELIJAH EHOIZE ESPINOZA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER