Date: 20000710
Docket: IMM-2310-99
BETWEEN:
SURENDRA NATH TRIPATHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review, pursuant to leave granted by Order of this Court on April 10, 2000, of a decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Appeal Division"), dated February 26, 1999. By its decision, the Appeal Division dismissed the Appellant"s appeal from a decision of a visa officer refusing the application for permanent residence of the Applicant"s spouse.
[2] On October 31, 1997, the application of the Applicant"s wife for permanent residence in Canada as a member of the family class was rejected by I. Butt, First Secretary, Immigration at the Canadian High Commission in New Delhi, India. Mr. Butt determined that the Applicant was not a member of the family class under section 4(3) of the Immigration Regulations as she entered into marriage primarily for the purpose of gaining admission into Canada as a member of the family class and not with the intention of residing permanently with her spouse.
[3] On the appeal the Appellant alleged that the Appeal Division had committed a breach of natural justice by denying him an adjournment to permit the attendance of two witnesses.
[4] The hearing of the appeal was originally scheduled for November 16, 1998. The hearing did not proceed on that date due to scheduling problems of the Appeal Division. The Appellant had nothing to do with that delay and was ready to proceed, together with two witnesses. The Appeal Division directed the new hearing date to be set on a peremptory basis, following consultation with counsel for the parties. The hearing was set for February 12, 1999.
[5] On January 27, 1999, the agent of the Appellant wrote to the Immigration and Refugee Board, advising of the unavailability of a Mr. Gupta who was to appear as a witness on February 12. The agent indicated the willingness of the Appellant to commence his hearing on February 12 and requested a partial postponement to accommodate the attendance of Mr. Gupta.
[6] On February 12, at the commencement of the hearing of the appeal, the Appellant advised that his second witness, Abdool Shamir Khan, was also unavailable on that date. The Appellant repeated his request for a postponement.
[7] The Appeal Division refused the request for a postponement and referred to the fact that the hearing had been scheduled on a peremptory basis following consultation with the parties.
[8] A decision to grant or refuse a request for a postponement is within the discretion of the Appeal Division; see Immigration Appeal Division Rules, Rule 13. Rule 13(4) sets out several factors to be considered by the Appeal Division when a request for postponement is made, as follows:
| 13(4) The Appeal Division, in determining whether a hearing shall be postponed or adjourned, may take into consideration, where applicable, (a) whether the postponement or adjournment would unreasonably impede the proceeding; (b) the efforts made by the parties to proceed expeditiously; (c) the nature and complexity of the issues relevant to the proceeding; (d) the nature of the evidence to be presented, and the likelihood of causing an injustice to any party by proceeding in the absence of that evidence; (e) counsel's knowledge of, and experience with, similar proceedings; (f) the amount of time already afforded the parties for preparation of the case; (g) the efforts made by the parties to be present at the hearing; (h) the efforts made by the parties to make an application for a postponement or adjournment of the hearing at the earliest opportunity; (i) the number of, and reasons for, any previous postponements or adjournments granted; (j) whether the hearing was set peremptorily; and (k) any other relevant facts. |
| 13(4) Pour déterminer si elle fera droit à une demande de remise ou d'ajournement de l'audience, la section d'appel peut prendre en considération, le cas échéant : a) le fait que la remise ou l'ajournement causera ou non une entrave sérieuse à la procédure; b) les efforts déployés par les parties pour procéder avec célérité; c) la nature et la complexité des questions qui se rapportent à la procédure; d) la nature des éléments de preuve devant être présentés et le risque de causer une injustice à l'une ou l'autre des parties en procédant en l'absence de ces éléments de preuve; e) les connaissances et l'expérience du conseil en ce qui concerne les procédures du même genre; f) le délai déjà accordé aux parties pour la préparation de l'affaire; g) les efforts déployés par les parties pour être présentes à l'audience; h) les efforts déployés par les parties pour demander à la première occasion la remise ou l'ajournement de l'audience; i) le nombre de remises ou d'ajournements antérieurs accordés, ainsi que les motifs les justifiant; j) le fait que l'audience a été ou non fixée de façon péremptoire; k) tout autre fait pertinent. |
[9] The application of this Rule was considered by the Court in Gargano v. Canada (Minister of Citizenship and Immigration) (1994), 25 Imm.L.R. (2d) 292, 85 F.T.R. 49 (F.C.T.D.). In that case, the Court found that a panel, in failing to grant an adjournment in order to allow the applicant the opportunity to retain counsel, had denied him a fair hearing and breached the rules of natural justice.
[10] Rule 13(4)(d) specifically says that the Appeal Division may consider the nature of the evidence to be presented and the likelihood of causing an injustice to the party if that evidence is not presented. Rule 13(4)(j) says that the Appeal Division may also consider whether the hearing was set peremptorily.
[11] In Sidhu v. Canada (Minister of National Review), [1994] F.C.T., No. 2028, A-6979-63 (November 16, 1994), the Federal Court of Appeal held that where a matter has been set for a peremptory hearing, a postponement should be granted only in exceptional circumstances.
[12] I have reviewed the Tribunal Record and the Application records filed by the parties. The issue on the appeal from the decision of the visa officer was his finding as to the genuineness of the Applicant"s marriage. There was no challenge to the legal validity of the marriage and the evidence of Mr. Gupta and Abdool Shamir Khan was sought to be introduced to address the genuineness of the marriage. Even if the hearing had not been set on a peremptory basis, having regard to the nature of the evidence sought to be introduced, it was within the discretion of the Appeal Division to refuse the adjournment.
[13] In the circumstances of this case, I am not convinced that the Appellant suffered any injustice resulting from the unavailability of the evidence of Mr. Gupta and Abdool Shamir Khan. Furthermore, I am satisfied that the Appeal Division properly exercised its discretion in refusing the request for the postponement, having regard to the nature of the evidence sought to be introduced by the Appellant. There were no exceptional circumstances to justify a postponement.
[14] The application for judicial review is dismissed.
[15] Counsel for the Appellant submitted the following question for certification:
| Does a Tribunal err in law in adjourning a matter peremptorily against a party when that party had not previously delayed the proceedings in any way? |
J.F.C.C.
OTTAWA, Ontario
July 10, 2000