Date: 20040402
Docket: IMM-3822-03
Citation: 2004 FC 514
BETWEEN:
NADEEM ASLAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a case in which a panel member of the Refugee Protection Division of the Immigration and Refugee Board used procedural rules to declare a claim for refugee protection to be abandoned. Rules of procedure are to be interpreted and to be applied to bring about the most expeditious and least expensive determination of proceedings on their merits. It bears repeating that fundamental rights can never be sacrificed at the altar of administrative efficiency and that the right to a full and fair hearing cannot be compromised (Anand v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 350, 2004 FC 302).
[2] The member, without any colour of right whatsoever, declared that Mr. Aslam had abandoned his claim because he would not proceed to a hearing without his counsel. These are the reasons why I granted Mr. Aslam's application for judicial review and reinstated his claim before the Board.
[3] Mr. Aslam comes from the Punjab in Pakistan. Fearing military reprisals in light of his political activism, he entered Canada at a border crossing south of Montreal and made a claim for refugee status. Within a week he moved to the Toronto area and then asked for a change of venue to that city. This application was denied. Although not directly before me, I must say that decision at first glance seems capricious when compared to the practice of this Court in determining the appropriate venue of a hearing.
[4] Approximately three weeks before 25 April 2003, the date of the scheduled hearing of Mr. Aslam's application on the merits, his immigration consultant informed him that he would be unable to assist him as he had to go to India due to a family emergency. With the help of friends, Mr. Aslam made enquiries in Montreal and secured an appointment with his current counsel Mr. Istvanffy, who accepted a mandate on 16 April but pointed out that he already had another case scheduled for 25 April. The following day, Mr. Istvanffy faxed the Board and asked for a postponement on the basis that he had another hearing at the same time. He even identified the case.
[5] Mr. Istvanffy and Mr. Aslam were only informed the day before the hearing that the request for the postponement was denied. No reasons were given. Both of them appeared before the panel member who insisted that Mr. Aslam had to be ready to proceed on the date fixed by the Board. As Mr. Istvanffy was obliged to respect his previous commitment he could not stay. Mr. Aslam said he needed a lawyer and would not proceed without one. His case was declared to be abandoned.
[6] Mr. Aslam never abandoned his claim. To abandon is to give up completely, or before completion; to forsake, and abandonment in this context is more akin to a dismissal for want of prosecution.
[7] Mr. Aslam may or may not be a refugee entitled to international protection. That is an open question until the Board makes a final determination. Until then, he is entitled to argue that he is a Convention refugee, or a person otherwise in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Are we to send Mr. Aslam back to his country when he may well have a well-founded fear of persecution and be in danger of torture, cruel or unusual punishment or death simply because his immigration consultant had to abandon him and because his new lawyer was already booked?
[8] In the recent case of Anand, supra, the Court held that since the matter had only come up for the first time on the merits and that there was absolutely no indication whatsoever of an abuse of process, the refusal to grant a postponement was unreasonable.
There was no evidence that Mr. Anand was abandoning his claim, quite the contrary. There was no pattern of abuse of process. This was his first request for a postponement. The refusal to grant the postponement was unreasonable. In Mangat v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1301 Gibson J. said:
...The intention of the applicant to proceed was unquestionable. Here, the applicant's questioning of the reliability of his counsel developed over a period of time, only culminating after the notice of the hearing had been received. Here, there had been no earlier adjournment. Likewise here, the CRDD did not enquire as to the length of the adjournment being sought nor offer the applicant a short adjournment to enable new counsel to become familiar with the applicant and the facts of the applicant's claim, and to further consider joinder. As in Siloch, there was no indication here that a short adjournment would affect the immigration system or needlessly delay, impede or paralyse the conduct of this particular claim, thus bringing into play subsection 69(6) of the Act. As in Siloch, the impact of the denial of the adjournment here was to deprive the applicant of his right to a fair hearing.
[9] Counsel for the respondent raised the point that the right to counsel is not absolute, but must be considered in context. One cannot simply hire a busy lawyer knowing full well that the lawyer won't be able to represent a party at a scheduled hearing. Nevertheless, in the case at hand, the Board failed to observe the principles of natural justice and procedural fairness by sacrificing the right to a full and fair hearing in favour of administrative efficiency, and by sitting on the request for a postponement for a week.
[10] Counsel for the respondent also submitted that in light of Dr. Q. v. College of Physicians and Surgeons of British Columbia 2003 S.C.C. 19, the standard of review ought to be patent unreasonableness rather than reasonableness simpliciter. (See also: Jaber c. Canada (Ministre de la Citoyenneté et de l'Immigration) [2004] A.C.F. no. 487) On the contrary, in my view, procedural fairness is a question of law. Under Section 18.1 (4) of the Federal Courts Act, R.S.C. 1985, ch. F-7 as amended, this Court may grant relief in an application for judicial review if the board in question "failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe". Dr. Q., supra, was considered by the Federal Court of Appeal in Ha v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 174. That case dealt with the procedural fairness required by a visa officer in conjunction with hearing an application for permanent residence in Canada. Sexton J.A., speaking for the Court, was faced with the visa officer's refusal to permit the applicant's counsel to attend the hearing. In determining the standard of review, Sexton J.A. took into account Dr. Q. as well as the later decision of the Supreme Court of Canada in Canadian Union of Public Employees v. Ontario( Minister of Labour), [2003] S.C.J. No. 28 which differentiated the standard of review to be applied to the ultimate decision as opposed to the procedural framework in which the decision is made. In CUPE, Binnie J., noted that procedural fairness goes to the manner in which the decision is made, while standards of review are to be applied to the end product of the deliberations. Consequently, Sexton J.A. concluded that the pragmatic and functional approach of judicial review need not be applied to questions of procedural fairness.
[11] Following the CUPE decision, it was held in Ha, supra, that procedural questions of fairness are questions of law and the standard of review is correctness. MacTavish J. applied Ha in Mani v. Canada (Minister of Citizenship and Immigration), [2004] FC 376 and held on the standard of correctness that the board in that case was wrong to conclude that Mr. Mani had abandoned his claim for refugee status. The same reasoning applies here.
[12] The law is stated by LeDain J. in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643. He said at page 661 "the right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have."
[13] Mr. Aslam is entitled to another hearing.
"Sean Harrington"
Judge
Ottawa, Ontario
April 2, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3822-03
STYLE OF CAUSE: NADEEM ASLAM
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MARCH 25, 2004
REASONS FOR ORDER : HARRINGTON J.
APPEARANCES:
Stewart Istvanffy FOR APPLICANT
Marie-Claude Demers FOR RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General for Canada