Date: 20000818
Docket: IMM-4424-99
BETWEEN:
BALJINDER SINGH MANGAT
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that term in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 24th of August, 1999.
[2] The applicant is a citizen of India and a Sikh from the state of Punjab. He bases his claim to a well-founded fear of persecution if required to return to India on his political opinion or perceived political opinion. His family members were supporters of the Akali Dal Mann Party. He claimed to have personally experienced arrests, detentions and beatings by reason of his family"s political involvement and, more particularly, by reason of the fact that his elder brother was perceived by authorities to be a Sikh militant.
[3] The applicant fled India and arrived in Canada on the 21st of October, 1998. He made his claim to refugee status on the same day.
[4] On or shortly after the 26th of April, 1999, the applicant was notified that his hearing before the CRDD was scheduled for the 30th of June, 1999. The applicant had developed a growing dissatisfaction for counsel that he had retained to represent him before the CRDD. On the 28th of June, the applicant retained new counsel. The next day, the day before the scheduled hearing, the applicant"s new counsel wrote to the Immigration and Refugee Board indicating that he would be unavailable to proceed on such short notice and that, in any event, he would be appearing before the Federal Court on the 30th of June. Counsel also indicated that consideration was being given to joinder of the applicant"s refugee claim with that of his older brother. Finally, counsel noted that the applicant would appear as scheduled for his hearing and that the applicant had been advised that it would be at the discretion of the CRDD to determine whether an adjournment would be granted. The CRDD refused to grant an adjournment as impliedly requested by counsel.
[5] At the opening of the applicant"s hearing on the 30th of June, as forecasted, the applicant appeared without counsel. The applicant again requested an adjournment. The transcript of the hearing discloses the following exchange with the applicant testifying through an interpreter:
| BY MEMBER (to refugee claimant) |
| - Sorry. Sir, you were informed two months ago, at the end of April, that your hearing would take place today. You had chosen [the applicant"s first counsel] to represent you several months ago. |
| A. Yes. |
| Q. Still, you wait until the last minute to change counsel. Why? |
| A. Because nobody was telling me properly when I was phoning. |
| Q. What? |
| A. Nobody was listening to me properly when I was talking t them. |
| BY PRESIDING MEMBER (to refugee claimant) |
| Q. Who"s nobody? |
| A. When I wanted to say something, nobody was listening to me in a proper way. |
| BY MEMBER (to refugee claimant) |
| Q. Who are you talking about? Are you talking about [the applicant"s first counsel]? |
| A. Yes. |
| Q. So please tell it so we can understand you. When did you retain the services of [your first counsel]? |
| A. In October. |
| Q. This is about eight months ago? |
| A. Yes. |
| Q. It took eight months to make up your mind? |
| A. Yes, I did not know before that being a Punjabi I thought that he would listen to me, but afterwards he changed. |
| Q. So when did he change? |
| A. Before the hearing, when I wanted to hear something, when I wanted to tell something. |
| Q. When was that? |
| A. This is 15-20 days before. |
| Q. 15-20 days ago. So why didn"t you change lawyers 20 days ago? |
| A. I was two sided about changing this. |
| - There"s another problem: you say you want to be heard with your brother. |
| A. Yes, when I met [applicant"s new counsel], he said that we could have a hearing together. |
| - The thing is that your brother has been in Canada for three or four months. |
| A. Yes. |
| - When you received your Notice to appear, in April, your brother was already in Canada and had already claimed refugee status. |
| A. Yes. |
| - You had plenty of time, since the end of April, to join your claim with your brother"s. I don"t understand why this was never done. |
| A. I am agreeing that is my mistake that I didn"t change before. |
| - Okay. You understand that you have a responsibility, as my colleague said, in that matter. |
| A. What are you saying? |
| BY PRESIDING MEMBER (to refugee claimant) |
| - You are responsible for your claim, sir. You are ultimately responsible for your claim. |
| A. Yes, I understand. |
| - You were with [applicant"s first counsel] for eight months, your brother"s been here for three to four months, you don"t ask your claims to be joined; 48 hours before the hearing, you changed representative, who"s unavailable today, and then coincidentally asks that your claim be joined with your brother"s. |
| Q. Do you think you"re acting in a responsible fashion? |
| A. Yes, as much as I know, and I accept blame that I didn"t change it before.2 |
[6] The CRDD again rejected the request for an adjournment. In the result, the applicant refused to testify at his hearing.
[7] The CRDD rejected the applicant"s claim. It wrote:
| Having read carefully the claimant"s answer to question 37 in his PIF, the panel concludes that his narrative lacks credibility. |
In support of this conclusion, the CRDD made reference, in what counsel for the applicant urged was a selective way, to documentary evidence that was either directly before it or listed in an index of documentary evidence that was before it.
[8] Counsel for the applicant, in the applicant"s memorandum of fact and law, described the issues on this application for judicial review in the following terms:
| Was the Applicant denied procedural fairness when the [CRDD] declined to grant an adjournment and proceeded with the hearing in the absence of counsel for the applicant? |
| Did the [CRDD] err in its application of [the test for Convention refugee status] and its assessment of the applicant"s credibility? |
[9] On the first ground alone, I am satisfied that this application for judicial review must be allowed.
[10] In its reasons for decision, the CRDD addressed the denial of an adjournment in the following terms:
| Firstly, the panel will analyse the arguments put forth by the claimant to request a postponement and secondly, the merits of the claim. |
| The arguments and explanations offered by the claimant regarding his request for postponement are unsatisfactory. The claimant was notified of his hearing by a notice to appear mailed to him on April 26, 1999. The claimant became dissatisfied with his former counsel twenty days before the hearing but only retained the services of a new counsel, knowing he was unavailable, two days before the hearing. In retaining the services of a lawyer two days before the hearing, the claimant must assume the inherent risk that such lawyer is either unavailable or not adequately prepared for the hearing. |
| Consequently, the panel concludes that the claimant had ulterior motives in changing counsel two days before the hearing. In so doing, he attempted to unduly delay the holding of the hearing set for June 30, 1999. |
| Furthermore, the claimant refused to testify at the hearing. |
| In light of the aforementioned facts, the panel feels justified in proceeding with the hearing of June 30, 1999, having respected all the principles of natural justice. |
| The Federal Court, in the Esin v. M.C.I. case held: |
| The applicant had an obligation when changing solicitors at the last minute to choose someone who was available, or would make himself or herself available on the day of the hearing. The hearing date was known many months in advance. The preparation conference for that hearing had already been held (with her former solicitor attending). It was entirely proper for the Board to refuse an adjournment in these circumstances.3 |
[11] Subsection 69.(6) of the Immigration Act limits the circumstances where the CRDD may adjourn a proceeding before it. That subsection reads as follows:
| (6) The Refugee Division shall not adjourn any proceedings before it, unless it is satisfied that an adjournment would not unreasonably impede the proceedings. |
(6) La section du statut ne peut ajourner une procédure que si elle est convaincue que l'ajournement ne causera pas d'entrave sérieuse. |
[12] For the purpose of a determination in respect of a requested adjournment, or in applying subsection 69(6), Rule 13(4) of the Convention Refugee Determination Division Rules4 is instructive. It provides as follows:
| (4) The Refugee Division, in determining whether a hearing shall be postponed, or in determining pursuant to subsection 69(6) of the Act whether an adjournment of a hearing would unreasonably impede the proceeding, may take into consideration, where applicable, (a) the efforts made by the parties to proceed expeditiously; (b) the nature and complexity of the issues relevant to the proceeding; (c) the nature of the evidence to be presented, and the likelihood of causing an injustice to any party by proceeding in the absence of the evidence; (d) counsel's knowledge of, and experience with, similar proceedings; (e) the amount of time already afforded the parties for preparation of the case; (f) the efforts made by the parties to be present at the hearing; (g) the efforts made by the parties to make an application for a postponement or adjournment of the hearing at the earliest opportunity; (h) the number of, and reasons for, any previous postponements or adjournments granted; (i) whether the hearing was set peremptorily; and (j) any other relevant facts. |
| (4) Pour déterminer si elle fera droit à une demande de remise de l'audience ou pour déterminer, conformément au paragraphe 69(6) de la Loi, si l'ajournement de l'audience causera ou non une entrave sérieuse à la procédure, la section du statut peut prendre en considération, le cas échéant : a) les efforts déployés par les parties pour procéder avec célérité; b) la nature et la complexité des questions qui se rapportent à la procédure; c) 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; d) les connaissances et l'expérience du conseil en ce qui concerne les procédures du même genre; e) le délai déjà accordé aux parties pour la préparation de l'affaire; f) les efforts déployés par les parties pour être présentes à l'audience; g) les efforts déployés par les parties pour demander à la première occasion la remise ou l'ajournement de l'audience; h) le nombre de remises ou d'ajournements antérieurs accordés, ainsi que les motifs les justifiant; i) le fait que l'audience a été ou non fixée de façon péremptoire; j) tout autre fait pertinent. |
The factors enumerated in subsection 13(4) of the Rules run parallel to factors identified as relevant to an adjudicator"s exercise of discretion to grant an adjournment of proceedings before him or her that are enumerated in Siloch v. Canada (Minister of Employment and Immigration)5.
[13] In Siloch, Mr. Justice Décary wrote:
| In the circumstances of this case, where the intention of the applicant to proceed was unquestionable, where the applicant had no reason to question the reliability of her counsel until the moment he did not show up, where the only adjournment granted in the case so far had been to allow the applicant to appoint counsel, where no fault or blame could be put on the applicant for not being ready, where the Adjudicator took into consideration a factor unknown to the applicant and therefore irrelevant as far as she was concerned, i.e. the actual experience of the Adjudicator that very same day in another case and the history of poor behaviour of the counsel, where the Adjudicator did not enquire as to the length of the adjournment being sought nor offer the applicant a short adjournment to enable her to find new counsel; and where there is absolutely no indication that a short adjournment would affect the immigration system or needlessly delay, impede or paralyse the conduct of this particular inquiry, the Adjudicator in denying the adjournment...deprived the applicant of her right to a fair hearing. It is clear, when one reads the transcript, that the applicant was being penalized by the Adjudicator for the previous poor behaviour of her counsel, of which she was not aware and which she had no reason to suspect. Simply put, the adjournment was refused because the applicant had the misfortune, the first time around, of retaining irresponsible counsel and the additional misfortune of facing an Adjudicator who had a long-standing dislike for that counsel. |
Much of the foregoing could be said here. 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.
[14] In Ahamad v. Canada (Minister of Citizenship and Immigration)6 Mr. Justice Lemieux had under judicial review a decision of the CRDD determining the applicant"s refugee claim abandoned, a discretionary decision not unlike a decision to deny an adjournment, assuming that the strictures of subsection 69(4) of the Immigration Act do not come into play to eliminate the CRDD"s discretion regarding an adjournment. Mr. Justice Lemieux concluded that the standard of review of such a discretionary decision is reasonableness simpliciter . I am satisfied that that is the appropriate standard of review here, given that the CRDD did not conclude, at least according to its reasons, that subsection 69(4) eliminated its discretion with regard to the request that was here before it for an adjournment.
[15] In paragraph 31 of Ahamad Mr. Justice Lemieux wrote:
| Applying the standard expressed in Baker and Southam, supra, I am of the view the CRDD"s decision the applicant had abandoned his refugee claim was an unreasonable decision and cannot stand because: (1) there was no consideration of relevant factors; (2) the evidence was ignored; (3) the reasons given in support of abandonment cannot stand up to a somewhat probing examination. |
[16] I am satisfied that exactly the same could be said here. There is no indication on the face of the reasons of the CRDD that it considered relevant factors such as those enumerated in Rule 13(4) of the Convention Refugee Determination Division Rules or in Siloch (supra.). Similarly, I can only conclude that much of the testimony before the CRDD, quoted earlier in these reasons from the transcript of the hearing before it, was ignored. Despite the difficulties evident from the transcript by reason of the fact that the applicant was testifying through an interpreter, it is evident that the applicant did not become dissatisfied with his first counsel 20 days before the hearing. His dissatisfaction, which had apparently been troubling him for some time, and which would appear to have been reasonably well founded, only came to a head at that time. At that time, the applicant was 23 years of age; evidently his ability in an official language of Canada was either limited or nonexistent; he was struggling to come to grips with the intricacies of an unfamiliar refugee determination regime and with the culture shock that could reasonably be expected to have beset him from the time of his arrival in Canada. In such circumstances, for the applicant to have taken between two and three weeks to identify new counsel, could hardly have been considered unreasonable. The CRDD gives no indication of how it could conclude, on the basis of the applicant"s testimony and his forthright apology for the impact of the late request for an adjournment, that he had "ulterior motives" in switching counsel. In short, I conclude that the reasons given by the CRDD in support of the decision not to grant an adjournment "...cannot stand up to a somewhat probing examination."
[17] Subsection 69(4) of the Immigration Act is very specific in prescribing the circumstances in which the CRDD may not grant an adjournment. I conclude that it can be extrapolated from that subsection that, against a "...large and liberal interpretation of the values underlying [the Immigration Act ]..." and the "..humanitarian and compassionate values in Canadian society..." as referred to by Madame Justice L"Heureux-Dubé in Baker v. Canada (Minister of Citizenship and Immigration)7, where the granting of an adjournment is not proscribed by subsection 69(4), the CRDD should be generous in the exercise of its discretion to grant adjournments in circumstances where there is no evidence of bad faith on the part of the party requesting an adjournment and I am satisfied that no bad faith is evident here on the testimony and material that was before the CRDD. This is particularly the case given the potentially immense consequences of a refusal to grant an adjournment in a case such as this.
[18] In the result, this application for judicial review will be allowed.
[19] Also in the result, it is unnecessary to turn to the second issue raised by the applicant, namely, the assessment of the applicant"s credibility and the concern expressed before me on behalf of the applicant that, in that assessment, the CRDD relied selectively on the documentary evidence before it when there was substantial documentary evidence to support the applicant"s contention that his fear of persecution if he were to be returned to India was well founded. I will simply make reference to the following passage from paragraph 17 of the reasons of Mr. Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)8:
| Thus, a blanket statement that the agency [here the CRDD] has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency"s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. |
Counsel for the applicant urged that such was the case here. Were it necessary for me to do so, I would find her submission compelling.
[20] Counsel for the respondent will have ten days from the date of the issuance of these reasons to file representations on certification of a question, having first served them on counsel for the applicant. Counsel for the applicant will have ten days thereafter within which to serve and file responding representations. Counsel for the respondent may, within three working days of the service on her of the respondent"s response, file any reply.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
August 18, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4424-99 |
| STYLE OF CAUSE: BALJINDER SINGH MANGAT |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, AUGUST 15, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: FRIDAY, AUGUST 18, 2000
| APPEARANCES BY: Ms. Preevanda Sapru |
| For the Applicant |
Mr. Martin Anderson
For the Respondent
| SOLICITORS OF RECORD: Max Berger Associates |
Barristers & Solicitors
1033 Bay St., Ste. 207
Toronto, Ontario
M5S 3A5
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000818
Docket: IMM-4424-99
BETWEEN:
| BALJINDER SINGH MANGAT |
Applicant
| - and - |
| THE MINISTER OF |
CITIZENSHIP AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
__________________
2Tribunal Record, pages 314 to 316.
3The footnote reference for Esin v. M.C.I. that is reflected in the reasons of the CRDD is (Federal Court IMM-3626-95), April 12, 1996. The quoted paragraph is the narrative element of an endorsement denying leave on an application for leave and for judicial review of a decision of the Convention Refugee Determination Division.
5[1993] F.C.J. No. 10(Q.L.), (F.C.A.).
6[2000] F.C.J. No. 289(Q.L.), (F.C.T.D.).