Date: 20040823
Docket: IMM-5824-03
Citation: 2004 FC 1162
Ottawa, Ontario, this 23rd day of August, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MHD SAEED FAROOQUI, QAISER SAEED FAROOQUI
SHOMAIL FAROOQUI, ALI MHD FAROOQUI, ARNUB FAROOQUI,
OMAR MHD FAROOQUI, WISSAM MHD FAROOQUI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Immigration and Refugee Board, Refugee Protection Division (the "Board"), determined that the Farooqui family were not Convention refugees or persons in need of protection. The sole issue pressed by the applicants at the hearing of their application for judical review was whether they were denied a fair hearing by the Board's refusal to grant a postponement and proceeding in the absence of their counsel. For the reasons below, I have concluded that procedural fairness was denied and, accordingly, will set aside the Board's decision and order that the Farooqui's claims be redetermined by a differently constituted Board.
BACKGROUND
[2] Mohammad Saeed Farooqui (the "principal applicant") is a 50-year old journalist from Karachi Pakistan. Qaiser Saeed Farooqui is his wife. They are both citizens of Pakistan. The other applicants are their children, ranging in age from 23 to 11-years old. Their two youngest children, Arnub and Ali, were born in the United States and have American citizenship. Their older children are citizens of Pakistan.
[3] The applicants arrived in Canada on August 30, 2002 following an extended sojourn in Saudi Arabia and several years in the United States. Upon their arrival in Canada, the family first lived in Montreal, and that is where they began the refugee claim process. Their claims were referred to the Montreal Board and the principal applicant retained counsel in Montreal.
[4] At the beginning of March 2003, the applicants moved to Mississauga, Ontario and retained new counsel in Toronto. They notified the Board of their new address within days of the move and mail from the Board was received at the new address. The principal applicant attests in his affidavit that he believed that his hearing would automatically be moved to the Board in Toronto. Approximately two weeks after he had notified the Board of his new address, he received a Notice to Appear for a Board hearing in Montreal on May 26, 2003.
[5] By letter dated April 11, 2003, the applicants' counsel applied to change the location of the Board hearing under Rule 47 of the Refugee Protection Division Rules, SOR/2002-228 (the "RPD Rules"). The applicants' request for a change of location was denied by notice dated May 1, 2003.
[6] Counsel for the applicants then faxed the Board requesting that the date of the hearing be changed, as counsel was already scheduled to appear for two other hearings in Toronto on the same day. Counsel sent a second letter dated May 7, 2003 requesting that the Board change the date of the hearing, as no response had been received from the Board.
[7] The applicants appeared before the Board in Montreal on May 26, 2003 and again requested a change of date. Counsel could not attend. The principal applicant attests that the Board compelled him to proceed with the hearing in the absence of counsel, and that this deprived him of the right to a fair hearing. The Board, in its reasons for decision, states that it refused the applicants' request for an adjournment since the explanations given by Mr. Farooqui did not show that he was diligent in finding a new counsel who would be available to proceed on May 26, 2003. The Board also noted that faced with the alternatives of proceeding without counsel or having their claims declared abandoned, the applicants decided to proceed without counsel.
ANALYSIS
[8] The Farooqui's submit that they were denied procedural fairness when the Board refused to adjourn their hearing. They rely on the Federal Court of Appeal decision of Siloch v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76 (F.C.A.), which sets out a number of factors that an administrative tribunal may consider in making an adjournment decision. They submit that the Board erred in not embarking upon a consideration of these factors. They also argue that there is no indication that the Board considered the relevant factors enumerated in Rule 48(4) of the RPD Rules in coming to its decision.
[9] They note that they did not seek any prior adjournments, and that the adjournment that was being sought was not a lengthy one. The request for an adjournment was not made for the purpose of causing delay or by reason of indifference or inattention. The applicants also refer to the principal applicant's confusion and lack of preparedness to represent himself before the Board. The applicants submit that postponing their hearing for just a few days to allow counsel to be present would not have had an adverse affect on the immigration system, or prejudiced anyone. Given that counsel was already scheduled to appear before the Board in Toronto on two other matters, the Board's decision to reject the request for a postponement denied the applicants procedural fairness. The applicants also rely on the decisions of Acquah v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 68, Yung v. Canada (Minister of Employment and Immigration) (1994), 167 N.R. 71 (F.C.A.) and Ali v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 336 (T.D.)(QL).
[10] The respondent submits that the applicants have failed to show that the Board's dismissal of their adjournment request deprived them of a fair hearing or breached the principles of natural justice. The respondent notes that the reasons of the Board reflect the fact that the Board received the applicants' notification of change of address on March 23, 2003, after the Notice to Appear, dated March 17, 2003 had been sent out. Their first request for an adjournment was not sent until April 11, 2003.
[11] The respondent argues that it is well established that administrative tribunals control their own proceedings and that an adjournment is very much within a board's discretion, provided it complies with its statutory provisions and the rules of procedural fairness: Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560. The respondent also refers to s. 162(2) of Immigration and Refugee Protection Act, S.C. 2001, c. 27, ("IRPA"), that gives the Board the power to deal with procedural issues before it informally and expeditiously, in line with considerations of fairness and natural justice.
[12] The respondent also says that the right to counsel is not absolute and that as held in Vairamuthu v. Canada (Minister of Employment and Immigration) (1993), 161 N.R. 131 (F.C.A.), for a court to intervene with this discretionary decision "...it must be clear that in the circumstances of the case a breach of natural justice or fairness has resulted from the decision."
[13] The Board's decision not to change the location of the hearing forms part of the contextual circumstances for this judicial review, but is not the decision which is challenged by the applicants. Rather, the decision of the Board not to postpone their refugee hearing until a date when their Toronto counsel could be present to represent them is the one challenged as having deprived them of the right to a fair hearing. Therefore, I reproduce Rule 48 in its entirety below, dealing with an application to change the date of a proceeding, and only include Rule 47 in part:
| 47. (1) A party may make an application to the Division to change the location of a proceeding. ...
(4) In deciding the application, the Division must consider any relevant factors, including
(a) whether the party is residing in the location where the party wants the proceeding to be held; (b) whether a change of location would allow the proceeding to be full and proper; (c) whether a change of location would likely delay or slow the proceeding; (d) how a change of location would affect the operation of the Division; and (e) how a change of location would affect the parties. ...
48. (1) A party may make an application to the Division to change the date or time of a proceeding.
(2) The party must (a) follow rule 44, but is not required to give evidence in an affidavit or statutory declaration; and (b) give at least six dates, within the period specified by the Division, on which the party is available to start or continue the proceeding.(3) If the party wants to make an application two working days or less before the proceeding, the party must appear at the proceeding and make the application orally.
(4) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
(b) when the party made the application; (c) the time the party has had to prepare for the proceeding; (d) the efforts made by the party to be ready to start or continue the proceeding; (e) in the case of a party who wants more time to obtain information in support of the party's arguments, the ability of the Division to proceed in the absence of that information without causing an injustice; (f) whether the party has counsel; (g) the knowledge and experience of any counsel who represents the party; (h) any previous delays and the reasons for them; (i) whether the date and time fixed were peremptory; (j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and (k) the nature and complexity of the matter to be heard.
(5) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the date and time fixed and be ready to start or continue the proceeding.
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47. (1) Toute partie peut demander à la Section de changer le lieu d'une procédure. ...
(4) Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment : a) si la partie réside à l'endroit où elle veut que la procédure ait lieu; b) si le changement de lieu permettrait une instruction approfondie de l'affaire; c) si le changement de lieu retarderait ou prolongererait vraisemblablement la procédure; d) l'effet du changement de lieu sur le fonctionnement de la Section; e) l'effet du changement de lieu sur les parties. ...
48. (1) Toute partie peut demander à la Section de changer la date ou l'heure d'une procédure.
(2) La partie : a) fait sa demande selon la règle 44, mais n'a pas à y joindre d'affidavit ou de déclaration solennelle; b) indique dans sa demande au moins six dates, comprises dans la période fixée par la Section, auxquelles elle est disponible pour commencer ou poursuivre la procédure. (3) Si la partie veut faire sa demande deux jours ouvrables ou moins avant la procédure, elle se présente à la procédure et fait sa demande oralement.
(4) Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment : a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement; b) le moment auquel la demande a été faite; c) le temps dont la partie a disposé pour se préparer; d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre la procédure; e) dans le cas où la partie a besoin d'un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d'aller de l'avant en l'absence de ces renseignements sans causer une injustice; f) si la partie est représentée; g) dans le cas où la partie est représentée, les connaissances et l'expérience de son conseil; h) tout report antérieur et sa justification; i) si la date et l'heure qui avaient été fixées étaient péremptoires; j) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable ou causerait vraisemblablement une injustice; k) la nature et la complexité de l'affaire.
(5) Sauf si elle reçoit une décision accueillant sa demande, la partie doit se présenter à la date et à l'heure qui avaient été fixées et être prête à commencer ou à poursuivre la procédure.
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[14] I am of the view that the factors set out in Rule 48(4) of the RPD Rules were not fully considered by the Board and that the Board's comments at the outset of the hearing indicate a reasonable apprehension that it may have misconstrued some of the applicants' evidence with regards to the adjournment request. For example, the Board appears to have believed that the first request for an adjournment was made through a letter from the applicants' counsel submitted by them at their hearing on May 26, 2003 (see page 716 of the tribunal record), however, the record discloses that the applicants' counsel applied on two previous occasions for a postponement and a change of date for the hearing, by letter dated May 1, 2003 and faxed on May 2nd, (page 431 of the tribunal record) and by letter dated May 7, 2003 (page 429 of the tribunal record). The Board did not make a decision on the adjournment request until the date of the hearing on May 26, 2003. A Request Form found at page 430 of the tribunal record states the reasons for refusing the application to change the date of the hearing as "Rule 47 (4)(c)- Sorry". Rule 47(4)(c) sets out one of the factors that must be included in determining a change of venue application and states "whether a change of location would likely delay or slow the proceeding".
[15] In relying on a factor applicable to Rule 47 in determining an application under Rule 48, I believe that the Board erred in law, resulting in a violation of the applicant's right to a fair hearing and this application must be allowed. Rule 48 has its own list of enumerated factors that must be considered and the Board should not commingle the two lists of factors. Such error is relevant given the different wording between 48(4)(j) and 47(4)(d), in that 48(4)(j) states: "whether allowing the application would unreasonably delay the proceedings or likely cause an injustice". (emphasis added).
[16] The applicants, having already lost their bid to change the location of the hearing, sought a change of date of their hearing in Montreal, to allow their then Toronto-based lawyer to attend and represent them. However, the transcript reveals that the Board referred to the fact that they cannot have their case transferred to Toronto due to the overload of cases scheduled for the Toronto office. It is unclear whether the Board understood that their request was to proceed in Montreal on a different date, and that the workload issues in the Toronto office had no bearing on a request of a postponement to a different date in Montreal.
[17] Moreover, the language used by the Board at the outset of the hearing in dealing with the issue of the request for a postponement is problematic. In my view, more than semantics are at play when the Board stated as follows at page 716 of the tribunal record:
As I said before, the date for this hearing was set on the 17th of March 2003. It took you more than a month to decide to change counsel. While it is your right to have the counsel you wish, nobody can blame you for that. But when a date is set, you have to proceed with this date. If you want to have another lawyer, he has to proceed on the same date.
[Emphasis added]
[18] This is further cause for concern that the Board may have too narrowly viewed its ability to grant a short adjournment.
[19] Finally, I note that factors such as the applicants not having requested any previous adjournments and that the evidence on the record indicated that their move to Toronto was genuine, done in mid-March 2003, prior to their receipt of the notice dated March 17, 2003 setting out the date of their hearing in Montreal, appear to have played no part in the Board's decision. Pursuant to Rule 48(4) of the RPD Rules, more than merely the applicants' change in counsel and the timing surrounding that change should have been considered.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed. The Board's decision is set aside and differently constituted Board shall reconsider the applicants' refugee claims in accordance with these reasons. No question is certified.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5824-03
STYLE OF CAUSE: MHD SAEED FAROOQUI, QAISER SAEED
FAROOQUI, SHOMAIL FAROOQUI,
ALI MHD FAROOQUI, ARNUB FAROOQUI,
OMAR MHD FAROOQUI, WISSAM MHD
FAROOQUI
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 18, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: August 23, 2004
APPEARANCES:
Preevanda K. Sapru FOR THE APPLICANTS
Mielka Visnic FOR THE RESPONDENT
SOLICITORS OF RECORD:
PREEVANDA K. SAPRU FOR THE APPLICANTS
Berger & Associates
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario