Date: 20000104
Docket: IMM-907-99
BETWEEN:
MA'YA KVELASHVILI
ARETA KAVALASHVILI
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board)
rendered on February 13, 1999 in which it was determined that the applicants were not Convention refugees.
[2] These reasons for order are written in English though the matter was argued before me by both counsel in the French language. I elected to proceed in this manner since the decision of the Board was rendered in English and obviously the two claimants had requested a hearing in the English language. It is for their benefit that my reasons for order are in the English language.
[3] I am not prepared to comment one way or the other on the merits of the refugee claim. My decision is entirely based on the fact that this was an unfair proceeding which totally ignored the principles of natural justice.
[4] Prior to the hearing, the claimants had retained the services of Me Jean Gobeil with the assistance of a legal aid certificate. In May of 1998, Me Gobeil wrote the Board confirming that he was acting for the claimants and would be submitting further documents.
[5] On October 7, 1998, the Board wrote Me Gobeil enclosing certain documentary evidence that the Minister's representative intended to produce at the hearing.
[6] The Tribunal's Record indicates that notice was sent to the two claimants and Me Gobeil on September 11, 1998 indicating that the hearing would take place on November 9, 1998 at Montreal.
[7] Undoubtedly, the claimants had been meeting with their counsel on a number of occasions. Unfortunately, on October 23, 1998, Me Gobeil's assistant wrote the Board indicating that because of doctor's orders Me Gobeil would be absent from his office for an undetermined period. The letter contained a request for an adjournment that the hearings officer refused to grant.
[8] On November 5, 1998, a further letter was forwarded by Me Gobeil's assistant in which it was indicated that Me Gobeil was no longer representing the claimants. This correspondence was forwarded following a telephone conversation between Me Gobeil's secretary and Ms. Dominique Leclerq, the hearings officer; it explained that Me Gobeil was still ill and was again requesting an adjournment. Once again it was denied.
[9] The claimants' affidavit reveals that they were unable to retain the services of another lawyer only four days prior to the hearing.
[10] Undoubtedly, since they had retained the services of Me Gobeil with a mandate authorized by Legal Aid, I suspect it would have been impossible for these claimants on such short notice to obtain further approval from Legal Aid in order to retain the services of another counsel.
[11] On the day of the hearing, the presiding member, Ms. Dominique Leclerq, advised that her colleague who was to be the second member of the panel, Me Yves Boiron, would be excusing himself. There is no direct evidence as to why but I suspect it was because he did not feel comfortable participating in a hearing in the English language.
[12] The hearing took place as scheduled on November 9, 1998 without the benefit of counsel.
[13] In order to properly explain to the reader, it is imperative that I reproduce herein the first seven pages of the transcript.
| - O.K. So today is the 9th of November 19... 1998. We are in Montreal, in Complexe Guy-Favreau, room 10. My colleague, Me Yves Boiron, and myself, Dominique Leclercq, were designated to hear the claim of Mrs. Ma'ya Kvelashvili, file number M98-02719, and her sister Areta Kavalashvili, M98-02720. |
| The two claimants are present. Their counsel is not here and I'm going to say something about that later. The R.C.O. is Mr. Lawrence Lesarge, and there is no interpreter and the requested ... language was Yiddish. |
| So what happened is that we had this case, this claim, these two claims were scheduled today, 9th of November 1998, in the afternoon, in French, and the lawyer was Mr. Gobeil. A few days ago, in fact the ... it's dated the 23rd of October 1998, we received a letter from Mr. Gobeil telling us that he would be absent for undetermined period requested by his doctor. |
| BY PRESIDING MEMBER (addressing claimants): |
| Q. You understand so far? |
| - So I refused to postpone on the 27th of October 1998, and my colleague had in his file but I haven't got it, dated 5th of November 1998, we received a letter from Mr. Jean Gobeil saying that he would not be involved in this file anymore, he wouldn't be representing the claimant anymore, Mrs. Areta Kavalashvili, only ... it's funny, it's written only for you, Ms. Areta. Anyway ... |
| So here were are today and we speak English because you said you are more fluent in English than in French. |
| - Even though it was requested Yiddish but you say you don't even speak Yiddish. O.K. |
| Q. So are you ready to proceed today with ... in English, with me as an only Commissaire, without a lawyer? Well, there are several questions, with me as a single commissaire because my colleague doesn't proceed in English ... and also without a counsel? |
| Q. So you're ready to proceed today? |
| - O.K. So in that case, I'll ask Mr. Lesarge to explain to you the procedure and what it means, you know, being an only Board Member. |
| BY PRESIDING MEMBER (addressing R.H.O.) |
| - Maybe just explain that, and also the procedure so that we can proceed today. |
| - O.K. So I'll give you some time to do ... |
| A. O.K. Yes, five minutes is sufficient. |
| - O.K., thank you very much. |
| BY PRESIDING MEMBER (addressing Member): |
| Q. And so you're retiring, Mr. Boiron? Is that alright? |
| BY PRESIDING MEMBER (addressing claimants): |
| - Mr. Lesarge will explain to you the procedure. |
| - So we'll be back on the record. Now we have an interpreter who is here to interpret from, to translate from ... |
| BY PRESIDING MEMBER (addressing Interpreter): |
| Q. Are you ... do you translate in English as well? |
| - Ah that's it, because the case was supposed to be in French, then ... now it's going to be in ... in English and Georgian possibly, but you don't translate in English. |
| BY PRESIDING MEMBER (addressing claimant): |
| Q. and for you, your sister was saying that it's easier for you to speak English, is that so? |
| Q. So tell me your first name again so ... |
| - Ma'ya, you're Ma'ya. O.K. |
| Q. So you prefer anyway to speak English than Georgian? |
| Q. And are you fluent enough in English? |
| A. We ... we're not 100% but we prefer English than Georgian. |
| A. 'Cause when we speak georgian we put English words in it, we just cannot speak fluently ... |
| BY THE PRESIDING MEMBER (addressing Interpreter): |
| - So I'll have to thank you Mr. ... I forgot your name ... |
| Q. Oui. What is ... Quel est votre nom ... j'ai oublié? |
| A. Barady Alexandre (phonetic). |
| - Oui, C'est parce que là, si vous n'interprétez pas de l'anglais de toute façon, puis elles elles préfèrent ... que l'audience soit anglais donc ... |
| A. Oui, j'ai bien compris. O.K. |
| - O.K. Alors merci beaucoup hein. |
| A. Je vous en prie. Bonne journée. |
| - Vous pouvez aller au bureau, d'accord. Au revoir. |
| BY PRESIDING MEMBER (addressing claimants): |
| - Alors ... So now Mr. Lesarge explained to you the procedure and the ... the fact that you don't have a lawyer, well, and that I'll be the only Board Member ... |
| Q. You understood that well? |
| - The think I was to mention is that it's your second claim in Canada ... is that right ... |
| - ... when you first came you were younger obviously. |
| Q. How old were you? I start with the ... |
| A. When I first came to Canada? |
| Q. Areta ... no Ma'ya, sorry, Ma'ya ... O.K. |
| A. When I first came to Canada I was fifteen. |
| Q. How old were you? You were fifteen? |
| Q. And how old were you Areta? |
| Q. So you remember pretty well? |
| A. The beginning just, but not all of it. |
| Q. Not all of it but the procedure you already know how it goes? |
| BY PRESIDING MEMBER (addressing R.H.O.): |
| - Now, Mr. Lesarge, I would like you for the record to say that ... what you have explained to the two ladies. |
| A. Oh yes, I explained the ... |
| - So it's very clear on the record ... |
| - ... since there is no lawyer, they are not represented. |
| A. I ... I explained to them that ... O.K. the difference between proceeding with one member, two members being that if there is two members it only requires one positive, whereas with one member it's ... it requires one out of one instead of one of two. |
| They have asked me which one I recommend and I indicated that, you know, it's not a question ... it's a question ... that decision they had to make because it's ... they're entitled to two members and if they ... the fact that they opt for two members cannot be held against them. |
| Then I explained the procedure that would take place in the hearing room with respect to my asking questions, yourself asking questions. Then there would be observations and then they would be ... they would have a chance, if they want to add anything at that point they could. |
| - Hum, hum. O.K. So is that clear for you? I'm ... I'm going to tell your names ... so we know ... |
[14] It is absolutely shocking to read this relatively brief opening few pages of the transcript; one becomes immediately aware of the cavalier manner in which Dominique Leclercq conducted this proceeding.
[15] It is suggested that because Me Gobeil had written to the Tribunal in French, the hearings officer expected that the matter would proceed in French. She goes on to suggest that the claimants had requested that the matter be held in Yiddish. There is no evidence whatsoever to support this contention. The evidence reveals at page 51 of the Tribunal's Record, in a report prepared by an officer in charge of submitting complete files to the Tribunal, that as early as the 8th of June, 1998, it was clearly indicated as follows: "Audience en anglais - sans interprète". Not only could one of the presiding members, Me Yves Boiron, not proceed to hear the matter because it was to be held in English, the Tribunal did not even have an interpreter available who could handle English-French translation.
[16] It is evident to me once again that Dominique Leclercq, who was in charge and the presiding member at the hearing, completely ignored their own officer's instructions by not having a competent panel in order to conduct the hearing in the English language.
[17] The presiding member then went on to indicate that the claimants should be allowed 5 minutes to have the procedure explained to them, when only one member conducts a hearing. The Tribunal failed to provide the claimants with any independent advice and asked the R.H.O. to assist in providing them with legal advice.
[18] From a reading of the transcript, it is evident that the claimants were not advised that they could refuse to proceed with the refugee hearing since only one panel member was available. Nowhere in the transcript is it indicated that Dominique Leclercq informed the claimants that they had the option to refuse to proceed in light of the fact that only one member was competent on that day to entertain the claim.
[19] As Mr. Justice Linden of the Federal Court of Appeal wrote in Virk v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 199:
| For, if a claimant is pressured into consenting or if he does not understand what he is doing, there is no valid consent. |
[20] I could elaborate further but I am satisfied that there has been a miscarriage of justice and that the matter should be returned for a rehearing before a differently constituted panel.
JUDGE
OTTAWA, Ontario
January 4, 2000