Date: 20010322
Docket: IMM-4408-00
Neutral Citation: 2001 FCT 219
BETWEEN:
WEN CHANG YANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] It was only during the applicant's testimony that the Refugee Division panel first raised the issue of exclusion under Article 1F(a) of the Convention relating to the Status of Refugees as a matter relevant to the determination of his refugee claim. None of the communications between the refugee claim officer and the applicant's counsel prior to the hearing had indicated this possibility.
[2] The panel recessed to allow counsel to advise the applicant that Article 1F(a) was in issue.
[3] After this short break, counsel for the applicant sought an adjournment to complete the hearing on another day.
[4] In response, the panel recessed for a second time to consider the request for an adjournment. In the meantime, arrangements were made to allow counsel to use the Refugee Division's document centre.
[5] The hearing reconvened some eighty minutes later when counsel renewed his request for an adjournment to another day. This request was refused. The panel noted that counsel was "imputed to know the law and imputed and deemed also to recognize sets of facts for what they are".
[6] Counsel was told that he could object to the ruling and seek relief elsewhere if he thought that the refusal of the adjournment was inappropriate. Counsel was reminded that he should not be "in contempt of the process" and the hearing continued.
[7] Subsection 69.1(5) of the Immigration Act, R.S.C. 1985, c. I-2, provides that the Refugee Division shall give the claimant a reasonable opportunity to present evidence, question witnesses and make representations.
[8] Subsection 69(6) of the Act requires that the Refugee Division will only grant an adjournment when it is satisfied that the proceeding will not be unreasonably impeded.
[9] Subsection 13(4) of the Convention Refugee Determination Division Rules, SOR/93-45, lists a number of criteria to be considered by the Refugee Division in determining whether an adjournment of a hearing would unreasonably impede the proceeding. These include the nature and complexity of the issues, the nature of the evidence to be presented, counsel's knowledge of and experience with similar proceedings and the effort made by the parties to seek the adjournment at the earliest opportunity. These criteria are consistent with those suggested by the Court of Appeal in Siloch v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 239 (F.C.A.).
[10] While the circumstances differ from case to case, the Federal Court has consistently emphasized the importance of adequate notice to the refugee claimant concerning the possibility of the exclusion issue: Aguilar v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 911 (QL) (T.D.); Bermudez v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 135 (F.C.T.D.); Arica v. Canada (Minister of Employment and Immigration) (1995), 182 N.R. 392 (C.A.); and Malouf v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 537 (T.D.).
[11] In my view, when the exclusion issue is raised for the first time during a hearing, the panel will want to grant the refugee claimant an adjournment for a meaningful period of time. The eighty-minute adjournment afforded the applicant in this case was insufficient. This short mid-afternoon adjournment was inadequate notice to protect the applicant's rights under subsection 69.1(5). The applicant and his counsel had a right to a longer adjournment to consider and prepare for the exclusion issue. The panel in this proceeding should have granted an adjournment to another day. Its failure to do so constitutes a breach of procedural fairness and natural justice.
[12] Accordingly, this application for judicial review will be granted and the matter referred for rehearing and redetermination before a differently constituted panel. In view of this outcome, the parties agreed that it would be unnecessary to consider the substantive issues concerning the decision to exclude the applicant under Article 1F(a). Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 22, 2001