Date: 20001106
Docket: IMM-1227-00
BETWEEN:
MAHMUT YILMAZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This application is for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), made on February 15, 2000. The applicant, Mahmut Yilmaz (the "Applicant"), is a citizen of Turkey who claims refugee status on the basis of alleged Kurdish ethnicity. The Board rejected his claim because it did not believe it was credible.
The Issue
[2] Before turning to the issue of credibility, the Applicant raised a procedural issue and argued that the Board failed to rule on his request for an adjournment and "forced" him to proceed with the hearing without legal counsel, contrary to the principles of fundamental justice.
The Request for an Adjournment
[3] This matter initially came before the Board for hearing on August 10, 1999. At that time, the Applicant was represented by a lawyer. However, the hearing did not proceed on that date because the Minister intervened and sought and was granted an adjournment. The matter was rescheduled to be heard on November 23, 1999.
[4] When the Board convened on November 23, 1999, the Minister's representative was present, as was a Refugee Claimant Officer (the "RCO"). However, the Applicant did not have counsel. He explained to the Board that, after the Minister intervened, his original lawyer's fee increased and he could no longer afford her services. He also advised that he had been denied legal aid and that, although he had interviewed five or six lawyers, he did not then have enough money for a retainer. The Applicant then said to the Board:
| I thought that if I can have the hearing postponed a little bit, I could make enough money to pay the lawyer, so I would proceed then. (transcript, p.8) |
[5] Following this statement, the presiding member of the Board asked the Applicant whether he was aware that he could proceed without a lawyer, and he replied that he was unaware of that possibility. The presiding member then informed the Applicant that he was entitled to be represented by a lawyer, but encouraged him to think about proceeding without representation. The presiding member said:
| Just so you know, of course you are entitled to be represented by a lawyer, but it sounds to me as though you've made your best efforts to be represented by a lawyer. And your case has been going on for quite a long time now. You've been in Canada for over a year and I'm sure that you'd like to have your status settled somehow. And it may be the case that you might be able to earn the money [to hire a lawyer], but it also might not. |
| So you should understand that it is perfectly possible to go ahead and tell your story to the panel. Before we begin, we would have Mr. Duncan [RCO], in his other role, review with you what I'm sure your Counsel probably did review with you, that is the terms of the definition that you need to meet. (transcript, p. 8) |
[6] The Applicant indicated that he understood what the Board was suggesting. The Board member then said:
| We certainly don't want to force you, but looking at all the circumstances here and a very long history of your case and of your time in North America, I'm just not sure that waiting and deferring again a little bit is going to resolve the situation. (transcript, p. 8) |
[7] The Board then suggested that the Applicant meet with the RCO and "allow him [the Applicant] some general opportunity to decide whether he's comfortable to go forward and it's reasonable to do" (transcript, p. 9). The Board also stated to the Applicant that "everybody wants to make sure that you are fully informed before you proceed" (transcript, p. 10).
[8] After this exchange, the RCO met with the Applicant to try to prepare him to proceed without counsel if that was his wish. After an hour's break, the hearing resumed and the Board asked the Applicant the following:
| At this point I would ask first, Mr. Yilmaz, whether you've had the opportunity you need to consider your claim today and are prepared to proceed. That is, if you'd like to tell us any reasons why we should not proceed today. (transcript, pp. 17-18) |
[9] The Applicant then said, also at page 18 of the transcript, "I want to continue with the case".
[10] At this point, the RCO expressed misgivings about performing the role of the Applicant's counsel at the hearing. He said:
| ...I frankly have to indicate to the panel right up front, I have some discomfort as continuing as the RCO in this case. I spent quite a lengthy time with the claimant... (transcript, p. 18) |
[11] The RCO then described how he reviewed the evidence and legal issues with the Applicant, and then described to him the role and function of the RCO in refugee hearings. He told the Applicant that the RCO had a duty to present all relevant evidence to the Board, including evidence that did not support the Applicant's claim. The Applicant apparently took exception to the dual role, and the RCO related this objection to the Board:
| The claimant accused me of being opposed to him, to be against him and in those circumstances, I feel distinctly uncomfortable in this hearing and the Minister's Representative was present in the room when he said that. And he said it in English. (transcript, p. 19) |
[12] The Board concluded that the Applicant had misinterpreted the RCO's role, and explained this role to him. The Applicant apologized to the RCO, thanked him for reviewing the procedures with him, and agreed that the RCO had misunderstood him because of his trouble in expressing himself in English. In the end, the RCO and the Applicant agreed that the hearing could proceed with the interpreter (pp. 20-22).
The Applicant's Submissions
[13] The Applicant said that the Board denied his request for an adjournment without considering the merits of the request. The Applicant also noted that the Board encouraged him to proceed without counsel by making statements such as "I'm sure you would like to have your case settled". Finally, the Applicant stressed the fact that the RCO was uncomfortable with a dual role as RCO and the Applicant's counsel. The Applicant argued that, at a minimum, the Board should have adjourned the hearing after the RCO expressed concerns about the process.
The Respondent's Submissions
[14] The Respondent said that the Applicant abandoned his request for an adjournment when he told the Board that he wanted to proceed without a lawyer.
Discussion
[15] The circumstances of this case included the following: (i) the Minister's intervention had added new issues to the case; (ii) the Applicant's credibility was at issue; (iii) the Applicant had retained counsel, who had appeared on his behalf, and had actively tried to retain replacement counsel both directly and through legal aid and; (iv) it was the Applicant's first request for an adjournment.
[16] In my view, although I think that the Board acted with the best of intentions, it erred when it proceeded with the hearing. The evidence is overwhelming that the Applicant wanted to be represented by counsel and, in the circumstances described above, the Board denied him an effective opportunity to be heard when it strongly encouraged him to proceed without counsel. I am satisfied that, in spite of the Board's statements, the Applicant did not appreciate that he could refuse the Board's suggestion that he proceed without counsel, or that he could maintain his request for an adjournment.
[17] I have therefore concluded that there was a failure of natural justice in the particular circumstances of this case and the application for judicial review will be allowed. Accordingly, there is no need to consider the Board's assessment of the Applicant's credibility.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 6, 2000
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MAHMUT YILMAZ
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-1227-00
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 4, 2000
REASONS FOR ORDER: SIMPSON J.
DATED: November 6, 2000
APPEARANCES:
Alp Debreli for Applicant
Ian Hicks for Respondent
SOLICITORS OF RECORD:
Alp Debreli for Applicant
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Ottawa, Ontario