Date: 20230804

Docket: IMM-6055-22

Citation: 2023 FC 1078

Ottawa, Ontario, August 4, 2023

PRESENT: The Honourable Mr. Justice Pamel

BETWEEN:

HARARSHDEEP SINGH

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Background

[1] This is a judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB] dated June 7, 2022. The applicant, Hararshdeep Singh, is a professional Punjabi singer and a citizen of India. He claims that he had a romantic relationship with a woman from a different caste whom he had met in school in 2014, a relationship for which the woman’s father, a local investor with significant influence within the Congress Party as well as with the local police, threatened to kill him. In fact, Mr. Singh and the woman had discussed marriage in early 2019; she told her family that she wanted to marry Mr. Singh. However, problems ensued on account of her family’s objection to the marriage, causing the couple to eventually break up their relationship. It was also at that time that Mr. Singh’s problems began.

[2] Three events took place prompting Mr. Singh to flee India, all of which he asserts were related to the woman’s father. In February 2019, Mr. Singh was purportedly attacked by goons but managed to extricate himself from the attack with the help of his friends; his attempt to register a First Information Report with respect to the incident was not accepted by the local police. In March 2019, he was pulled over at a police checkpoint and accused of being involved with drugs. He was taken to the police station and beaten, his fingerprints were taken, and his mobile phone and identification were confiscated. He was released on the payment of a bribe by his parents and friends, and he was instructed to stay away from the woman with whom he had had a romantic relationship. In April 2019, Mr. Singh’s home was raided by the police; he was detained, beaten, given electric shocks, tortured, threatened and accused of being involved with “anti-national elements, dealing in drugs.” Only the payment of further bribes by his parents could secure his release. Mr. Singh went into hiding, but he was discovered by goons purportedly sent by the woman’s father, and he was again beaten.

[3] Why the woman’s family would continue to pursue Mr. Singh after the couple has ended their relationship is somewhat of a mystery; however, in June 2019, Mr. Singh flew to Canada and claimed refugee protection the next month. In his Basis of Claim [BOC], Mr. Singh indicated that he would be represented by counsel at the Refugee Protection Division [RPD] hearing; however, his counsel supposedly retired, and his application to be removed as counsel of record was granted in August 2021. In October 2021, Mr. Singh was sent a notice to appear for his RPD hearing scheduled for January 7, 2022.

[4] Mr. Singh attended the hearing without counsel and sought a postponement, as he had supposedly not had the time to retain new counsel after his hearing date was set. Asked about what efforts he had made to retain new counsel, Mr. Singh stated that he had contacted several counsel, all of whom were unavailable. However, he did manage to identify one counsel by name, Deepak (his last name is marked as inaudible on the transcript), who confirmed that he would be able to represent him but who was seemingly unavailable on the date of the hearing. Deepak indicated to Mr. Singh that he had filed a postponement request with the RPD, and he instructed Mr. Singh to attend the hearing and seek a postponement. At the hearing, the RPD panel member advised Mr. Singh that she could not identify in the record any incoming correspondence seeking a postponement of the hearing. Mr. Singh offered to show the panel member his text messages with Deepak as evidence of his communications with him, but the panel member refused.

[5] In the end, Mr. Singh’s request for a postponement was denied. In its decision rendered on January 12, 2022, the RPD referred to the Chairperson’s Guideline 6: Scheduling and Changing the Date or Time of a Proceeding [Guideline 6], which provides that the IRB must schedule and conduct its proceedings so as to finalize them as quickly as possible, minimizing unnecessary postponements, and conducting cases quickly and fairly. The RPD was also guided by subrule 54(4) of the IRB’s Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], which provides that an application to change the date or time of a proceeding must not be granted absent exceptional circumstances, such as the need to accommodate a vulnerable person, or an emergency or other development outside a person’s control where they have acted diligently. The RPD thereafter made a series of findings: first, that Mr. Singh had almost five months after his previous counsel was removed from the record (from August 2021 to January 2022) to retain new counsel in the event that he wished to do so; second, that Mr. Singh had been in Canada for two and a half years, so his contention that he was unfamiliar with the country was not reasonable; and finally, that there was no information to indicate that Mr. Singh was a vulnerable person or someone who would be unable to proceed with the hearing. In short, the RPD was not convinced that Mr. Singh had acted diligently to retain new counsel, nor that the circumstances described by Mr. Singh were exceptional.

[6] Consequently, the RPD panel member continued with the hearing, during which Mr. Singh testified; his claim was ultimately rejected, with the determinative issue being credibility. In short, the RPD accepted that Mr. Singh was in a romantic relationship with the woman he identified, but it considered that he was unable to provide sufficient detailed and credible evidence to establish the identity of the woman’s father, an issue central to his claim as the father would seem to be the agent of persecution. The RPD made three additional findings: first, that there was insufficient credible evidence to establish the assault of February 2019; second, that Mr. Singh’s overall testimony regarding his detention of March 2019 lacked detail and was vague and evolving; and third, that his claim of being detained in April 2019 suffered from substantial inconsistencies. In the end, the RPD determined that Mr. Singh’s credible testimony regarding his relationship with the woman was insufficient to overcome the serious credibility concerns regarding the woman’s father and the events that supposedly took place in the five months prior to Mr. Singh departing from India. It should be kept in mind that during his testimony, Mr. Singh indicated that he had ended the relationship with the woman about six months prior to leaving for Canada in June 2019; as indicated earlier, why these incidents took place after Mr. Singh supposedly ended his relationship with the woman is unclear.

[7] Having retained new counsel, Mr. Singh appealed the RPD’s decision to the RAD, arguing that the RPD had breached procedural fairness by denying him a postponement. It is noteworthy that before the RAD, Mr. Singh did not challenge any of the RPD’s credibility findings. In its decision, the RAD determined that Mr. Singh’s right to procedural fairness and natural justice had not been breached by the RPD, but concluded that if the RAD was wrong on that issue, there was no material effect on the outcome as Mr. Singh had not provided sufficient credible evidence to establish his claim.

[8] The RAD accepted that the loss of Mr. Singh’s first counsel was beyond his control but noted that he had known since August 2021 that he needed to obtain new counsel if that was in fact what he intended to do. In addition, Mr. Singh knew that Deepak would not be available on the hearing date, having spoken to him in November 2019 (weeks following the issuance of the notice of the hearing, which would take place in January) and having supposedly then continuously followed up with Deepak to know whether he had received confirmation from the RAD of the requested postponement; no confirmation was forthcoming because, as noted earlier, there is no record of any request for a postponement in the record. Deepak simply instructed Mr. Singh to attend the hearing and request a postponement.

[9] The RAD agreed with Mr. Singh that the RPD had erred in not examining, on the issue of whether Mr. Singh had acted diligently, the text messages between Deepak and Mr. Singh. However, it found that the error was not determinative as the RAD was in a position to remedy it; for the purposes of the analysis, the RAD accepted that Mr. Singh believed that he had retained Deepak and that Deepak had asked for a postponement, and it also confirmed that the date set for the hearing was not peremptory. Nonetheless, the RAD determined that the RPD had not erred in refusing to change the date of the hearing. The RAD noted that Guideline 6 provides that if counsel is retained after a date has already been set for a proceeding, it is the party who is responsible for making certain that counsel is available and ready to proceed on the scheduled date, and that an application to change the date or time of a proceeding will not generally be allowed if a party chooses to retain counsel who is not available on a date that has already been fixed. Here, the RAD determined that Mr. Singh’s choice of counsel was not a development outside his control and that although Mr. Singh knew at least two months before the hearing that Deepak was not available on the date set, there was no evidence that Mr. Singh had continued to look for counsel who could attend on the hearing date.

[10] The RAD found that Mr. Singh identified no examples of how his right to a fair hearing was denied. The RAD reviewed the audio and transcript of the RPD hearing and found the hearing to be fair; it found that the RPD panel member reviewed the documents in the file with Mr. Singh and discussed them with him, identified and discussed with Mr. Singh the determinative issues of credibility and internal flight alternative [IFA], offered breaks to Mr. Singh, questioned him courteously and fairly, and referred Mr. Singh to his BOC when needed so as to allow Mr. Singh to refresh his memory. The RAD did find that the RPD could have more clearly explained the difference between evidence and submissions and that Mr. Singh had the right to make submissions at the end of its questioning; however, in the end, it determined that Mr. Singh had nonetheless made submissions on the viability of the IFA.

[11] Finally, and as indicated earlier, the RAD held that in the event that it was wrong in finding that the proceeding before the RPD was fair, the outcome would not materially change as Mr. Singh had not sought to introduce new evidence through his new counsel, nor to challenge any of the RPD’s credibility findings. The RAD agreed with the RPD that Mr. Singh had simply failed to establish the elements of his claim with sufficient credible evidence. In the end, the RAD dismissed Mr. Singh’s appeal; it is this decision that is the subject matter of the present judicial review.

II. Analysis

[12] The parties agree that the issue in this case is one of procedural fairness, and the question to be determined is whether Mr. Singh was denied the right to be heard and the opportunity to respond to the case. To be clear, Mr. Singh does not dispute the fairness of the proceedings before the RAD, but rather the RAD’s decision in upholding what he claims to be a breach of procedural fairness by the RPD in not granting his request for a postponement of his hearing. Consequently, the parties agree that the appropriate standard of review applicable to the merits of the RAD’s decision is reasonableness (Huang v Canada (Citizenship and Immigration), 2018 FC 940; Paulo v Canada (Citizenship and Immigration), 2020 FC 990 at para 21; Fragoso Velazquez v Canada (Citizenship and Immigration), 2022 FC 58 at paras 7 and 8).

[13] In addition, in the event that I find that the RAD decision was unreasonable, the next issue is whether the matter should be remitted back to the RAD for redetermination.

[14] Mr. Singh argues that he was denied procedural fairness by not being given the opportunity to be represented by counsel before the RPD; this is not a case, argues Mr. Singh, where he specifically elected not to be represented by counsel, but rather one where he attended the RPD hearing thinking that he was, and where he thought that his counsel took the necessary measures to make certain that he would represent Mr. Singh at a later hearing. Mr. Singh also argues that his right to a fair hearing was sacrificed at the alter of administrative efficiency and that his ability to meaningfully participate in the hearing and present his case was impaired (Aslam v Canada (Minister of Citizenship and Immigration), 2004 FC 514; Galamb v Canada (Citizenship and Immigration), 2014 FC 563 [Galamb] at para 31).

[15] I am not convinced by Mr. Singh that the RAD’s decision in this case is unreasonable. In administrative proceedings such as immigration matters, this Court has repeatedly held that the right to counsel is not absolute; what is absolute, however, is the right to a fair hearing. As stated by Mr. Justice de Montigny (as he then was) in Galamb, “[a] denial of an adjournment request will not necessarily result in a breach of natural justice or procedural fairness. It is well established, for example, that the right to counsel is not absolute in the context of immigration proceedings. Accordingly, the absence of counsel as a result of a refusal to grant an adjournment will only render a decision invalid when such an absence leads to a denial of a fair hearing” (Galamb at para 18, citing Vazquez v Canada (Minister of Citizenship and Immigration), 2012 FC 385 at para 10). For Mr. Singh’s hearing to have proceeded fairly, Mr. Singh must have been able to meaningfully participate in it (Austria v Canada (Minister of Citizenship and Immigration), 2006 FC 423 (CanLII) at paras 6-7, citing Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC 1206, [2004] FCJ No 1460 (FC) (QL) at paras 17-25 and Canada (Minister of Citizenship and Immigration) v Fast (TD), 2001 FCT 1269, [2002] 3 FC 373 (FC) at paras 46-47).

[16] Here, the RAD compiled a lengthy summary of the efforts made by the RPD panel member who, acknowledging that Mr. Singh was not represented at the hearing, to ensure that Mr. Singh understood the proceedings, the nature of the case that he had to meet, and the issues that arose on account of his evidence. I find nothing unreasonable in the RAD’s determination that the proceedings in which Mr. Singh participated were fair.

[17] Specifically, Mr. Singh argues that the RAD’s reasoning was flawed in simply dismissing the RPD’s admitted error of not reviewing the text messages that Mr. Singh supposedly exchanged with Deepak, which were offered up to the RPD panel member. Putting aside the fact that the RPD hearing was not held in person and whether such an offer was actually made (the hearing was held by way of videoconference during the COVID-19 pandemic, and the transcript of the RPD hearing was inconclusive as to whether the “offer” was in fact made), Mr. Singh asserts that the RPD did not know what was in the text messages and that if the panel member had known, this would have allowed it to assess Guideline 6 and the RPD Rules in the proper context, and its analysis on whether Mr. Singh was diligent in finding a new lawyer may have been different. In essence, argues Mr. Singh, because the RPD did not know what it did not know as regards the text messages, it may have improperly applied the presumptively restrictive subrule 54(4) of the RPD Rules rather than the presumptively permissive subrule 54(5); I include rules 54 and 62 of the RPD Rules as an annex to my decision.

[18] The difficulty that I have with Mr. Singh’s argument is that there is no evidence that any of the conditions of subrule 54(5) of the RPD Rules have been met; his argument is speculative at best. As indicated, there is no evidence in the record of any request by Deepak for a postponement of the RPD hearing. Before me, Mr. Singh’s present counsel – who also represented Mr. Singh before the RAD – claimed to know Deepak as a well‐known immigration consultant; however, no efforts to enter into contact with Deepak so as to provide confirmation of Mr. Singh’s assertions seem to have been made. No answer has been provided regarding why there was no attempt to seek to reopen the RPD hearing under subrule 62(6) of the RPD Rules given the purported failure to observe a principle of natural justice on the part of the RPD. It is also unclear why no attempt was made to introduce the text messages as new evidence before the RAD – the limitation set out in subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 noted – or to at least introduce them exceptionally by way of affidavit in this judicial review as either general background evidence that might assist the Court or bring to the Court’s attention procedural defects that cannot be found in the evidentiary record (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (CanLII)).

[19] Here, there is no evidence either before the RAD or as part of the applicant’s record before me of either a letter from Deepak confirming that he was prepared to represent Mr. Singh in the event of a postponement, or of an affidavit to which were attached the text messages that Mr. Singh purportedly exchanged with Deepak; the answer to my question to Mr. Singh’s present counsel as to why no such evidence exists given that he conceded to “possibly” having seen the texts was unhelpful and unsatisfactory. No doubt that the decision not to introduce the purported text messages was a strategic decision on the part of Mr. Singh’s present counsel; however, such new evidence may have been helpful before the RAD. Without it, and given the circumstances, I am unable to say that the decision of the RAD was unreasonable.

[20] Nor do I find anything unreasonable with the RAD’s determination that Mr. Singh’s lack of representation had no material effect on the outcome, given in particular that there was no evidence before the RAD to suggest otherwise – specifically, Mr. Singh did not attempt to introduce new evidence through Deepak, nor did he contest any of the credibility findings of the RPD. In other words, one way or the other, the outcome would have been the same (Yu v Canada (Citizenship and Immigration), 2007 FC 155 at para 23; Akinmayowa v Canada (Citizenship and Immigration), 2011 FC 171). Mr. Singh’s reliance on Galamb is not helpful; in that case, Mr. Justice de Montigny (as he then was) determined that were a breach of procedural fairness exists, the credibility findings cannot be extricated from the procedural fairness shortcomings and thus must be reviewed. Here, however, the RAD determined that there was no breach of procedural fairness on the part of the RPD, and I have found nothing unreasonable in that determination.

[21] Having been unconvinced that the RAD decision is unreasonable, I need not address the second issue in this matter.

 

JUDGMENT in IMM-6055-22

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. There are no questions for certification.

“Peter G. Pamel”

Annex

Immigration and Refugee Board of Canada’s Refugee Protection Division Rules, SOR/2012‐256:

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-6055-22
STYLE OF CAUSE:	HARARSHDEEP SINGH v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	mONTRÉAL, QUEBEC
DATE OF HEARING:	jULY 24, 2023
JUDGMENT AND REASONS:	PAMEL J.
DATED:	August 4, 2023

APPEARANCES:

Mark J. Gruszczynski	For The Applicant
Mario Blanchard	For The Respondent

SOLICITORS OF RECORD:

Canada Immigration Team Westmount, Quebec	For The Applicant
Attorney General of Canada Montréal, Quebec	For The Respondent