Date: 20001123
Docket: IMM-751-00
Toronto, Ontario, Thursday the 23rd day of November, 2000
| PRESENT: The Honourable Mr. Justice John A. O'Keefe |
BETWEEN:
ZULQUERAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
PROCEEDINGS
[1] This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision made February 3, 2000, wherein the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board (the "IRB") determined the applicant's refugee claim had been abandoned. The applicant seeks an Order of certiorari quashing the decision of the CRDD and an Order of mandamus requiring the CRDD to determine the applicant's claim in accordance with the duty of fairness and natural justice.
BACKGROUND FACTS
[2] The applicant, Zulquernain (correct spelling of name), is a citizen of Pakistan. Zulquernain made a refugee claim when he arrived at Montreal, Quebec, on October 12, 1999. Thereafter, he moved to Calgary, retained counsel to represent him, and requested his file be transferred from the IRB in Montreal to the IRB in Calgary. This request was denied in November, 1999.
[3] On November 29, 1999, Zulquernain failed to appear at Assignment Court in Montreal. A hearing (the "abandonment hearing") into his failure to attend was assigned to take place on January 26, 2000, in Montreal. Zulquernain received notice of this date on January 11, 2000.
[4] In a letter sent by fax on January 14, 2000, counsel for Zulquernain requested the refugee claim be scheduled concurrently with the abandonment hearing. The letter further requested a new date for the hearing as counsel was attending hearings in Calgary on January 25 and 26, 2000. As there was no response from the IRB, another letter was sent by fax on January 19, 2000, requesting a response.
[5] On January 21, 2000 counsel's law office was advised that the hearing would be postponed to January 27, 2000. In a fax sent January 24, 2000 counsel for Zulquernain advised the IRB that she would be in conference in Calgary on January 27 and 28, 2000 and requested the hearing date be rescheduled for February 18, 2000 or February 25, 2000. The fax further stated the IRB was not advised of these dates because counsel assumed the hearing would be moved at least two weeks further from the original date. Another fax was sent January 25, 2000 as counsel had yet to hear from the IRB. On January 26, 2000 counsel became aware that the request for an adjournment and rescheduling of the hearing was denied. In response, a fax was sent the same day to the IRB alleging it had unilaterally chosen January 27, 2000 as the hearing date. The fax also alleged the IRB did not meet the guidelines in the Practice Notice regarding Postponements and Adjournments dated May 5, 1998 (the "Practice Notice").
[6] The abandonment hearing took place in Montreal on January 27, 2000. Neither Zulquernain nor his counsel were present. At the hearing, the panel commented that the decision to set the hearing for January 27, 2000 was not unilateral as counsel's request stated she was not available January 25, 2000 or 26, 2000. In part, the panel stated at the hearing:
| Counsel assigned in this claim, Mrs. Lori O'Reilly, sent a letter dated the 14th of January the year 2000, stating that she was unavailable to be present with her client for this show cause hearing on the 25th or 26th of January. |
| [...] |
| With respect to that letter, again the co-ordinating member responded that if the hearing were to proceed, we would be ready to hear them at the same time, as we were scheduling the abandonment hearing and therefore she designated January 27th, being today, at 1:15. Since counsel had made absolutely no mention that she would be unavailable on the 27th, uniquely mentioning that she was unavailable the 25th and 26th of January. |
| [...] |
| On January 26th, being yesterday, the case officer received a fax from the O'Reilly law office and from maître Lori O'Reilly stating that she had received a notice to appear for the abandonment hearing scheduled for January 27th and she was requesting another postponement for February the 18th, the year 2000 or February 25th, the year 2000. |
| [...] |
| This was sent on, this was received by fax on January 24th, remitted to the case officer on the 26th of January and given to the panel yesterday at noon. Given the earlier letter of maître Lori O'Reilly, where she had only indicated that she would be unavailable only on two dates, being the 25th and the 26th, it was not decided upon unilaterally, but according to her availability and according to the dates that she had mentioned in her letter that there were only two dates that she stated she would be unavailable and no other dates, and this is how the state was confirmed. |
[7] In its decision dated February 3, 2000, the CRDD declared Zulquernain's refugee claim to have been abandoned on January 27, 2000. The letter states:
| On the 12th day of October 1999. the [sic] claim was referred to the Refugee Division [sic] |
| The Refugee Division advised you that you had to appear at the Assignment Court on 29nd [sic] day of November 1999. |
| You did not appear at the Assignment Court. |
| By notice dated 21st day of January 2000, the Refugee division advised you and your counsel that a hearing would be held on 27nd [sic] day of January 2000 to give you an opportunity to explain why the Refugee Division should not declare your claim to be abandoned. |
| Neither you or your counsel appear [sic] at that hearing. |
| ACCORDINGLY, THE REFUGEE DIVISION DECLARED THE CLAIM TO HAVE BEEN ABANDONED ON THE 27TH DAY OF JANUARY 2000. [emphasis in original] |
ISSUE
[8] Both applicant and respondent frame the issue as "whether the CRDD failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe" by adjourning the matters to January 27, 2000.
APPLICANT'S SUBMISSIONS
[9] The applicant submits the CRDD was required by Rule 13(4) of the Convention Refugee Determination Rules, S.O.R./93-45 (the "Rules"), to understand all the circumstances before it ruled on an adjournment. The CRDD, in the applicant's submission, ignored all correspondence and telephone calls originating from his counsel's law office requesting sufficient time to prepare for the hearing.
[10] The applicant submits the case of Gargano v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 49 (F.C.T.D.) for the proposition that the right to a fair trial takes precedence over the need for a quick and speedy hearing. The short notice given to the applicant, in his submission, seriously prejudiced his ability to proceed on the merits on January 27, 2000.
[11] The applicant cites subsection 69.1(6) of the Act concerning abandonment of claims and refers to the case Ressam v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 50 (F.C.T.D.) to support its submission that it is only when the Refugee Division has allowed the claimant to explain his reasons and concluded that they were valid, that it may proceed to hear the claim.
[12] The applicant submits the CRDD did not give him a reasonable opportunity to be heard, a rule of natural justice which was denied when it allowed the adjournment of the January 26, 2000 hearing date, and then unilaterally set the hearing date for the next day. The applicant further submits it is a principle of fairness and natural justice that counsel be contacted to determine their availability and to set dates of hearing with their agreement.
RESPONDENT'S SUBMISSIONS
[13] In relation to subsection 69.1(6) of the Act and Rule 13(4) of the Rules, the Minister of Citizenship and Immigration (the "Minister") submits the CRDD has control of its own proceedings, subject to the requirements of the Act, the Rules, and the rules of fairness and natural justice. As such, adjournments of proceedings are very much in its discretion.
[14] The Minister submits the applicant was not denied a fair hearing and that he had ample time to prepare, as well as an opportunity to attend with counsel. As such, Gargano, supra is of no assistance to the applicant.
[15] The CRDD did agree to postpone/adjourn the hearing despite the fact the applicant did not comply with the Practice Notice. The applicant's January 14, 2000 request failed to provide proposed alternative dates and arrive within two weeks of the hearing date.
[16] The Minister submits that although a Practice Notice may be adopted by a tribunal, it is not binding law and each case must be considered on its own circumstances. The principles of natural justice do not require rigid adherence to a general policy. Furthermore, the principles of natural justice and procedural fairness do not require the CRDD to abide by the Practice Notice when the applicant has not done so.
[17] The Minister submits that with regard to all the circumstances, including the previous adjournment and the applicant's failure to adhere to the requirements of the Practice Notice, the CRDD properly exercised its discretion in declining to grant a further adjournment of the applicant's abandonment hearing.
RELEVANT STATUTORY PROVISIONS
[18] The Immigration Act, R.S.C. 1985, c. I-2, subsection 69.1(6):
| (6) Where a person who claims to be a Convention refugee (a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim, (b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or (c) in the opinion of the Division, is otherwise in default in the prosecution of the claim, the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned and, where it does so, the Refugee Division shall send a written notice of its decision to the person and to the Minister. |
(6) La section du statut peut, après avoir donné à l'intéressé la possibilité de se faire entendre, conclure au désistement dans les cas suivants_: a) l'intéressé ne comparaît pas aux date, heure et lieu fixés pour l'audience; b) l'intéressé omet de lui fournir les renseignements visés au paragraphe 46.03(2); c) elle estime qu'il y a défaut par ailleurs de sa part dans la poursuite de la revendication. Si elle conclut au désistement, la section du statut en avise par écrit l'intéressé et le ministre. |
| ANALYSIS AND DECISION |
| [19] The only issue in this application is whether the CRDD breached the duty of procedural fairness when it adjourned the hearing from January 25 and 26, 2000 to January 27, 2000. I have reviewed the decision of the panel and the panel took the position that simply because Ms. O'Reilly stated she was unavailable on January 25 and 26, 2000, she was therefore available on January 27, 2000 in Montreal. This conclusion is not logical as Ms. O'Reilly was merely stating two dates that she was not available. In fact, Ms. O'Reilly merely asked for an adjournment to a later date. |
| [20] Rule 13(4) of the Convention Refugee Determination Rules, S.O.R./93-45 with respect to postponements reads as follows: |
| 13(4) The Refugee Division, in determining whether a hearing shall be postponed, or in determining pursuant to subsection 69(6) of the Act whether an adjournment of a hearing would unreasonably impede the proceeding, may take into consideration, where applicable, (a) the efforts made by the parties to proceed expeditiously; (b) the nature and complexity of the issues relevant to the proceeding; (c) the nature of the evidence to be presented, and the likelihood of causing an injustice to any party by proceeding in the absence of the evidence; (d) counsel's knowledge of, and experience with, similar proceedings; (e) the amount of time already afforded the parties for preparation of the case; (f) the efforts made by the parties to be present at the hearing; (g) the efforts made by the parties to make an application for a postponement or adjournment of the hearing at the earliest opportunity; (h) the number of, and reasons for, any previous postponements or adjournments granted; (i) whether the hearing was set peremptorily; and (j) any other relevant facts. |
| 13(4) Pour déterminer si elle fera droit à une demande de remise de l'audience ou pour déterminer, conformément au paragraphe 69(6) de la Loi, si l'ajournement de l'audience causera ou non une entrave sérieuse à la procédure, la section du statut peut prendre en considération, le cas échéant: a) les efforts déployés par les parties pour procéder avec célérité; b) la nature et la complexité des questions qui se rapportent à la procédure; c) la nature des éléments de preuve devant être présentés et le risque de causer une injustice à l'une ou l'autre des parties en procédant en l'absence de ces éléments de preuve; d) les connaissances et l'expérience du conseil en ce qui concerne les procédures du même genre; e) le délai déjà accordé aux parties pour la préparation de l'affaire; f) les efforts déployés par les parties pour être présentes à l'audience; g) les efforts déployés par les parties pour demander à la première occasion la remise ou l'ajournement de l'audience; h) le nombre de remises ou d'ajournements antérieurs accordés, ainsi que les motifs les justifiant; i) le fait que l'audience a été ou non fixée de façon péremptoire; j) tout autre fait pertinent. |
| [21] A portion of a Practice Note relating to adjournments reads as follows: |
| PRACTICE NOTICE: Postponements and Adjournments |
| 5. DUTY OF PARTIES TO RESPECT DATES OF HEARING |
| Before scheduling hearings, the Refugee Division will make reasonable efforts to contact parties to determine their availability and to set dates of hearing with their agreement. |
| Where, for any reason, the Refugee Division is unable to obtain agreement of parties to a date of hearing, the Refugee Division will schedule a hearing and it will normally give the parties at least three (3) weeks' notice of the hearing. Where no application for a postponement or an adjournment is made at least two (2) weeks prior to the date of hearing, the Refugee Division will assume the parties have agreed to that date and it will expect them to appear at the hearing, prepared to proceed. |
| Where a party applies for a postponement or an adjournment of a date of hearing scheduled without the party's agreement, the party is expected to provide alternative dates of hearing in accordance with paragraph 2 of Procedures below. |
| Where parties, whether represented by counsel or not, make a commitment by agreeing to a date of hearing, the Refugee Division expects them to appear on that date, prepared to proceed. |
| Where counsel accepts a retainer in a case where a date of hearing has been scheduled, the Refugee Division expects counsel to be prepared to appear on that date, ready to proceed. |
| The Refugee Division will consider a party's agreement to a date of hearing as a relevant factor in determining an application for a postponement or an adjournment. |
| PROCEDURES |
| 2. ALTERNATIVE, AVAILABLE DATES OF HEARING |
| A party applying for a postponement or an adjournment is expected to provide the Refugee Division with a minimum of six (6) alternative dates within the subsequent three (3) months when the party is available to proceed. As a norm, hearings will be scheduled to be completed in a half day unless counsel requests that a longer time be reserved and gives reasons for the request. |
| [22] The respondent has stated that the applicant did not provide alternative dates when the request for the adjournment of the January 26, 2000 hearing date was made. However, since CRDD granted the adjournment from January 26, 2000 this failure has no relevance to this application. |
| [23] The second request for an adjournment was made on January 24, 2000 to adjourn the new hearing date of January 27, 2000 to other dates in February, 2000. It is my opinion that CRDD unilaterally set the date of January 27, 2000 without any consultation with the applicant. As I stated earlier, it cannot be said that because the applicant's counsel was not available on January 25 or 26, 2000 therefore, she was available on January 27, 2000. Furthermore, this is not, in my opinion, consultation with the applicant's counsel in setting the January 27, 2000 date for the hearing. |
| [24] There is no doubt that CRDD can control its own procedure but that procedure should be in accord with its own Rules, the law and procedural fairness. No tribunal can ignore procedural fairness. It should be noted that according to CRDD's own Practice Note, when CRDD is unable to get the agreement of counsel on a date of hearing, it will normally give the parties three weeks notice of the hearing. |
| [25] It also must be noted that as a result of the failure of CRDD to grant the adjournment, the applicant lost his right to put his case before the Board which was of the utmost importance to the applicant. The adjournment of the hearing until February 28 or 25, 2000 was not an unreasonable request. |
| [26] I am therefore of the opinion that the failure of CRDD to adjourn the hearing from January 27, 2000 to February 18 or 25, 2000 constituted a breach of the duty of procedural fairness. The decision of the Board to order that the refugee claim of the applicant be abandoned is set aside and the application (refugee claim) of Zulquernain is to be heard by a differently constituted panel of the Board. |
| [27] Neither party asked to certify a question pursuant to subsection 83(1) of the Act. |
| ORDER |
| [28] IT IS ORDERED that the CRDD decision to order that the refugee claim of the applicant be abandoned is set aside and the application (refugee claim) of Zulquernain be heard by a differently constituted panel of the Board. |
| "John A. O'Keefe" |
| J.F.C.C. |
| Toronto, Ontario |
| November 23, 2000 |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-751-00
STYLE OF CAUSE: ZULQUERAIN
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
| DATE OF HEARING: TUESDAY, NOVEMBER 14, 2000 |
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: THURSDAY, NOVEMBER 23, 2000
APPEARANCES:
Ms. Lori A. O'Reilly
FOR APPLICANT
Ms. Tracy King
FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Lori A. O'Reilly
202 - 5809 Macleod Trail SW
Calgary, Alberta
T2H 0J9
FOR APPLICANT
Department of Justice
211 Bank of Montreal Building
10199 - 101 Street
Edmonton, Alberta
T5J 3Y4
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20001123
Docket: IMM-751-00
BETWEEN:
ZULQUERAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER