Federal Court Decisions

 

 

 

Date: 20061026

Docket: IMM-6970-05

Citation: 2006 FC 1291

 

BETWEEN:

BOGUSLAW RAJKOWSKI,

BARBARA RAJKOWSKI,

KAROL SZYMON RAJKOWSKI and

ANNA ZUZANNA RAJKOWSKA

Applicants

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR ORDER

 

GIBSON J.

I. Introduction

[1]               These reasons follow the hearing on the 23^rd of October, 2006, of an application for judicial review of a decision of the Refugee Protection Division (the “Tribunal”) of the Immigration and Refugee Board, dated the 25^th of October, 2005, wherein the Tribunal determined the applicants not to be Convention refugees or persons otherwise in need of like protection. At the close of the hearing, I advised Counsel that the application for judicial review would be dismissed. These are my reasons for reaching that conclusion.

II. Background

[2]               The applicants are husband and wife and their two children. The principal applicant is Boguslaw Rajkowski. The applicants are citizens of Poland, of Roma ethnicity. The principal applicant bases his claim on his treatment in Poland, by reason of his ethnicity. The other applicants base their claim on that of the principal applicant.

 

[3]               The applicants came to Canada from the village of Dolnoslaskie in Poland. They were all born in Poland. The principal applicant alleges that he was assaulted by two men who smashed his accordion. He further alleges that he was despised because of his ethnicity and treated as if he were a thief by the police and others in their small farming community. The principal applicant attests that, in April, 2004, he received a letter threatening to kill him and his family if they did not move out of Poland. He alleges that he reported the threat to the police but that the police ignored him. The other applicants cited examples of discrimination, persecution, harassment and threats that they faced in Poland.

 

[4]               The applicants were granted Canadian Visitor Visas to attend a christening of the principal applicant’s grand daughter. They came to Canada in June of 2004. They made their claims for protection in September, 2004.

 

III. The Decision Under Review

[5]               The Tribunal was satisfied that the applicants are who they claim to be and that they are citizens of Poland. It found them not to be Convention refugees or persons otherwise in need of like protection because they do not have a well-founded fear of persecution in Poland based on a Convention ground they would not be subjected personally to a risk to their lives or to a risk of cruel or unusual treatment or punishment, if they were returned to Poland and that there is no substantial ground for a belief that their removal to Poland would subject them personally to a danger of torture.

 

[6]               In support of its decision, the Tribunal determined that the behaviour and actions of the applicants did not support a finding of a subjective fear on their part. The Tribunal further found that the applicants’ fear lacked an objective basis on the ground that state protection in Poland was reasonably available to them.

 

IV. The Issue

[7]               Counsel for the applicants, before the Court; put forward a single “central” issue on this application for judicial review, that being, whether the applicants were provided natural justice and procedural fairness. The applicants appeared before the Tribunal on three separate occasions, the first being on the 16^th of June, 2005, the second being on the 21^st of July, 2005, and the third being on the 4^th of October, 2005. Only on the last of the three appearances, was the substance of the applicants’ claims examined.

 

[8]               While the adequacy of the Tribunal’s reasons for rejecting the applicants’ claim was raised in the applicants’ memorandum of argument, it was not pursued as an issue at the hearing.

 

[9]               In essence then, the sole issue before the Court was whether or not the applicants were afforded natural justice and procedural fairness with respect to their claims.

V. Analysis

A. Standard of Review

[10]           Issues of natural justice and procedural fairness do not attract a pragmatic and functional analysis. The standard of review on such issues is correctness[1].

 

B. The Process with respect to the applicants before the Tribunal

[11]           The applicants are neither sophisticated nor well-educated. They do not speak English. On all three appearances before the Tribunal, they were not represented by counsel although they did have with them a “friend” who spoke both polish and english. A review of the transcript indicates that the friend’s english was not sophisticated or particularly fluent.

 

[12]           For the first appearance of the applicants before the Tribunal, on the 16^th of June, 2005, no transcript is included in the Tribunal Record. Counsel, when questioned at hearing, were unable to provide any explanation as to why a transcript was not included. The only document relevant to that hearing to which the Court was taken appears at page 112 of the Tribunal Record and is entitled Hearing Information Sheet. That document would appear to have been completed by the presiding member. It notes that the applicants were present, that the hearing lasted 25 minutes that the hearing was adjourned because the applicants were “not prepared to go without counsel,” and that they were instructed to retain and instruct counsel by the 21^st of July, 2005 or “…go ahead without”.

 

[13]           The applicants’ friend filed an affidavit in this proceeding in which he attests:

I accompanied the Rajkowskis to their hearing, on June 16, 2005. There was no interpreter present, so the Board member spoke with me. I explained that I had found a lawyer to represent the Rajkowskis, but that the lawyer needed a postponement of the hearing to prepare. The Board member stated several times that it was not necessary for the Rajkowskis to have a lawyer. She said that the hearing was not between the lawyer and the Board member. It was between the claimants and the Board member. She said that there was no need to waste $3,000. She said my English was good enough and that I could represent them if there were any questions. She said that she would hold on to the file and that we would have the hearing in a few weeks. She then rescheduled the hearing for July 21, 2005. She said that she would be the member and that the hearing must take place on that date.[2]

 

[14]             The second hearing before the Tribunal took place on the 21^st of July, 2005. A different Tribunal member presided. Again, there was no interpreter although on this occasion, a transcript was made and it appears in the Tribunal Record.

 

[15]           The transcript discloses an exchange between the Tribunal member and the applicants’ friend in which the Tribunal member indicates that it would not be necessary for the applicants to have a lawyer. The Member continues:

You have the right to have a lawyer. You could have a lawyer if you want but it’s at your expense but it’s not necessary.[3]

 

[16]           The applicants’ friend indicated that the applicants were ready to proceed on that date, notwithstanding that they did not have a lawyer to represent them. Nonetheless, the interpreter arrived too late. In the result, the hearing was once again postponed, this time to the 4^th of October, 2005.

 

[17]           On the 4^th of October, the applicants once again appeared before the Tribunal, and once again, they were without a lawyer to represent them. On this occasion, an interpreter was present. The applicants’ friend explained the situation to the presiding member in the following terms:

So I came here and I asked if he could postpone until I can collect from our friends to get a lawyer and she says my [sic] all means there is no need for the lawyer. That’s [sic]was her advice because it’s a matter between you sir, and them. So she says to spend that kind of money there [sic] is not necessary to have a lawyer and that’s why we decided to proceed without the lawyer.[4]

 

[18]           That being said, the issue of the cost of the lawyer was clearly a significant consideration in the minds of the applicants and their friend.

 

[19]           Once again, early on in the hearing on the 4^th of October, 2005, the following exchange took place between the Tribunal member and the principal applicant:

Presiding member:        You are ready to proceed without counsel?

Male claimant:              Yes.

President member:        You know that you are entitled to counsel at your own expense but you are ready to proceed without counsel?

Male claimant:              Yes, I am ready. I want to finish it.[5]

 

[20]           The transcript discloses that the presiding member at the October 4^th hearing was at pains to explain the process during the course of the hearing and to do his best to ensure that the applicants understood what was going on. This is reinforced by the following paragraph contained in the Tribunal member’s reasons for decision:

The claimants were not represented by counsel. Thus, I ensured that the following procedural safeguards were in place. I explained to the claimants before commencement of the hearing, the Convention grounds and the meaning of the consolidated grounds and relevant legal tests. I also explained the procedural issues and what onus they had to meet. The claimants were given an opportunity to review their Personal Information Forms (PIFs). They were confident in proceeding without the help of counsel and affirmed that they understood the explanation provided.[6]   

 

[21]           Before the Court, counsel for the applicants urged that the applicants were denied natural justice and procedural fairness in that they were counselled by the Tribunal members before whom they appeared that a lawyer was not necessary to represent them, that they relied to their detriment on that advice, in particular on the advice that they received at their first hearing, and that the unexplained absence of a transcript for their first hearing prejudiced their ability to establish their case before this Court. I reach a different conclusion.

 

[22]           In Austria v. Canada (Minister of Citizenship and Immigration)[7], my colleague Justice Tremblay-Lamer wrote at paragraph 3 of her reasons:

The sole issue before this Court is whether the Board breached the principles of natural justice and procedural fairness in failing to adjourn the hearing when it saw that the applicant did not have counsel.

 

[23]           Madam Justice Tremblay-Lamer continued at paragraphs 6-9 of her reasons:

As it is clear from the decision, which provides that state-funded legal aid is constitutionally mandated in some cases, the right to counsel is not absolute. In immigration matters specifically, this Court has repeatedly held that the right to counsel is not absolute:…What is absolute, however, is the right to a fair hearing. To ensure that a hearing proceeds fairly, the applicant must be able to “participate meaningfully”…

 

Therefore, in certain circumstances, the absence of counsel may result in such unfairness during the hearing that Court intervention is warranted. I am not satisfied, however, that the matter at hand represents such a case. I believe that the applicant was indeed afforded a fair hearing.

 

I would note first that it is clear from the transcript that the applicant unmistakably indicated that he was ready to proceed without counsel at the hearing of April 20, 2005. Moreover, no adjournment was requested and, contrary to the applicant’s suggestion, there is no indication that he was under any pressure to proceed. He cannot now complain about his choice when he had every opportunity to do so at the hearing.

 

Additionally, I am satisfied that the Board took the necessary precautions to ensure that the applicant was able to participate meaningfully and that the hearing proceeded fairly.  There was an interpreter present. The presiding member explained the manner proceeding, the burden of proof, the five Convention refugee grounds and the definition of a person in need of protection as well as the importance of credibility in very straightforward terms. During the hearing, the Board took the necessary time to ensure the applicant understood the materials, for example, his personal information form. The Board noted the evidence which was previously submitted by the applicant’s former counsel. The Board also gave the applicant the opportunity to introduce his own documentary evidence. Finally, on more than one occasion, the Board asked the applicant if he understood what was asked of him, to which he consistently replied in the affirmative.

 

[citations omitted]

 

 

[24]           I am satisfied that, with the exception of providing the applicants an opportunity to introduce their own documentary evidence, and the reality that here, the applicants never had counsel and therefore, evidence was never previously presented on their behalf by former counsel, exactly the same might be said here. I am not satisfied that those two exceptions resulted in an unfair hearing. In essence, the applicants got the hearing that they asked for and I am simply not satisfied that they were misled or misadvised by the Tribunal into proceeding without counsel.

 

 

VI. Conclusion

[25]           In the result, this application for judicial review will be dismissed.

 

[26]           At the close of the hearing, as earlier indicated, I advised counsel that this application would be dismissed. Neither counsel, when consulted, recommended certification of a question. The Court itself is satisfied that no serious issue of general importance arises on the particular facts of this matter. No question will be certified.

 

“Frederick E. Gibson”

 

Toronto, Ontario

October 26, 2006

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-6970-05

 

 

STYLE OF CAUSE:                          BOGUSLAW RAJKOWSKI, BARBARA

RAJKOWSKI, KAROL SZYMON RAJKOWSKI and

ANNA ZUZANNA RAJKOWSKA v. THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                    Toronto, Ontario

 

 

DATE OF HEARING:                      October 23, 2006

 

 

REASONS FOR ORDER:               GIBSON J.

 

 

DATED:                                             October 26, 2006

 

 

APPEARANCES:

 

Mordechai Wasserman	FOR THE APPLICANTS
Marina Stefanovic	FOR THE RESPONDENT

SOLICITORS OF RECORD:

 

Mordechai Wasserman Barrister & Solicitor Toronto, Ontario	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT