Digests

Mervilus v. Canada (Minister of Citizenship and Immigration)

IMM-8400-03

2004 FC 1206, Harrington J.

2/9/04

11 pp.

Judicial review of decision by Immigration Appeal Division of Immigration and Refugee Board (Appeal Division) setting aside stay of deportation order and dismissing appeal of order against applicant Celonie Mervilus--Applicant Haitian national arriving in Canada with family to join another sister already living in Canada--Some years later, arrested for drug trafficking, sentenced and received term of imprisonment-- Ordered to leave Canada, but Appeal Division stayed order for five-year period, with review on regular basis--In penultimate case review, Appeal Division staying order for one more year, but concluding applicant, who had been released from prison, not satisfactorily demonstrating intended to make serious effort to join labour market and settle debts with state--At final review, applicant appearing before Appeal Division but not having counsel--Counsel withdrawing from case two days before hearing because unable to contact client--Applicant requesting postponement to be able to return with counsel, explaining had spoken with counsel previously but at time they were to meet to prepare case, applicant stuck in Haiti--Member determining applicant's integration in Canada unsatisfactory and lifting stay, dismissing appeal and making deportation order enforceable--Despite respondent's argument counsel would not have made difference in outcome of case, clear applicant not able to represent himself coherently--Right to counsel in administrative proceeding not absolute right, unlike right to fair hearing--However, when effect of absence of counsel to deprive individual of right to fair hearing, decision rendered invalid--In certain cases, person may have right to assistance of counsel arising from requirement person be afforded opportunity to adequately present case--Refusing individual right to retain counsel by not allowing postponement reviewable if following factors in play: case is complex, consequences of decision serious and individual not having resources, whether in terms of intellect or legal knowledge, to properly represent interests--Purpose of hearing to establish applicant having met conditions for stay and to decide appeal of deportation order--Member brought out shortcomings in case, but as applicant learned just day before he would be appearing alone, nobody arguing favourable points--Consequences of removing applicant from Canada, when father of two children and no longer having family in Haiti, very serious--In prior decision Appeal Division referring to applicant's limited intellect obstacle to his integrating easily into society--Applicant not having right to fair hearing since unable to argue case--Since applicant always appearing accompanied by counsel, applicant having reasonable expectation of postponement--Regarding applicant's employment and measures taken to settle social security debt, applicant having taken some action but not having in hand evidence given to his counsel--Previously having right to stay of execution of removal order, due to representation by counsel, and obviously ill-equipped to deal with issue of appeal--Unfair to close file definitively without giving applicant chance to be heard by impartial tribunal-- Application allowed.