CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Mangat v. Canada (Minister of Citizenship and Immigration)
IMM-4424-99
Gibson J.
18/8/00
13 pp.
Judicial review of CRDD's decision applicant not Convention refugee--Applicant arriving in Canada, claiming refugee status October 21, 1998--On April 26, 1999 notified hearing before CRDD scheduled for June 30, 1999--On June 28, retaining new counsel who wrote to Board indicating unavailable to proceed on such short notice, but applicant would appear as scheduled--CRDD rejected applicant's request for adjournment, proceeding in absence of counsel, rejecting refugee claim--Applicant refused to testify--Application allowed--Immigration Act, s. 69(6) providing Refugee Division shall not adjourn proceedings unless satisfied adjournment would not unreasonably impede proceedings--Convention Refugee Determination Division Rules, R. 13(4) enumerating factors for consideration in determining whether adjournment would unreasonably impede proceeding--Those factors parallel to factors identified as relevant to adjudicator's exercise of discretion to grant adjournment in Siloch v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76 (F.C.A.)--No earlier adjournment--CRDD neither inquiring into length of adjournment sought nor offering short adjournment to enable new counsel to familiarize self with applicant, claim, consider joinder of applicant's claim with that of brother--No indication short adjournment would affect immigration system or needlessly delay, impede or paralyse conduct of claim--Denial of adjournment depriving applicant of right to fair hearing--As in Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.), standard of review reasonableness simpliciter given CRDD not concluding s. 69(6) eliminating discretion with regard to request for adjournment--No indication on face of reasons, CRDD considered relevant factors enumerated in R. 13(4)--Much of testimony ignored--Applicant's confidence in reliability of first counsel deteriorating over time, only culminating after notice of hearing received--Applicant 23 years old; testifying through interpreter; dealing with unfamiliar refugee determination regime, culture shock--In circumstances, taking two to three weeks to identify new counsel not unreasonable--No indication how CRDD concluded on basis of applicant's testimony, forthright apology for impact of late request for adjournment, that applicant had "ulterior motives" in changing counsel--CRDD's reasons for denying adjournment not standing up to somewhat probing examination--Extrapolated from s. 69(6), against "large and liberal interpretation of the values underlying [the Immigration Act)" and "humanitarian and compassionate values in Canadian society" referred to in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, where granting of adjournment not proscribed by s. 69(6), CRDD should be generous in exercise of discretion to grant adjournments in circumstances where no evidence of bad faith by requesting party, particularly given potentially immense consequences of refusal in case such as this--No bad faith evident herein--Immigration Act, R.S.C., 1985, c. I-2, s. 69(6) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18--Convention Refugee Determination Division Rules, SOR/93-45, R. 13(4).