[2000] 3 F.C. 109
IMM-5626-98
Zamal Ahamad (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Ahamad v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.—Montréal, September 30, 1999; Ottawa, February 25, 2000.
Citizenship and Immigration — Immigration practice — Abandonment of refugee claim — Applicant failing to appear at refugee claim hearing — Counsel invoking medical reasons, presenting doctor’s certificates — CRDD denying adjournment, determining refugee claim abandoned — CRDD could not have reasonably concluded claim abandoned.
Administrative law — Judicial review — Certiorari — Standard of review — Applicant failing to appear at refugee claim hearing — Counsel invoking medical reasons, presenting doctor’s certificates — CRDD denying adjournment, determining refugee claim abandoned — Applying standard of review in Baker v. Canada and Canada (Director of Investigation and Research) v. Southam Inc., CRDD decision unreasonable.
Three days before the hearing of his refugee claim before the CRDD, the applicant went to the hospital, complaining of chest pains. The medical certificate he obtained stated that he should return to work one week later. He was given a further hospital appointment for the same morning as his refugee hearing. The lawyer handling his refugee claim told him to keep this appointment and that he would seek an adjournment from the CRDD. The adjournment request was denied, but counsel did not advise his client of the refusal. The lawyer appeared on the hearing date, but the CRDD decided to hold an abandonment hearing at which the medical certificates (two additional medical certificates were filed at the abandonment hearing) were found insufficient to justify the failure to appear and the claim was declared to have been abandoned. This was an application for judicial review of that decision. The only issue considered was whether it was unreasonable.
Held, the application should be allowed.
Guidance as to the standard of review applicable to discretionary decisions such as the present one was found in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In that case, the Supreme Court of Canada has integrated the substantive aspects of discretionary decisions into the “well-known practical and functional approach”—the creation of a spectrum with certain decisions being entitled to more deference, and others to less. Rather than classifying decisions as discretionary or non-discretionary, such an approach requires taking into account considerations such as the expertise of the tribunal, the nature of the decision, the language of the provisions and the surrounding legislation. Taking these into account, the appropriate standard of review of the CRDD’s decision (of mixed law and fact) was one of reasonableness simpliciter.
In the case at bar, the most important factor was the nature of the decision: the determination that a refugee claim was abandoned for failure to appear. Such a decision has quite profound consequences for the claimant and had to be subjected to serious scrutiny.
The CRDD decision was unreasonable and could not stand because: (1) relevant factors had not been considered; (2) evidence was ignored; and (3) the reasons given did not stand up to a somewhat probing examination. The CRDD did not ask itself the right question: whether in all of the circumstances and taking into account all relevant facts, the applicant’s behaviour evidenced, in clear terms, a wish or intention not to proceed with his claim. Nor was there any basis for the conclusion that there were no medical reasons why the applicant could not testify and that the hearing should not be postponed. The CRDD ignored a doctor’s evidence as to who asked for the delay. It also illogically concluded that, although the applicant’s counsel had told him he did not have to appear, this was not an excuse because the applicant was aware of the hearing date. This was not the type of case where an applicant should be penalized because of counsel’s honest error.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Convention Refugee Determination Division Rules, SOR/93-45, s. 32.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18(4)(d) (as am. by S.C. 1990, c. 8, s. 4).
Immigration Act, R.S.C., 1985, c. I-2, s. 69.1(6) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60).
Immigration Regulations, 1978, SOR/78-172, s. 35(1).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; amended reasons [1998] 1 S.C.R. 1222; (1998), 11 Admin. L.R. (3d) 130; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th)1; 50 Admin. L.R. (2d) 199; 71 C.P.R. (3d) 417; 209 N.R. 20; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th)1; 50 Admin. L.R. (2d) 199; 71 C.P.R. (3d) 417; 209 N.R. 20; Cirahan v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 116 (F.C.T.D.); Kavunzu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1141 (T.D.) (QL); Pene Kitoyo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1945 (T.D.) (QL); Luttra Nievas v. Canada (Minister of Citizenship and Immigration) (1998), 144 F.T.R. 224 (F.C.T.D.); Siloch v. Canada (Minister of Citizenship and Immigration) (1993), 10 Admin. L.R. (2d) 285; 18 Imm. L.R. (2d) 239; 151 N.R. 76 (F.C.A.).
REFERRED TO:
Perez v. Canada (Solicitor General) (1994), 93 F.T.R. 256 (F.C.T.D.); Izauierdo v. Canada (Minister of Citienship and Immigration), [1997] F.C.J. No. 1669 (T.D.) (QL); Ressam v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 50; 36 Imm. L.R. (2d) 99 (F.C.T.D.); Alegria-Ramos v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 150 (F.C.T.D.).
APPLICATION for judicial review of a CRDD decision determining that the applicant had abandoned his refugee claim because of his failure to appear for his hearing on the scheduled date. Application allowed.
APPEARANCES:
Pia Zambelli for applicant.
Edith Savard for respondent.
SOLICITORS OF RECORD:
Pia Zambelli, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Lemieux J.: This judicial review application concerns an October 29, 1998 abandonment hearing decision by the Immigration and Refugee Board, Refugee Division (CRDD), pursuant to subsection 69.1(6) of the Immigration Act [R.S.C., 1985, c. I-2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60)], determining the applicant’s refugee claim abandoned because of the applicant’s failure to appear on the scheduled date for his hearing, namely, September 24, 1998.
A. THE FACTS
[2] The applicant, Zamal Ahamad, is a citizen of Bangladesh who made a refugee claim immediately upon arriving in Canada on February 12, 1998.
[3] As noted, the applicant’s claim was scheduled to be heard by the CRDD on September 24, 1998 in Montréal.
[4] On Monday, September 21, 1998, the applicant saw his family doctor after having experienced chest pains over the weekend. His family doctor sent him to see Dr. Brown at Montréal’s St. Mary’s Hospital Center that day. Dr. Brown, examined the applicant and ran an E.C.G; he issued a medical certificate dated September 21, 1998 stating the applicant should return to regular work on September 28, 1998. In that certificate, under “Remarks” Dr. Brown wrote “Pt. requests delay in his hearings for immigration”. Dr. Brown asked the applicant to return to the hospital for a further medical in four days. In fact, the applicant was given an appointment at St. Mary’s Hospital Out-Patient Services for September 24, 1998 at 08:30 a.m., the date of his scheduled refugee claim hearing starting at 10:00 a.m.
[5] The applicant also saw Mr. Forget, his lawyer in Montréal handling his refugee claim, that Monday September 21st. Mr. Forget, after seeing the medical certificate, told the applicant to go home and rest as instructed by Dr. Brown. Mr. Forget told the applicant it was not necessary to be present at the hearing and he should keep his medical appointment on September 24, 1998; Mr. Forget told the applicant he would take care of the hearing matter by seeking an adjournment from the Refugee Division.
[6] On that same day, Mr. Forget wrote to the CRDD presiding panel member, Jacques Lasalle, for an adjournment. On September 23, 1998, Mr. Forget received a telephone call from the CRDD advising him that his adjournment request was refused. Mr. Forget immediately wrote back to the CRDD the following letter:
[translation]
Dear Mr. Chair,
We have just received a telephone call from Ms. Marie-Claude Foucault, a case officer with the IRB, informing us that you refuse our request for adjournment.
This refusal was based, we are told, on the fact that:
“the medical certificate does not state anywhere that the claimant is unable to come and testify for his hearing and does not refer to any inability to work.
Furthermore, the physician states that it is the claimant himself who is asking that his hearing be adjourned, this recommendation does not at all emanate from the physician.
I therefore demand that the claimant come and appear in person at the hearing and explain to the panel why he is unable to testify.”
It is true that the physician mentions that the claimant is “unable to work” and indicates that he will be able to return to work on September 28, 1998.
But, with respect, we disagree that it is the claimant who is asking that his hearing be adjourned. In fact, if one reads the medical certificate carefully, one can see in the hearing “comments”:
“IT requests delay in his hearing for immigration.”
Accordingly, it is our understanding from this certificate that it is the claimant’s state of health that necessitates a delay in the examination of his case, and not himself.
In our opinion, although we are not a physician, but simply aware of what this kind of symptoms represents, this type of pain should be considered with great circumspection and not lightly.
That is why we assume full responsiblity for the absence of our client at the hearing of September 24, 1998 at 10:30 a.m.
Furthermore, since we thought our client’s state of health was potentially serious, we cancelled our appointment with him for the preparation of his case. That is why we will not be prepared to proceed.
Our only hope is that the examinations our client will be undergoing on the morning of the 24th do not disclose anything serious.
Consequently, and in order to follow the physician’s recommendations, we are asking you once again to be so kind as to adjourn this case to a later date.
Yours very truly
[7] After sending that letter of September 23, 1998, Mr. Forget did not, however, advise the applicant the adjournment request had been refused.
[8] On September 24, 1998, the applicant did not present himself at his refugee claim hearing; however, Mr. Forget made an appearance. There was a discussion between Mr. Forget and the presiding panel member. That discussion was transcribed and is part of the applicant’s record.
[9] On September 24, 1998, the presiding member reiterated the reasons for the adjournment refusal:
[translation] The medical certificate does not state anywhere that the claimant is unable to come and testify for his hearing and does not refer to any inability to work. Furthermore, the physician states that it is the claimant himself who is asking that his hearing be adjourned, this recommendation does not at all emanate from the physician. I therefore demand that the claimant come and appear in person at the hearing and explain to the panel why he is unable to testify. I remind counsel that this hearing begins at 10:30, which leaves the claimant enough time to attend at the IRB after his appointment with the physician, since it appears he had an appointment this morning at 8:30.
[10] The presiding member continued focussing on the interpretation Mr. Forget made of Dr. Brown’s September 21, 1998 certificate. As noted, Mr. Forget read “Pt.” as “IT” making the sentence read “IT requests delay in this hearing for immigration”. The presiding member said this:
[translation] The panel has another interpretation. It has before it the original text, and it is not “it” that is written but “pt” PT is an abbreviation for patient, and the panel has had to examine six—yes, six—medical certificates over the last 10 days from claimants from Bangladesh who, it appears, all had reasons not to attend at their hearing scheduled last week or this week. In some certificates, the panel saw this reference to “pt” and pt is apparently an abbreviation used in the medical community to indicate patient, and it is very clear from reading the document that it is not “it requests” but rather “pt” for “patient requests delay in the hearing for immigration.”
So, as I mentioned, all this document tells us is that the gentleman is unable to work, that his return to regular work is scheduled for the 28th of the 9th, 1998, and that there is no indication to the effect that the gentleman is unable to come and testify here this morning. Furthermore, the panel believes that if the claimant were in a position to travel to go and see a doctor this morning, he is surely in a position to come and appear before the panel and tell it about his physical situation.
So that’s it, I don’t know if Mr. Forget and possibly Mr. Morin have anything to add. That is now our position at this stage.
[11] Mr. Forget apologized to the CRDD for misreading “pt” as “it” and said he took the entire responsibility for this mistake. A heated exchange then took place between the presiding panel member and Mr. Forget with the presiding member’s decision to initiate a show cause abandonment hearing, as required by the Act and by section 32 of the Convention Refugee Determination Division Rules [SOR/93-45] (the Rules).
[12] Prior to the abandonment hearing held on October 29, 1998, the applicant filed two additional medical certificates. One certificate is dated September 23, 1998 from Dr. Z. Jast at the Van Horne Medical Centre. It said the applicant was advised to rest at home for one week due to his chest pains which were being investigated. The second medical certificate was issued by Dr. Gregson on September 24, 1998. Dr. Gregson is at the St. Mary’s Hospital Center. It was he who saw the applicant and not Dr. Brown on September 24, 1998. Under “Remarks” in that medical certificate, the following is noted:
Delay in immigration hearing for seven days was recommended at the time of his 21 Sep. 98 visit. The patient was seen in follow-up 24 Sep. 98 at 08:30.
[13] The applicant was present at the show cause abandonment hearing on October 29, 1998. Jacques Lasalle presided on behalf of the CRDD. The other panel member was Louise Robic.
[14] Mr. Forget made two preliminary objections. He challenged the propriety of the hearing because Louise Robic had not been present on September 24, 1998 when the issue first came up. Moreover, Mr. Forget asked Mr. Lasalle to recuse himself for two reasons: abuse of power concerning his decision to undertake a show cause abandonment hearing and second, an appearance of bias on Mr. Lasalle’s part in this file and in respect of refugee claimants from Bangladesh generally. Mr. Lasalle dismissed both objections.
[15] The show cause hearing continued on its merits. The claimant testified. He essentially reiterated the facts described above, namely: chest pains over the weekend; visit to the family doctor; instructions of the family doctor to go to the emergency ward at St. Mary’s Hospital; his check-up with Dr. Brown; Dr. Brown’s instructions to him that the applicant was to have a rest; his visit to his lawyer that same day; his September 24 follow-up appointment at 8:30 a.m. at St. Mary’s Hospital.
[16] The applicant said he had mentioned to Dr. Brown on the 21st about his immigration hearing on the 24th to which Dr. Brown, according to the applicant, said to him:
Then he said okay, I will give you a letter so that you don’t have to appear at the hearing. And I don’t know what letter he wrote.
[17] The applicant also testified on his appointment with his lawyer the morning of the 21st; the applicant said he showed Mr. Forget the medical certificate; he testified Mr. Forget then said:
Then my lawyer told me, you don’t have to worry, okay, you don’t have to worry about your hearing, I will take care of that. You go and take rest. I also showed him the paper that I have an appointment on the 24th with the doctor. And he told me, you don’t worry at all, you will have no problem, no difficulty, you just go home and rest. Then I went home.
[18] The applicant was cross-examined. He testified as to the medication he was taking, the instructions which the doctor gave him to take rest and to keep himself free from anxiety. The presiding member asked the applicant whether on September 24th, he told the doctor that he had a hearing in front of a board the same day and the applicant answered “yes”.
[19] The presiding member gave the following oral decision and addressing the applicant, said this:
BY PRESIDING MEMBER (to person concerned)
So sir, after examining all the evidence that was adduced here today and on the 24th of September, we have come to the conclusion that there was no evidence of major reason, medical reason to explain why you could not testify or why your hearing should have been postponed.
I will remind you that a postponement was asked by your counsel a few days before the hearing. That postponement was refused, explained clearly. After that, the tribunal required through your counsel that you would be here for your hearing the 24th September. The counsel admitted that he didn’t inform you. But we consider that this is not a valid excuse to justify your absence, as you were well aware of the date of the hearing.
We have looked carefully at the two medical certificates that have been introduced as part of the evidence. What they state is that you asked for a delay of your hearing. And the two medical certificates don’t give any medical reason justifying a failure to appear.
Besides that, I will remind you that on 24th you were healthy enough to go to the St. Mary’s Hospital, West-end of Montreal, you were healthy enough to go to Jean Talon Street, Northern part of Montreal to go to the pharmacy, but you decided not to come to your hearing on the same date at the same time, even if you had been requested to come here. We find that a little strange.
So, I repeat, we have concluded that the two medical certificates don’t provide any medical reason justifying your failure to appear on the said date of your hearing.
So, due to your failure to appear and to your default in prosecution of your claim on the date set for the hearing, the panel concludes that this claim is abandoned. Thank you. [Emphasis mine.]
B. THE ISSUES
[20] Counsel for the applicant argued two grounds in this appeal: appearance of bias and unreasonable conclusion on the merits, i.e., whether the applicant had abandoned his refugee claim.
C. ANALYSIS
(a) The legislation
[21] Subsection 69.1(6) headed “Abandonment of claim” reads as follows:
69.1 …
(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. [Emphasis mine.]
[22] Section 32 of the Rules makes it an obligation of the CRDD to give the applicant a reasonable opportunity to be heard in respect of abandonment. It states:
32. (1) Before declaring a claim to have been abandoned pursuant to subsection 69.1(6) of the Act or an application to have been abandoned pursuant to subsection 69.3(2) of the Act, the Refugee Division shall serve on the parties a notice to appear directing them to attend a hearing on the abandonment.
(2) The notice to appear shall also inform the parties that where, at the end of the hearing concerning an abandonment, the Refugee Division does not declare the claim or application to have been abandoned, the Refugee Division will forthwith commence or resume the hearing into the claim or application.
(b) The standard of review
[23] What is the standard for reviewing a decision of the CRDD declaring that a refugee claimant had abandoned his or her claim on the grounds that that person did not appear on the scheduled hearing date including on what substantive basis should such a decision be gauged or assessed? The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 is instructive on the point and, in particular, the analysis L’Heureux-Dubé J. made commencing at page 852 of “The Approach to Review of Discretionary Decision-Making”.
[24] Clearly, in this case, the CRDD’s decision was a discretionary one, the Act providing “the Refugee Division may … declare the claim to have been abandoned”; the law did not dictate a specific outcome but left open a choice within a statutorily imposed set of boundaries (Baker, supra, at pages 852-853, paragraph 52).
[25] In short, as I read Baker, supra, the Supreme Court of Canada has integrated the substantive aspects of discretionary decisions into the “well-known practical and functional approach”—the creation of a spectrum with certain decisions being entitled to more deference, and others with less.
[26] Rather than classifying decisions as discretionary or non-discretionary ones, such an analysis or approach requires taking into account considerations such as the expertise of the tribunal, the nature of the decision, the language of the provision and the surrounding legislation.
[27] L’Heureux-Dubé J., in Baker, supra, built upon that Court’s decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R 982 (amended reasons at [1998] 1 S.C.R. 1222). Taking into account the analysis in both of these cases, the lack of a privative clause, the object of the judicial review (question of law vs. fact-finding expertise) and the purpose of the provision leads me to conclude that the appropriate standard of review of the CRDD’s decision the applicant had abandoned his refugee claim is one of reasonableness simpliciter. As I see it, the basis upon which the CRDD’s decision rests does not involve primarily legal considerations, for example, the interpretation of a statutory provision, nor findings of fact where paragraph 18(4)(d) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] would require greater deference. In this case, the basis of the decision is one of mixed law and fact.
[28] In applying these factors, I stress the nature of the decision being made: it is a determination that a refugee claimant has abandoned his/her claim before the claimant has been heard on the merits for the reason of that person’s failure to appear at the scheduled hearing. Bastarache J., in Pushpanathan, supra, said in the context of a finding that a refugee claimant was excluded under Article 1F(a) of the Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6] such determination is “quite profound” for the claimant. This approach was echoed by my colleague, Muldoon J. in Cirahan v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 116 (F.C.T.D.), at page 118, paragraph 5, a case involving a review of a CRDD decision deciding the applicant’s claim had been abandoned. Muldoon J. said “[t]he discretion of the CRDD to find proceedings abandoned should be subject to serious scrutiny” [underlining added]. I agree.
[29] Secondly, the nature of the discretionary decision is one which Parliament has indicated should be exercised taking into classical administrative law indicia—not ones where policy factors weigh heavily. In this perspective, the often quoted statement by McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada , [1982] 2 S.C.R. 2, at page 7 focussing on good faith, natural justice and relevant considerations are apt.
[30] The gauge of unreasonableness is that set out by Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at pages 776-777, paragraph 56:
I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. [Emphasis mine.]
CONCLUSION
[31] Applying the standard expressed in Baker and Southam, supra, I am of the view the CRDD’s decision the applicant had abandoned his refugee claim was an unreasonable decision and cannot stand because: (1) there was no consideration of relevant factors; (2) the evidence was ignored; and (3) the reasons given in support of abandonment cannot stand up to a somewhat probing examination.
(a) No consideration of relevant factors
[32] The decided cases of the Court on a review of abandonment claim decisions by the CRDD indicate the test or question to be asked is whether the refugee claimant’s conduct amounts to an expression of intention by that person, he or she did not wish or had shown no interest to pursue the refugee claim with diligence; this assessment is to be made in the context of the obligation of a claimant who breaches one of the elements of subsection 69.1(6) to provide a reasonable excuse (Perez v. Canada (Solicitor General) (1994), 93 F.T.R. 256 (F.C.T.D.), Joyal J.; Izauierdo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1669 (T.D.) (QL), Rouleau J.; Ressam v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 50 (F.C.T.D.), Pinard J.; Alegria-Ramos v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 150 (F.C.T.D.), Dubé J.).
[33] The answer to the question is to be given in relation to the facts of a particular case but taking into account all of the relevant factors which bear upon the matter.
[34] Nadon J. in Kavunzu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1141 (T.D.) (QL), outlined some of these considerations including the date of the claimant’s arrival, whether a personal information form was filed, whether or not counsel was retained in a timely manner, whether one or more absences had previously occurred. Other factors include absences of contacts between the claimant and counsel (Pene Kytoyo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1945 (T.D.) (QL), Teitelbaum J.) and medical reasons for not appearing on the scheduled date (Luttra Nievas v. Canada (Minister of Citizenship and Immigration) (1998), 144 F.T.R. 224 (F.C.T.D.), Pinard J.).
[35] These factors are similar to the ones enumerated by Décary J.A. in Siloch v. Canada (Minister of Citizenship and Immigration) (1993), 10 Admin. L.R. (2d) 285 (F.C.A.) dealing with the refusal of an adjudicator in an immigration matter to grant an adjournment. Décary J.A. stressed adjournments are a matter of discretion which must be exercised in a quasi-judicial manner. In that case, the Adjudicator was authorized by subsection 35(1) of the Regulation [Immigration Regulations, 1978, SOR/78-172] to “adjourn the inquiry at any time if the adjournment will not impede or unreasonably delay the proceedings”.
[36] The relevant factors enumerated by Décary J.A. in his analysis were [at pages 287-289]:
It is also well settled that in exercising his discretion to grant an adjournment under subs. 35(1) of the Regulations, the Adjudicator must direct his attention to factors such as:
a) where the applicant has done everything in her power to be represented by counsel;
b) the number of previous adjournments granted;
c) the length of time for which the adjournment is being sought;
d) the effect on the immigration system;
e) would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry;
f) the fault or blame to be placed on the applicant for not being ready;
g) were any previous adjournments granted on a peremptory basis;
h) any other relevant factors.
…
In the circumstances of this case, where the intention of the applicant to proceed was unquestionable, where the applicant had no reason to question the reliability of her counsel until the moment he did not show up, where the only adjournment granted in the case so far had been to allow the applicant to appoint counsel, where no fault or blame could be put on the applicant for not being ready, where the Adjudicator took into consideration a factor unknown to the applicant and therefore irrelevant as far as she was concerned, i.e. the actual experience of the Adjudicator that very same day in another case and the history of poor behaviour of counsel, where the Adjudicator did not enquire as to the length of the adjournment being sought nor offer the applicant a short adjournment to enable her to find new counsel; and where there is absolutely no indication that a short adjournment would affect the immigration system or needlessly delay, impede or paralyse the conduct of this particular inquiry, the Adjudicator, in denying the adjournment on March 4, 1991, deprived the applicant of her right to a fair hearing. It is clear, when one reads the transcript, that the applicant was being penalized by the Adjudicator for the previous poor behaviour of her counsel, of which she was not aware and which she had no reason to suspect. Simply put, the adjournment was refused because the applicant had the misfortune, the first time around, of retaining irresponsible counsel and the additional misfortune of facing an Adjudicator who had a long-standing dislike for that counsel. [My emphasis.]
[37] An examination of the reasons of the CRDD in this case clearly shows its members did not ask themselves the right question, namely, whether in all of the circumstances and taking into account all relevant facts, did the applicant’s behaviour evidence, in clear terms, a wish or intention not to proceed with his claim. The CRDD analysis on the point is bereft of relevant considerations except one related to providing a lawful excuse.
(b) Ignoring the evidence
[38] The CRDD in its decision said there was no evidence, no medical reason, to explain why the applicant could not testify and why the hearing should be postponed. There is no basis for this conclusion which could have only been arrived at if the CRDD ignored relevant evidence, namely the two medical reports received from Drs. Jast and Gregson.
[39] Furthermore, the CRDD went on to hold the medical certificates said that it is the applicant who asked for the delay not the medical doctors. Again, any confusion on the point was cleared up by Dr. Gregson. The CRDD ignored that evidence.
[40] Thirdly, the CRDD does not dispute the applicant’s lawyer made an honest mistake in interpreting Dr. Brown’s original medical report which lead him not to advise his client the adjournment had been refused. Yet, the CRDD concludes this is not a valid excuse “because the applicant was well aware of the hearing date”. With respect, this conclusion simply does not stand up. Yes, the applicant was aware of the hearing date but his counsel told him he did not have to appear. There is an absence of logic in the Board’s reasoning.
[41] In my view, this is not the type of case, given all of the other circumstances, where an applicant should be penalized because of counsel’s honest error. It would take a much more egregious case to justify such a conclusion.
(c) No rational conclusion
[42] My assessment of all of the relevant factors in the context of the probative evidence in this case leads me to conclude as Dubé J. did in Alegria-Ramos, supra, as did Pinard J. in Luttra Nievas, supra. Simply put, the CRDD could not have reasonably concluded the applicant had abandoned his claim. Such a conclusion, as Iacobucci J. said in Southam, supra, is not supported by any reasons that can stand up to a somewhat probing examination.
[43] Given my conclusions, I need not deal with the issue of bias.
DISPOSITION
[44] This judicial review is allowed, the CRDD’s decision the applicant’s claim was abandoned is set aside, and the CRDD is directed to determine the applicant’s refugee claim with a differently constituted panel.