By Sukhram Ramkissoon
A person named VLS in a recent Federal Court decision came to Canada with his parents when he was 12 and eventually had a daughter with a common-law partner in Canada. He was convicted and sentenced to 18 months less 12 days for pre-trial custody for sexual assault.
In April 2012, an admissibility hearing was held while he was incarcerated and he was issued a removal order. He filed a notice to appeal with the Immigration Appeal Board in May 2012, approximately five months before his release. His hearing was scheduled for Feb. 5, 2013.
At the hearing the applicant was not represented. He requested an adjournment of his case and testified that he had recently spoken to a lawyer (whom he named), and that he “asked me to get an adjournment, to ask for an adjournment, so that he can have ample time to prepare.
“He said that the minimum time it takes is a month for him to properly prepare so I should come in and ask for an adjournment and then call him back and let him know if I got it, that way he could help me.” He further testified that the lawyer would not commit to represent him until he informed him if the adjournment was obtained.
He testified that he had tried “desperately” to obtain a lawyer following his release from detention in late October 2012 but had been unable – lawyers who he found told him they did not take legal aid, or were booked up or were on vacation.
The board member asked the minister’s counsel for his position. He said he was of two minds. He noted that if the appellant was going to seek humanitarian and compassionate relief, the minister had received no disclosure from him.
The board member refused the adjournment request and said, “I am not satisfied that you have made reasonable efforts to retain counsel. You’ve had since May 2012 to do so and I do not accept that each and every counsel that you contacted was unavailable to represent you today or on some other occasion and would have obtained an adjournment for you.”
The appellant then attempted to have his appeal reopened but this, too, was denied by another member who stated that the panel did not find that the appellant had provided persuasive evidence that the IAD failed to observe a principle of natural justice.
He then filed for judicial review with the Federal Court, which ruled, “This court has stated on many occasions that a failure to consider all of the factors set out in Rule 48(4) of the Immigration Appeal Division Rules constitutes an error of procedural fairness.”
This rule provides about 11 separate and distinct criteria such as exceptional circumstances, timing of the application, previous delays, complexity of the case, etc., which a panel member has to consider upon receiving a request for an adjournment. The court stated that the board member did not give any consideration to at least mandatory factors listed in the rule.
Further, the panel’s decision to refuse the request to reopen was unreasonable as it failed to consider Rule 48(4) or its jurisprudence and failed to examine if the board member refusing the adjournment had also failed to observe the same.
The judge stated, “Frankly, I am perplexed by the panel’s statement that the applicant failed to provide ‘sufficient persuasive evidence that the IAD failed to observe a principle of natural justice.’ In my view, the failure is obvious on the face of the decision itself.”
The judge advised the board member that “in circumstance such as these where a person appears before the board without counsel seeking a postponement, a member would be well-advised to ask pointed questions relating to each of the mandatory factors set out in Rule 48 and then, if the request is to be refused, provide reasons that show that these responses to those mandatory factors were obtained, considered, and weighed.”
The court allowed the application for judicial review and ordered that dismissal of the application be set aside and the matter be heard by a different panel.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Toronto. Phone 416-789-5756.