Balasingam v. Canada (Minister of Citizenship and
Immigration)
Between
Sooriyathas Balasingam, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1678
[2012] A.C.F. no 1678
2012 FC 1368
Docket IMM-316-12
Federal Court
Toronto, Ontario
Russell J.
Heard: October 24, 2012.
Judgment: November 27, 2012.
Docket IMM-316-12
Federal Court
Toronto, Ontario
Russell J.
Heard: October 24, 2012.
Judgment: November 27, 2012.
(66 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
RUSSELL J.:--
INTRODUCTION
1 This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c. 27 (Act) for
judicial review of the decision of the Immigration Appeal Division (IAD) of the
Immigration and Refugee Board, dated 17 October 2011 (Decision), which refused
the application for a permanent resident visa made by Salvarajani Sooriyathas
under the Family Class Spousal Sponsorship category.
BACKGROUND
2 The
Applicant was born in Sri Lanka and became a Canadian national in 1992 after
claiming refugee status. The Applicant was married from 1994 until 2007, and
has three children from that marriage.
3 The
Applicant married his current wife, Salvarajani Sooriyathas, on 3 March 2008.
His wife submitted an Applicant for Permanent Residence on 27 July 2009. She
was interviewed by a Visa Officer in Colombo, Sri Lanka, who refused the
application on 25 August 2009 due to the fact that the relationship and
marriage was not believed to be bona fide.
4 The
Applicant filed a Notice of Appeal of the sponsorship refusal with the IAD on
23 September 2009. He did not retain counsel. The Applicant states in an
affidavit, found on pages 21-23 of the Applicant's Record, that he retained the
help of an unregistered immigration consultant to help him prepare the appeal
to the IAD. The Applicant refers to the consultant as a 'ghost consultant'
because he never disclosed his identity. The consultant advised the Applicant
that he had 'prepared everything' so there was no need for legal representation
before the IAD.
5 The
Applicant appeared, self-represented, before the IAD on 17 October 2011. He did
not request an adjournment or raise any issue with the fact that he was
self-represented. The Applicant was not told at the hearing that his rights may
be prejudiced by not having counsel, nor was an adjournment discussed. The
Applicant states in his Affidavit that he 'did not fully understand the nature
and nuances of this discussion,' and he did not feel he had a chance to provide
any input. He states that his wife also had a hard time at the hearing, and
that neither of them felt prepared to respond to the questions posed.
6 The
IAD determined that the Applicant's marriage was not genuine and was entered
into for immigration purposes. The Applicant now seeks judicial review of this
decision.
DECISION UNDER REVIEW
7 The
Reasons for the Decision were rendered orally on 17 October 2011 and by writing
on 5 December 2011. The IAD reviewed the procedural history of the appeal, and
then noted that section 4(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227
(Regulations) applied to the appeal. This section excludes bad faith
relationships from the family class. The IAD stated that 'the appellant has to
prove on a balance of probabilities both prongs of the test in the context of a
de novo hearing...?
8 The
IAD referred to Minister's counsel's submission that according to Kahlon v Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 104 (FCA), the law must be applied as it stands
at the time of the decision. Reference was also made to the Supreme Court of
Canada decision in FH v McDougall, 2008 SCC 53 for the proposition that the evidence required to meet
a balance of probabilities must be '...clear, convincing and cogent. The more
improbable the event, the stronger the evidence is required...' The IAD then
reviewed a variety of indicia used to evaluate the genuineness of a
relationship. It also stated that sworn testimony will be presumed truthful,
and that credibility may be assessed based on rationality and common sense.
9 The
IAD noted that the Applicant was self-represented, and that he and his wife
would be testifying. The Applicant submitted evidence at the hearing that was not
provided 20 days in advance as required by the IAD rules. The IAD did not allow
the submissions to be entered into evidence because copies were not made for
itself and the Minister.
10 The
IAD discussed the Applicant's wife's prior attempt to come to Canada. Her uncle
had arranged for her to obtain a fraudulent visitor's visa, but she was caught
trying to use it. She was jailed for using a fraudulent visa from 26 December
2007 until 14 February 2008, and it was during this time that the marriage was arranged
on or about 10 January 2008. The IAD stated that the Applicant's wife's attempt
to come to Canada using a fake visa, and the timing of the arrangement of the
marriage while she was in jail, strongly suggested that she entered into the
marriage for the purpose of acquiring permanent resident status in Canada.
11 The
Applicant's wife testified that her family had arranged the fake visa for her
because they were worried for her due to the troublesome situation in Sri Lanka
and because she was single. The IAD stated that the Applicant's wife and her
family were clearly interested in her leaving Sri Lanka. She has little
education, no work experience, and is not fluent in English. It is unlikely
that she would have been able to come to Canada on her own. The IAD also noted
that when asked if she had family in Canada the Applicant's wife initially said
no, but she then revised her testimony to say that her husband is in Canada.
The IAD pointed out that by marrying the Applicant, her entry into Canada is
facilitated.
12 The
IAD also pointed out that the marriage happened very quickly, and the religious
ceremony happened prior to the Applicant's divorce becoming legal. The divorce
documents did not reveal the date of separation, nor was it included in the
Sponsor Questionnaire. When Minister's counsel asked the Applicant who applied
for the divorce he indicated that his ex-wife had done so through a lawyer.
Minister's counsel asked if he was certain and he said yes. He then pointed out
to the Applicant that the divorce certificate indicates that he applied for the divorce, and the
Applicant revised his testimony saying that his ex-wife applied for the
separation and he applied for the divorce. The IAD found that the Applicant was
evasive about the circumstances leading to the divorce, and did not accept the
Applicant's explanation as to who applied for the divorce.
13 The
IAD also noted that the divorce certificate did not indicate the Applicant's
ex-wife's address. However, when Minister's counsel asked the Applicant whether
he knew his ex-wife's address he said yes, and indicated Burlington. The
Applicant also said that a lawyer had served her with the divorce certificate,
and that no address was indicated on the divorce certificate because he did not
know her address. The IAD did not accept this explanation, especially
considering the Applicant has three children with his ex-wife. The Applicant
testified that he hopes one day to have his children come live with him again,
and that is why he cannot join his current wife in Sri Lanka, thus one would
expect that he would know where they were living at the time.
14 When
the Applicant was asked about the custody arrangements for his children, he
indicated that his ex-wife has custody of them. When asked by Minister's
counsel why he did not get joint custody, the Applicant stated that he and his
ex-wife had a convenience store and that he gave up the children and she gave
up the store. The IAD pointed out that later, when asked if he still had the
store, the Applicant said that he sold it in 2007 and that he and his ex-wife
each kept their respective shares. When asked to clarify the link between the
store and the children, the Applicant replied that his ex-wife would not sign
over the store unless he gave up custody of the kids. The IAD stated that it
did not make sense that he would give up both custody of the children and a
share of the store, and expressed concern that the dissolution of the
Applicant's first marriage was not genuine. The IAD found on a balance of
probabilities that the Applicant engaged in a divorce of convenience.
15 The
IAD stated that the Applicant had not provided many details of his relationship
with his current wife. Dates of some visits to Sri Lanka were provided, and the
Applicant made many references to his wife becoming pregnant and losing a
child. The Applicant testified that he went to see his wife three times in Sri
Lanka, but has not been back since 2009. The IAD stated that it found this
surprising, 'given their testimonies that they want to have a child and were
trying to have a child and that she got pregnant but the child was lost.' The
IAD stated that if these intentions were genuine, one would have expected the
Applicant to have made more recent trips to visit his wife.
16 The
Applicant testified that he talked to his wife on the phone every night for 15
- 30 minutes. In support of this statement he provided copies of calling cards.
The IAD pointed out that there was no way of knowing that the calling cards
were used by the Applicant to call his wife. The IAD stated that even if the
calling cards were used for that purpose, it did not get the sense from both of
their testimonies that they communicate with each other on a daily basis.
17 The
IAD stated that both the Applicant's and his wife's testimony 'were scant on
details.' It pointed out that when each was asked about what they plan to do if
the Applicant's wife is not allowed to come to Canada, they did not seem to
have discussed it. The IAD stated that it would reasonably expect that a couple
in a genuine marriage would have discussed this possibility, and the fact that
they have not had this discussion suggested that the marriage is not genuine.
The IAD also noted that the Applicant's wife's testimony about his previous
marriage indicated that she was not knowledgeable about it.
18 The
Applicant focused on the fact that his wife had been pregnant and lost the baby
as proof that the marriage was genuine. The IAD pointed out that the
Applicant's wife indicated her pregnancy ended on 12 August 2008. She was
interviewed by the initial Visa Officer in 2009, and when asked why she did not
tell the Officer about the pregnancy she said that it was probably because it
did not arise and she did not see the need to tell the Officer about it.
Medical documentation was provided in regards to her pregnancy, but when she
was asked questions by the Visa Officer about the genuineness of her marriage
and why a marriage was arranged between her and her husband given their 13-year
age difference she did not bring it up. The IAD did not accept the Applicant's wife's
explanation as to why she did not mention her pregnancy to the Visa Officer; it
expected she would have raised such a significant event. The IAD stated that,
because of this, it afforded very little weight to the evidence of her
pregnancy.
19 The
IAD noted that the Applicant provided evidence of money transfers to his wife
but said that 'Even if he is sending her money, it is not determinative that
they are in a genuine marriage.' It also noted that both the Applicant and his
wife testified that the Applicant's children are in the custody of the
Applicant's ex-wife, but the Applicant's wife knew little about the custody
arrangements beyond that. In this regard, the IAD stated 'Frankly, I did not
hear much about the children from the appellant and thus I am not surprised
that the applicant did not discuss in much detail the appellant's children.'
20 In
regards to knowledge of, and contact with, extended families of both parties,
the IAD stated that there was little in the oral testimony to indicate that
this is a genuine marriage. Neither party expressed much knowledge about the
other's extended family, nor did their families attend their marriage ceremony.
The IAD also stated that the Applicant's wife did not demonstrate in her oral
testimony that she had much knowledge of the Applicant's day-to-day life in
Canada. The details she provided stuck closely to those provided in the
documentary evidence. The IAD said she should have been able to demonstrate
more knowledge about the Applicant in her testimony.
21 The
IAD also took note of copies of correspondence between the Applicant and his
wife that mainly consisted of greeting cards containing salutations and
sign-offs. The IAD stated that it would expect a couple in a genuine relationship
to send correspondences with more substance in them, and that it did not
consider these items very persuasive.
22 The
IAD did not find the Applicant credible or trustworthy. Given the Applicant's
wife's attempts to come to Canada, her circumstances in Sri Lanka, the timing
of their marriage, the Applicant's lack of credibility in regards to his
divorce and custody arrangements, and the lack of detail provided about his
current marriage, the IAD found that the marriage was entered into primarily
for the purpose of acquiring status or privilege under the Act. The IAD found
that, on a balance of probabilities, the Applicant had not established that his
marriage was genuine. The IAD concluded that the marriage was entered into
primarily for immigration purposes and was not bona fide, and thus dismissed the appeal.
ISSUES
23 The
Applicant raises the following issue in this application:
Did the IAD deny the
Applicant his right to procedural fairness by proceeding without counsel, and
by failing to address this issue and ensure that the Applicant was aware of the
consequences of proceeding self-represented?
STANDARD OF REVIEW
24 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
25 The
issue raised is a matter of procedural fairness. In Canadian
Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29, the Supreme Court of Canada held at para 100 that it
'is for the courts, not the Minister, to provide the legal answer to procedural
fairness questions.' Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General), 2005
FCA 404 at para 53 held that the 'procedural fairness element is reviewed as a
question of law. No deference is due. The decision-maker has either complied
with the content of the duty of fairness appropriate for the particular
circumstances, or has breached this duty.' The standard of review applicable to
the issue in this application is correctness.
STATUTORY PROVISIONS
26 The
following provisions of the Regulations are applicable in this proceeding:
·
Bad faith
·
4. (1)
For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner or a conjugal partner of a person if
the marriage, common-law partnership or conjugal partnership
·
(a) was entered into primarily for the purpose of acquiring any status
or privilege under the Act; or
·
(b) is not genuine.
...
Family class
·
116. For
the purposes of subsection 12(1) of the Act, the family class is hereby
prescribed as a class of persons who may become permanent residents on the
basis of the requirements of this Division.
·
117. (1)
A foreign national is a member of the family class if, with respect to a
sponsor, the foreign national is
·
(a) the sponsor's spouse, common-law partner or conjugal
partner;
·
[...]
* * *
·
Mauvaise foi
·
4. (1)
Pour l'application du présent règlement, l'étranger n'est pas considéré comme
étant l'époux, le conjoint de fait ou le partenaire conjugal d'une personne si
le mariage ou la relation des conjoints de fait ou des partenaires conjugaux,
selon le cas :
·
a)
visait principalement l'acquisition d'un statut ou d'un privilège sous le
régime de la Loi;
n'est pas
authentique.
...
Catégorie
·
116. Pour
l'application du paragraphe 12(1) de la Loi, la catégorie du regroupement
familial est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents sur le fondement des exigences prévues à la présente
section.
·
117. (1)
Appartiennent à la catégorie du regroupement familial du fait de la relation
qu'ils ont avec le répondant les étrangers suivants :
·
a) son
époux, conjoint de fait ou partenaire conjugal;
·
[...]
ARGUMENTS
The Applicant
27 The
Applicant states that he retained an unregistered immigration consultant to
provide him assistance with his spousal sponsorship appeal before the IAD. The
consultant helped the Applicant with his written submissions, but refused to
disclose his name and particulars to the parties. This consultant advised the
Applicant to appear on his own before the IAD, and told him that he would not
require the assistance of legal counsel.
28 The
Applicant submits that appeals before the IAD are hearings de novo, and thus give the appellant the right
to adduce new evidence. They also involve a variety of complex legal issues.
For example, there is ample case law that sets out a variety of factors that
will be taken into consideration by the IAD in determining whether a marriage
is genuine.
29 The
Decision reveals discussions between the IAD and Minister's Counsel regarding
the legal test to be applied and problems with the Applicant's written
submissions. Other than stating that the Applicant appeared at the IAD
unrepresented, the Decision reveals no further discussion between the IAD and
the Applicant about the procedure of the hearing, the relevant law, the roles
of the parties, etc. Without discussing the implications of proceeding on his
own, the Applicant remained ignorant of the process and unprepared for the
matter at hand. As such, he did not receive as fair a hearing as he was
entitled to.
30 The
Applicant cites the decision of Edison v R, 2001 FCT 734 (FC), where Justice Edmond Blanchard said at
paragraphs 21-24:
·
However, before analysing the
process that led to the decisions, this Court must analyse if the review
process created any legitimate expectations for the applicants. It is trite
law, in Canada, that the doctrine of legitimate expectations does not create substantive
rights, but it can create procedural rights. In Reference
re Canada Assistance Plan (Canada), [1991] 2 S.C.R. 525
(S.C.C.), at page 557, Sopinka J. established the limits of this doctrine in
Canadian law, when he stated:
·
The doctrine of legitimate
expectations was discussed in the reasons of the majority in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170. That judgment cites seven cases dealing with
the doctrine, and then goes on (at p. 1204):
·
The principle developed in
these cases is simply an extension of the rules of natural justice and
procedural fairness. It affords a party affected by the decision of a public
official an opportunity to make representations in circumstances in which there
otherwise would be no such opportunity. The court supplies the omission where,
based on the conduct of the public official, a party has been led to believe
that his or her rights would not be affected without consultation.
·
This view was reaffirmed by
Madam Justice L'Heureux-Dubé in Baker v. Canada
(Minister of Citizenship & Immigration), [1999] 2
S.C.R. 817 (S.C.C.) at paragraph 26, where she stated:
·
As applied in Canada, if a
legitimate expectation is found to exist, this will affect the content of the
duty of fairness owed to the individual or individuals affected by the
decision. If the claimant has a legitimate expectation that a certain procedure
will be followed, this procedure will be required by the duty of fairness:
(...) Similarly, if a claimant has a legitimate expectation that a certain
result will be reached in his or her case, fairness may require more extensive
procedural rights than would otherwise be accorded: (...). Nevertheless, the
doctrine of legitimate expectations cannot lead to substantive rights outside
the procedural domain. This doctrine, as applied in Canada, is based on the
principle that the 'circumstances' affecting procedural fairness take into
account the promises or regular practices of administrative decision-makers,
and that it will generally be unfair for them to act in contravention of
representations as to procedure, or to backtrack on substantive promises
without according significant procedural rights.
·
Finally, Evans J.A. in Apotex Inc. v. Canada (Attorney General)
[(2000), 188 D.L.R. (4th) 145 (Fed. C.A.)] A-922-96, at paragraph 123, best
illustrated the applicability of the doctrine of legitimate expectations in
Canadian law and in the procedural framework created by the duty of fairness.
In the above-mentioned decision, Evans J.A. stated that where an individual
relies on procedural norms established by past practice or published
guidelines, the individual can have a legitimate expectation:
·
The interests underlying the
legitimate expectations doctrine are the non-discriminatory application in
public administration of the procedural norms established by past practice or
published guidelines, and the protection of the individual from an abuse of
power through the breach of an undertaking. These are among the traditional
core concerns of public law. They are also essential elements of good public
administration. In these circumstances, consultation ceases to be a matter only
of political process, and hence beyond the purview of the law, but enters the
domain of judicial review.
·
Hence, the doctrine of
legitimate expectations can create procedural rights which are governed by the
standard of procedural fairness.
31 The
Applicant submits that upon becoming aware that he was proceeding on his own,
the IAD had an obligation to proceed with caution, and to lay out the pros and
cons of proceeding on his own to the Applicant. The Applicant also submits that
the IAD should have avoided commenting on the merits of the case, and should
have postponed the hearing. The IAD did nothing to address the issue that the
Applicant was attending the hearing on his own, and the Applicant submits this
is not an appropriate reaction.
32 The
Applicant acknowledges that he was advised of his right to counsel and that it
was his responsibility to exercise that right. However, unbeknownst to the IAD,
an unregistered consultant had put together the Applicant's materials on his
behalf. The Applicant submits there are circumstances where an applicant has
received such poor legal counsel that it warrants the Court's intervention, and
one such circumstance is where the lawyer did not do something he should have
done (Medawatte v Canada (Minister of Public Safety and
Emergency Preparedness), 2005 FC 1374). The Applicant
submits that this applies to him, because his former counsel essentially did
nothing.
33 The
Applicant says that he was not able to participate meaningfully at the IAD
hearing, and this violated his fundamental right to a fair hearing (Canada (Minister of Citizenship and Immigration) v Fast, 2001 FCT 1269 (FC) at para 47). This Court has also held that the
absence of counsel may cause such harm that it renders the decision invalid (Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC 1206 at para 17 [Mervilus]).
34 The
Applicant states that his appeal did have merit, and it remains unknown how his
evidence would have been presented with the benefit of competent counsel. He
also submits that without the requisite understanding of the relevant law, and
the benefit of his evidence being properly presented, he was denied his right
to a fair opportunity to present his case. As such, the Applicant requests the
Decision be set aside.
The Respondent
35 The
Respondent submits that the IAD did not owe the Applicant a duty to consider an
adjournment in the absence of such a request, nor did it have a duty to counsel
him on the advisability of proceeding without representation.
36 The
Applicant claims that he was assisted by an unregistered immigration consultant
in the preparation of his materials, and that he was advised in advance that
the consultant would not appear at the hearing. Hence, he chose to proceed
without representation. The Applicant did not request that the hearing be
adjourned, nor did he express any trepidation about proceeding without
representation. Nevertheless, the Applicant claims there was a breach of his
right to procedural fairness.
37 The
Respondent submits there is no obligation on the IAD to consider an adjournment
of the hearing where no request is made (see N.A.Y.T. v
Canada (Minister of Citizenship and Immigration), 2012
FC 225 [N.Y.A.T.]; Concepcion v Canada (Minister of Citizenship and Immigration), 2007 FC 410; Nguyen v Canada (Minister of
Citizenship and Immigration), 2005 FC 1001). The Court
dealt with a similar situation in Abrams v Canada
(Minister of Citizenship and Immigration), 2010 FC 1222
[Abrams]. In that decision, the
Court distinguished the Mervilus
decision, which the Applicant relies on, specifically on the basis that in Mervilus the applicant requested an
adjournment, whereas in Abrams
the applicant did not.
38 It
is not the role of the IAD to act as substitute counsel for the Applicant, or
to provide advice on the possibility of seeking an adjournment or the
implications of proceeding. The case law cited by the Applicant dealing with
the doctrine of legitimate expectations has no application in this case. The
Applicant has submitted no evidence that he relied on past practice or
published guidelines that would result in a legitimate expectation that the IAD
would advise him on the pros and cons of proceeding without counsel, or that it
would postpone the hearing.
39 The
Applicant has acknowledged that he was made aware of his right to counsel, and
that it was his responsibility to exercise it. He has also acknowledged that
the right to counsel is not absolute. The case law cited by the Applicant
stands for the proposition that where a client suffers as a result of a mistake
of counsel, the Court may correct that mistake. The Applicant has adduced no
evidence of a 'mistake' on the part of his former counsel. The Applicant claims
his former counsel did nothing, but his submissions were prepared and filed.
Thus, his former counsel must have done something, and in fact the Applicant's
evidence is that the consultant assisted with those submissions.
40 The
Respondent submits that the Decision at issue in this application was based on
the review of ample evidence suggesting the Applicant's marriage was not
genuine and was entered into for the purpose of acquiring status or privilege
under the Act. There is no evidence to show that the Applicant was deprived of
a fair hearing, and the IAD did not err by not considering an adjournment in
the absence a request for one. Furthermore, it is not the role of the IAD to
advise the Applicant on the advisability of proceeding without representation (N.Y.A.T., above). The Respondent requests that
this application be dismissed.
ANALYSIS
41 There
is some difference between the issues raised in the Applicant's written
submissions and the new focus which he brought to bear upon the situation in
oral arguments. I will deal with the written submissions first.
42 The
Applicant submits that he attended the IAD hearing on his own and that he had
never appeared before in such a proceeding. He says that the Presiding Member
was obligated to proceed with an abundance of caution, to explain to him the
'pros' and 'cons' of self-representation, to avoid commenting on the merits of
the case, and to postpone the hearing.
43 The
Applicant concedes that he was notified of his right to legal counsel, and that
it is 'the responsibility of persons coming before a court or tribunal to
exercise their legal right to be represented by such counsel.'
44 The
Applicant says he had an unregistered consultant who acted as 'ghost' or
'rogue' counsel behind the scenes and the question is 'what remedy and/or
recourse ought the court provide (sic) to such applicants when it was their own decision and choices
which left them in such a precarious situation.'
45 The
gravamen of the complaint is that 'the IAD Presiding Member, with respect,
chose to do nothing to address
the issue; and an obvious issue at that.'
46 As
regards the actions of his consultant the Applicant says that
·
it is not merely a question or
issue of negligent actions of his former counsel. It is the fact that nothing
appears to have been done on his behalf, unbeknownst to him.
47 There
is no evidence before the Court to support this bald assertion. It is
well-established in this Court that a bald assertion of incompetence by former
counsel (including a consultant) is not sufficient to ground a complaint of
procedural unfairness. Counsel has to be given notice of the complaint and an
opportunity to respond. See, for example, Memari v
Canada (Minister of Citizenship and Immigration), 2012
FC 1196; and Shakiban v Canada (Minister of Citizenship
and Immigration) 2009 FC 1177. In the present case,
there is no evidence that this has occurred, or even that a complaint has been
made to the relevant governing body.
48 As
regards the IAD hearing itself, the Applicant says that his appeal had merit
and 'it remains unknown how all of his evidence would have been presented with
the representation of competent counsel.'
49 Whether
or not the Applicant's claim had merit is not before me (two tribunals have
already decided that it does not), but this assertion is mere speculation.
There is nothing before me to suggest that the Applicant's case could have been
better presented with the assistance of competent counsel. In fact, the
Applicant does not even take issue with the merits of the Decision. All the
Applicant is saying is that the Decision went against him, and maybe the result
would have been different if counsel had been there to represent him.
50 The
Applicant had already been through one hearing where he represented himself. He
concedes that he was notified of his right to legal counsel, but he chose to
represent himself. Now he says that a decision he made freely has led to
procedural unfairness because he did not receive a positive decision.
51 There
is nothing before me to suggest that the Applicant was not able to present his
best case to the IAD. And even if he now thinks that legal representation might
have assisted him to make a better case, his choice was freely made, and he
cannot now say it led to procedural unfairness. Applicant's have a right to
represent themselves. They cannot be compelled to use counsel at a tribunal
hearing. If the Applicant's argument was accepted that procedural unfairness
results because 'it remains unknown' what the result would have been with legal
counsel present, then all decisions made in relation to self-represented
litigants would have to be declared procedurally unfair unless they were
positive.
52 The
Applicant also suggests that a 'legitimate expectation' arose in this case that
was not observed, so that the Decision is procedurally unfair. He says that
·
The IAD breached the rules of
natural justice and procedural fairness by proceeding with the applicant's
misrepresentation appeal without legal counsel; and by failing to address this
issue and ensure that the applicant was fully aware of the implications and
potential consequences of proceeding self-represented.
53 First
of all, I have no evidence before me to suggest that the Applicant was not
aware of the implications and potential consequences of representing himself.
54 In
his affidavit, sworn for this application, the Applicant says at paragraphs
9-12 and 15:
·
I retained the services of what
I now know to be an unregistered ghost consultant. He prepared me and my
supporting documentation; yet never revealed his name and identity to the IAD.
Attached hereto and marked as Exhibit 'A' is a true copy of my supporting
documentation.
·
The hearing into my appeal was
held before the IAD on 17 October 2011. I appeared alone, self-represented, as
my 'consultant' advised me that he had 'prepared everything' and that there was
no need for me to have legal representation before the IAD.
·
The IAD presiding member did
not address the issue of my being self-represented; did not speak to the fact
that my rights may be prejudiced; and did not offer to adjourn the Hearing so
as to permit me one final opportunity to re-consider legal representation.
·
During the outset of my
hearing, there was a discussion between the Presiding Member and Minister's
Counsel regarding the issues and the law as applied to my case. I did not fully
understand the nature and nuances of this discussion nor did I provide any
input into the discussion.
·
...
·
The hearing was difficult for
both my wife and myself. Neither of us felt adequately prepared to field and
respond to the questions posed, including cross-examination by Minister's
Counsel.
55 I
have no explanation as to why the Applicant regards the supporting
documentation as inaccurate, or why the preparation by the consultant should be
considered inadequate, and/or whether the Applicant was advised on the pros and
cons of self-representation. The Applicant does not say that he wanted legal
representation, but was refused it.
56 Tellingly,
in paragraph 11 of his affidavit, the Applicant says he was not permitted 'one
final opportunity to re-consider legal representation.' Clearly, then, the
Applicant is saying that he had other opportunities to consider legal
representation, but had decided to represent himself. If the Applicant had
decided to represent himself, there is no indication that he asked for or
required an adjournment. As the hearing proceeded, he could have brought any
problems he was experiencing to the IAD's attention; he did not do this.
57 The
discussion between the Presiding Member and Minister's Counsel was obviously
conducted with the Applicant present. There is no indication that the Applicant
alerted the Presiding Member to any difficulties he might have had in
understanding what was said. The Applicant had chosen to represent himself, and
the Presiding Member, in the absence of some indication to the contrary, had
every reason to assume that the Applicant was comfortable doing what he had
chosen to do.
58 As
for the questions posed in cross-examination, the whole purpose of the exercise
is to test the Applicant's evidence, not to prepare the Applicant in a way that
will allow him to provide answers that favour him. The Applicant does not
indicate in his affidavit what he was prevented from saying.
59 As
Justice Blanchard pointed out in Edison, above, the case relied upon by the Applicant, the doctrine of
legitimate expectations does not create substantial rights, but it can create
procedural rights. Justice Near also had occasion to consider the general
principles involved at para 15 in Jane Doe v Canada
(Minister of Citizenship and Immigration), 2010 FC 284:
·
The doctrine of legitimate
expectation was recently addressed by the Supreme Court in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour), [2003] 1 S.C.R. 539; 2003 SCC 29. At paragraph
131, Justice Ian Binnie, for the majority, set the doctrine out as such:
·
131 The doctrine of legitimate
expectation is 'an extension of the rules of natural justice and procedural
fairness': Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. It looks to the conduct of a Minister
or other public authority in the exercise of a discretionary power including
established practices, conduct or representations that can be characterized as
clear, unambiguous and unqualified, that has induced in the complainants (here
the unions) a reasonable expectation that they will retain a benefit or be
consulted before a contrary decision is taken. To be 'legitimate', such
expectations must not conflict with a statutory duty. See: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Baker, supra; Mount
Sinai, supra, at para. 29; Brown and Evans, supra, at para. 7:2431. Where the conditions
for its application are satisfied, the Court may grant appropriate procedural
remedies to respond to the 'legitimate' expectation.
60 In
the case before me, the Applicant has not established conduct on the part of
the Minister or the IAD, including an established practice, conduct or
representation that can be characterized as clear, unambiguous and unqualified,
and that induced in the Applicant a reasonable expectation that was not met,
and that resulted in procedural unfairness.
61 This
becomes even clearer when the real basis of the Applicant's complaint - as
articulated orally at the judicial review hearing before me - is examined.
62 In
oral argument, the Applicant revealed that his principal ground for an
allegation of procedural unfairness is that his words and conduct at the
hearing made it clear that he was out of his depth and did not know how to
present his case. Hence, he says it was incumbent upon the IAD to deal with
this fact so that he could receive a fair hearing. He says the IAD should have
acknowledged his difficulties and should have advised him on the pros and cons
of proceeding without counsel. He also says that the availability of an
adjournment should have been explained to him, as well as the consequences of proceeding
with a hearing in which he was not aware of what he needed to establish with
his evidence, what to ask his wife, who to call as a witness and how to frame
his case. He points to the words of Justice Danièle Tremblay-Lamer in Austria v Canada (Minister of Citizenship and Immigration), 2006 FC 423 at para 9 as the rationale for what was missing in his
case:
·
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 of
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.
Presiding Member: (...)
So do you have any questions concerning that Convention refugee or a person in
need of protection part?
Claimant: I don't think
so.
Presiding Member: (...)
So, are you ready to proceed'?
Claimant: Yes.
Presiding Member: Do
you understand what you need to do today?
Claimant: Yes.
(...)
Presiding Member: Okay.
In that case then are you comfortable proceeding?
Claimant: Yes.
63 My
review of the CTR reveals the following:
Initially, there was an
objection to certain materials of the Applicant that were not translated. The
Applicant did not understand this objection, but the materials were entered
into evidence in any event;
As to the Applicant's
materials that were not submitted before the 20-day deadline, the Member did
not consider them because the Applicant did not have copies to provide to
herself and the Minister;
From the transcript, it
appears that the materials the Applicant wanted to submit had to do with his
wife's pregnancy. He says, 'Can I show this' That she carried a baby and she
underwent abortion.';
Later, he also said he
had photos of her pregnancy that he wanted to show. The Member said that he
could not;
The Member outlined the
specific concerns in regards to the marriage. She specifically pointed out
concerns such as the legitimacy of his divorce, the age difference with his
wife, the timing of the proposal, limited proof of communication, etc (all the
issues mentioned in the Decision). She then explained how the hearing would
work and what the Applicant had to prove;
The Minister raised a
new ground of refusal on the basis of the timing of the divorce and religious
vs. civil ceremonies. The Minister argued that the Applicant's marriage was not
valid. The Applicant said that he did not understand. However, this matter did
not form any part in the Decision;
On page 290, the Member
decides not to consider the validity of the marriage as a ground of refusal.
She says that she may have allowed it if the Applicant had had legal
representation, but he does not and she needs to consider whether he is
understanding and she does not believe that he understands this issue. She then
asks the Applicant if he understands what she just said and he says yes;
When the Applicant's
wife was being examined, she sometimes said she did not understand certain
questions. However, what she means is that she could not hear the questions due
to problems with the telephone lines or translation. The questions were not
complex; they had to do with when certain events happened.
64 In
sum, the only issue where the Applicant indicated he was confused was in
regards to the new ground raised by the Minister which was not part of the
Decision. His lack of understanding was noted by the IAD Member who did not
consider that issue. There was also his comment in regards to the untranslated documents,
but otherwise he did not indicate that he was lost in any way. I think the IAD
Member offered sufficient guidance, and from looking at the way that she
handled the new issue raised by the Minister, I think that she took
considerable care to ensure that the Applicant had an opportunity to present
his case, and she made sure that he was following what was going on.
65 The
Applicant has not convinced me that any procedural unfairness occurred in this
case.
66 Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT'S JUDGMENT is that
The application is
dismissed.
There is no question
for certification.
RUSSELL J.
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