Digests

Sousa v. Canada (Minister of Citizenship and Immigration)

IMM-5064-99

MacKay J.

19/9/00

7 pp.

Application for judicial review of IRB Appeal Division (IRB) decision refusing applicant's request for adjournment to permit counsel to appear and represent him, and proceeding to cancel earlier stay of deportation order, dismissing his appeal, and directing removal order be executed as soon as reasonably practical--Applicant, native of Portugal, landed in Canada at age of 2 in 1974--Did not become citizen and ordered deported in 1996 because of criminal activity--IRB determined, on basis of H & C considerations, applicant ought not to be removed and ordered applicant re-attend in 1998 for oral review of circumstances of case--Could not attend in 1998 for oral review as in custody on new criminal charge--Applicant's brother attended to explain absence, tribunal first postponed review to date to be set by registrar, then matter rescheduled on peremptory basis on date fixed without agreement of applicant's counsel, despite IRB's efforts to seek to confirm convenient date with counsel--Applicant's counsel, engaged in murder trial, later requested adjournment--Adjournment denied by IRB member not associated with hearing panel--On scheduled date, applicant appeared without counsel and IRB took decisions attacked herein--Application allowed--Denial of adjournment, in circumstances of case, denied applicant fair opportunity to be represented by counsel--Decision denied procedural fairness to applicant at that stage--Absence of evidence of prejudice not indicating no serious lack of fairness in process--Panel's decision to set re-hearing on peremptory basis hard to justify, particularly when date of renewed hearing later set by IRB without agreement of counsel for applicant, known to IRB's schedulers, and known to be engaged in murder trial--Circumstances of case clearly within principle supported by Calles v. Canada (Minister of Employment and Immigration) (1990), 131 N.R. 69 (F.C.A.) where Court intervened and set aside decision of adjudicator who refused adjournment in circumstances clearly showing applicant had done everything in his power to be represented by legal counsel and that short adjournment would have enabled that to be accomplished--In Gargano v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 49 (F.C.T.D.), Trial Division judge set aside IRB decision where IRB had failed to provide requested adjournment in order that applicant might retain counsel, finding decision resulted in denial of fair hearing and breach of rules of natural justice, despite Board's having set down hearing peremptorily.