CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Abasalizadeh v. Canada (Minister of Citizenship and Immigration)
IMM-5408-03
2004 FC 1407, Mosley J.
13/10/04
9 pp.
Judicial review of Immigration and Refugee Board's decision on ground applicant denied natural justice, procedural fairness--Applicant waiting three years for claim for refugee protection to be heard at Halifax--Applicant, native of Iran, arrived at Toronto on October 8, 2000-- Retained services of Halifax lawyer, Lee Cohen in October 2002--Latter withdrew services on June 3, 2003, date of hearing--Two-day adjournment granted--Applicant unable to find new lawyer--Represented himself--Refugee claim rejected--Whether natural justice rights violated by decision to proceed without counsel for applicant--Effective denial of counsel may be breach of natural justice--Manner in which Mr. Cohen chose to withdraw from proceedings possibly leading to inference veracity of claim doubtful--May have prejudiced former client's case--Board not giving adequate consideration to applicant's situation--Should have considered whether it could fairly proceed with hearing--116 pages of documents provided to applicant--Refugee Protection Division Rules, r. 29 requiring documents be provided to party no later than 20 days, or in case of responsive documents, five days before hearing--Board concerned applicant given inadequate disclosure, but thought two days would be sufficient for him to read, digest material, be prepared to address it--No indication on record Board conducted analysis of several mandatory factors set out in r. 30--If document to be used without giving adequate time to examine it, accommodation must be afforded to affected party, such as limiting amount of material that will be taken into consideration--Disclosure issue may not in itself amount to breach of natural justice, procedural fairness--However, when coupled with absence of counsel in particular circumstances, cumulative effect amounted to at least appearance of unfairness--Application granted--Refugee Protection Division Rules, rr. 29, 30.