February 19, 2015

Procedural Fairness and Postponements at the Immigration Appeal Division

Imagine you are facing removal from Canada, your appeal hearing is rapidly approaching, and you cannot find a lawyer to represent you. Eventually you do find a lawyer who is able to take your case, but he or she simply cannot be prepared in time for the hearing. You go to the hearing by yourself and ask for a postponement to allow the lawyer time to prepare. When this postponement request is refused and you lose the appeal, you then go the extra step of applying to have your appeal “reopened,” recounting all the steps you took trying to find a lawyer. What do you do when this request to reopen is also refused? What can you do about the fact that this process does not seem fair?

These were the basic facts of the case of VLS v. Canada (M.C.I.), 2015 FC 90, (VLS) heard recently by the Federal Court of Canada. This case turns on the extremely important issue of procedural fairness. At its most basic, procedural fairness requires that an applicant be guaranteed some level of fairness in how their application is processed. The degree of procedural fairness owed will depend on the specific type of application and processes involved.

In the VLS case, the Honourable Mr. Justice Zinn was clear that when it comes to an application for a postponement at the Immigration Appeal Division (IAD), the failure to consider all of the factors set out in the Immigration Appeal Division Rules (Rule 48(4)) amounts to an error of procedural fairness. These factors include: when the application for postponement was made, the time the appellant already had to prepare for the proceeding, the efforts the appellant made to be ready on time, any previous delays, the nature and complexity of the matter to be heard, among others. In this case, Justice Zinn found that the Board Member did not properly consider “the nature and complexity of the matter to be heard” which was significant, as the decision would result in the Applicant’s removal from Canada. Justice Zinn also found that the Board Member failed to consider that there were no previous delays in the case.

Justice Zinn concluded that “the decision to dismiss the application to reopen was unreasonable because the decision refusing the postponement of the appeal was a breach of the applicant’s right to natural justice and a fair hearing because the Board Member failed to consider and weigh all of the mandatory factors in Rule 48(4).” Justice Zinn was also clear that when an applicant appears before the IAD without counsel requesting 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.”

Hopefully this strong statement from the Court will encourage Board Members to carefully consider forging ahead with a hearing when an applicant asks for more time, especially when this time is required to secure representation. This will certainly serve to to benefit applicants in light of the enormous implications involved.

For more information on the Immigration Appeal Division, please click here.