Applicant came to Canada with his parents when he was 12 years old. Applicant had daughter with common law partner. Applicant was convicted and incarcerated for sexual assault of daughter when she was minor. Admissibility hearing was held while applicant was incarcerated and he was issued removal order. Applicant appealed. Applicant was not represented because he had not been able to obtain lawyer and he asked for adjournment. Board member refused to grant adjournment on basis that applicant had not made reasonable efforts to retain counsel. Applicant applied to reopen appeal but panel dismissed application. Applicant applied for judicial review. Application granted. Failure to consider all factors set out in R. 48(4) of Immigration Appeal Division Rules (Can.), constituted error of procedural fairness. There was no evidence that board member gave any consideration to at least two mandatory factors in Rule 48(4), nature and complexity of matter and previous delays. It was open to board member to grant postponement to fixed date. Panel’s decision to refuse to reopen appeal was unreasonable. Panel failed to consider Rule 48(4) or its jurisprudence and it failed to examine whether board member who refused adjournment had done so. Decision refusing adjournment was breach of applicant’s right to natural justice and fair hearing because board member failed to consider and weigh mandatory factors in Rule 48(4).
S. (V.L.) v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2014, F.C., Russel W. Zinn J., File No. IMM-5114-13) 248 A.C.W.S. (3d) 918.