Federal Court


Claimant waived his right to be heard since consultant was acting as his agent

Refugee claimant was young male Tamil citizen of northern Sri Lanka who alleged fear of persecution by Sri Lankan Army and paramilitary group Eelam People’s Democratic Party. Claimant left Sri Lanka and came to United States where he was arrested and detained, and later released on bond. Claimant subsequently came to Canada where he claimed refugee status. At end of hearing on October 29, 2012, Refugee Protection Division (“RPD”) granted claimant one month to obtain documents from American Immigration authorities. Hearing was adjourned before claimant’s counsel, immigration consultant, could make his final submissions. On December 7, 2012, claimant’s immigration consultant submitted to RPD documents he obtained from claimant’s counsel in United States, which did not include documents requested by RPD, along with letter stating that his client did not have means to obtain any other documents, but was willing to sign release to Canadian Borders Services Agency, so that it might obtain information directly from United States government. RPD rendered its decision on February 21, 2013, without second hearing, finding that claimant lacked credibility. Claimant applied for judicial review, contending that he had been denied procedural fairness as second hearing did not take place and his immigration consultant was incompetent. Application dismissed. Claimant had provided no evidence as to instructions given to his immigration consultant on basis of which court could determine whether consultant’s conduct constituted incompetence. Nor had claimant established that he had suffered prejudice as result of consultant’s conduct or that miscarriage of justice had occurred. Alleged incompetence of claimant’s immigration consultant did not amount to breach of procedural fairness. After adjournment of first hearing, there had been consistent exchange between RPD and consultant and at no time after cancellation of second hearing did consultant object to cancellation because he wanted to make submissions. Claimant waived his right to be heard and to present submissions through his immigration consultant’s actions, since consultant was acting as agent of claimant. Accordingly, there had been no breach of procedural fairness which would warrant court’s intervention.

Pathinathar v. Canada (Minister of Citizenship and Immigration) (Dec. 9, 2013, F.C., Simon Noël J., File No. IMM-2412-13) 235 A.C.W.S. (3d) 1040.

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