Most cases go straight to hearing meaning that your case will be heard and decided by the adjudicator (judge at the appeal division) and not resolved through Alternative Dispute Resolution (ADR). ADR usually happens when the Minister’s Counsel (CBSA) is in a position to settle the matter in favor of the appellant. That’s why it is a good idea for the appellant to follow the recommendations of their counsel and present the maximum possible supporting evidence and persuade the opposing party that they will win the case if it goes to the full hearing.
There are many issues to attend and consider before the hearing takes place. Some of my clients say “why should I pay a retainer when I know that my hearing will be scheduled in 8 or so months?”. My answer is that we need time for a better preparation for the hearing and therefore, require funds (gathering evidence, visiting and re-visiting the Minister’s disclosure and advising client, conduct legal research, prepare for possible ADR, come up with new ideas to strengthen our theory of the case, etc.). Sometimes, during the preparation of witnesses it appears that we need to appoint a “designated representative” for the appellant. It happens when we see that the appellant cannot appreciate the meaning of their hearing due to mental illness, age or other factors. It is therefore important to identify whether or not your witness (the appellant or others) will help or harm your hearing.
It is important to remember that these types of hearings (adjudication, less formal than courts’ types) are allow hearsay evidence meaning that the adjudicator may or may not accept the evidence of a third party. Let’s say, you don’t have any document proving you lived with your husband/wife (a spouse in legal terminology), but your friend in Canada heard from your mother in your country, that she witnessed you have been living together. You may bring to the hearing that friend and, upon their oral testimony the adjudicator might accept their words as true. Or not, depending on how plausible the story is in the eyes on the adjudicator.
It is not too difficult to change the date for the hearing, if you cannot appear at it for some reason, compared to refugee or other immigration division hearings because it is in the interests of the appellant to be heard sooner rather than later. Having said that, you have to follow formal Rules of Procedure and present clear explanation and evidence (your Affidavit could serve as evidence) why you are in a position to change the date.
Preparation, preparation and preparation,- that is key to success. And patience. Some of my clients cry a lot, complain about bureaucracy and length of time, and think that all of us, from counsel to the adjudicator are in a conspiracy against the appellant. I have only one advice for these impatient clients; nothing can be done about the system we have and time is always our friend in reaching the best results. The same applies to a counsel’s retainer (the agreement between counsel and client). You have to understand that the money you pay on retainer works for you, not against you. The more money paid to your counsel the more time they will spend working on your case. For example, my hourly rate is relatively high, but it means that I have 19 years of experience in immigration tribunals and thus, know how to prepare for hearings and what to do in order to serve my clients the best way possible. You cannot imagine how much time we, legal professionals, spend on legal research alone. We have to sometimes read hundreds of cases similar to yours and bring them up as persuasive decisions to your hearing. You should know that, under common law the adjudicator must follow a persuasive decision on a case that is similar to yours. (of course, certain rules exist for using case law and not every case is persuasive).
The Minister’s Counsel will not use anything at the hearing which was not disclosed prior, therefore, working with your counsel by going through Minister’s Disclosure (immigration officer’s papers) makes this part of preparation an important element of your interaction with your counsel. You have to recognize your previous mistakes and provide plausible explanations versus rejecting the obvious and persuading the adjudicator of your “innocence”.
I will continue presenting with my thoughts on how to prepare for the hearing in the next article.
