Date: 20060314
Docket: IMM-1986-05
Citation: 2006 FC 328
Ottawa, Ontario, March 14,
2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
OSCAR
OBED ESPINOZA PINEDA
Applicant
- and -
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision
of the Refugee Protection Division of the Immigration and Refugee Board (the
Board), dated March 11, 2005, which declared that the applicant’s refugee claim
had been abandoned as a result of his delay in filing his Personal Information
Form (PIF).
[2] The applicant
seeks an order quashing the decision and referring the matter to a differently
constituted panel of the Board for re-determination.
Background
[3] The
applicant, a citizen of Honduras, came to Canada on January
28, 2005 and claimed refugee protection at the border. He was given a blank
Personal Information Form (PIF) to fill out. The PIF was due 28 days later, on
February 25, 2005. He filed his address notification within 10 days as
required, and his medical examinations within 28 days. On March 2, 2005, he
received a notice of an abandonment hearing as he had not filed a PIF within
the time required. On March 3, 2005, he filed his PIF.
[4] The Board
held an abandonment show cause hearing on March 9, 2005 to provide the
applicant with an opportunity to explain why the Board should proceed with the
refugee claim. The applicant represented himself at the hearing. He apologized
for the delay and stated that he had confused the deadlines with respect to
different documents. He testified that he thought he had 60 days to file the
PIF and 28 days to file the medical examinations. He testified that he did not
know that he was mistaken about the deadlines until he had someone translate
the notice of the abandonment hearing. He stated that he had everything almost
ready anyway.
[5] The Board
member emphasized at the hearing that while the applicant may have been
confused, he had an obligation to comply with the rules, and the 28-day
deadline is clearly written on the front of the PIF package and on the brochure
that is handed out to every claimant. The Board member stated that the
applicant had an obligation to seek out someone who could translate the
documents for him if he felt that he needed clarification. The Board member
further stated that sometimes there are circumstances that make it impossible
or impractical for a claimant to comply with the rule, but that is not the case
here. The Board member noted that the applicant had filed the PIF and had
indicated that he was ready to proceed.
[6] In this case,
the Board member was not prepared to extend the deadline, and at the conclusion
of the hearing, determined that the applicant’s claim had been abandoned. This
is the judicial review of that decision.
Issues
[7] The applicant submitted the
following issues for consideration:
1. Did
the Board reach an unreasonable conclusion in determining that the applicant’s
claim had been abandoned?
2. Did
the Board violate the principles of natural justice in determining that the
applicant’s claim had been abandoned?
Applicant’s
Submissions
[8] The applicant
submitted that the Board’s decision to declare a claim abandoned is reviewable
on a standard of reasonabless simpliciter and should be subject to
serious scrutiny (see Ahamad v. Canada (Minister of Citizenship and
Immigration), [2000] 3 F.C. 109 at paragraph 27 (T.D.)).
[9] The applicant
submitted that this decision does not withstand serious scrutiny, as the Board
has made errors of fact and law. It was submitted that the Board applied the
wrong test because it asked whether filing on time would have been “impossible
or impractical” for the applicant. The Board was required instead to determine
whether the claim is abandoned (see Matondo v. Canada (Minister of
Citizenship and Immigration), 2005 FC 416 at paragraph 16). The Board
found that the applicant “took no steps to try to make sure, to understand what
was going on.” It was submitted that this finding was unreasonable, given that
at the time the applicant received the notice of the abandonment hearing, he
had already arranged for a translator to help him draft his PIF and he had
nearly completed it, which is evidenced by the fact that he submitted the PIF
immediately upon receiving the notice.
[10] The applicant
submitted that the problem was not that he felt he needed clarification and
failed to seek it, the problem was that he did not know he needed clarification
because he was mistaken about the deadlines. It was submitted that in failing
to appreciate this human error, which due diligence cannot always prevent, the
Board member made an unreasonable conclusion.
[11] The applicant
submitted that the case of Matondo, above, makes clear that where there
is clear and uncontested evidence that the claimant has always intended to
pursue his claim, declaring it abandoned is capricious and a violation of the
principles of natural justice, and therefore, the decision cannot stand.
Respondent’s
Submissions
[12] The
respondent submitted that in determining whether a claim is to be abandoned,
the test is whether the claimant’s conduct amounts to an expression of intention
by that person that he or she does not wish to pursue his or her claim (see Markandu
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1596 at
paragraph 10). It was submitted that the Board need not consider the merits of
the refugee claim and a claimant’s readiness to continue with the claim is a
factor to be considered, but is not determinative (see Markandu at
paragraphs 11 and 24).
[13] The
respondent submitted that the Board considered all of the evidence on
abandonment and exercised its discretion accordingly. It was submitted that it
was open to the Board to conclude that the applicant was not diligent in
advancing his claim for protection.
[14] Further, the
respondent submitted that the Matondo decision relied upon by the
applicant can be distinguished on the facts. First, Mr. Matondo challenged
the Board’s failure to reopen a refugee claim under Rule 55, whereas here, the
applicant is challenging the decision to declare his claim abandoned. Second,
Mr. Matondo was not given an opportunity to be heard at an abandonment hearing,
whereas the applicant in this case appeared at a hearing and was given an
opportunity to show cause. Third, Mr. Matondo’s identity documents had been
seized and he required these documents to complete his PIF, but his counsel’s
requests for these documents were unanswered.
Analysis
[15] Standard of Review
The standard of review to be applied
to an abandonment decision by the Board, is reasonableness simpliciter
(see Anjum v. Canada (Minister of
Citizenship and Immigration), 2004 FC 496 at paragraph 17).
[16] Issue 1
Did the Board reach an unreasonable
conclusion in determining that the applicant’s claim had been abandoned?
In
Ahamad v. Canada (Minister of Citizenship and Immigration, [2000] 3 F.C. 109 (T.D.), Justice
Lemieux stated at paragraph 32:
The decided
cases of the Court on a review of abandonment claim decisions by the CRDD
indicate the test or question to be asked is whether the refugee claimant's
conduct amounts to an expression of intention by that person, he or she did not
wish or had shown no interest to pursue the refugee claim with diligence; this
assessment is to be made in the context of the obligation of a claimant who
breaches one of the elements of subsection 69.1(6) to provide a reasonable
excuse (Perez v. Canada (Solicitor General) (1994), 93 F.T.R. 256
(F.C.T.D.), Joyal J.; Izauierdo v. Canada (Minister of Citizenship
and Immigration), [1997] F.C.J. No. 1669 (T.D.) (QL), Rouleau J.; Ressam
v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R.
50 (F.C.T.D.), Pinard J.; Alegria-Ramos v. Canada (Minister of
Citizenship and Immigration) (1999), 164 F.T.R. 150 (F.C.T.D.), Dubé J.).
[17] In the present case, the applicant filed his address notification on
time and his medical examination on time. His PIF was due on February 25, 2005
but he did not file the PIF until March 3, 2005. The applicant stated he was
late in filing his PIF because he was mistaken about the deadline. He was under
the impression that he had 60 days to file a PIF and 28 days to file his
medical examination. The Board did not disbelieve what the applicant stated,
but did not accept this as a sufficient reason to extend the deadline.
[18] In order to deny the applicant relief on an abandonment hearing, the
Board must have evidence of an intention by the applicant to abandon the claim.
I am of the opinion that the Board’s decision was unreasonable as I can find no
evidence that the applicant had an intention to abandon his claim. The
applicant filed his address document and his medical examination and according
to the evidence, had his PIF almost ready to file when he received the notice
of abandonment hearing.
[19] The Board member stated at the hearing that the applicant could have
taken the documents to someone who spoke English to explain to him what his
obligations were. I would note that the applicant did not raise his lack of
English ability as an excuse. He said he made a mistake. The Board member
raised the language issue.
[20] Accordingly, the Board’s decision must be set aside and the matter
referred to a different panel of the Board for re-determination.
[21] Because of my finding on Issue 1, I need not deal with the remaining
issue.
[22] Neither party proposed a serious question of general importance for
my consideration for certification.
JUDGMENT
[23] IT IS ORDERED that the application for judicial review is
allowed and the decision of the Board set aside. The matter is referred to a
different panel of the Board for re-determination.
“John
A. O’Keefe”
ANNEX
Relevant
Legislation
Subsection 168(1) of the
Immigration
and Refugee Protection Act, S.C. 2001, c. 27 provides the Board with
jurisdiction to determine that a proceeding has been abandoned. It reads as
follows:
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168.
(1) A Division may determine that a proceeding before it has been abandoned
if the Division is of the opinion that the applicant is in default in the
proceedings, including by failing to appear for a hearing, to provide
information required by the Division or to communicate with the Division on
being requested to do so.
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168.
(1) Chacune des sections peut prononcer le désistement dans l'affaire dont
elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire,
notamment par défaut de comparution, de fournir les renseignements qu'elle
peut requérir ou de donner suite à ses demandes de communication.
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Concerning the
discretion that may be exercised by the Board in determining that a claim has
been abandoned, rule 58 of the Refugee Protection Division Rules, SOR/2002-228 provides that:
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58. (1) A
claim may be declared abandoned, without giving the claimant an opportunity
to explain why the claim should not be declared abandoned, if
(a) the
Division has not received the claimant's contact information and their
Personal Information Form within 28 days after the claimant received the
form; and
(b) the
Minister and the claimant's counsel, if any, do not have the claimant's
contact information.
(2) In every
other case, the Division must give the claimant an opportunity to explain why
the claim should not be declared abandoned. The Division must give this
opportunity
(a)
immediately, if the claimant is present at the hearing and the Division
considers that it is fair to do so; or
(b) in any
other case, by way of a special hearing after notifying the claimant in
writing.
(3) The
Division must consider, in deciding if the claim should be declared
abandoned, the explanations given by the claimant at the hearing and any
other relevant information, including the fact that the claimant is ready to
start or continue the proceedings.
(4) If the
Division decides not to declare the claim abandoned, it must start or
continue the proceedings without delay.
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58.
(1) La Section peut prononcer le désistement d'une demande d'asile sans
donner au demandeur d'asile la possibilité d'expliquer pourquoi le
désistement ne devrait pas être prononcé si, à la fois:
a)
elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements
personnels du demandeur d'asile dans les vingt-huit jours suivant la date à
laquelle ce dernier a reçu le formulaire;
b)
ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne
connaissent ces coordonnées.
(2)
Dans tout autre cas, la Section donne au demandeur d'asile la possibilité
d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui
donne cette possibilité:
a)
sur-le-champ, dans le cas où il est présent à l'audience et où la Section
juge qu'il est équitable de le faire;
b)
dans le cas contraire, au cours d'une audience spéciale dont la Section l'a
avisé par écrit.
(3)
Pour décider si elle prononce le désistement, la Section prend en
considération les explications données par le demandeur d'asile à l'audience
et tout autre élément pertinent, notamment le fait que le demandeur d'asile
est prêt à commencer ou à poursuivre l'affaire.
(4)
Si la Section décide de ne pas prononcer le désistement, elle commence ou
poursuit l'affaire sans délai.
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