Date: 20051012
Docket: IMM-9352-04
Citation: 2005 FC 1389
Toronto, Ontario, October 12, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
KOFI POKU NTIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Ntim, a citizen of Ghana, arrived in Canada in July 2001 and submitted a refugee claim in February 2002. His claim was deemed abandoned at a hearing held on April 14, 2004. On September 28, 2004, he requested that his claim be reopened. His request was denied by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) on October 7, 2004. Notice of the decision was provided on December 6, 2004. The applicant seeks judicial review of the October 7, 2004 decision of the RPD. I have concluded that the application should be dismissed.
THE DECISION
[2] The correspondence dated December 6, 2004 states that the application to reopen the claim has been dismissed. Subsequent correspondence dated December 8, 2004 contains the endorsement of the RPD member and provides:
There is no evidence of a denial of natural justice in the decision taken on April 14, 2004. The only entry we have indicating a change of address is on September 20, 2004. Claimant has not provided the Board with evidence that he changed his address. All the correspondence was then sent to the only address in the file, which is on Keystone Drive.
THE ISSUE
[3] Did the RPD member, on the application for reopening the claim, err in determining that there was no breach of natural justice at the abandonment hearing?
ANALYSIS
[4] It is common ground that the applicant's obligation to provide notification of a change of address is two-fold: notification is to be provided to the RPD and to Citizenship and Immigration Canada (CIC). Also, on an application to reopen, to allow the application the RPD must find that there existed a breach of natural justice in relation to the abandonment decision.
[5] The applicant contends that the RPD misconstrued the evidence when it stated that he had not provided evidence that he changed his address. The applicant points to his affidavit sworn September 20, 2004, wherein he states that he "changed his address and informed the Board accordingly". He further attests that he did not receive either the notice to appear for his hearing, or the notice to appear for an abandonment hearing "as both letters were sent out to my old address". Since he did not appear at the abandonment hearing because he had not received notice of it, he was denied natural justice because he was not heard regarding why his claim should not be declared abandoned. He asserts that the RPD member erred in concluding otherwise. Moreover, according to the applicant, the correspondence from CIC dated September 13, 2004, and mailed to his new address, corroborates his statement that notification of his change of address was provided.
[6] The applicant has not provided any evidence to demonstrate that he notified the RPD of a change of address prior to his claim being deemed abandoned on April 14, 2004. No details are furnished as to when he moved or when he so notified the RPD. The correspondence from CIC does not assist in this respect for it is dated September 13, 2004, some five months after the refugee claim had been abandoned. The transcript of the abandonment hearing contains the following comment by the member:
On the 26th of March 2004 the claimant did not appear. The claimant's counsel did
not appear. She left a message indicating that she'd lost contact with the claimant.
I note - I noted at that time that there had been no change of address on file.
Subsequent to that date, that is the 26th of March 2004, the notice was sent to the
claimant at his last known address in the file notifying him that a Show Cause
hearing has been scheduled for today at 8:29.
[7] The Refugee Protection Rules, specifically rules 4(1) and 4(3) require a claimant to
provide the claimant's contact information in writing to the Division and to the Minister as well as to provide, without delay, and in writing, any changes in contact information. The applicant was aware of this requirement for the IRB instructions (Tribunal Record at p. 47) provided to him, contain his file number, a case officer's name and telephone number, a statement that he must inform the IRB of his mailing address, and a statement that he must inform it of any change of address immediately.
[8] There was absolutely no evidence before the RPD, on the application to reopen, that the applicant had complied with the requirement to notify of a change of address prior to the abandonment hearing. The RPD applied the proper test and determined that no breach of natural justice had occurred. On the record before it, it cannot be faulted for doing so.
[9] Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9352-04
STYLE OF CAUSE: KOFI POKU NTIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 12, 2005
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: October 12, 2005
APPEARANCES:
Joel Etienne FOR THE APPLICANT
Margherita Braccio FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joel Etienne
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q. C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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