Date: 20050401
Docket: IMM-2260-04
Citation: 2005 FC 430
Ottawa, Ontario, Friday the 1st day of April 2005
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
K.B.M. ABDUR RAHMAN, NASRIN RAHMAN,
NOURIN RAHMAN, REDUANUR RAHMAN and
RAIHANUR RAHMAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Subsection 168(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") confers jurisdiction on any division of the Immigration and Refugee Board to determine a proceeding before it to be abandoned if the division is of the opinion that an applicant is in default of the proceedings. Rule 58 of the Refugee Protection Division Rules, SOR/2002-228 ("Rules") applies to the exercise of this jurisdiction by the Refugee Protection Division ("RPD") and Rule 58(3) sets out the factors the RPD is to consider when exercising this jurisdiction. That rule provides:
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58(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.
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58(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.
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[2] Prior jurisprudence of this Court is to the effect that requiring an applicant to show "exceptional circumstances" in order to allow a claim to proceed (and not be declared abandoned) is an error in law because such a test exceeds the standard provided in the relevant rule. See: Ahmed v. Canada (Minister of Citizenship and Immigration) (2004), 248 F.T.R. 157 and Anjum v. Canada (Minister of Citizenship and Immigration) (2004), 250 F.T.R. 311.
[3] At issue in this application for judicial review is whether the RPD applied the incorrect test of "exceptional circumstances" when it declared the applicants' claims to be abandoned. The determination of the proper test to be applied by the RPD is a question of law, and so the standard of review of its decision is correctness.
[4] Despite the articulate submission of counsel for the Minister, I have determined that the RPD erred in law by applying the incorrect test and requiring the claimants to show the existence of exceptional circumstances that precluded them from filing their Personal Information Form within the required 28-day period.
[5] In material part, the RPD's reasons were as follows:
As stated in the legal case of Barrientos, B A R R I E N T O S, a person whose safety is threatened in his or her country of origin and is seeking the protection of a country of refuge, is necessarily keen to comply with legal framework that has been established for that purpose and the system does not tolerate laxity. The 28-day rule is, in the Panel's opinion, a reasonable timeframe and is consistent with the principles of fairness. Indeed the Panel takes note that the vast majority of Claimants are able to comply with the 28-day rule, indeed in the Toronto office, as well, over 90 percent. However, there are exceptional circumstances occasionally that make it impossible and practical [sic] for a Claimant to comply. Have the Claimants demonstrated any exceptional circumstances that would allow the Panel to exercise its discretion in this case? The Panel thinks not. [underlining added]
[6] The Minister argued that in the concluding portion of its reasons the RPD said that it was not satisfied that a "reasonable explanation" had been provided, which demonstrated its awareness of the correct test to be applied. However, given that the RPD described the exception to the general 28-day rule in terms of "exceptional circumstances", referred to occasions when compliance was "impossible", and then asked and answered the question as to whether the claimants had demonstrated "exceptional circumstances", I conclude that the RPD applied the incorrect test.
[7] The application for judicial review will therefore be allowed. Counsel posed no question for certification and no question arises on this record.
ORDER
[8] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the RPD is set aside.
2. The matter is remitted to the RPD for re-determination by a differently constituted panel of the division.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2260-04
STYLE OF CAUSE: K.B.M. Abdur Rahman et al. v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 24, 2005
REASONS FOR ORDER AND ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
DATED: April 1, 2005
APPEARANCES:
Mr. Avi J. Sirlin FOR THE APPLICANTS
Mr. Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Avi J. Sirlin
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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