Date: 20050503
Docket: IMM-2862-04
Citation: 2005 FC 616
Vancouver, British Columbia, Tuesday, the 3rd day of May, 2005
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
CARLOS ROBERTO CORTES BARBA &
ANDRES DE JESUS CORTES BARBA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicants, citizens of Mexico, seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board") dated January 26, 2004. In that decision, the Board declared the Applicants' claim for Convention refugee protection to have been abandoned.
[2] The Applicants entered Canada in 2002 and submitted claims for Convention refugee protection. A hearing into those claims was scheduled for December 8, 2003. On December 7, 2003 the Applicants, through counsel, sought an adjournment of that hearing. The Applicants did not appear on December 8, 2003, either in person or by counsel. The adjournment request was denied and according to the transcript for December 8, 2003, the matter was set down for an abandonment hearing, on a peremptory basis.
[3] The Tribunal Record contains a notation that on December 15, 2003, correspondence was sent to the Applicants advising of the abandonment hearing, set for January 21, 2004.
[4] The Applicants did not appear for that hearing and the Board declared their claims to have been abandoned.
[5] The Applicants now argue that they did not receive the notice of the abandonment hearing. They submit that a dismissal of their claim, in these circumstances, is a breach of natural justice.
[6] The Respondent, for his part, argues that the decision in question was properly made by the Board in accordance with the relevant statutory authority and in conformity with the requirements of procedural fairness.
[7] In proceeding with an abandonment hearing, the Board is authorized to exercise the discretion conferred by section 168 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended ("IRPA"). The standard of review applicable to an abandonment decision is reasonableness simpliciter; see Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.).
[8] It is undisputed that the Applicants did not appear before the Board on December 8, 2003. The decision of the Board to deny their written request for an adjournment is not relevant to this application for judicial review which relates solely to the decision of January 21, 2004. December 8, 2003 is relevant only because the failure of the Applicant to appear on that day gave rise to the abandonment hearing.
[9] The only serious argument raised by the Applicants is a breach of procedural fairness arising from the failure of the Board to give the notice of the abandonment hearing on January 21, 2004. However, the record does not support this submission.
[10] In the first place, there is an entry in the principal Tribunal Record that records that on December 15, 2003, correspondence was sent to the Applicants, advising that an abandonment hearing would be held on January 21, 2004. The correspondence was sent to the Applicants at an address on file, that is the address of their immigration paralegal. A copy of the letter was also sent to him.
[11] The Applicants have not produced any evidence to counter this notation. There is nothing on the record to support their arguments that they received no notice of the abandonment hearing. To the contrary, there is some evidence in the supplementary Tribunal Record to the effect that the Applicants did attend on January 21, 2004 but left before the hearing began.
[12] In the circumstances, I conclude that there is no basis for judicial intervention in the decision of the Board. I find no breach of natural justice or procedural fairness relative to these Applicants and the application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
(Sgd.) "E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2862-04
STYLE OF CAUSE: CARLOS ROBERTO CORTES BARBA
ANDRES DE JESUS CORTES BARBA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 27, 2005
REASONS FOR ORDER
AND ORDER: HON. MADAM JUSTICE HENEGHAN
DATED: MAY 3, 2005
APPEARANCES:
Ms. Shana Dale FOR THE APPLICANTS
Ms. Allison Phillips FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dale Streiman & Kurz LLP
Brampton, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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