Date: 20050627
Docket: IMM-5781-04
Citation: 2005 FC 908
Toronto, Ontario, June 27th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
SHAHZAD ALI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") finding that the Applicant's claim for refugee status was abandoned.
[2] The Applicant is a Shia Muslim from Pakistan who alleges a fear of persecution on the basis of his religion.
[3] The Applicant's refugee hearing, on the request of his counsel, was scheduled for November 6, 2003. Following a second request by the Applicant's counsel, this hearing was adjourned to February 17, 2004.
[4] The Applicant alleges that he was unable to attend the hearing on February 17, 2004 because he was suffering from a fever and back pains. He consulted a physiotherapist and received a medical note. Allegedly, Mr. Zaffar, an Urdu interpreter, acting as "counsel's agent" submitted the medical note to the Board at the hearing. The Board's Hearing Information Sheet, however, makes no mention of such representation, it merely notes that the claimant was not in court. The Certified Tribunal Record, however, contains the medical certificate dated 2004.02.16.
[5] A Show Cause Hearing was therefore scheduled for May 27, 2004. The Applicant was unable to attend this hearing because he suffered a back injury while playing cricket. The Applicant alleges that he was hospitalized and, therefore, unable to contact his counsel, Mr. Berger, until after the hearing, as he did not have his telephone number.
[6] The Applicant's counsel withdrew as counsel on May 26, 2004, advising the Board that he was unable to obtain instructions from the Applicant.
[7] The Board determined that the claim was abandoned as;
i) the Applicant failed to appear on February 17, 2004, and
ii) neither the Applicant, nor his counsel appeared on May 27, 2004, and given that counsel had resigned from the file as he was unable to locate the Applicant.
[8] The Applicant raises the following two issues:
1) Was the decision to find the claim abandoned patently unreasonable?
2) Did the Board breach section 169(b) of the Immigration and Refugee Protection Act,
( 2001, c. 27 ) ("IRPA")?
[9] It is well established that the standard of review applicable to a decision by the Board finding that a claim has been abandoned is reasonableness simpliciter (see Ahmad v. Canada (M.C.I.), [2000] 3 F.C. 109 at paragraphs 23-30 (T.D.) (QL)).
[10] The test for determining whether a claim has been abandoned is whether the refugee claimant's conduct amounts to a lack of intention to pursue the claim with diligence (see Ahmad, supra, at paragraph 32).
[11] The Applicant submits that he provided reasonable explanations for his request for an adjournment for the first hearing. He states that his diligence was established by the fact that he provided a medical note to support his request. The Applicant, therefore, submits that although he was unable to advise the Board of his inability to attend the second hearing, it was patently unreasonable for the Board to find the claim abandoned since the second hearing was the first incident in which a reasonable explanation was not provided.
[12] I find it difficult to accept this argument. This Court has consistently held that refugee claimants have a duty to keep in touch with their counsel, to actively pursue their claims, and to inform the Board in a timely manner if they cannot attend a hearing (see Capelos v. Canada (M.E.I.), [1991] 43 F.T.R. 280, Mussa v. Canada, [1994] F.C.J. No. 2047, Pene Kitoyo v. Canada (M.C.I.), [1999] F.C.J. 1945).
[13] Here counsel had been unable to contact the Applicant. Therefore, on the day prior to the hearing, counsel withdrew from the case. The evidence from the hospital shows that the Applicant was admitted and discharged on the day of the hearing. His excuse that he was unable to contact his counsel due to his injury and because he did not have his phone number rings hollow in view of the fact that he was injured on the day of the hearing. A person fearing for his life and having an upcoming hearing, (a hearing that was twice postponed,) would surely contact his counsel at least the day before the hearing. The Applicant also entirely failed to explain why he did not contact the Board. Accordingly, I fail to see how the Board's decision was unreasonable.
[14] As far as section 169 of IRPA is concerned, the decision of the Board clearly states why the Board declared the application abandoned; he failed to appear twice at hearings pertaining to his case. The requirement of section 169 of IRPA, like all requirements for reasons, is to provide transparency. Any applicant is entitled to know why his claim is abandoned so he can employ the appropriate remedy. Clearly that happened in this case. There is no doubt as to the reasons for the Board's decision. The letter from the registrar dated June 10, 2004 thus meets the requirements of section 169 of IRPA.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5781-04
STYLE OF CAUSE: SHAHZAD ALI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 27, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN, J.
DATED: JUNE 27, 2005
APPEARANCES BY:
Lani Gozlan For the Applicant
Bernard Assan For the Respondent
SOLICITORS OF RECORD:
Lani Gozlan
Barrister & Solicitor
Max Berger & Associates
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
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