Krishnamoorthy v. Canada (Minister of Citizenship and Immigration), 2005 FC 237

Date: 20050214

Docket: IMM-9446-03

Citation: 2005 FC 237

Ottawa, Ontario, February 14, 2005

Present:           THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON                              

BETWEEN:

                                             KRISHNAMOORTHY, JEYAKUMAR

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The applicant is a citizen of Sri Lanka. On November 12, 2003, the Refugee Protection Division of the Immigration and Refugee Board (RPD) refused a request to reopen the applicant's claim for refugee status, which had been declared abandoned on June 20, 2003. This application for judicial review relates to the decision refusing to reopen the claim.

[2]                The applicant arrived in Canada on April 27, 2003 and claimed refugee protection. His claim was immediately referred to the RPD and he was provided with a personal information form (PIF) that he was required to complete and file within 28 days. The applicant sought legal counsel and attended at counsel's (not counsel at this hearing) office on May 5, 2003.

[3]                By notice dated May 30, 2003, the RPD informed the applicant that he was required to attend an abandonment hearing on June 20, 2003, to explain why his claim should not be declared abandoned. The PIF was filed on June 17^th.

[4]                At the abandonment hearing, the applicant presented a letter signed by the applicant's counsel's assistant (on behalf of counsel) stating that the PIF had been provided and that the applicant "is prepared to proceed with his hearing before the RPD". It further stated: "We are available on any of the following dates should you wish to schedule the hearing". A list of dates followed.

[5]                The applicant claims that delay in obtaining legal aid (which was refused) and delay in obtaining the port of entry (POE) notes contributed to the late filing of his PIF. He also alleges that he was under the impression (from counsel) that the RPD would cancel his show cause hearing because counsel's past experience was that if the RPD was in receipt of a late PIF before the show cause hearing, the RPD considered that claimants had not abandoned their claims. The RPD, at the abandonment hearing, was not satisfied that the applicant's explanation demonstrated an intention to pursue the claim in a diligent manner and it declared the claim abandoned. The applicant did not seek judicial review of that decision.

[6]                The applicant now alleges that the refusal to reopen the claim constitutes a breach of natural justice, a breach of fundamental justice and a breach of his rights under section 7 of the Canadian Charter of Rights and Freedoms. The crux of the applicant's argument is that his claim ought to be determined only after a hearing on its merits. Because his legal aid had not been granted and because his counsel was not aware of a change in RPD policy, he cannot be held responsible for not proceeding with diligence because his PIF was late.

[7]                In my view, the applicant confuses the role of the RPD on an application to reopen a claim with the role of the RPD on an abandonment hearing. The application to reopen is made pursuant to Rule 55 of the Refugee Protection Division Rules. Subsection 55(4) provides:

[8]                Applications to reopen can be allowed only where a breach of natural justice can be demonstrated: Ali v. Canada (Minister of Citizenship and Immigration) 2004 FC 1153. Thus, on such an application, the function of the RPD is to review the file to ensure that the abandonment decision was made in a manner that did not breach the principles of fundamental justice. Here, the RPD reviewed the file and determined that there was no breach of natural justice. Consequently, it had no option but to refuse the application.

[9]                As previously stated, the applicant was provided with notice of the abandonment hearing. He attended that hearing and provided his explanation as to why his claim should not be declared abandoned. The RPD did not accept that explanation and it declared the claim abandoned. The applicant did not seek judicial review of that decision.

[10]            The RPD, on the application to reopen, reviewed the file and the documents tendered in support of the application, which included two affidavits and counsel's submissions. The applicant's sworn evidence was that counsel's assistant informed him [sometime after May 21^st and before June 4^th] that there was a new policy in effect and that no extensions [for filing of a PIF] were being granted (Applicant's affidavit sworn August 5, 2003 at paragraph 6). Exhibited to his affidavit were the Legal Aid Ontario May 21^st request for financial information and the notice of refusal from Legal Aid dated June 5, 2003 indicating that the reason for the refusal was "complete financial information was not provided'.

[11]            The board's reasons, albeit brief, demonstrate that it considered the submissions tendered to support the application. In accordance with its mandate, it determined that no denial of natural justice had occurred. I find no fault with that decision.

[12]            There is no breach of natural or fundamental justice here. Nor is there any violation of the applicant's rights pursuant to section 7 of the charter. Even if the applicant could establish a breach of the right to life, liberty or security of the person, he cannot establish that such breach was not in accordance with the principles of fundamental justice.

[13]            Counsel did not suggest a question for certification and none arises.

ORDER

The application for judicial review is dismissed.

            "Carolyn A. Layden-Stevenson"          

Judge

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-9446-03

STYLE OF CAUSE:                          KRISHNAMOORTHY, JEYAKUMAR

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      February 10, 2005

REASONS FOR [ORDER or JUDGMENT] : LAYDEN-STEVENSON J.

DATED:                                             February 14, 2005

APPEARANCES:

I. Francis Xavier                                                                        FOR THE APPLICANT

Ian Hicks                                                                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

I. Francis Xavier

Barrister & Solicitor

Scarborough, ON                                                                      FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada     FOR THE RESPONDENT