Kasim v. Canada (Minister of Citizenship and Immigration), 2004 FC 10

                                                                                                                                             Date: 20040108

                                                                                                                                 Docket: IMM-5038-03

                                                                                                                                      Citation: 2004 FC 10

Between:

                                              ALI USMAN KASIM and SANA KASIM

                                                                                                                                                      Applicants

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated May 28, 2003, wherein the Board found that the applicants' claim for refugee protection had been abandoned.

[2]         The applicants are siblings who are citizens of Pakistan. The applicants entered Canada with their father, mother and two younger siblings on April 14, 2003 where they stated their intention to make a refugee claim as a family. The applicants' father Muhammad Kasim Qureshi, is the principal refugee claimant upon whose claim the remaining family members' claims are based.

[3]         The Board found that the applicants had failed to submit their Personal Information Forms ("PIFs") on time and had failed to provide the Board with their contact information. As a result, the Board deemed that the applicants' claims were abandoned.

[4]    The applicants submit that they are entitled to notice and to the right to be heard. Subsection 58(1) of the Refugee Protection Division Rules, SOR/2002-228 (the "Rules") provides that the Board may declare a claim abandoned without giving the claimant an opportunity to explain where the Board has not received the claimant's contact information and PIF within 28 days after the claimant received the form, and where the Minister and the claimant's counsel do not have the claimant's contact information. Where the elements of subsection 58(1) are met, therefore, the Board need not provide the applicant with an opportunity to explain the delay.

[5]    According to the file, the applicants submitted their PIFs to the Board on May 29, 2003, that is, 17 days beyond the 28-day limit. The Notice to Appear forms dated April 14, 2003, demonstrate that the applicants were duly warned of the effect of subsection 58(1) of the Rules if they should fail to submit their forms within the 28 days.

[6]    The applicants submit that they provided the Board with their contact information on April 25, 2003. The respondent replied that the Notification of Contact Information and the Notification of Counsel forms were submitted on behalf of the applicants' father. Indeed, the applicants' father's representative did submit a Notification of Contact Information and a Notification of Counsel on April 23, 2003. However, neither of these documents included information which would enable them to be linked to the applicants' files. In addition, the applicants' addresses appear in the PIFs submitted on May 29, 2003, after the expiration of the 28-day period during which the PIFs should have been submitted to the Board. However, according to the Abandonment Report dated May 27, 2003, the Case Management Officer had already recommended that the applicants' claims be dismissed at that time. A review of the file reveals that the Board acted in accordance with subsection 58(1) of the Rules in its disposition of this case. As a result, the applicants were not entitled to an opportunity to explain the delay in the submission of their PIFs.

[7]    With respect to the applicants' allegation that they believed that their claims were joined to their father's, the latter's PIF is not included in the Tribunal record and therefore, it is impossible to determine whether the applicants are indeed included in his claim. Without this information, it cannot be determined whether the Board should have joined the claims and the Board cannot be held responsible for its failure to link the family's files on its own initiative. Indeed, researching all claims in order to identify family links that are not explicitly stated in the claims would be an onerous burden to impose on the Board.

[8]    For all the above reasons, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

January 8, 2004

                                   FEDERAL COURT

                    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-5038-03

STYLE OF CAUSE:                       ALI USMAN KASIM and SANA KASIM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Toronto, Ontario

DATE OF HEARING:              December 11, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                          January 8, 2004

APPEARANCES:

Mr. Robert I. Blanshay                 FOR THE APPLICANTS

Mr. Gordon Lee                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

Robert I. Blanshay                    FOR THE APPLICANTS

Barrister & Solicitor

Toronto, Ontario

Morris Rosenberg                      FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario