Date: 20040116
Docket: IMM-6587-02
Citation: 2004 FC 68
Ottawa, Ontario, this 16th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SANDOR SZABO
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated December 12, 2002, in which the applicant's claim for refugee protection was declared abandoned.
[2] The applicant requests an order allowing his application for judicial review, and directing the Board to re-open and re-hear his claim.
Background
[3] The applicant, Sandor Szabo, is a citizen of Hungary. He arrived in Canada on June 25, 2001 and made a claim for refugee status on October 17, 2001.
[4] On November 18, 2002, a hearing was held by the Board with respect to the applicant's claim for refugee protection. However, neither the applicant nor his counsel appeared at the hearing.
[5] Abandonment proceedings were commenced and a special hearing was scheduled for December 9, 2002, at which time the applicant would have the opportunity to explain to the Board why his refugee claim should not be declared abandoned. The applicant appeared at this second hearing, but was not accompanied by his counsel, as she was ill.
[6] According to the transcript of the hearing, the applicant advised the Board that he had retained counsel on October 17, 2000. He indicated to the Board that she was handling his refugee application, and that he had contacted her the day before the initial hearing and she had advised him she was going to postpone it. The applicant testified that he had no other reason not to have attended the initial hearing.
[7] The presiding member of the Board then indicated to the applicant that there was no correspondence on the file from the applicant's counsel. Additionally, he reiterated that it is the applicant's responsibility, not that of counsel, to present the claim. The member concluded the abandonment hearing by stating that he did not accept the applicant's explanation, and accordingly, declared the refugee claim abandoned.
[8] The applicant's requests to have his claim for refugee protection reinstated and re-opened were dismissed on June 17, 2003 and July 25, 2003, respectively.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[9] The Board's decision dated December 12, 2002, states that the applicant was given an opportunity at the December 9, 2002 hearing to explain why his claim should not be declared abandoned. The decision goes on to state that the applicant "appeared at that hearing but did not show reason why the RPD should not declare your claim to be abandoned". On the hearing information sheet, the Board member wrote "[c]laimant appeared offered unacceptable explanation. Claim declared abandoned."
[10] Once an application for leave and judicial review was filed by the applicant, the Board replied to the Federal Court Registry's request under Rule 9(2) of the Federal Court Immigration and Refugee Protection Rules, S.O.R./93-22, as amended, by stating in a letter dated January 9, 2003 that since there was no statutory requirement to do so, the Board did not give written reasons for its decision.
Applicant's Submissions
[11] First, the applicant submits that subsection 169(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") requires a tribunal to provide reasons if it rejects a claim for refugee protection. It is the applicant's position that this provision applies here, since the refugee claim was rejected by being declared abandoned. Thus, since subsection 169(d) of IRPA requires reasons to be given, the Board's failure to provide reasons to the applicant vitiates the decision.
[12] Second, in the alternative, if the Board did not err by failing to provide reasons, the applicant submits that this Court must review the decision to determine whether it was reasonable. Subsection 58(3) of the Refugee Protection Division Rules, S.O.R./2002-28, provides that the Board must consider any explanation provided by the claimant, together with any other relevant information. Additionally, as noted by Justice Lemieux in Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.) at paragraph 32:
[t]he decided cases of the Court on a review of abandonment claim decisions by the CRDD indicate the test or question to be asked is whether the refugee claimant's conduct amounts to an expression of intention by that person, he or she did not wish or had shown no interest to pursue the refugee claim with diligence . . .
[13] Thus, on the basis of both the legislation and Justice Lemieux's statement in Ahamad, supra, the applicant submits that a factor that should weigh heavily against declaring a claim to be abandoned is the readiness and willingness of the claimant to proceed with the hearing. In this case, it is the applicant's position that the Board's decision was unreasonable, and the Board erred by declaring the claim abandoned when the applicant was available to proceed, was willing to do so, and was only not able to proceed because of the fact that his counsel was ill and unable to be present.
[14] Finally, the applicant submits that the Board erred in law when it refused to grant the applicant's request for an adjournment. Taking into account the illness of counsel, and the fact that the applicant was present at the abandonment hearing, it is submitted that it was unreasonable for the Board to not grant an adjournment to allow counsel to be present and speak on behalf of the applicant.
Respondent's Submissions
[15] The respondent submits that there was no breach of natural justice in the Board's decision, and that the application for judicial review should be dismissed.
[16] First, it is the respondent's position that the Board clearly complied with all of the notice requirements for the initial hearing, however neither the applicant nor his counsel appeared.
[17] Second, the respondent submits that the applicant has provided no explanation as to why he did not appear for the initial hearing. The only explanation appears in the affidavit of Agnes Schiffer Varnai, which states "[t]he Applicant was unable to attend the hearing due to circumstances beyond his control." The respondent submits that this is insufficient.
[18] Third, it is the respondent's position that some portions of counsel's affidavit deal with second-hand information, hearsay, and legal arguments, and as such, should be struck. Specifically, the respondent submits that the first line of paragraph 3, as well as paragraphs 6 to 11 in their entirety, should be struck from the affidavit of Agnes Schiffer Varnai.
[19] Fourth, the Board offered the applicant the opportunity to attend an oral abandonment hearing, and to explain why his claim should not be declared abandoned, in full compliance with the Refugee Protection Division Rules, supra. The respondent argues that the fact that the applicant's counsel did not appear because she had, according to her affidavit, a "bad allergy and swollen lips" does not constitute a breach of natural justice.
[20] Additionally, the respondent submits that it is unclear whether the applicant did in fact present the doctor's letter to the Board. However, assuming this letter was presented when the applicant requested an adjournment, the respondent submits that the letter dated November 28, 2002, does not indicate that his counsel could not have attended the hearing scheduled December 9, 2002. Thus, on the basis of this letter, the respondent submits that it was reasonably open to the Board to find that the applicant failed to show reason why his claim should not be abandoned.
Respondent's Further Memorandum of Argument
[21] In its supplementary submission, dated December 17, 2003, the respondent takes the position that "the applicant's case is built on misrepresentations and that costs against the applicant are warranted." With the benefit of the transcript of the December 9, 2002 abandonment hearing, the respondent points to the following inconsistencies between the applicant's position and the evidence that was before the Board:
1. The Varnai affidavit states that the applicant was unable to attend the initial November 18, 2002 hearing "due to circumstances beyond his control" but the applicant's evidence at the hearing was that he was ready to attend the hearing but was told by Ms. Varnai that it would be postponed.
2. Contrary to the applicant's statement at paragraph 4 of his memorandum of fact and law dated February 6, 2003 that the "applicant appeared with counsel as scheduled in spite of being sick", the certified tribunal record confirms that the applicant appeared without counsel.
3. Contrary to the Varnai affidavit, the hearing transcript shows that the applicant never mentioned or alluded to his counsel's medical condition, did not request an adjournment, and did not submit any medical documentation to the Board regarding his counsel's condition. In support of a later motion to reopen his claim, the applicant stated in an affidavit sworn June 6, 2003 that Ms. Varnai refused to attend the December 9, 2002 hearing and that no medical evidence was put before the Board at that time.
[22] The respondent submits that the Varnai affidavit should be struck from the record as hearsay, legal argument and for its numerous inaccuracies, given the transcript of the abandonment hearing. The respondent relies on Ly v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1496, 2003 FC 1184, in support of this argument.
[23] The respondent submits that the Board's decision to declare the applicant's claim abandoned was reasonably open to it under the circumstances. The decision did not breach the rules of natural justice, since the transcript shows the applicant did not submit any medical documentation, mention his counsel's illness or request an adjournment. The respondent argues the medical condition of the applicant's counsel cannot be considered as a basis for overturning the Board's decision because it was not put before the Board. The respondent submits that since the medical letter attached to the Varnai affidavit was not before the Board, it should not be considered on judicial review (see Lemiecha (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration) (1993), 72 F.T.R. 49).
[24] The respondent submits the applicant has shown no basis for this Court's intervention. The applicant was given the opportunity to explain why his claim should not be abandoned. The Board considered his explanation but found it to be unsatisfactory.
[25] The respondent argues that the applicant's suggestion that his counsel handled his case poorly does not provide a ground for judicial intervention in this case. The applicant must bear the consequences of hiring poor representation, short of obvious and egregious incompetence (see Huynh v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 18 (F.C.T.D.)).
[26] The respondent submits that costs should be awarded against the applicant regardless of the outcome of this application. Rule 22 of the Federal Court Immigration and Refugee Protection Rules, supra, allows costs to be awarded for special reasons and the respondent argues that the circumstances herein meet that threshold.
Issues
[27] The issues are as follows:
1. Does subsection 169(d) of IRPA require the Board to produce reasons for its decision?
2. In the alternative, if the Board fails to provide reasons, can this Court review the determination to see if the decision was reasonable in all the circumstances of the case? If so, was the decision reasonable?
3. Did the Board err in law by not granting the applicant's request for an adjournment due to counsel's illness?
4. Regardless of the merits of this application, should it be dismissed because of the applicant's misrepresentations?
5. Regardless of the outcome of this application, should costs be awarded against the applicant because of his misrepresentations?
Relevant Statutory Provisions
[28] The Immigration and Refugee Protection Act, supra states:
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168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
169. In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
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168. (1) Chacune des sections peut prononcer le désistement dans l'affaire dont elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication.
169. Les dispositions qui suivent s'appliquent aux décisions, autres qu'interlocutoires, des sections:
a) elles prennent effet conformément aux règles;
b) elles sont motivées;
c) elles sont rendues oralement ou par écrit, celles de la Section d'appel des réfugiés devant toutefois être rendues par écrit;
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(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
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d) le rejet de la demande d'asile par la Section de la protection des réfugiés est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e) les motifs écrits sont transmis à la personne en cause et au ministre sur demande faite dans les dix jours suivant la notification ou dans les cas prévus par les règles de la Commission;
f) les délais de contrôle judiciaire courent à compter du dernier en date des faits suivants_: notification de la décision et transmission des motifs écrits.
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[29] The Refugee Protection Division Rules, supra, state as follows:
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58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
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58. (1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé si, à la fois:
a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire;
b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées.
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(2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity
(a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing after notifying the claimant in writing.
(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.
(4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay.
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(2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité:
a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire;
b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit.
(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.
(4) Si la Section décide de ne pas prononcer le désistement, elle commence ou poursuit l'affaire sans délai.
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[30] The Federal Court Immigration and Refugee Protection Rules, supra, state as follows:
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22. No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.
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22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d'autorisation, la demande de contrôle judiciaire ou l'appel introduit en application des présentes règles ne donnent pas lieu à des dépens.
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Analysis and Decision
[31] Preliminary Issue
The respondent submitted at the hearing that the Varnai affidavit should be struck from the record as it contains hearsay evidence, legal argument and numerous inaccuracies given the transcript of the abandonment hearing. The applicant did not disagree with the striking of the affidavit. Accordingly, the Varnai affidavit is struck from the record.
[32] Issue 1
Does subsection 169(d) of IRPA require the Board to produce reasons for its decision?
For ease of reference, subsection 168(1) and paragraph 169(1)(b) and (d) of IRPA are repeated:
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168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
169. In the case of a decision of a Division, other than an interlocutory decision:
. . .
(b) reasons for the decision must be given;
. . .
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
. . .
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168. (1) Chacune des sections peut prononcer le désistement dans l'affaire dont elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication.
169. Les dispositions qui suivent s'appliquent aux décisions, autres qu'interlocutoires, des sections:
. . .
b) elles sont motivées;
. . .
d) le rejet de la demande d'asile par la Section de la protection des réfugiés est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
. . .
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[33] In the present case, the decision in question was made by the Immigration and Refugee Board, Refugee and Protection Division. As well, the decision is not an interlocutory decision. Accordingly, subsection 168(1) and section 169 are applicable to the Board's decision.
[34] The Board in its letter to this Court dated January 9, 2003 stated that no written reasons were given as there was no statutory requirement to do so (tribunal record page 45).
[35] Firstly, subsection 169(b) of IRPA requires that reasons for the Board's non-interlocutory decisions must be given. A review of the tribunal record shows that the Board member stated at the conclusion of the hearing, "So I will not accept your explanation, and I hereby declare your claim abandoned. . . . " (tribunal record page 107, transcript of evidence page 4). The only other reference to the decision is the notice of abandonment decision dated December 12, 2003.
[36] I do not consider either of these to be reasons for the decision to declare the applicant's claim to be abandoned. The statement in the transcript and the notice of abandonment decision reflect the decision not the reasons for the decision. The Board does not give its reason for rejecting the applicant's explanation that his counsel had told him that the hearing of November 18, 2002 had been postponed. I am of the view that the Board made an error in law by failing to give reasons for its decision.
[37] At the hearing of this matter, counsel for the applicant based his argument on both subsections 169(b) and (d) of IRPA. In his further memorandum of argument, the applicant referred only to subsection 169(d). Because of my finding on subsection 169(b), I will not deal with the subsection 169(d) argument.
[38] Because of my finding on Issue 1, I need not deal with Issue 2.
[39] Issue 3
Did the Board err in law by not granting the applicant's request for an adjournment due to counsel's illness?
The applicant, at the hearing, abandoned his argument that the Board erred by not granting the applicant's request for an adjournment due to counsel's illness. Consequently, I will not deal with this issue, however, I note that the transcript of the hearing establishes that this was not raised at the hearing by the applicant.
[40] Issue 4
Regardless of the merits of this application, should it be dismissed because of the applicant's misrepresentations?
The respondent argued at the hearing that the application for judicial review should be dismissed due to the applicant's misrepresentations on the application for leave. I have before me the order of this Court granting leave in this matter. It may be that an application to reconsider the order granting leave could have been made based on the misrepresentations in the Varnai affidavit filed with the application for leave, however, no such application to reconsider appears on the record. The present case is not a situation where there are no grounds for leave to be granted once the offending affidavit is struck. The applicant relies on the issue that the Board failed to give written reasons. The misrepresentations did not deal with this issue. Accordingly, I am not prepared to dismiss the application for judicial review on this basis.
[41] Issue 5
Regardless of the outcome of this application, should costs be awarded against the applicant because of his misrepresentations?
The respondent has submitted that costs should be awarded against the applicant because of the misrepresentations contained in the Varnai affidavit. The applicant stated that he relied solely on Varnai, his representative. Although it is the applicant's application and everything that is filed is considered to be part of his application, I am not prepared to award costs against the applicant as he himself did not swear an affidavit containing misrepresentations and his argument before me was not based on the offending misrepresentations. It is worth noting that the applicant himself has always been consistent in stating that he did not attend the original hearing because he had been told by his representative that the hearing had been postponed.
[42] The respondent also raised an argument based on Rule 81(2) of the Federal Court Rules, 1998, S.O.R./98-106. The respondent asked the Court to make an adverse inference against the applicant because instead of filing his own affidavit, he filed an affidavit of his representative which was based on information and belief. In this case, the evidence in the affidavit was not the basis for the issues argued before me, therefore, I am not prepared to accept this argument.
[43] Neither party wished to submit a serious question of general importance for certification.
[44] The application for judicial review is allowed.
ORDER
IT IS ORDERED that:
1. The Varnai affidavit is struck from the record.
2. The application for judicial review is allowed.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
January 16, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6587-02
STYLE OF CAUSE: SANDOR SZABO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, January 7, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, January 16, 2004
APPEARANCES:
Lorne Waldman
FOR APPLICANT
Angela Marinos
FOR RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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