Date: 20041014
Docket: IMM-5834-03
Citation: 2004 FC 1417
Toronto, Ontario, October 14th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MAKSIM VRANICI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Maksim Vranici seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board") of July 9, 2003, refusing his application to have his claim for refugee protection reopened. The issue before me is whether the Board erred in failing to find a denial of natural justice in the abandonment decision. For the reasons below, I can find no fault with the Board's decision and will dismiss this application.
[2] Mr. Vranici, a citizen of Albania, entered Canada on April 19, 2003 and claimed Convention refugee protection. The same day, he was given a Personal Information Form ("PIF") to fill out.
[3] From that date, Mr. Vranici had 28 days to file his PIF with the Board. He also had 10 days to give the Board his contact information in Canada. He did not file his PIF, dated June 7 until June 9, 2003 at which time he also provided his counsel's contact information. It appears from the record that counsel was retained on June 2.
[4] On May 22, 2003, Board Member F. Mortazavi declared the claim abandoned. No hearing was held, in accordance with Rule 58 (1) of the Refugee Protection Division Rules ("RPD Rules") as the division had no contact information for Mr. Vranici or his counsel at that time. The decision was recorded in an Abandonment Report, signed by Mr. Mortazavi, bearing a check mark inside a box beside the following statement:
The claim(s) is/are declared to be abandoned as the claimant(s) failed to provide the IRB with their contact information and failed to provide their completed PIF within the period provided by the RPD rules and, the Minister and Counsel for the Claimant do not have the Claimant's contact information (Immigration and Refugee Protection Act, s.168(1); Refugee Protection Division Rules, s. 58(1)(a) and (b)).
[5] The Registrar of the Refugee Protection Division issued a Notice of Abandonment Decision on May 28, 2003. At that time, counsel for the applicant was unknown, and as no address was available for the applicant, service was dispensed with. Although the printed form provided a space for the name of the Member who had made the decision, no name was recorded on this Notice. It was initialled on behalf of the Registrar.
[6] After counsel for Mr. Vranici sent the PIF to the Board, over three weeks late, the Registrar left a message with counsel on June 12 explaining that the claim had already been declared abandoned because the PIF was not filed on time and that service had been dispensed with because there was no address for the applicant.
[7] On June 17, 2003, the Registrar amended the Notice of Abandonment Decision and sent it out to the addresses now available. That amended notice contained the name of the member who had made the abandonment decision on May 28.
[8] Mr. Vranici did not apply for judicial review of the abandonment decision. Instead, on June 26, 2003, he applied by way of notice of motion to have his refugee claim reopened.
[9] On July 9, 2003, Member L. Leonoff refused the motion to reopen the claim. The decision was noted by the Registrar in a Notice of Decision - Application to Reopen dated July 11, 2003 and communicated to Mr. Vranici and his counsel.
[10] Member Leonoff noted on the Request Record under Part C - Decision:
No denial of natural justice. Claimant has obligation to inform Board of address and contact information. No new reliable or sufficient evidence as to why this was not done. Claimant was served and instructions clearly state obligation to file within 28 days.
[11] The applicant argues that the Board had no jurisdiction to declare the claim abandoned without giving him an opportunity to be heard. Further, he contends that no reasons were provided for declaring the claim abandoned and Member Leonoff's reasons for refusing the application to re-open were insufficient, thus the applicant was denied natural justice.
Entitlement to an abandonment hearing
[12] The path Mr. Vranici urges the Court to follow to arrive at the conclusion that the Board was without jurisdiction to declare his claim abandoned is somewhat convoluted. To get there I would have to accept that the May 22nd Abandonment Report did not constitute a decision and that the Notice of Abandonment Decision issued on May 28 is a nullity as it does not bear the name of the member who purportedly made the abandonment decision. Further, I would have to conclude that the decision to declare the claim abandoned was actually made on June 17 with the issuance of the Amended Notice.
[13] Rule 58 requires that the Board must give a claimant an opportunity to explain why the claim should not be declared abandoned in every case except where the Board has not received the claimant's contact information and PIF within 28 days and the Minister and the claimant's counsel, if any, do not have the claimant's contact information. Thus, if I accept the applicant's argument that the decision was made on June 17, he was at that time entitled to a hearing as the Minister was in possession of his contact information as of June 9.
[14] Mr. Vranici submits that Rule 58 must be strictly interpreted. The failure to provide him with a hearing constituted a violation of the rules and a breach of natural justice.
[15] The respondent contends that a claim should be reopened only in very limited circumstances: where there was a breach of natural justice at the abandonment proceedings: Wackowski v. MCI, 2004 FC 280; Ali v. MCI 2004 FC 1153.
[16] The respondent submits that the abandonment decision was made and signed on May 22. There was no new decision on June 17. The Board was functus on the issue of abandonment by the time the PIF was submitted:Tambwe-Lubemba v. MCI (2000), 264 N.R. 382 at paras. 3-4; Avci v. MCI, (2003) 313 N.R. 307 at paras. 2, 6.
[17] The Amended Notice of Abandonment Decision was not a notice of an amended decision, but an amended notice of the same abandonment decision. The only changes were the addition of the name of the decision-maker and a new date: Koulkov v MCI [1999] F.C.J. No. 426; Thurairajah v. MCI (1999), 12 Imm. L.R. (3d) 15.
[18] The onus was always on the applicant to meet the deadlines and contact the RPD with his information. The RPD cannot be expected to keep track of the whereabouts of all refugee claimants: Serrahina v. MCI 2003 FCT 477 at para. 7; Wackowski, supra at para 14.
[19] No matter how strictly Rule 58 is construed, I cannot ignore the fact that at the time the decision was rendered, more than 28 days had passed since Mr. Vranici had received the PIF form, and at the end of that period the Board and the Minister had no idea of his contact information. For that matter, neither apparently did his counsel, as he was yet to be retained. This is precisely the situation envisaged by Rule 58(1).
[20] I do not accept Mr. Vranici's argument that the decision is actually contained in the Notice of Decision, and because the Notice of Decision was amended on June 17, that is the effective date of the decision. This assumption ignores Rules 65(b) and 61(1). Rule 65(b) provides that a decision on the abandonment of a claim takes effect when a Refugee Protection Division member signs and dates the reasons for the decision. Rule 61(1) states that when the Division makes a decision, other than an interlocutory decision, it must provide a notice of decision in writing to the claimant and to the Minister. The Notice of Decision is clearly not the decision itself.
[21] The document signed and dated by Member Mortazavi on May 22 constituted the abandonment decision in this matter and, as of that date, the Board had no knowledge of Mr. Vranici's contact information and was not, therefore, bound by Rule 58 to provide him a hearing.
Sufficiency of the Written Reasons
[22] Mr. Vranici submits that Member Mortavazi's Abandonment Report of May 22 cannot be considered a decision or reasons for decision because it is an internal Board document. Under the Immigration and Refugee Protection Act (IRPA"), section 169, two separate documents are contemplated - a notice of decision and written reasons for decision - and both are to be sent to the claimant. If the reasons are contained in the Member's report, they were never sent to the applicant. Only notices of decision were sent.
[23] Thus, there was no proper decision or reasons for the abandonment decision. This is a breach of natural justice and the Board should have reopened the hearing as a result. By the same reasoning, Mr. Vranici argues that no reasons for dismissing the application for reopening were given either, so the decision not to reopen was also a breach of natural justice.
[24] The respondent submits that the decision to reopen is the only one under review. The applicant's argument with respect to the May 22nd document was not raised in the application to reopen and should not be entertained: Federal Court Rules, 1998, Rule 302, Rule 2; IRPA ss. 72(1), 72(2)(b). The applicant's answer is that until the certified Tribunal Record was provided following the granting of leave, he had no way of knowing what was in the May 22nd document, short of bringing an access request, as it was never served upon him.
[25] The respondent argues that judicial review of a motion to reopen cannot be a disguised challenge to the abandonment decision: Kononov v. MCI [1999] F.C.J. No. 1121. No issue of a breach of natural justice because of a lack of reasons was argued in the application to re-open. Reference to the abandonment proceeding should only be made to determine whether the Board erred in not finding a breach of natural justice: Wackowski, supra; Ali, supra at para 26.
[26] Assuming without deciding that the applicant should be allowed to raise the issue in these proceedings, I would find that the May 22nd Abandonment Report contained adequate reasons for the decision to declare the claim abandoned. There was little else to say other than the applicant had failed to abide by the deadline. Further, service was properly dispensed with at that time as the Board had no knowledge of where to locate the claimant. When subsequently served with the Amended Notice, it was open to the applicant to request the reasons for the decision prior to making his application to reopen.
[27] Turning to the reasons given for that decision, IRPA section 169 provides that written reasons are required when the decision is final rather than interlocutory, where the decision rejects an application for refugee protection, and where the claimant or the Minister requests reasons for the final (positive) decision. The RPD Rules do not provide for written reasons for interlocutory decisions: Rule 61.
[28] A motion to reopen a decision is an interlocutory matter, because if granted it will simply open the gate to a redetermination of the claim: per Evans J.in Faghihi v. MCI, [2000] 1 F.C. 249 (TD) aff'd 2001 FCA 163.
[29] The statutory duty to give reasons only applies to a claim for refugee protection. A motion to reopen does not address the merits of a claim (nor does an abandonment hearing). In Ali, supra, I determined that a common law duty of fairness requires some form of reasons in a reopening decision, but that the requirement was satisfied by providing the endorsement on the file, when requested. Similarly, I would find that the requirement was met in this matter by Member Leonoff's endorsement on the Request Record.
Certified Question
[30] The applicant has proposed that two questions be certified:
1. Can a member's report constitute valid reasons for decision if it is an internal document of the Board?
2. Can notice of an abandonment decision be amended to include the name of a member if omitted previously?
[31] Neither of the proposed questions transcends the immediate interests of the parties, in my view, nor would they be dispositive of an appeal from this decision as it concerns the judicial review of the decision to not reopen rather than the abandonment decision itself. Accordingly, I decline to certify either question.
ORDER
THIS COURT HEREBY ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5834-03
STYLE OF CAUSE: MAKSIM VRANICI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 12, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: OCTOBER 14, 2004
APPEARANCES:
Mr. Ronald Shacter
FOR APPLICANT
Ms. Amina Riaz
FOR RESPONDENT
SOLICITORS OF RECORD:
Ronald Shacter
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20041014
Docket: IMM-5834-03
BETWEEN:
MAKSIM VRANICI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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