Qamar v. Canada (Minister of Citizenship and Immigration), 2004 FC 1267

Date: 20040916

Docket: IMM-7758-03

Citation: 2004 FC 1267

Toronto, Ontario, September 16^th, 2004

Present:           The Honourable Madam Justice Heneghan                                    

BETWEEN:

QAMAR ALI

ASTHMA QAMAR

SARWAT QAMAR

RUTABA QAMAR

                                                                                                                                           Applicants

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

REASONS FOR ORDER AND ORDER

[1]                Mr. Qamar Ali, his wife Asthma Qamar and their children Sarwat Qamar and Rutaba Qamar (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board") dated September 16, 2003. In that decision, the Board dismissed the Applicants' request to reopen their claim for refugee protection. Their claim had been dismissed by a differently constituted panel of the Board following an Abandonment Hearing and that decision the "Abandoned decision" was dated June 23, 2003.

[2]                The Applicants are citizens of Pakistan. They arrived in Canada on March 29, 2003, after spending some months in the United States of America. They claimed refugee protection on the day of their arrival in Canada, that is March 29, 2003, and received their Personal Information Forms ("PIFS") on that date.

[3]                The PIFS were not filed within the prescribed time frame and the Board gave notice to the Applicants that a hearing would be held pursuant to the Refugee Protection Rules, SOR/2002-228 (the "Rules"). That hearing was held on June 11, 2003, and the Applicants attended together with their lawyer. Mr. Qamar Ali testified and offered an explanation for the delay in filing their PIFS. Essentially, he said that he and one of his children had encountered medical problems. As well, he had been waiting for confirmation about the availability of legal aid assistance. Further, he said that he had experienced difficulty in obtaining funds to pay his lawyer.

[4]                The Board presiding at the Abandonment Hearing rejected the explanation offered by the Applicants and declared their claim for refugee protection to have been abandoned.

[5]                The motion to reopen the claim was considered by a differently instituted Board. Although there is no formal decision in this regard, the Tribunal Record contains a letter from the Board, in response to the request for production of the Board's decision on the motion to reopen. That letter, dated December 3, 2003, says the following:

The following endorsement appears in the file:

"There is no evidence before me that the deciding Member ignored or refused to consider the applicants' evidence at the show cause hearing or in any way denied the applicants a fair hearing. As such, I do not find that the decision to abandon breached natural justice."

- Sept 15, 2003, - V. Bubrin

[6]                The applicable test upon a motion to reopen a claim for refugee protection that has been terminated following an abandonment hearing is set out in section 55(4) of the Rules, as follows:

[7]                The mandate of a Board, in dealing with a motion to reopen, is to review the proceedings at the abandonment hearing and to determine if a breach of natural justice has occurred. It appears that the Board has conducted the requisite review and concluded that there has been no breach of natural justice.

[8]                In my opinion, this conclusion was reasonably open to the Board and I see no basis for judicial intervention. The application for judicial review is dismissed. There is no question for certification arising.

                                                                       ORDER

THIS COURT ORDERS that this application for judicial review is dismissed. There is no question for certification arising.

     "E. Heneghan"

                                                                                                                                                   J.F.C.                        

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-7758-03             

STYLE OF CAUSE:               QAMAR ALI

ASTHMA QAMAR

SARWAT QAMAR

RUTABA QAMAR

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       SEPTEMBER 16, 2004

REASONS FOR ORDER

AND ORDER BY:                             HENEGHAN J.

DATED:                                              SEPTEMBER 16, 2004

APPEARANCES BY:

Mr. Peter Wubbolt                                                        FOR THE APPLICANTS

Mr. Negar Hashemi                                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Peter Wubbolt

Toronto, Ontario                                                           FOR THE APPLICANTS

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario                                                           FOR THE RESPONDENT

FEDERAL COURT

                                                          Date: 20040916

                                              Docket: IMM-7758-03

BETWEEN:               

QAMAR ALI

ASTHMA QAMAR

SARWAT QAMAR

RUTABA QAMAR

                                                                   Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                Respondent

REASONS FOR ORDER

AND ORDER