[1] Mr. Anwar's claim for refugee protection was declared to be abandoned in a decision of the Immigration and Refugee Board, Refugee Protection Division dated September 3, 2004. The only issue in these proceedings was whether he or his counsel received notice of the abandonment hearing that took place on July 31, 2003. For the reasons set out below, I have concluded that there is sufficient doubt that notice of the hearing was issued by the Board that the matter should be sent back for reconsideration by a different panel.
BACKGROUND
[2] Mr. Anwar is a 21-year old citizen of Pakistan. He arrived in Canada in August 1999 as a visitor and then applied for and obtained a student visa, which was valid until March 2003. On April 24, 2003 he initiated a refugee claim and was determined eligible to make a refugee claim and his claim was referred to the Board. On that same day he received his Personal Information Form ("PIF") to fill out.
[3] The applicant obtained counsel and sent a "Notification of Counsel" form to the Board, signed April 24, 2003, setting out his counsel's name, address and telephone number. He also sent the Board a "Notification of Contact Information" form, signed that same date, setting out his address in Mississauga and his telephone number.
[4] His PIF was due May 22, 2003 - 28 days after he was provided with the form in person. He missed this deadline and the date stamp on his PIF on the tribunal record indicates that it was received by the Board in Toronto on May 27, 2003. It was signed by him and an interpreter on May 26, 2003.
[5] By notice dated May 29, 2003, the applicant was informed that he was to appear at an abandonment hearing on July 31, 2003 to explain why he did not submit his PIF on time. This notice was sent to the applicant's last known address and was also sent to his counsel. Neither the applicant nor his counsel appeared at the abandonment hearing held July 31, 2003 and assert that they had no knowledge it took place until the Board's reasons were issued and forwarded to them in November.
The Board's Decision
[6] The Board provided written reasons for its decision to declare the applicant's refugee claim abandoned, dated November 18, 2003. The Board noted that no explanation had been provided in writing by counsel or the applicant for the late filing of the PIF or for failing to appear at the abandonment hearing.
[7] The Board referred to Rule 6(1) and (2) of the Refugee Protection Division Rules, SOR/2002-228 (the "RPD Rules") which states that the completed PIF must be received by the Board no later than 28 days after a claimant received the form and that when this deadline cannot be met a claimant has the option of applying for an extension of time. The Board noted that the applicant had not requested more time in which to complete his PIF.
[8] The Board stated that the Notice to Appear at the abandonment hearing was served at the same address provided by the applicant in his PIF and on counsel's correct mailing address. These Notices were not returned to the Board.
[9] The Board also acknowledged that the applicant had provided his completed PIF to the Board prior to the abandonment hearing. However, the Board found that Mr. Anwar's failure to request an extension, his failure to appear at the hearing and his submission of the PIF five days late were "significant" and as no explanation was provided for the delay, the Board concluded that the applicant and his counsel had not demonstrated the "requisite diligence" in pursuing his claim, and, therefore, the claim was declared abandoned.
ISSUE
[10] Did the Board breach any principle of procedural fairness in declaring the applicant's refugee claim abandoned, pursuant to section 168 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") and Rule 58 of the RPD Rules, by failing to properly advise the applicant of his abandonment hearing and his right to be heard?
ANALYSIS
[11] The applicant argues that the Board breached a principle of natural justice because he was not given an opportunity to explain to the Board why his claim should not be declared abandoned. The applicant attests, in his affidavit filed in this proceeding, that neither he nor his counsel received the Notice to Appear. The applicant submits that the Board clearly had his proper contact information and the contact information for his counsel, therefore Rule 58(2) of the RPD Rules mandates that where the Board has such contact information, the Board must give a claimant the opportunity to explain why the claim should not be declared abandoned.
[12] The applicant characterizes what has occurred in his case as a "significant bureaucratic error", which is "patent and clearly unreasonable". The applicant says that when such a mistake results in a decision as critical as abandonment of a refugee claim, then this amounts to a fundamental breach of procedural fairness, due to the denial of his participation in the hearing. He relies on Mussa v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 2047 (T.D.)(QL) and other decisions, arguing that his case is distinguished from situations where refugee claimants do not keep the Board updated as to their current addresses or receive a Notice to Appear but fail to appear, as he genuinely did not receive the Notice to Appear for the abandonment hearing. Further, he had informed the Board as to his address and contact information.
[13] The respondent took no position on the leave application in these proceedings and filed a memorandum of argument only a few weeks prior to the hearing. In that memorandum, the respondent took issue with the failure of the applicant to file any evidence from his counsel's office with respect to the lack of notice of the abandonment hearing.
[14] Applicant's counsel sought leave at the hearing for an extension of time to file an affidavit from his associate, Ms Karina Thompson, attesting to the fact that notice had not been received by their office. Respondent's counsel did not object to it being entered as evidence at the hearing due to the late disclosure of respondent's position in these proceedings and because the affidavit was made by a Barrister and Solicitor and officer of the court.
[15] I accepted the new affidavit as evidence in the proceedings, while expressing concern that it was based in part on information and belief received from applicant's counsel and thus put him in the position of arguing, indirectly at least, his own evidence, contrary to the spirit of Rule 82: Reading & Bates Constr. Co.v.Baker Energy Resources Corp. (1986), 7 F.T.R. 117.
[16] In her affidavit, Ms Thompson attests to the measures taken in their office to ensure that notices of Board hearings are properly recorded and diarised including several "checks and balances" so that dates of appearances are not missed by the lawyers or support staff. She attests that there is no record of receipt of the Notice of Abandonment hearing in counsel's office and that every effort had been made, prior to receipt of the Board's abandonment decision, to diligently pursue the applicant's claim.
[17] Section 168(1) of IRPA and Rule 58 of the RPD Rules are relevant to this judicial review and set out the Board's power to determine a refugee claim to be abandoned:
| 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 communication with the Division on being requested to do so.
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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.
(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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168 (1) Chacune des sections peut prononcer le désistement dans l'affaire don't 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.
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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.
(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 don't 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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[18] The applicant attests in his affidavit at paragraph 7:
I had never been advised that such a hearing [the abandonment hearing] was scheduled to take place. Neither I nor my counsel had received any notification of an abandonment hearing. I was not able to present myself for the hearing as I had no idea that it was taking place.
[19] This evidence must be weighed against the "Statement of Service" found at page 94 of the tribunal record, signed by an employee of the Board, dated May 29, 2003. This Statement verifies that the Notice to Appear was served by "prepaid regular service" on the applicant at the address he had provided to the Board and on his counsel at his office. These addresses, as written on this Statement of Service, correctly match the addresses that the applicant and his counsel provided to the Board.
[20] Rule 58(2) must be read in context with other provisions in the Rules dealing with how a claimant is to be notified. Rule 22 of the RPD Rules indicates that the Board "must notify a party in writing of the date, time and location of a proceeding." Rule 1 defines "proceeding" as including "a conference, an application, a hearing and an interview". Further, Rule 35(2) provides that a document provided by regular mail to a party is considered to have been received seven days after it is mailed. These regulatory provisions indicate that the Board had a duty to notify the applicant in writing of the date, time and location of the abandonment hearing. Delivery by regular mail will normally suffice in the absence of evidence to the contrary.
[21] There is no evidence on the tribunal record that notice of the hearing was actually received by either the applicant or his counsel despite inquiries made by the former counsel for the respondent. It is, perhaps, instructive that the applicant and his counsel reacted promptly when they received the Board's reasons for declaring the claim abandoned.
[22] On the evidence filed in this case, I am unable to conclude on a balance of probabilities that the Board fulfilled its obligation to notify the applicant and, accordingly, this judicial review will be decided in his favour.
[23] No serious question of general importance was proposed by the parties and none is certified.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted Board. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7574-03
STYLE OF CAUSE: ASHAR ANWAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 31, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: SEPTEMBER 1, 2004
APPEARANCES BY:
Robert Blanshay For the Applicant
Stephen Jarvis For the Respondent
SOLICITORS OF RECORD:
Robert Blanshay
Toronto, ON For the Applicant
Morris Rosenberg
Toronto, ON
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040901
Docket: IMM-7574-03
BETWEEN:
ASHAR ANWAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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