Markandu v. Canada (Minister of Citizenship and Immigration), 2004 FC 1596

                                                                                                                      Date: 20041112

                                                                                                          Docket: IMM-8880-03

                                                                                                          Citation: 2004 FC 1596

Ottawa, Ontario, this 12^th day of November, 2004

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                                NISANTHAN MARKANDU

                                                                                                                                Applicant

                                                                   - and -

                     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                            Respondent

                                      REASONS FOR ORDER AND ORDER

SNIDER J.

[1]                The Applicant, Nisanthan Markandu, is a citizen of Sri Lanka. On April 6, 2003 he claimed refugee status in Canada, at which time he was provided with a Personal Information Form ("PIF") to complete. The deadline to return the PIF was May 4, 2003. The Applicant returned the PIF on May 14, 2003.

[2]         On April 30, 2003, the Applicant requested an extension of two weeks for the PIF, as he was awaiting approval of a Legal Aid certificate. The extension application was dismissed on the ground that the duration of the Legal Aid application process alone was not a satisfactory reason for extending the PIF's due date. In the same application, the Applicant also requested a copy of the point of entry ("POE") notes, which were made available to him on May 12, 2003.

[3]         Not having received the completed PIF within the delay prescribed by Rule 6(1) of the Refugee Protection Division Rules, SOR/2002-228, (the "Rules"), the Immigration and Refugee Board, Refugee Protection Division (the "Board") issued a "Notice to Appear - Abandonment of a Claim for Refugee Protection", on May 14, 2003, for a show cause hearing on June 19, 2003 to give the Applicant an opportunity to explain why his claim should not be declared abandoned.

[4]         After the hearing, in its decision dated October 21, 2003, the Board found that the Applicant did not demonstrate the requisite diligence in pursuing his claim and, therefore, declared his claim for protection to have been abandoned.

[5]         The Applicant seeks judicial review of this decision.

THE DECISION UNDER REVIEW

[6]         The Board supported its rejection of the claim with the following reasons:

·            No indication was provided whether the claimant undertook alternate steps to ensure that his PIF was received on time in the event that Legal Aid was delayed or denied. The Board relied on its decision of June 13, 2003 (X.V.Z. (Re), [2003] R.P.D.D. No. 44), wherein it stated that the absence of Legal Aid is not on its own a sufficient basis to extend the deadline for providing PIFs. Since Legal Aid is not guaranteed there is all the more reason for the claimants to undertake alternative steps in order to comply with the 28-day time frame.

·            Failure to receive POE notes is generally not a satisfactory reason for not meeting the PIF deadline. It is not unreasonable to expect the claimant to provide truthful information at every stage of the process. A timely request for the POE notes by counsel is the logical first expectation. Additionally, claimants can always change information on the PIF, under RPD Rule 6(4), and such changes are not subject to the 28-day rule. Considering the above noted remedies, the Board was not persuaded by counsel's submission justifying an extension of the PIF time limits as it relates to the POE notes.

·            The Board rejected the situation of a busy counsel that the claimant offered as a contributing factor to the delay in submitting his PIF. A person must choose an attorney who is able to appear within the time limits laid down by the court or tribunal that has jurisdiction (Pilnitz, Viktor v. Canada (Minister of Citizenship and Immigration), (F.C.T.D.), Tremblay-Lamer, March 7, 1997).

·            The factors to consider when deciding if the claim should be declared abandoned are 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 (XVZ, supra). The claimant's readiness to continue with their claims, while a factor to be considered along with other factors where they exist, is not determinative. The main purpose of the abandonment hearing is to assess the reasonableness of the claimant's explanation and then proceed to decide, taking into account all the relevant information (Ghassan, Daher v. Canada (Minister of Employment and Immigration), (F.C.T.D.), No. IMM-2843-93, Denault, June 22, 1994). The Federal Court rejected the argument that as long as the claimant produced a PIF at the show cause hearing, this was evidence of intent to proceed with the claim and therefore it was not possible to abandon the claim. The Board was of the opinion that the principles in Ghassan, supraapply to s. 168(1) of the Immigation and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") and RPD Rule 58(3).

            ·            The 28-day rule is a reasonable one and neither the evidence before it nor the arguments presented persuasively make the point that there were exceptional circumstances beyond the claimant's control that prevented him from submitting his PIF within the required time frame.

[7]         On the basis of this analysis, the Board concluded that the Applicant had not demonstrated the requisite diligence in pursuing his claim, and therefore his claim for protection was declared abandoned.

ISSUES

[8]         The Applicant raises the following issues:

1.          Did the Board err by failing to determine, as a precondition for declaring a claim abandoned, whether the Applicant was in "default", as required by Section 168(1) of the IRPA?

2.          Did the Board unduly fetter its discretion or apply a wrong standard by requiring the Applicant to demonstrate that there were "exceptional circumstances" beyond the Applicant's control for the delay?

3.          Did the Board err by failing to consider the totality of the evidence and by not addressing whether there was a lack of willingness on the part of the Applicant to pursue his claim?

ANALYSIS

Standard of Review

[9]         The standard of review applicable to a decision of the Board, whereby it finds that the Applicant has abandoned his claim, is that of reasonableness simpliciter (Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (F.C.T.D.) (QL)). This means that the decision should only be overturned if it was unjustified based on the evidence. Because of the serious consequences which could result from such a decision, it must be subject to serious scrutiny (Cirahan v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1469 (F.C.T.D.) (QL)).

Test for determining a claim to be abandoned

[10]       When determining a claim to be abandoned, the test to be applied is whether the refugee claimant's conduct amounts to an expression of intention by that person that he or she does not wish or had shown no interest to pursue his or her claim with diligence (Ahamad, supra). In order to determine this intention, the Board must consider each of the factors set out in Rule 58(3) of the Rules which is as follows:

[11]       A claimant's readiness to continue with the claim, while a factor to be considered, is not determinative.

Issue #1:Did the Board err by failing to first determine whether the Applicant was in "default"?

[12]       Section 168(1) of the IRPA provides that the Board "may determine that a proceeding before it has been abandoned if the [Board] is of the opinion that the Applicant is in default in the proceeding . . .". The Applicant argues that this provision

sets out a two-step process that requires the Board to first determine that a claimant is in "default" prior to exercising its discretion as to whether or not the claim has been abandoned. In this case, the Applicant submits, there was no such first step carried out; the Board commenced examining the factors set out in Rule 58(3) without satisfying the precondition. In support of his argument, the Applicant relies on the obiter comments of Justice Nadon in the case of Kavunzu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1141, at para. 17 (F.C.T.D.) (QL). In that case, Justice Nadon provided the following comments on the Board's interpretation of default:

It seems to me that the "default" has to be interpreted having regard to all the circumstances of the case, i.e., the date of the claimant's arrival, whether or not a personal information form was filed, whether or not counsel was retained in a timely manner, one or more previous absences when directed to appear, etc. Therefore, in my view, when a claimant fails to comply with an appearance date, the Refugee Division should have regard to all of the circumstances I have mentioned in deciding whether the claimant in the case before it "is otherwise in default in the prosecution of the claim".

[13]       The two-step approach suggested by the Applicant is not, in my view, required by either the IRPA or the case law cited in support. While acknowledging that the Applicant's interpretation can be squeezed out of the words of s. 168(1), I would describe such an interpretation as contrived and one that would lead to a ludicrous result.

[14]       There are not two steps to an abandonment determination; there is only one. Section 168 establishes that the Board has the power to determine that a proceeding has been abandoned. It can only do so if it is of the opinion that the claimant is in default. To provide further guidance on how the Board should make that determination, Rule 58(1) was enacted. It is in the text of the Rule that the Board is provided with a more detailed description of what must be looked at before the Board may exercise its authority under s. 168 of the IRPA. I can see no need or requirement for the Board to first establish "default" before turning to the factors.

[15]       Nor is the case of Kavunza,supra, helpful to the Applicant. The question of whether a two-step process is required was not before the Court in that case. In the context of that decision, I am satisfied that the comments of Justice Nadon mean simply that, in exercising its authority under the statute, the Board must have regard to all of the circumstances.

Did the Board apply the wrong test by requiring the Applicant to show "exceptional circumstances"?

[16]       In its decision, the Board stated as follows:

In my opinion, the 28 day requirement is a reasonable one and neither the evidence before me nor the arguments presented persuasively make the point that there were exceptional circumstances beyond the claimant's control that prevented him from submitting his PIF within the required 28 days.

[17]       The Applicant submits that this statement demonstrates that the Board applied an incorrect standard or test. In this argument, the Applicant cites Ahmed v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 408 (F.C.) (QL), where, on facts similar to this case, Justice O'Reilly stated that at para. 5:

[I]t appears that the Board expected Mr. Ahmed to show "exceptional circumstances" before allowing his refugee claim to proceed. As I read the governing rule, the Board must consider the applicant's explanation, whether he has filed his paper work, whether he is ready to proceed, and "any other relevant information". No doubt, the Board will only permit a claim to go forward if the applicant's explanation for the delay is reasonable. I do not, however, see any basis for a requirement that the Applicant show "exceptional circumstances". In my view, this standard exceeds that which the Rules provide.

[18]       I do not believe that the Board, in this case, applied an incorrect standard. When read as a whole, it is apparent that the Board was aware of and applied the proper test for determining whether a claim should be declared abandoned. The Board did not, as argued by the Applicant, apply a test of "exceptional circumstances", as was the case in Ahmed,supra. In that case, the reasons of the Board were given orally at the conclusion of the abandonment hearing where the member stated that "I've heard nothing that tells me that there are exceptional circumstances in this case". Having reviewed this brief passage, which appears to have been the entire rationale for the Board's decision, Justice O'Reilly stated that the Board "expected Mr. Ahmed to show "exceptional circumstances" before allowing his refugee claim to proceed". On that basis, Justice O'Reilly concluded that the Board had erred.

[19]       However, the decision in the case before me is very different and far more comprehensive. As outlined above, the Board addressed a number of factors and submissions. The expression "exceptional circumstances" was used in the limited context of the reasons for filing a late PIF, one of the aspects of the Board's analysis. Following the paragraph cited by the Applicant, in its conclusion, the Board clearly states the correct test when it stated that:

For all of the above reasons I conclude that Nisanthan Markandu has not demonstrated the requisite diligence in pursuing his claim and, therefore, declare his claim for protection to have been abandoned.[emphasis added]

[20]       I am not persuaded that the Board fettered its discretion or applied the wrong test.

Issue #3: Did the Board err by failing to consider the totality of the evidence and by not addressing whether there was a lack of willingness on the part of the Applicant to pursue his claim?

[21]       As noted above, the Applicant provided a number of reasons to the Board for the delay in filing his PIF. The Applicant submits that, in focussing on the issue of the delay in filing the PIF, the Board failed to address the Applicant's intention to diligently pursue his claim. Having read the decision and the Certified Tribunal Record, I cannot agree with this assertion.

[22]       The Board had no indication that the Applicant undertook alternate steps to ensure that his PIF was received on time in the event that Legal Aid was delayed or denied. Waiting for approval for Legal Aid is not, in itself, a sufficiently good reason to miss deadlines imposed by statutory or regulatory enactment or to grant extensions of time (Kiani v. Canada (Minister of Citizenship and Immigration), (1997) 124 F.T.R. 299 (F.C.T.D.)); Espinoza v. Canada (Minister of Employment and Immigration), (1992) 142 N.R. 158 (F.C.A.)). This Court has held that it is not unreasonable to conclude based on the evidence and circumstances before it that an Applicant could have supplied the PIF in a timely fashion and, if necessary, counsel could have amended it (Zylinska v. Canada (Minister of Citizenship and Immigration), 2004 F.C.J. No. 1250 (F.C.T.D.)). It is not unreasonable to conclude that the Applicant could have filed his PIF on time without knowing the result of the Legal Aid application.

[23]       The Board was also of the opinion that failure to receive POE notes is not a satisfactory reason for not meeting the PIF deadline. As a result of this, the POE deadline was not extended, and the claimant's PIF was filed late. Similarly to the situation with the Legal Aid, the PIF could have been filed on time, and amended at a future date.

[24]       The Applicant argues that, as a Sri Lankan male, his claim has merit and should not, therefore, have been declared abandoned. However, I note that the purpose of abandonment proceedings is not for the hearing of a claim but to make arguments relating to the finding that the claimant has not abandoned his claim (Bhullar v.Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 652 (F.C.T.D.) (QL)). The Board did not err in not taking into account the seriousness of the allegations of the claim, as the substance of the claim is not evaluated until the Board has determined that the claim may proceed.

[25]       I am satisfied that the Board evaluated all the circumstances surrounding the abandonment proceeding, and reasonably concluded that the Applicant has not demonstrated the requisite diligence in pursuing his claim.

CONCLUSION

[26]       For these reasons, the application for judicial review will be dismissed. Neither party proposed a question for certification. None will be certified.

                                                                 ORDER

THIS COURT ORDERS THAT:

1.        The application is dismissed; and,

2.          No question of general importance is certified.

        "Judith A. Snider"

Judge

                                                       FEDERAL COURT

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-8880-03

STYLE OF CAUSE:             NISANTHAN MARKANDU v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       October 7, 2004

REASONS FOR ORDER

AND ORDER:                                    The Honourable Madam Justice Snider

DATED:                                              November 12, 2004

APPEARANCES:

Mr. Lorne Waldman                                                                                          FOR APPLICANT

Mr. Gordon Lee                                                                                                FOR RESPONDENT

SOLICITORS OF RECORD:

Lorne Waldman                                                                                                 FOR APPLICANT

Barrister & Solicitor

Toronto, Ontario

Mr. Morris Rosenberg                                                                           FOR RESPONDENT

Deputy Attorney General of Canada