Date: 20101209
Docket: IMM-5361-09
Citation: 2010
FC 1270
Ottawa, Ontario,
December 9, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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CHUN MEI YAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated October 2, 2009, wherein the Board declined to reopen
the applicant’s claim for refugee protection in Canada.
[2]
The
applicant requests an order quashing the Board’s decision and remitting the
matter back for redetermination before a differently constituted panel of the
Board.
Background
[3]
Chun
Mei Yan (the applicant) arrived in Canada on May 12, 2009. She came to work in Canada as a health aid worker
but did not have the proper authorization.
[4]
The
applicant made a refugee claim on May 13, 2009 on the basis that her life would
be threatened if she returned to China because she was unable to repay a large loan
she had taken out to travel to Canada and it would be hard to face her family
and friends if she returned to China.
[5]
The
applicant had no fixed address when she made her refugee claim.
[6]
The
applicant was provided with a Personal Information Form (PIF) along with the
immigration form IMM5292 on May 13, 2009. Form IMM5292 included the following
instructions for the applicant:
Contact
Information
You
must provide your mailing address in Canada to the RPD and to the Minister. The PRD
and the Minister must receive this information no later than 10 days after the
date on which you were provided with the Personal Information Form (PIF).
Right
to Counsel
You
have the right to be represented by counsel at your own expense or you may be
eligible to receive assistance from Legal Aid. If you decide to retain counsel,
you must immediately advise the RPD, in writing, of the name, address,
telephone number and facsimile number of your counsel.
[7]
The
applicant did not inform the Board of her address or that she had obtained a
legal representative.
[8]
The
applicant’s PIF was due to the Board on June 10, 2009. The applicant and the
immigration consultant who she had hired claim that the PIF was sent via
regular mail on June 5, 2009.
[9]
The
Board did not receive the PIF and the applicant’s claim was found to be
abandoned on June 25, 2009. As the Board did not have contact information for
the applicant, no notice was sent out regarding an abandonment hearing.
[10]
The
applicant filed a motion to reopen the refugee claim on September 21, 2009.
[11]
The
Board received the applicant’s original PIF in September 2009.
[12]
The
Board denied the motion to reopen the refugee claim because it found that there
was no breach of natural justice on the part of the Board.
Issue
[13]
The
issue is as follows:
Was the decision not to reopen
the refugee claim reasonable?
Applicant’s Written Submissions
[14]
The
applicant relies on the Federal Court case of Osagie v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1368, 262 F.T.R. 112 for the
proposition that a refugee claimant may suffer a breach of natural justice even
where the Board itself is not to blame, if the incompetent actions of a
solicitor result in the applicant being denied a fair hearing.
[15]
The
applicant submits that her circumstances are analogous to those in Osagie
above, in that her PIF was not received by the Board through no fault of her
own and that the Board erred in denying the motion to reopen her refugee claim.
Respondent’s Written Submissions
[16]
The
respondent submits that the Board does not have inherent jurisdiction to reopen
a claim for refugee status. It may only be reopened if there was a breach of
natural justice in the abandonment proceedings.
[17]
Because
the applicant did not provide the Board with a fixed address, as she was
obligated to do, her claim was abandoned. The error was hers alone. The
applicant also failed to follow up with the Board to ensure her PIF had
arrived, despite the fact that it was sent through regular not registered mail
only three business days prior to its due date. The onus was on the applicant
to ensure that her PIF arrived in a timely manner.
[18]
The
facts of Osagie above, are different from those in the case at bar. In Osagie
above, the applicant’s counsel made several errors and the applicant was
without fault.
[19]
Further,
the applicant’s legal representative’s conduct should not be considered
separate from the applicant’s and the applicant has not shown that there was
extraordinary incompetence on the part of her legal representative which has
resulted in a breach of natural justice. The standard for establishing that
counsel or a consultant was incompetent is high.
[20]
The
respondent also notes that the applicant has engaged in bad faith in submitting
a claim for refugee protection. Her only purpose for making the claim was to
circumvent the immigration system by using refugee protection as a means to
accomplish her stated goal of working in Canada and then
returning to China. The
applicant repeatedly asked the Minister’s delegate of Citizenship and
Immigration Canada (CIC) “when and how soon she can return to China and what
the process is when she makes enough money to return to China.” She
further stated that she “initiated a claim for refugee protection in the hopes
of seeking and obtaining employment.” Granting this judicial review will make a
mockery of the Canadian refugee protection system and bring the administration
of justice into disrepute.
Analysis and Decision
[21]
I
agree with the parties that the decision whether to reopen a refugee claim at
the Board is a question of mixed fact and law which is reviewable on the
standard of reasonableness.
[22]
Issue
Was the decision not to
reopen the refugee claim reasonable?
The applicant had notice of the
requirement to provide a fixed address to the Board and to inform the Board if
she obtained counsel. She received this notice at the same time as her PIF
application. Yet, she never provided this information.
[23]
While
her immigration consultant may have erred in not sending the applicant’s PIF
within sufficient time to the Board, I find that the applicant is not free of
blame. Had she provided the Board with her address, or informed it that she had
a legal representative, then she would have received notice of the abandonment
hearing and had the opportunity to appear and be heard.
[24]
In
addition, Ms. Blessing Osagie, the applicant in Osagie above, “always had the ongoing intention to pursue her refugee claim” (at
paragraph 26), whereas the applicant in the case at bar clearly indicated to
CIC that she was making a refugee claim for the purpose of earning money in
Canada and then returning to China.
[25]
For
these reasons, the case at bar is distinguishable from the facts of Osagie
above, relied on by the applicant.
[26]
The
Board’s finding that there was no breach of natural justice which would require
it to reopen the refugee claim was reasonable and within the range of possible, acceptable outcomes defensible on the facts and law (see
Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47).
[27]
This
application for judicial review is therefore dismissed.
[28]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[29]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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72.(1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Refugee Protection Division
Rules, SOR/2002-228
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55.(1) A claimant or the Minister may make
an application to the Division to reopen a claim for refugee protection that
has been decided or abandoned.
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55.(1)
Le demandeur d’asile ou le ministre peut demander à la Section de rouvrir
toute demande d’asile qui a fait l’objet d’une décision ou d’un désistement.
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