Date: 20100413
Docket: IMM-2903-09
Citation: 2010 FC 390
Ottawa, Ontario, April 13,
2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ALELI
CABRERA PEREDO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada
dated May 22, 2009 wherein it was determined that the applicant had abandoned
her refugee claim. These are my reasons for determining that the application
will be allowed.
Background
[2]
Ms.
Aleli Cabrera Peredo, the applicant, is a citizen of Mexico. She claims
to have fled her country to seek protection in Canada to escape
from the violence of her ex-partner.
[3]
The
applicant filed a refugee claim and retained for counsel, Mr. Hamza Kisaka. The
applicant alleges that she routinely communicated with her counsel through the
interpreter Carlos Morales. Through this process, the applicant filed her Personal
Information Form (“PIF”).
[4]
The
applicant says she became dissatisfied with the services of her counsel, Mr.
Kisaka, as she had never met him, everything was done through the interpreter
Carlos Morales and she found errors in her PIF.
[5]
The
applicant moved and says she called the interpreter Morales to advise of the
change of address and telephone number. Through the interpreter, the applicant says
that she understood that Mr. Kisaka’s office would advise the Board of her new
information. The applicant claims to have relied on that.
[6]
Seeking
to change counsel, the applicant then approached the office of Lina Anani and
asked her to represent her in this process. The applicant submitted an
application to change counsel with Legal Aid Ontario.
[7]
Correspondence,
dated March 25, 2009 and entitled “Claimant’s Confirmation of Readiness –
Hearing of Claim Scheduled”, was forwarded to the applicant by the Board. The
correspondence advised the applicant that a hearing had been scheduled in her refugee
claim for May 22, 2009. The correspondence further directed the applicant to respond
by means of the attached Claimant’s Reply Form, failing which her refugee
hearing would be converted to an abandonment hearing.
[8]
Although
a copy of this correspondence was returned by Canada Post, it was re-mailed to
the applicant on April 28, 2009. The applicant attended the May 22, 2009
hearing with a copy of the letter and the Board’s envelope attached.
[9]
When
the applicant received the Board’s letter, it is alleged that she could not
understand the English content of the letter. The applicant says she tried to
have someone explain the letter to her but the persons she approached or
assistance wanted cash payments of $50 to explain the content in the Spanish
language.
[10]
The
applicant alleges that she did not realize the importance of the letter and
believed that her previous counsel, Mr. Kisaka, would have the letter as well
and that he would contact her if the letter was found to be of importance.
[11]
Nine
days before the hearing, the applicant received additional correspondence from
the Board containing the disclosure for the hearing. On that letter was a
post-it note telling the applicant that her counsel had withdrawn. Also, she
says that this was the first time that the applicant was informed of the
hearing date.
[12]
At
that time, Legal Aid had not made a decision regarding the change of counsel
and new counsel Anani advised that she was unavailable on the hearing date of
May 22, 2009, as she was scheduled to speak at a legal conference on refugee
law. Other counsel she approached to appear as agents were unavailable for the
same reason.
[13]
The
applicant attended the May 22, 2009 hearing date with an agent of Ms. Anani,
Mr. Pedro Jauregui. The agent for Ms. Anani was not a licensed member of the
Law Society of Upper Canada or a member of the Canadian Society of Immigration
Consultants.
[14]
The
applicant indicated at the hearing that she was not prepared to proceed.
Decision Under Review
[15]
The
panel determined that the applicant had received the Confirmation of Readiness
letter as she produced a copy of it with the Board’s envelope attached. The
panel found that the letter stated quite clearly that if the applicant failed
to confirm her readiness to proceed on May 22, 2009, the hearing would convert
to a Show Cause hearing to give the applicant an opportunity to show cause as
to why her claim should not be declared abandoned for failing to communicate
with the RPD on being requested to do so. The member found that the applicant
failed to return the document and failed to confirm her readiness.
[16]
While
the member allowed the agent of counsel Anani to speak as a friend of the
Board, it was noted that the agent was not a licensed lawyer or an immigration
consultant. The member also
noted that the agent of counsel did not
have a file or any other personal documents pertaining to the application. Further,
while the letter dated May 21, 2009, from Ms. Lina Anani did provide potential
dates for a hearing; counsel Anani specifically stated that “she was not
retained” and was just providing potential dates should that happen.
[17]
The
member found that there are many people in Toronto who can read
English and understand Spanish as well. It was determined that the applicant
took no steps to understand the significance of the letter that the Board had
sent to her and failed to confirm her readiness as she was required to do.
[18]
The
panel noted that the person who would be most likely to help the applicant in
this situation would be her first counsel. Mr. Kisaka, a member of the Law
Society of Upper Canada, had written to the Board twice; on May 1, and faxed
the same letter of May 14, 2009, stating that despite numerous efforts to
contact her he had no idea where the applicant was.
[19]
The
member did not find any reason why the applicant could not have declared her
readiness and returned the Confirmation of Readiness document as she was
required to do within the timeframe that the Board required. The panel found
that after considering all the evidence on the file that the applicant was
indeed in default of the proceedings for failing to communicate with the RPD on
being requested to do so.
[20]
The
panel therefore determined that pursuant to subsection 168(1) of the IRPA that
the claim was abandoned.
[21]
In
the alternative, the member considered that if his analysis with respect to the
Confirmation of Readiness document was incorrect, the applicant was not ready to
proceed at the hearing pursuant to rule 58(2)(a) of the Refugee Protection
Division Rules, SOR/2002-228, as am. S.C. 2002, c. 8.
[22]
The
Board attempted to contact the applicant only to have letters returned by
Canada Post. When the Board was finally notified of the applicant’s current
address, the applicant took no steps to deal with the correspondence that the
Board sent her.
[23]
The
panel found that the applicant had over a year to prepare for the hearing and
was not ready to proceed on May 22, 2009.
Issues
[24]
The
sole issue is whether the panel erred in finding that the applicant had
abandoned her refugee claim.
Analysis
[25]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9, the Supreme Court of Canada abandoned the patent
unreasonableness standard leaving only two standards of review, correctness and
reasonableness. The Supreme Court also held that a standard of review analysis
need not be conducted in every instance. Where the standard of review
applicable to the particular
question before the court is well-settled
by past jurisprudence, the reviewing court may adopt that standard of review.
[26]
Accordingly,
I am of the view that abandonment decisions are questions of mixed law and fact
and as such they attract the reasonableness standard of review: Ahamad v. Canada (Minister of
Citizenship and Immigration) (T.D.), [2000] 3 F.C. 109, [2000] F.C.J.
No. 289, at paras. 23-30; Kastrati v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1141, [2008] F.C.J. No. 1424, at
para. 12;
Gonzalez c. Canada (Ministre de la Citoyenneté et de l'Immigration),
2009 CF 1248, [2009] A.C.F. no 1600, au para. 15.
[27]
The
panel’s analysis is central to its role as a trier of fact. As such, the
panel’s findings are to be given significant deference by the reviewing Court.
The panel’s findings should stand unless its reasoning process was flawed and
the resulting decision falls outside the range of possible, acceptable outcomes
which are defensible in respect of the facts and the law: Dunsmuir,
above, at para. 47.
[28]
In
a case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the panel and its outcome fits
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 59.
[29]
In
the case of Ms. Peredo, I am not satisfied that in all of the circumstances and
taking into account all relevant facts, the applicant’s behaviour evidenced, in
clear terms, a wish or intention not to proceed with her claim: Ahamad,
above, at para. 37.
[30]
As
in Emani v. Canada (Minister of Citizenship and Immigration), 2009 FC
520, [2009] F.C.J. No. 684, I am of the view that the panel erred in seeing
only part of the picture and neglected the central consideration of whether the
applicant's conduct amounted to an expression of her intention to diligently
prosecute her claim:
20 The
jurisprudence appears to be clear that the central consideration in regard to
abandonment proceedings is whether the applicant's conduct amounts to an
expression of his intention to diligently prosecute his claim (Ahamad v. Canada (M.C.I.) (T.D.), [2000] 3 F.C. 109, [2000] F.C.J. no. 289, at para. 32). When presented with
the application to have the claim re-opened, the Board was furnished for the
first time with information explaining the applicant's failure to appear, and
demonstrating that it was due solely to administrative errors on the part of
his counsel. In rejecting the application to reopen his claim, the Board failed
to consider evidence before it of the applicant's conduct demonstrating his
intention to earnestly pursue his claim. I am satisfied that the Board erred in
seeing only part of the picture and neglecting this central consideration (Albarracin v. Canada (M.C.I.), [2008] F.C.J. No. 1425, at para. 4).
[31]
In
evaluating the circumstances of this case, I note that the applicant applied for
and obtained Legal Aid, she retained counsel (Hamza Kisaka), she filed her PIF,
she communicated on numerous occasions with Mr. Kisaka’s office through the
interpreter, Carlos Morales, and provided them with her change of address. The
applicant depended on that office to relay this information to the Board. I
find that the situation in which the applicant finds herself was due to
inadvertent miscommunication between herself, her former counsel’s office and
the Board.
[32]
When
the applicant lost confidence in her first counsel, the applicant initiated a change
of solicitor application with Legal Aid Ontario. Although
she was provided with nine days notice of the hearing date, the applicant
attended with an agent of new/current counsel, who could not attend as she was
speaking at a continuing legal education session.
[33]
Taking
into consideration that the applicant is a vulnerable party in this case,
dependent on the translation services of her interpreter, I find that the
benefit of the doubt should have been given to the applicant regarding her
intention to proceed with her claim. Finding that Ms. Peredo is the author of
her own misfortune would amount to punishing her for carelessness in the
communications between third parties (the interpreter and the previous
counsel). This would not only be unfair as a matter of basic equity, but also
disregard the purpose of the Act: Andreoli v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1111, [2004] F.C.J. No. 1349, at
para. 17.
[34]
While
I agree with the respondent, to a certain extent, that the applicant chose to
remain ignorant of the content of the letter she received from the Board, I am
not convinced that in all of the circumstances and taking into account all
relevant facts, the applicant’s behaviour evidenced, in clear terms, a wish or
intention not to proceed with her claim: Ahamad, above, at para. 37.
[35]
As
Justice Harrington indicated in Andreoli, above, at para. 20, there is
abundant case law from this Court to the effect that the applicant is
responsible for her file and cannot use her own wrongdoing as a means to
justify fatal omissions, procedural though they may be. However, in this case,
I do not find on the totality of the evidence that the applicant was negligent.
She merely trusted
her interpreter and previous counsel, on
whom I attribute a significant portion of the responsibility for this
procedural error.
[36]
I
find that the reason that the Board did not have the applicant’s updated
contact information was not entirely her fault but the consequence of an error
or oversight that occurred at her former counsel’s office through a lack of
communication with the interpreter: Emani, above, at para. 20.
[37]
Again,
I am also of the view that the applicant is a vulnerable party who did appear
for her scheduled hearing, with an agent of the counsel she was attempting to
retain through a Legal Aid change of solicitor application. As it was the
previous counsel who scheduled the hearing date, unfortunately for the
applicant, the second counsel she was attempting to retain was unavailable for
that date.
[38]
I
see no prejudice that could possibly be caused to the respondent if a hearing
on the merits of the claim, with the applicant’s counsel, was to take place.
[39]
I
share the view of Justice Harrington in Andreoli, above, at para. 22,
keeping in mind the words of Lord Denning in Doyle v. Olby (Ironmongers) Ltd.,
(1969), 2 All E.R. 119, who at page 121 stated:
We never allow a
client to suffer for the mistake of his counsel if we can possibly help it. We
will always seek to rectify it as far as we can. We will correct it whenever we
are able to do so without injustice to the other side. Sometimes the error has
seriously affected the course of the evidence, in which case we can at best
order a new trial.
[40]
The
panel’s finding that the applicant abandoned her refugee claim should not stand
as I am of the view that its reasoning process was flawed and the resulting
decision falls outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and the law: Dunsmuir, above, at
para. 47.
[41]
I
find that the process adopted by the panel and its outcome does not fit
comfortably with the principles of justification, transparency and
intelligibility. Accordingly, it is open to this Court to intervene: Khosa,
above, at para. 59.
[42]
In
light of the above, this application must be allowed.
JUDGMENT
IT IS THE
JUDGEMENT OF THIS COURT that the application is allowed. The decision of
the panel finding the applicant’s refugee claim to have been abandoned is
quashed. The applicant’s refugee claim is remitted to the Board for a redetermination
by a different panel. There are no questions to certify.
“Richard
G. Mosley”
Email this Content