Docket: IMM-2327-11
Citation: 2012 FC 224
Ottawa, Ontario, February 17,
2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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PARMINDER SINGH
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 23 March 2011 (Decision) in which the RPD declared the Applicant’s claim
for protection abandoned under section 168 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of India. He arrived in Canada on 1 January
2009 and claimed protection on 2 April 2009. He based his claim on his fear of
persecution by the police in India because of his membership in the Congress
Party. He says that the police falsely accused him of participating in
terrorist activities, arrested him, and beat him while he was in detention.
[3]
The
RPD scheduled a hearing for 26 January 2011 (January Hearing). On 3 December
2010, the RPD sent the Applicant a Notice to Appear which informed him of the
date of the hearing.
[4]
On
20 January 2011, the Applicant’s physician, Dr. Sunerh, wrote a letter to the
RPD saying that the Applicant had been under his care. This letter said that
the Applicant would be unable to attend his scheduled hearing date because he
was experiencing depression. The RPD received this letter on 24 January 2011.
[5]
The Applicant did
not appear for the January Hearing. At that hearing, the RPD panel member and a
Tribunal Officer (Officer) were present. The RPD noted the Applicant’s absence and
that it and the Officer had checked with the reception desk and determined that
the Applicant was not in the building. The RPD also reviewed the letter from
Dr. Sunerh and noted that there was no indication in the letter that Dr. Sunerh
is either a psychiatrist or psychologist, though the letter said that the Applicant
would be unable to attend the hearing because of his depression.
[6]
The RPD said that it
would set a new date for a hearing, at which the Applicant would be expected to
produce a mere detailed medical note explaining why he did not attend the
January Hearing. The RPD indicated that it would prefer a note from a
psychologist or psychiatrist. The RPD scheduled a second hearing at which the
Applicant would have the opportunity to explain why his claim should not be
declared abandoned (Abandonment Hearing). The RPD scheduled the Abandonment
Hearing for 23 March 2011.
[7]
Before the
Abandonment Hearing, the RPD sent the Applicant a Notice to Appear for the
Abandonment Hearing on 8 February 2011 (February Notice). That notice informed
him that he had failed to attend on 26 January 2011, but would be given the
opportunity to explain why he had not appeared. In the “Important Instructions”
portion of the letter, the RPD informed the Applicant that, if he failed to
appear at the Abandonment Hearing, the RPD might declare his claim abandoned.
The notice also informed him that
If the RPD is satisfied with your explanation and
your claim is not determined abandoned, you should be prepared to proceed with
the hearing of your claim.
[8]
The
February Notice also informed the Applicant of his right to counsel, his
obligation to disclose documents prior to the hearing, and his obligation to
establish his identity and any other elements of his claim.
[9]
On
28 February 2011, the Applicant wrote to the RPD to inform it that he had
changed his counsel. The RPD received this letter on 2 March 2011. Also on 2
March 2011, the Applicant served the RPD with a Multi-Purpose Document Request
Form, in which he requested a copy of his Personal Information Form (PIF). The
Applicant received his PIF from the RPD on 15 March 2011, approximately two
weeks before the Abandonment Hearing.
[10]
The
RPD conducted the Abandonment Hearing on 23 March 2011. At that hearing, the
Applicant, his counsel, the RPD panel member, the Officer, and an interpreter
were present. The hearing began approximately thirty minutes after it was
scheduled to begin because the Applicant’s counsel was late. In his affidavit
in support of his application for judicial review, the Applicant says that the
RPD member screamed at counsel and demanded to know why he was late and had not
called. This exchange does not appear in the transcript of the Abandonment
Hearing.
[11]
Before
the Applicant was questioned or made submissions, the RPD said it was not
satisfied with the explanation the Applicant had given. The Officer then asked
the Applicant to explain why he did not attend the January Hearing. The
Applicant said that he felt sick ten to fifteen days before the hearing and
went to his doctor in the first week he felt sick. The following exchange then occurred:
RPD: Sir, give
us a date. We do not know first week… ten days before, ten days after. Give us
a date if you know.
Applicant: I went on 8
RPD: Eighth of what?
Applicant: January 8
RPD: Are you sure you went
on January 8?
Applicant: Yes.
[12]
The
Officer then questioned the Applicant on the discrepancy between his oral
testimony and the letter his doctor had sent to the RPD:
Officer: I am
sorry. The note stated from the doctor that you were under his care from
December 8, 2011.
Applicant: Yes.
Officer: Is that
correct?
Applicant: Yes.
Officer: But that
is not what you just said. You spoke about January and you said that was the
only time.
Applicant: Yes.
Officer: So now
you are telling me yes. So what is it, when did you go to the doctor with
respect to your illness that prevented you from coming to this hearing?
Applicant: I have
already stated that I went on 8.
Officer: So we got
[sic] two sets of eighth. So eight what?
Applicant: December 8
I was there.
RPD: Sir you
said January 8. It is on record. The statement is being recorded on tape. So
now you are changing your statement?
Applicant: Sorry sir,
I did not know about it whether I would be asked questions about these dates.
RPD: Sir, you
are the only person who can tell us why you were not present for your hearing.
And also this document was produced at your request by your doctor. Can you
explain why there is this inconsistency between your oral testimony and the
content of the letter?
Applicant: I can only say that I
was under depression and I went there and the doctor did my checkup.
[13]
The
RPD also asked the Applicant about the medication Dr. Sunerh had prescribed
him. Near the end of the hearing, the Applicant’s counsel made submissions, in
part based on the fact that he had only recently obtained the file and the
Applicant had not been informed of his obligation to appear by previous
counsel. He also noted that he had not received the Applicant’s PIF until 15
March 2011 and requested a postponement.
[14]
The
RPD asked counsel if he was prepared to proceed that day; counsel agreed that neither
he nor the Applicant was able to proceed with the hearing that day. Counsel had
received the Applicant’s supporting documents on 18 March 2011, the Friday
before the hearing, and they still needed to be translated. The Officer said
that he was unsure what documents could be required that would take nearly two
years to obtain, given that the Applicant had filed his claim on 2 April 2009.
The Officer also observed that this was relevant to the Applicant’s diligence
in obtaining documents which would support his claim.
[15]
When
the RPD asked counsel if it were he or the Applicant who was not ready to
proceed, counsel said he was not prepared because he was under the impression
that the hearing was only a pre-abandonment hearing. He asked for a fair chance
for another hearing. Counsel also said that the Applicant was not ready to
proceed with the claim on that day. When asked directly, the Applicant agreed
that he was not ready to proceed.
[16]
At
the conclusion of the Abandonment Hearing, the RPD denied counsel’s request for
a postponement. The RPD also noted that the Applicant did not attend the
January Hearing and had provided a letter from Dr. Sunerh. The RPD highlighted
the discrepancy between the Applicant’s testimony and the letter, and said that
the Applicant had not provided a satisfactory explanation for the
inconsistency. Because of the unexplained inconsistency, the RPD gave no weight
to the letter from Dr. Sunerh. The RPD then declared the Applicant’s claim
abandoned because it gave no weight to the letter and the Applicant was not
ready to proceed with his claim on that day. Finally, the RPD noted that
counsel had said he had carriage of the file on 2 March 2011, a full three
weeks prior to the hearing.
DECISION
UNDER REVIEW
[17]
The
Decision in this case consists of the Notice of Abandonment, sent to the
Applicant on 23 March 2011 and two endorsements on the RPD’s file.
[18]
The
RPD noted that the Applicant’s claim was referred for a hearing on 2 April 2009,
it had notified him on 3 December 2010 of a hearing scheduled for 26 January
2011, and neither he nor his counsel had appeared that day. The RPD also noted
that it gave the Applicant notice on 8 February 2011 that it would hold a
hearing on 23 March 2011 to determine if his claim should be declared
abandoned. In the endorsement, the RPD found that the Applicant’s testimony
contradicted the letter from Dr. Sunerh. The RPD gave this letter no weight.
The RPD further found that the Applicant was not prepared to proceed at the
time of the Abandonment Hearing because his documents were not ready.
[19]
The
RPD decided that, though the Applicant and his counsel appeared at the
Abandonment Hearing, he had not shown why the RPD should not determine that he
had abandoned his claim. The RPD therefore declared the Applicant’s claim
abandoned.
ISSUES
[20]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s decision to declare his claim abandoned was reasonable;
b.
Whether
the RPD’s reasons were adequate;
c.
Whether
the RPD breached his right to procedural fairness by denying him the
opportunity to fully present his case;
d.
Whether
the RPD gave him inadequate notice of the purpose of the abandonment hearing.
STANDARD OF
REVIEW
[21]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9,
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[22]
In
Gonzalez v Canada (Minister of
Citizenship and Immigration) 2009 FC 1248, Justice Robert Mainville
held at paragraph 15 that the standard of review applicable to the RPD’s
decision to declare a refugee claim abandoned is was reasonableness. Justice
Mainville relied on pre-Dunsmuir cases which held that the standard of
review on this question was reasonableness simpliciter (see Pineda v
Canada (Minister of Citizenship and Immigration) 2006 FC 328 at paragraph
15 and Markandu v Canada (Minister of Citizenship and Immigration) 2004
FC 1596 at paragraph 9). The standard of review on the first issue is
reasonableness.
[23]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph
14 that the adequacy of reasons is not a stand-alone basis for quashing a
decision. Rather, “the reasons must be read together with the outcome and serve
the purpose of showing whether the result falls within a range of possible
outcomes.” The adequacy of reasons, therefore, is to be analysed along with the
reasonableness of the Decision as a whole.
[24]
The
opportunity to present evidence and have it considered is an aspect of the
right to procedural fairness (see Baker v Canada (Minister of
Citizenship and Immigration) [1999], 2 SCR 817 at paragraph 32). In Canadian
Union of Public
Employees (C.U.P.E.) v Ontario 2003 SCC 29, the Supreme Court of Canada
held that the standard of review with respect to questions of procedural
fairness is correctness (see paragraphs 99 and 100). Further, the Federal Court
of Appeal held in Sketchley v Canada (Attorney General) 2005 FCA 404 at
paragraph 53 that the “procedural fairness element is reviewed as a question of law. No
deference is due. The decision-maker has either complied with the content of
the duty of fairness appropriate for the particular circumstances, or has
breached this duty.” The standard of review on the third issue is correctness.
[25]
In
Thirunavukkarasu v Canada (Minister of Employment
and Immigration), [1993] FCJ No 1172, the Federal Court of Appeal held at
paragraph 10 that “A refugee claimant enjoys the benefit of the principles of
natural justice in hearings before the Refugee Division. A basic and
well-established component of the right to be heard includes notice of the case
to be met.” The right to notice is an issue of procedural fairness, so the
standard of review on the fourth issue is correctness.
STATUORY
PROVISIONS
[26]
The
following provisions of the Act are applicable in this proceeding:
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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 communicate with the Division on
being requested to do so.
169. In
the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with
the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in
writing, except a decision of the Refugee Appeal Division, which must be
rendered in
writing;
(d) if the Refugee Protection Division rejects a
claim, written reasons must be provided
to the claimant and the Minister;
(e) if the person who is the
subject of proceedings before the Board or the Minister requests reasons for
a decision within 10 days of notification of the decision, or in
circumstances set out in the rules of the Board, the Division must provide
written reasons;
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168. (1) Chacune des sections peut prononcer
le désistement dans l’affaire dont 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.
169. Les dispositions qui suivent
s’appliquent aux décisions, autres qu’interlocutoires, des sections:
a) elles prennent effet conformément aux
règles;
b) elles sont motivées;
c) elles sont rendues oralement ou par
écrit, celles de la Section d’appel des réfugiés devant
toutefois être rendues par écrit;
d) le rejet de la demande d’asile par la
Section de la protection des réfugiés est motivé par écrit et les motifs sont
transmis au demandeur et au ministre;
e) les motifs écrits sont transmis à la
personne en cause et au ministre sur demande faite dans les dix jours suivant
la notification ou dans les cas prévus par les règles de la
Commission;
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[27]
The
following provisions of the Refugee Protection Division Rules SOR/2002-228
(Rules) are also applicable in this proceeding:
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58. […] (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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58. […] (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 dont 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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ARGUMENTS
The Applicant
The RPD Prevented
the Applicant from Fully Presenting his Case
[28]
The
Applicant argues that the RPD breached his right to procedural fairness by
denying him the opportunity to fully present his case. He says that the RPD
refused to consider his explanation for the discrepancy between his oral
testimony and the letter from Dr. Sunerh. The evidence which showed he suffered
from depression would have helped to explain the contradiction, so it was an
error for the RPD not to consider it.
The RPD Gave
Insufficient Notice
[29]
In
the February Notice, the following passage appears:
The hearing of your claim for refugee
protection was scheduled for January 26, 2011, but you failed to attend.
A hearing to allow you to explain why you
did not appear will take place at:
IMMIGRATION
AND REFUGEE BOARD […] on March 23, 2011.
[30]
The
Applicant says that he was not given any notice that he would have to be
prepared to proceed with his claim at the Abandonment Hearing. He also says his
counsel was under the impression that the sole purpose of the Abandonment
Hearing was to explain the Applicant’s failure to attend the January Hearing.
Because the RPD did not give him adequate notice of its intent to examine the
merits of his claim at the Abandonment Hearing, the Applicant was unable to
adequately present his case. This was a breach of his right to procedural
fairness.
The
Decision was Unreasonable
[31]
The
Applicant says that the RPD mistakenly held that the only reason he was not in
a position to proceed was that his documents were not ready. The Applicant also
had concerns about proceeding without his counsel, who he had just recently
retained and who was not familiar with his case. This was evidence before the
RPD which it failed to take into account; its failure to take this evidence
into account renders the Decision unreasonable.
The
RPD Provided Inadequate Reasons
[32]
The
Applicant also says that Rusconi v Canada (Minister of
Citizenship and Immigration) 2003 FC 1476 teaches that the declaration
that a refugee claim has been abandoned is one that should be taken with great
attention and care which must be reflected on the face of the reasons provided
in support of the Decision. Here, the reasons the RPD gave do not show that it
took adequate care in reaching the Decision to declare his claim abandoned. The
Decision does not show how the RPD analysed the evidence before it, including
the Applicant’s recent retention of new counsel and the late receipt by counsel
of the Applicant’s PIF.
[33]
The
Applicant says that the RPD only provided boilerplate reasons, which are
inadequate. Although the Act, Rules, and Immigration and Refugee Protection
Regulations SOR/2002-223 do not require written reasons, the abandonment
declaration means that his claim will not be assessed on its merits and this,
in turn, means the Applicant was entitled to more than boilerplate reasons.
Adjudicating the Applicant’s claim on the merits would cause no harm to the
Respondent.
The Respondent
No Breach of
Procedural Fairness
The
RPD was not Biased
[34]
The
Respondent says that the Applicant has alleged in his affidavit supporting this
application that the RPD was biased. The Respondent notes that the test for bias
is whether or not an informed person, viewing the matter realistically and
practically and having thought the matter through would think it more likely
than not that the decision-maker would unconsciously or consciously decide an
issue unfairly. See Committee for Justice and Liberty v Canada (National
Energy Board), [1978] 1 S.C.R. 369. He says that this test was not
met and that bias was not raised as an issue at the hearing.
[35]
Because
the Applicant did not raise bias at the hearing, he is precluded from raising
it as an issue on judicial review. The Respondent notes that a party cannot
fail to raise the issue of bias with the hope of obtaining a favourable result
at the RPD hearing and then seek to overturn the result on judicial review if
the Decision is unfavourable. Though the Applicant may disagree with the
Decision, this is not enough to show that the RPD was biased. In this case, the
Applicant has not met the high threshold for establishing bias.
The Right to be Heard was not
Compromised
[36]
The
Applicant was represented by counsel through all stages of his refugee claim.
He was give the opportunity to explain his circumstances and nothing on the
record shows that the RPD did not consider his depression or the note from Dr.
Sunerh. The RPD reasonably found that the Applicant’s explanation for his
failure to attend the hearing was not credible.
[37]
The
Applicant was given notice that he was expected to be able to proceed with his
claim at the Abandonment Hearing. The February Notice says that
If
the RPD is satisfied with your explanation and your claim is not determined
abandoned, you should be prepared to proceed with the hearing of your claim.
[38]
The
Respondent also notes subsection 58(4) of the Rules requires the RPD to “start
or continue proceedings without delay” when it decides not to declare a claim
abandoned. Further, the Federal Court of Appeal held in Taylor v Canada (Minister of
Citizenship and Immigration) 2007 FCA 349 at paragraph 93 that “it is a
well established principle that ignorance of the law is no excuse. A person is
presumed to know the law and is bound by the law.” The Applicant’s counsel could
have informed him of his obligation to be ready to proceed with his claim at
the Abandonment Hearing. The onus was on the Applicant to retain counsel who
was competent, available, and prepared to represent him adequately. This Court
has rejected applications for judicial review where applicants were asked to
proceed without counsel and when counsel was not prepared (see Mutti v
Canada (Minister of Citizenship and Immigration) 2006 FC 97, Gapchenko v
Canada (Minister of Citizenship and Immigration) 2004 FC 427, and Linartez
v Canada (Minister of Citizenship and Immigration), [1995] FCJ No
498).
The Reasons were Adequate
[39]
In
this case, the RPD gave the Applicant notice of the Decision and provided him
with the endorsements on the file. These set out the reasons for the Decision
and allow the Applicant to understand why his claim was declared abandoned, so
the Decision should stand.
The Decision was Reasonable
[40]
The
Applicant failed to meet the onus on him to explain why his claim should not be
declared abandoned. The RPD reasonably found that his explanation for why his
claim should not be declared abandoned was not credible. It considered his explanation
that his depression prevented him from attending the hearing, the documentary
evidence he submitted, and the discrepancy between his testimony and the
documentary evidence and came to a reasonable conclusion. Because the RPD drew reasonable
conclusions from the evidence before it, which must be given deference, the
Court should not interfere.
[41]
In
addition to the evidence the Applicant submitted, the RPD considered the
Applicant’s readiness to proceed, as it was required to do under subsection
58(3) of the Rules. At the hearing, the Applicant and his counsel both admitted
that they were not ready to proceed, so the RPD reasonably declared the claim
abandoned. It was reasonable for the RPD to conclude that the Applicant had not
shown that his conduct amounted to an expression of a lack of willingness to
pursue his claim with diligence. The RPD’s reasonable conclusion should not be
disturbed by the Court.
ANALYSIS
[42]
In
the record before me, there is a great deal that is just not explained and for
which I have no evidence.
[43]
First,
the Applicant and his counsel knew at the time they received the February
Notice requiring the Applicant to attend the Abandonment Hearing that if the
RPD was satisfied with the Applicant’s explanation for not attending the January
Hearing that “he should be prepared to proceed with the hearing.” The original
hearing had been set for 26 January 2011, so the Applicant had to have all of
his documents ready for that date. Dr. Sunerh’s letter of 20 January 2011 said
that the Applicant could not attend the 26 January 2011 meeting; it did not
request an adjournment for medical reasons and the Applicant and his counsel
never asked that the 26 January 2011 meeting be adjourned. So when the
Applicant and his new counsel attended the 23 March 2011 abandonment hearing,
documentation that should have been prepared for 26 January 2011 should have
been available. The absence of such documentation is not adequately explained.
[44]
Second,
having been told on 8 February 2011 to show up for the Abandonment Hearing on
23 March 2011 ready to proceed, the Applicant says he engaged new counsel on 2 March
2011. His new counsel, knowing of the necessity to be ready to proceed on 23
March 2011, had three weeks to prepare. There is not sufficient explanation as
to why:
a.
The
Applicant and new counsel did not understand that they should be ready to
proceed on 23 March 2011; and
b.
They
did not have the necessary documentation to proceed.
[45]
Third, the Applicant’s
affidavit for this application noticeably lacks an explanation of what efforts
were made (and when they were made) to obtain documents from former counsel or
why new counsel had to go to the RPD for a copy of the PIF.
[46]
Fourth, besides the PIF, the Court is not told what other documents
existed or their relevance to the Applicant’s claim. Without more, I am unable
to gauge whether the Applicant was disadvantaged in any way by not having
documents.
[47]
Fifth, there is no
explanation for the Applicant’s assertion that his new counsel told him that
documents would not be needed for the Abandonment Hearing, when the February
Notice makes it abundantly clear that the Applicant should be ready to proceed.
[48]
Sixth, the Applicant
says that when he met with his new counsel he gave him the documents, but not
the translations. No explanation is given as to why he had originals, but not
the translations, when he says that the documents were in the possession of
former counsel.
[49]
Finally, there is insufficient
evidence before me, as there was before the RPD, to demonstrate why the Applicant’s
depression prevented him from attending the January Hearing. Dr. Sunerh’s
letter merely said the Applicant could not attend because of his depression.
The Applicant never asked for an adjournment and he did not provide any
evidence to show why he needed an adjournment because his depression prevented
him from undergoing a hearing.
[50]
On
the facts of this case, it is clear that the RPD set the Abandonment Hearing in
accordance with the Act. The Applicant failed to appear at January Hearing and did
not ask for an adjournment.
[51]
The
RPD then gave the Applicant an opportunity to explain why his claim should not
be declared abandoned under paragraph 58(2)(b) of the Act. It gave him
the requisite notice on 8 February 2011, told him to attend on 23 March 2011 to
explain why his claim should not be declared abandoned, and required him to be
ready to proceed on that day if he was able to convince the RPD that he had not
abandoned his claim.
[52]
Subsection
58(3) of the Rules sets out the factors which the RPD must consider at an abandonment
hearing. These factors are:
a.
The
explanations given by the claimant at that hearing;
b.
Any
other relevant information, including the claimant’s readiness to start or
continue the proceedings.
[53]
Under
subsection 58(4), if the RPD decides not to declare the claim abandoned, “it must
start or continue the proceedings without delay.” [Emphasis Added]
[54]
At
the Abandonment Hearing, the Applicant explained that he had “felt sick” and had
his doctor write a letter. Given the sparcity of evidence, the RPD was
naturally concerned to test the truth of this explanation, including the genuineness
of the doctor’s letter.
[55]
The
Applicant now says that the RPD did not consider his depression as a possible
explanation for the contradiction in his explanation and failed to give him an
opportunity to provide evidence on point. A careful reading of the CTR reveals
that the Applicant never connected the contradiction to his depression. It is
also clear that he was represented by counsel who could have asked him any questions
on point but did not. Also, there was no medical evidence to suggest he was
susceptible to memory problems, and the RPD was careful to question him about
his medication and cognitive abilities to see if there was a problem. There is
nothing to support the Applicant’s allegations on this point. In view of the
submissions and evidence on this point that were before the RPD, the reasons
adequately explain the basis of the Decision.
[56]
The
Applicant provided no further medical evidence that he was unable, for medical
reasons, to proceed with the January Hearing, or that he could not proceed with
the hearing on the merits of his claim at the Abandonment Hearing.
[57]
In
relation to subsection 58(3), the Applicant also said that he was not ready to
start the proceedings, even though the RPD gave him clear notice that he should
be ready to proceed.
[58]
The
Applicant has given me some explanation why he was not ready to proceed. He
says that he changed counsel and that he could not obtain relevant documents,
but there is insufficient evidence before me to show whether the Applicant and
his counsel were reasonably diligent in preparing for the Abandonment Hearing.
I conclude they were not because the Applicant says in his affidavit for this
application, at paragraph 21, that his new counsel advised him that documents
were not needed for the Abandonment Hearing. Counsel also told him that “the
letter I received only asked me to appear to give an explanation why I had not
appeared for the previous hearing on January 26, 2011.” If the Applicant and
his counsel had decided they did not need to be ready to proceed on 23 March
2011, it is unlikely that they would have prepared to proceed on that date with
reasonable diligence.
[59]
The
February Notice clearly says:
If the RPD is satisfied with your
explanation and your claim is not determined abandoned, you should be prepared
to proceed with the hearing of your claim.
[60]
Given
this unequivocal notice that he should be ready to proceed, the Applicant
offered no plausible explanation to the RPD or to me as to why he would think that
he did not need documents to proceed at the Abandonment Hearing. He says his
new counsel told him otherwise, but I have no evidence or explanation from
counsel involved that this was the case.
[61]
As
the RPD notes in its reasons, the Applicant informed the RPD that he was not
prepared to proceed on 23 March 2011 because his supporting documents were not
ready. Those supporting documents were supposed to be ready for the January
Hearing, and I have insufficient evidence before me to determine whether they
could not have been available for 23 March 2011 (and nor did the RPD), so I
cannot say that the RPD unreasonably dealt with this factor.
[62]
There
was no other relevant consideration before the RPD except the Applicant’s request
for a postponement.
[63]
At
the oral hearing of this matter on 11 January 2012 before me, counsel for the
Applicant raised a new point not contained in written submissions. She said
that the RPD did not appropriately deal with his postponement request at the
Abandonment Hearing.
[64]
The
Applicant requested a postponement at the Abandonment Hearing but, as the CTR
shows, there was very little provided to justify it. Applicant’s counsel
indicated that he did not have the documents he needed, but, as noted earlier, did
not explain why the documents were not available and what efforts he or the
Applicant made to obtain them. He attempted to explain as follows:
Counsel for claimant: Sir
I would say in this, the only thing I have to say yes I can say that as a counsel
I am not prepared just because we were under the impression that it was a
pre-abandonment hearing and will request your office to give us a fair chance
for another hearing.
[65]
Bearing
in mind what the Applicant and counsel were told in the February Notice, this
is really no explanation at all as to why the Applicant and his counsel were
not ready to proceed on 23 March 2011.
[66]
The
RPD’s reasons for refusing the postponement request are found in the CTR:
Presiding member: I will not accept your request. The
reasons which you gave me was [sic] that supporting documents are not
ready and the claimant cannot proceed today. I would like to indicate that as
the Tribunal Officer indicated that the claimant filed his refugee application,
especially the personal information form, in April 2009. The claimant had more
than ample time to… to get all the documents which he needs for… to support his
allegation and to substantiate his refugee claim. And also I see from this
record that the claimant has been in Canada
since November 2006.
And
also I see from the claimant’s personal information form that he was
represented by a counsel, Khan Khokhar, who was well-known to the Immigration
and Refugee Board, who is familiar with the refugee application system and I
see that the personal information form, was prepared with his assistance and
the claimant had not presented any evidence, the reason why he was not able to
prepare all the documents that you might think support his claim.
Counsel
also indicated that one of your concerns was the 20-day limit for disclosure of
documents but that I do not find convincing because even on the day of the
hearing today, still you are not able to produce any document which the board
might have… if the documents were important and if the reasons for their delay
were valid, could have been allowed.
So
I come to the conclusion that your explanation and your request is not accepted
by the panel.
[67]
The
RPD clearly considered the postponement request. In doing so, it was obliged to
consider the factors set out in subsection 48(4) of the Rules. In the present
case, the Applicant provided very little to support his request and there is
nothing to suggest that the RPD did not turn its mind to the section 48
factors. The answers to all of them are self-evident on the record and counsel
only chose to emphasize his own (unexplained) impression that he was not
expected to proceed at the Abandonment Hearing. Given the whole context and the
history of the proceedings, I cannot say that the RPD unreasonably refused the request
for a postponement or that, when looked at in the context of the evidence, the
parties’ submissions, and the process followed in this case, that the reasons
were inadequate.
[68]
My
assessment in this regard is based upon recent guidance from the Supreme Court
of Canada in Newfoundland and Labrador Nurses’ Union, above:
14. Read as a whole, I do not see Dunsmuir
as standing for the proposition that the “adequacy” of reasons is a stand-alone
basis for quashing a decision, or as advocating that a reviewing court
undertake two discrete analyses -- one for the reasons and a separate one for
the result (Donald J. M. Brown and John M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at s. 12:5330 and 12:5510).
It is a more organic exercise -- the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes. This, it seems to me, is what the Court was saying
in Dunsmuir when it told reviewing courts to look at “the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes” (para. 47).
15. In assessing whether the decision is
reasonable in light of the outcome and the reasons, courts must show “respect
for the decision-making process of adjudicative bodies with regard to both the
facts and the law” (Dunsmuir, at para. 48). This means that courts
should not substitute their own reasons, but they may, if they find it
necessary, look to the record for the purpose of assessing the reasonableness
of the outcome.
16. Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975]
1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
17. The fact that there may be an
alternative interpretation of the agreement to that provided by the arbitrator
does not inevitably lead to the conclusion that the arbitrator’s decision
should be set aside if the decision itself is in the realm of reasonable
outcomes. Reviewing judges should pay “respectful attention” to the
decision-maker’s reasons, and be cautious about substituting their own view of
the proper outcome by designating certain omissions in the reasons to be
fateful.
18. Evans J.A. in Canada Post Corp. v.
Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221,
explained in reasons upheld by this Court (2011 SCC 57) that Dunsmuir
seeks to “avoid an unduly formalistic approach to judicial review” (para. 164).
He notes that “perfection is not the standard” and suggests that reviewing
courts should ask whether “when read in light of the evidence before it and the
nature of its statutory task, the Tribunal’s reasons adequately explain the
bases of its decision” (para. 163). I found the description by the Respondents
in their Factum particularly helpful in explaining the nature of the exercise:
When reviewing a decision of an administrative
body on the reasonableness standard, the guiding principle is deference.
Reasons are not to be reviewed in a vacuum - the result is to be looked at in
the context of the evidence, the parties' submissions and the process. Reasons
do not have to be perfect. They do not have to be comprehensive. [para. 44]
[69]
Taking
all these matters into account, I cannot say that a breach of procedural
fairness occurred in this case.
[70]
There
were no breaches of the Applicant’s right to procedural fairness, so I must
consider whether the Decision was reasonable. After reviewing the record, I
cannot say that the RPD ignored any evidence or that it reached conclusions
which were not open to it on the evidence before it. As I read the record, the
RPD based its Decision on the following factors:
1.
Neither
the Applicant nor his counsel were prepared to proceed;
2.
The
Applicant had not established that he actually was being treated for depression
and that this had prevented him from attending the January hearing;
3.
The
Applicant did not adequately explain the inconsistency between when he said he
went to Dr. Sunerh and the letter he submitted said he had done so;
4.
The
letter he provided was a faxed copy;
5.
The
Applicant had had ample time to prepare for the hearing but did not.
[71]
I
do not think that any of these gives rise to a reviewable error. With respect
to the Applicant’s lack of readiness to proceed, subsection 58(3) of the Rules
establishes that
|
58(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 [emphasis added]
|
58(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.
|
[72]
Not
only was the RPD permitted to consider the Applicant’s lack of readiness to
proceed, but it was required to under this subsection. The Applicant has not
argued that the Rules are per se unfair. He has also not given the Court
any reason, in fact or in law, why this rule should not apply to him. The RPD
did not act unreasonably in considering his lack of readiness to proceed when
it declared his claim abandoned.
[73]
I
also cannot find that the RPD’s treatment of the evidence surrounding the
Applicant’s depression was unreasonable. The Applicant’s argument at the Abandonment
Hearing was that he had not attended the January Hearing because his depression
prevented him from doing so. As such, the evidence supporting this argument was
highly material to the RPD’s decision to declare his claim abandoned, and it
was open to the RPD to assess the credibility of that evidence.
[74]
The
only evidence that the Applicant tendered to support this argument was his oral
testimony and the letter from Dr. Sunerh. At the hearing, the Applicant’s
testimony was inconsistent with the letter. This was not an inappropriate basis
for the RPD to find either his testimony or the letter not credible. While it
may be possible to disagree with the RPD’s conclusion, it is not the role of
the Court on judicial review to substitute its own opinion for that of a
decision-maker, particularly where the RPD had the opportunity to assess the
Applicant’s demeanour and assess his credibility. The RPD’s rejection of the
Applicant’s argument that he could not attend his hearing because of his
depression was reasonable.
[75]
The
Court notes that the consequences of a declaration that a claim has been
abandoned may be severe, even fatal to a claimant. This does not, however,
absolve claimants of the onus on them to establish why their claims should not
be abandoned. It also does not mean that the RPD is always bound to accept
claimants’ arguments as to why their claims should not be abandoned. The
severity of consequences means only that the RPD must ensure that claimants
have a full opportunity to present their case and that it fully considers the
case presented to it. In this case, both of these things occurred, and I see no
reason to interfere with the Decision.
[76]
Counsel
agree there is no issue for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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