Date:
20120627
Docket:
IMM-8318-11
Citation:
2012 FC 818
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 27, 2012
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
|
|
OSCAR ARMANDO
PADILLA HERNANDEZ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision by the
Refugee Protection Division (the panel), by which the application to reopen the
applicant’s file was refused.
[2]
On
December 9, 2007, the applicant, a citizen of El Salvador, arrived in Canada and filed a claim for refugee protection on February 14, 2008. On February 25, 2008,
he presented himself for an interview before the Immigration and Refugee Board
of Canada (IRB).
[3]
On
March 20, 2008, he submitted his Personal Information Form (PIF) indicating his
current address.
[4]
On
February 12, 2010, the IRB sent him a Confirmation of Readiness to Proceed to
the address that was on file. This form contains a section that a refugee
claimant can fill out in the event of a change of address. The applicant signed
the form without filling out this section, and sent it back to the IRB.
[5]
On
November 1, 2010, he moved to another address and informed Immigration Canada
of his change of address, but not the IRB.
[6]
On
April 20, 2011, the IRB sent him a first Notice to Appear at a hearing that was
scheduled for June 8, 2010, to the address it had on file. The same notice was also
sent to his counsel. On the day of the hearing, counsel appeared without the
applicant. Abandonment proceedings were subsequently commenced with regard to
the refugee claim.
[7]
On
July 6, 2011, the IRB sent the applicant and his counsel a Notice to Appear to
the same address to notify him that a hearing was scheduled for July 27, 2011,
to provide him with an opportunity to contest the abandonment proceedings
against his claim. On the day of the hearing, counsel for the applicant once
again appeared by himself. The IRB then ruled on the abandonment of the matter,
having received no word from the applicant.
[8]
On
August 5, 2011, the applicant informed the IRB of his change of address, and
filed an application to reopen on September 28, 2011, in accordance with Rule
55 of the Refugee Protection Division Rules.
[9]
The
panel refused to allow the application to reopen because it did not have the
jurisdiction to do so, given that the applicant had not demonstrated that there
had been a breach of a principle of natural justice.
[10]
In
fact, the panel was of the view that the fact of having failed to notify the IRB
of his change of address was not the same as a failure to observe a principle
of natural justice, and that the applicant had only himself to blame for his
failure to act..
[11]
The
panel also noted that it is customary for the IRB to advise refugee claimants
to notify it of any change of address, and that the kit provided to them
includes a form for this purpose. In this case, the form entitled “Résumé
de l’appel du rôle”, dated March 13, 2008, indicates that the IRB
officer had checked off the box next to which was written “Explications des documents
contenus dans la trousse”, which shows that normal procedures had been followed.
[12]
Moreover,
the panel noted that on page 12 of the PIF it is clearly written, in bold print:
“You must notify the IRB immediately of any change to your address.” It
did not believe that the applicant’s interpreter would have provided an exact
translation of each section of the PIF, but not the section about notification
of any change of address.
[13]
The
panel further noted that the applicant had received a letter from the IRB
asking him to confirm his availability for the hearing. The form, which he
signed and returned to the IRB, included a section for him to provide his new
address. Although the applicant had not yet moved when he received the form,
the tribunal found that this constituted a further reminder from the office to
which he was to communicate this information.
[14]
It
further noted that the applicant provided no explanation for his failure to
contact his counsel after the declaration of abandonment, and drew a negative
inference about his credibility with regard to his ignorance about the process.
Was
the panel’s decision reasonable?
[15]
According
to Rulr 55 of the Refugee Protection Division Rules, the panel can only
reopen a refugee claim in cases where a claimant is able to demonstrate a
failure to observe the principles of natural justice.
[16]
The
applicant claims the panel’s decision was unreasonable because it determined
that he had only himself to blame for failing to notify the IRB of his change
of address. He submitted an affidavit in support of his application to reopen
in which he stated that the officer had not explained to him that he was
required to notify the IRB of any change of address, a statement that was not
refuted. In addition, the applicant notes that he had not read the notice on
page 12 of the PIF because the document had been prepared by his counsel
without an interpreter. The applicant also refers to a letter sent to him by
the IRB, dated April 29, 2011, which indicated that his PIF had not been
translated for him.
[17]
For
its part, the respondent argues that the applicant lacked diligence, and that
the panel was correct in finding that he had only himself to blame for his
failure to act and that he lacked credibility with regard to his ignorance of
the process. The respondent notes that the applicant changed addresses on
November 1, 2010, and that between this date and the end of the summer of 2011,
he never contacted his counsel or sent a notice of change of address or change
of telephone number to the IRB, when he knew that he was awaiting a hearing
date. Thus, the applicant’s failure to follow up with his counsel resulted in
the latter being unable to reach him in order to advise him of the opportunity
offered by the panel to challenge the abandonment of his claim. In short, the
applicant has not demonstrated that the IRB failed to observe a principle of
natural justice. I share this view.
[18]
I
note that at paragraph 10 of his affidavit submitted in support of his
application to reopen, the applicant states that he filled out his PIF with the
help of his counsel and that the questions and information contained in the
form had been translated into Spanish for him, with the exception of the notice
on page 12 of the PIF. However, the panel did not believe “that the claimant’s
interpreter would faithfully translate every section of the thirteen page PIF
except the sentence that states that he must file a change of address”. This
finding is reasonable in light of the facts in this case.
[19]
The
applicant further claims that the panel breached principles of procedural
fairness by relying on extrinsic evidence, namely, the “Résumé
de l’appel du rôle”, to conclude that normal procedure had been
followed by the IRB officer. He submits that he was never provided with a copy
of the document, and was therefore unable to respond to it or provide evidence
to the contrary.
[20]
The
respondent argues that this document is a checklist which was completed by
the registry officer during roll call when the applicant was present and was
assisted by an interpreter. The document merely confirms in writing what had
been discussed with the applicant during this roll call, and it is part of the IRB
file on him and which he and his counsel had access to. The respondent relies
on Quijano v Canada (Minister of Citizenship and Immigration), 2009 FC
1232, [2009] FCJ No 1573 (QL), in which the Court held that an immigration
officer is under no obligation to confront applicants with information they
themselves had provided, and that this information was not extrinsic to the
record. I share this view.
[21]
The
“Résumé
de l’appel du rôle” is simply a summary of information relevant
to the applicant’s file. It indicates, among other things, that the applicant
was present at roll call, that he required the services of an interpreter, that
he understood the interpreter, and that he received explanations about the documents
contained in the kit. As in Quijano, above, the information contained in
the “Résumé
de l’appel du rôle” is not extrinsic evidence for which the panel
would have had an obligation to confront the applicant with. In this regard,
there was no breach of the principles of natural justice.
[22]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
Certified
true translation,
Sebastian
Desbarats, Translator
Email this Content