Date:
20121205
Docket:
IMM-2990-12
Citation:
2012 FC 1422
Toronto, Ontario,
December 5, 2012
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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KRISZTIAN SZABO
KAROLINA SARKOZI
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Applicants
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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]
The
applicants challenge the legality of a decision of the Refugee Protection
Division of the Immigration and Refugee Board [tribunal] denying their
application to reinstate the claims for refugee protection they had previously
withdrawn from the tribunal.
[2]
The
applicants, both citizens of Hungary, attended a scheduling hearing on November
14, 2011, where they signed a form indicating they were withdrawing their
claims. In the formal application for reinstatement made in February 2012 on
behalf of the applicants, it is alleged that their request for reinstatement
fall within Rule 53(3) of the Refugee Protection Division Rules,
SOR/2002-228, because they were notably unable to locate their counsel for the
scheduling hearing and the tribunal advised them that their counsel was being
investigated and had disappeared. The applicants alleged they signed the form
because they were nervous and unsure how to proceed. On February 21, 2012, the tribunal
rejected their request for reinstatement.
[3]
In
a nutshell, the tribunal determined that there was no failure to observe a
principle of natural justice. It found that the purpose of a scheduling hearing
is merely to set a date and not to give evidence, and normally, claimants are
given information on how to seek counsel. It noted that the male applicant had
indicated he could read and understand the form withdrawing the claims, and an
interpreter’s declaration indicated the form had been translated into
Hungarian. It went to find there was no indication in the recording of the
scheduling hearing that the applicants’ then-counsel was under investigation,
or any persuasive evidence that she had disappeared. It also found no evidence
that the female applicant’s pregnancy had impaired her decision-making ability.
Since no breach to a principle of natural justice had occurred, the request for
reinstatement was dismissed by the tribunal.
[4]
Today,
the applicants submit that the tribunal erred by only considering whether a
breach of natural justice had occurred, ignoring the second possibility under
Rule 53(3), that a request for reinstatement must be granted “if it is
otherwise in the interests of justice”. The applicants indicated in their
application that they were seeking reinstatement under the “interests of
justice” criterion, in addition to the “natural justice” criterion. The
applicants argue that there is nothing in the tribunal’s reasons indicating it
considered the “interests of justice” option. Applying the wrong test is an
error of law that is reviewable on the standard of correctness. Otherwise, the
failure to address the second possibility is a reviewable error which renders
the whole decision unreasonable.
[5]
On
the other hand, the respondent submits that the appropriate standard of review
is reasonableness, as the tribunal’s determination of a reinstatement
application is a question of mixed fact and law. The respondent argues that
when the tribunal’s decision is read as a whole, it is clear that it considered
the entire test as set out in Rule 53(3). Reasons do not have to be perfect or
comprehensive, and should be reviewed by a court in the context of the
evidence, the parties’ submissions and the process. Here, the applicants’
submissions on natural justice and interests of justice were largely the same.
The applicants provided the tribunal with no further explanation for why the
interests of justice require the reinstatement of their claim than the
arguments presented relating to natural justice. On the whole, the impugned
decision is reasonable.
[6]
The
intervention of the Court is warranted in this case.
[7]
Firstly,
I agree with the respondent that the appropriate standard of review is
reasonableness. Where
previous jurisprudence has determined the standard of review applicable to a
particular issue, the reviewing court may adopt that standard: Dunsmuir
v New Brunswick, 2008 SCC 9 at para 57, [2008] 1 S.C.R. 190 [Dunsmuir].
In this case, this Court has previously held that reasonableness is the appropriate
standard in reviewing a reinstatement application: Ohanyan v Canada (Minister of Citizenship and Immigration), 2006 FC 1078 at para 6. In this
context, the reviewing court must consider the record in its entirety when
determining whether a decision was reasonable: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paras 12 and 15, [2011] 3 S.C.R. 708 [Newfoundland Nurses].
[8]
Secondly,
I note that Rule 53(3) contains two separate grounds for reinstating a refugee
claim. A request for reinstatement must be allowed if there was a failure to
observe a principle of natural justice. In addition and distinct from the first
ground, the request must be allowed if it can be established that it “is in the
interest of justice to do so”.
[9]
Thirdly,
as noted by the Court in De Lourdes Diaz Ordaz Castillo v Canada (Citizenship and Immigration), 2010 FC 1185 at para 5 [Ordaz]:
It is entirely possible that the evidence before the Board may be
relevant to both grounds. However, a decision that is reasonable and reflects
“justification, transparency and intelligibility” (Dunsmuir, para. 47)
must address both branches of Rule 53(3). It must be clear to the reader
(and the reviewing Court) that the Board understood that there are two separate
grounds in Rule 53(3).
[emphasis
added]
I fully agree with the observations
of the Court in Ordaz.
[10]
Fourthly,
it is not clear that the tribunal understood that there are two separate
grounds in Rule 53(3). The tribunal describes in the impugned decision the
applicable test in the following terms: “I am bound by Rule 53 and must
determine whether or not there has been a ‘failure to observe a principle of
natural justice’.” The tribunal does not refer in this sentence or elsewhere in
the impugned decision to the alternative criteria “in the interests of
justice”. On the other hand, natural justice is referred to four times by the
tribunal. Accordingly, when I read the impugned decision as a whole and in
light of the record in its entirety, there are strong indications that the
tribunal erred in thinking that reinstatement can only be granted if there was
a failure to observe a principle of natural justice.
[11]
Fifthly,
I do not believe that to “supplement” the tribunal’s reasons, as suggested by Newfoundland
Nurses, above, means that the reviewing court must substitute itself to the
tribunal and determine on its own motion, after an analysis of the evidence on
record, whether or not it is in the “interests of justice” to allow or dismiss an
application for reinstatement. While the Supreme Court of Canada “has strongly
emphasized that administrative tribunals do not have to consider and comment
upon every issue raised by the parties in their reasons”, on the other hand,
before this Court, “the issue remains whether the decision, viewed as a whole
in the context of the record, is reasonable”, as stated by the Supreme Court in
Construction Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3.
The mischaracterization by the tribunal of the applicable test under Rule 53(3)
renders the whole decision unreasonable.
[12]
To
conclude, I am simply not satisfied that the tribunal gave proper consideration
to the alternative submission made by the applicants that their request for
reinstatement should be allowed because it would be in “the interests of
justice”. In this regard, I agree with the applicants that this ground is much
broader than the natural justice ground. Accordingly, while there may not have
been a failure to a principle of natural justice, this did not automatically
mean that it was not in the interests of justice to allow the request for
reinstatement made by the applicants; a fundamental issue which has remained
unsolved up to now by the tribunal. This goes far beyond the simple grievance
made in other cases that an argument was not considered by the administrative
tribunal.
[13]
As
a result, I will allow the application. The impugned decision shall be set
aside and the matter returned back for redetermination by another member of the
tribunal. The parties have not proposed any question for certification and none
shall be certified by the Court.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial
review be allowed. The impugned decision made by the tribunal is set aside and
the matter is referred back for redetermination by another member of the
tribunal. No question is certified.
“Luc Martineau”
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