Date: 20091222
Docket:
IMM-2185-09
Citation: 2009 FC 1306
Ottawa,
Ontario, December 22, 2009
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
DOMINGO MARTINEZ GARDUNO
ARACELI BADILLO BRAVO
ANDRES MARTINEZ BADILLO
SILVANA
MARTINEZ BADILLO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (IRB), dated April 14,
2009, rejecting the application for the RPD to reopen the applicants’ claim.
The RPD had previously declared the claim abandoned and closed the applicants’
file when they failed to appear.
[2]
After
carefully considering the case submitted by the applicants, I have concluded
that the RPD erred in law by refusing to reopen the applicants’ claim, and
intervention by this Court is therefore warranted.
a.
Facts
[3]
The
principal applicant, Domingo Martinez Garduno, his wife, Araceli Badillo Bravo,
and their two children, Andres and Silvana Martinez Badillo, are Mexican
citizens and claimed refugee protection on October 25, 2006.
[4]
In
early December 2006, the applicants moved. They allege that they informed the
RPD and Citizenship and Immigration Canada (CIC) of their change of address
within a few days after the move.
[5]
On
November 2, 2007, a notice of a hearing of their refugee protection claim
before the RPD in December 2007 was sent to the applicants’ former address.
[6]
On
December 18, 2007, the applicants did not appear for their hearing. Also
on that date, the lawyer who had represented them up to that point withdrew
from the case, and had no further contact with the applicants.
[7]
On
January 7, 2008, a second notice was sent, again to the applicants’ former
address, for them to appear at a hearing for the purpose of explaining their
failure to appear the first time.
[8]
On
January 23, 2008, the applicants again failed to appear at the hearing.
[9]
On
January 24, 2008, the first notice, which had been sent on
November 2, was returned to the RPD by the post office, with the notation addressee
“moved/unknown”.
[10]
On
January 25, 2008, the RPD concluded that the applicants’ refugee
protection claim had been abandoned and closed their file.
[11]
According
to the affidavit by Louise Brazeau, an administrative assistant at the RPD, she
had contacted CIC on January 28,
2008, to obtain the applicants’ address. She stated that a CIC official
told her that the applicants had moved in December 2006 and had informed CIC of
this. Ms. Brazeau then entered the change of address in the computer
system. Ms. Brazeau stated that before January 28, 2008, there was no
indication of a notice of change of address in the applicants’ file.
[12]
The
applicants stated that they were not aware that their file had been closed at
the RPD until February 2009, when they inquired about progress in their
case through their new lawyer.
[13]
On
March 20, 2009, the RPD received an application to reopen the applicants’
claim based on the failure to give proper notice of the hearings. In support of
their application, the applicants submitted an affidavit by the principal
applicant alleging that a written notice of change of address was sent in
December 2006 to both the RPD and CIC; a copy of the lease for their new
apartment; and correspondence sent by CIC to their new address between January
2007 and February 2009. The rejection of that application to the RPD is the
subject of this application for judicial review.
II. Impugned Decision
[14]
The
impugned decision consists of a short letter dated April 14, 2009, stating:
[translation]
On March 20, 2009, the Refugee
Protection Division (RPD) received your application to reopen your claim for
refugee protection.
YOUR APPLICATION IS REJECTED.
[15]
Initially,
that letter was the only thing sent to the applicants. However, under
rule 9(2) of the Federal Courts Immigration and Refugee Protection
Rules, SOR/93-22, an internal RPD request record dated April 8, 2009,
was subsequently sent to them with the certified record of the tribunal, for
the purposes of this application for judicial review.
[16]
On
the internal request record, a coordinating member of the RPD, Mr. Hamelin,
had written brief reasons stating that no failure to observe a principle of
natural justice that would justify reopening the claim, under rule 55(4) of the
Refugee Protection Division Rules, SOR/2002-227, had been established.
Mr. Hamelin stated that there was no evidence in the applicants’ file to
confirm that they had sent their change of address to the RPD. Accordingly, the
notices of hearing had been sent to the appropriate address.
III. Issue
[17]
After
hearing arguments from the parties, one issue remains: whether the RPD erred by
refusing to reopen the applicants’ refugee protection claim.
IV. Relevant Legislation
[18]
The
following provisions are relevant to this application for judicial review.
Section 168 of the Immigration and
Refugee Protection Act, S. C. 2001, c. 27
|
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.
|
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.
|
Rules 4, 22 and 55 of the Refugee
Protection Division Rules, SOR/2002-227
|
4. (1) The claimant must
provide the claimant’s contact information in writing to the Division and the
Minister.
…
(3)
If the claimant’s contact information changes, the claimant must without
delay provide the changes in writing to the Division and the Minister.
22. The Division must notify a
party in writing of the date, time and location of a proceeding.
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.
…
(4)
The Division must allow the application if it is established that there was a
failure to observe a principle of natural justice.
|
4. (1) Le demandeur d’asile
transmet ses coordonnées par écrit à la Section et au ministre.
…
(3)
Dès que ses coordonnées changent, le demandeur d’asile transmet ses nouvelles
coordonnées par écrit à la Section et au ministre.
22. La Section avise les
parties par écrit des date, heure et lieu d’une procédure.
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.
…
(4)
La Section accueille la demande sur preuve du manquement à un principe de
justice naturelle.
|
V. Analysis
[19]
There
is no unanimity in the case law regarding the standard of review that applies
to a refusal to reopen a refugee protection claim that the RPD has declared
abandoned. There are two trends in this regard. In some judgments, the Court
has deferred to the administrative decision-maker, notwithstanding the natural
justice component of a decision of this nature. In Enahoro v. Canada (Minister
of Citizenship and Immigration)¸ 2006 FC 430, [2006] F.C.J. No. 531, at
paragraphs 12-13, for example, the issue was analyzed entirely from the
standpoint of the assessment of the facts, thus leading to application of the
former patent unreasonableness standard. In other judgments, however, the
emphasis has been placed instead on the RPD’s expertise in applying its own
rules of procedure to a fact situation, and accordingly the former
reasonableness standard was applied: see, for example, Hurtado v. Canada (Minister
of Citizenship and Immigration), 2008 FC 270, [2008] F.C.J. No. 345, at
paragraph 25. Since the decision in Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] S.C.J. No. 9 and the resulting unification of the two standards
of reasonableness, decisions where emphasis is placed on either of these two analyses
have applied the reasonableness standard: see, inter alia, Samuels v.
Canada (Minister of Citizenship and Immigration), 2009 FC 272, [2009] F.C.J.
No. 336, at paragraph 25.
[20]
However,
there is a second trend in the case law, characterized by the weight placed on
the procedural fairness that must surround the decision as to whether to reopen
a refugee protection claim. From that standpoint, the standard of review will
be correctness, in so far as the emphasis is placed on the impact of the
decision. By that reasoning, the essential issue is no longer the assessment of
the facts or the application of internal rules of procedure, but rather the
fact that the applicant is being deprived of an opportunity to have his or her
case heard.
[21]
In
this case, it is not necessary to take a position on the difference of opinion
in the case law, since the RPD has committed a major error in law that justifies
setting the decision aside regardless of the standard chosen.
[22]
The
notes written by RPD member Hamelin on the applicants’ internal request record
constitute the reasons for the decision under review: Vranici v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1417, [2004] F.C.J. No. 1718, at
paragraph 29; see also Ali v. Canada (Minister of Citizenship and Immigration),
2004 FC 1153, [2004] F.C.J. No. 1394, at paragraph 20. The RPD’s
conclusion, as set out in its reasons and argued by the respondent, is that
there was no denial of procedural fairness when the first panel of the RPD
declared the claim abandoned, since there is no evidence of a change of address
reported by the applicants.
[23]
The
principal applicant submitted an affidavit in support of his assertion that he
informed the RPD of his change of address. Completely ignoring that affidavit
is an error in law, since an affidavit is a sworn written statement and
constitutes evidence that is acceptable before the RPD: Benitez v. Canada (Minister
of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631, at
paragraph 25; Khan v. Canada (Minister of Citizenship and Immigration),
2005 FC 833, [2005] F.C.J. No. 1067, at paragraph 9.
[24]
The
RPD did not question the applicant’s credibility and could have questioned him
at a hearing to verify the sincerity of his account, if it had any doubts in
that regard. It did nothing, however. It is important to note the unique
aspects of this case. Unlike many others where applicants admit that they
failed to give notice of their change of address (Abuali v. Canada (Minister
of Citizenship and Immigration), 2009 FC 221, [2009] F.C.J. No. 293, at
paragraph 3; Serrahina v. Canada (Minister of Citizenship and Immigration),
2003 FCTD 477, [2003] F.C.J. No. 622, at paragraph 3), the applicants
in this case have always maintained that they informed the RPD of their change
of address. In both their affidavit before the RPD and the affidavit they
presented in support of their application for judicial review, they stated that
they had given notice of their change of address to both CIC and the RPD.
[25]
The
respondent submits that there is a slight contradiction between the principal
applicant’s two affidavits in that he states in the first affidavit that he
gave notice of his change of address in writing to the IRB and CIC, while in
his second affidavit he states that he went in person to give notice of his
change of address. I do not believe this is necessarily an actual contradiction
in this case. It is possible that the applicants went to the IRB and CIC
offices to give written notice of their change of address. The applicants were
in fact able to establish that they had informed CIC of their new address
shortly after moving, as the affidavit of Louise Brazeau presented by the
respondent, inter alia, confirms.
[26]
The
respondent submitted that there was no evidence to establish that the
applicants had informed the RPD of their change of address. The respondent
contends that in the absence of any indication in the record that the
applicants gave such notice, it follows that they in fact failed to do so. I am
not persuaded by that argument. The applicants’ credibility was not questioned,
and so they were entitled to the benefit of the doubt, particularly since they
had reported their change of address to CIC. When the Federal Court of Appeal
was faced with a similar case, it wrote:
10 On
September 19, 1995, in the absence of the applicant, the Refugee Division
rejected the motion to re-open the claim on the grounds that there had been no
breach of the rules of natural justice since the claimant had changed his
address and had failed to notify the Board. A notice of decision was issued on
October 13, 1995. It is this decision not to re-open the refugee claim which
the applicant seeks to have reviewed.
11 As I have stated above, the applicant is entitled, in the
absence of any circumstances tending to cast doubt on it, to the benefit of his
uncontradicted evidence that he submitted the correct change of address to the
Board. It follows from this that the Notice of the abandonment hearing was sent
to the wrong address and that the applicant was therefore denied a fair hearing
in accordance with the rules of natural justice to determine whether he had
abandoned his claim for refugee status.
12 The
Refugee Division was in error in basing its decision not to re-open the claim
on the finding that the applicant had not proven that he had taken the proper
steps to advise the Board of his address. There is no evidence that the error
was not the Board's own; there is no reason to doubt the credibility of the
applicant or of this piece of evidence; therefore, there is no reason not to
re-open the applicant's refugee claim.
Zaouch v. Canada (Minister of Citizenship
and Immigration)
(1996), 64 A.C.W.S. (3d) 844, at paragraphs 10-12
[27]
I
believe that this reasoning can be transposed to this case, at least with
respect to the RPD’s conclusion as to the absence of evidence in spite of the
applicant’s affidavit.
[28]
For
all of the foregoing reasons, this application for judicial review must be
allowed. The parties proposed no question for certification, and no question is
raised by this case.
ORDER
THE
COURT ORDERS that the application for judicial review be allowed.
No question is certified.
“Yves de Montigny”
Certified
true translation
Brian
McCordick, Translator
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