Date:
20091204
Docket:
IMM-663-09
Citation:
2009 FC 1248
Ottawa, Ontario, December 4, 2009
PRESENT:
The Honourable Mr. Justice Mainville
BETWEEN:
OSCAR
DAMIAN GONZALEZ GONZALEZ
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review submitted by Oscar Damian Gonzalez
Gonzalez (the applicant) of a decision dated January 30, 2009, by the Refugee
Protection Division of the Immigration and Refugee Board (the Board), declaring
the abandonment of his refugee claim in Canada.
Background
[2]
The
applicant is a citizen of Mexico, born on August 19, 1989, who temporarily
entered Canada as a visitor on or around September 20, 2008. He then filed a
refugee claim and this claim was submitted to the Board on November 21, 2008.
[3]
By
means of a notice given to the applicant in person on November 21, 2008, he was
informed that he had to submit his duly completed personal information form in
the following 28 days and he was called to a hearing before the Board scheduled
for December 2, 2008. In particular, the notice contained the following:
[translation]
If you do not submit your PIF [personal information
form] in the twenty-eight days following the date on which this was given to
you, the RPD [Refugee Protection Division] may, after giving you the
opportunity to be heard, declare that your refugee claim has been abandoned. You
will be called to a hearing to explain why the RPD should not declare that your
refugee claim has been abandoned. If necessary, the date that appears on this
notice will be annulled.
[4]
The
applicant did not appear before the Board on December 2, 2008, and did not submit
his personal information form before the prescribed deadline.
[5]
On
January 13, 2009, his counsel wrote to the Board to inform it of the following:
[translation]
Mr. Gonzalez had an appointment with you at the
beginning of December 2008, but because he had problems with legal aid he
cancelled his appointment at our office. He phoned to make another appointment,
but our offices were closed for the holiday season. He finally had an
appointment today and we discovered that he had understood that he had to
produce his PIF as soon as possible but had not understood that he had only 28
days. We are to see Mr. Gonzalez again this Friday, January 16 in the afternoon.
We would kindly ask you to grant us two weeks to produce our client’s PIF.
[6]
This
request for an extension was refused and, on January 19, 2009, the Board called
the applicant to a hearing to allow him to explain why he failed to send the
Board his duly completed personal information form by the prescribed deadline. The
notice to appear made no mention of the applicant’s failure to appear before
the Board on December 2. The hearing was scheduled for January 28, 2009, at 8:30 a.m.
[7]
The
day before this hearing, on January 27, 2009, counsel for the applicant submitted
the duly completed personal information form dated January 16, 2009.
[8]
The
hearing on January 28, 2009, took place as scheduled at 8:30 a.m. and the
applicant was present. However, his counsel was not present. The hearing was
not recorded. The applicant submitted an affidavit, which was not challenged by
the respondent, in which he explains the circumstances that prevented him from
filing his personal information form before the deadline. In particular, he
mentions a) that he was in a crisis situation during the month of December
2008 because he was not receiving social assistance and had nothing to eat and
no money to take the bus to get to his counsel’s office; and b) that his
counsel was on vacation during the period of Christmas 2008 and New Year’s Day
2009 and that he was not able to make an appointment before January. The
applicant also relates in his affidavit that his counsel requested an extension
on January 13, 2009.
[9]
The
applicant also claims that he asked at the hearing that everyone wait for the
arrival of his counsel [translation]
“who was on his way to the hearing” (at paragraph 16 of his affidavit), but the
Board refused. He also states that he told the Board that he wanted to pursue
his refugee claim. Finally, the applicant notes that the hearing was brief.
Relevant
statutory and regulatory provisions
[10]
Subsections
167(1) and 168(1) of the Immigration and Refugee Protection Act (the
Act) provide the following:
|
167.
(1)
Both a person who is the subject of Board proceedings and the Minister may,
at their own expense, be represented by a barrister or solicitor or other
counsel.
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.
|
167.
(1)
L’intéressé peut en tout cas se faire représenter devant la Commission, à ses
frais, par un avocat ou un autre conseil.
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.
|
[11]
Section
58 of the Refugee Protection Division Rules provides the following:
|
58. (1) A claim may be
declared abandoned, without giving the claimant an opportunity to explain why
the claim should not be declared abandoned, if
(a) the Division has not
received the claimant’s contact information and their Personal Information
Form within 28 days after the claimant received the form; and
(b)
the Minister and the claimant’s counsel, if any, do not have the claimant’s
contact information.
(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.
|
58. (1) La Section peut
prononcer le désistement d’une demande d’asile sans donner au demandeur
d’asile la possibilité d’expliquer pourquoi le désistement ne devrait pas
être prononcé si, à la fois :
a) elle n’a reçu ni les
coordonnées, ni le formulaire sur les renseignements personnels du demandeur
d’asile dans les vingt-huit jours suivant la date à laquelle ce dernier a
reçu le formulaire;
b) ni le ministre, ni
le conseil du demandeur d’asile, le cas échéant, ne connaissent ces
coordonnées.
(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.
|
Arguments
raised
[12]
The
applicant is raising three main arguments to which the respondent has replied:
a) the Board allegedly breached his right to counsel, guaranteed by section 10(b)
of the Canadian Charter of Rights and Freedoms, and the principles of
procedural fairness; b) the Board erred in finding that the claim had been
abandoned when the applicant’s manifest intention was to proceed with his
refugee claim; and c) the Board erred in law by not assessing, in the context
of the abandonment hearing, the applicant’s possible fear of persecution if he
were to return to Mexico.
[13]
It
is to be noted that the third argument is clearly erroneous and does not have
any bearing on the issue that was before the Board. Therefore, there is no reason
for examining it. A hearing on an abandonment pursuant to subsection 168(1) of
the Act should not be confused with a pre‑removal risk assessment. Furthermore,
given this Court’s finding on the abandonment issue, there is no basis for
ruling on the alleged breach of the right to counsel.
Analysis
of the abandonment issue
[14]
Before
Dunsmuir, this Court consistently held that the standard of review of reasonableness
simpliciter applied to the judicial review of a decision of the Board declaring
a claim to be abandoned: Ahamad v. Canada (Minister of Citizenship and
Immigration), [2000] 3 F.C. 109, at paragraph 27; Anjun v. Canada (Minister
of Citizenship and Immigration), 2004 FC 496 at paragraph 17; Markadu v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1596 at paragraph
9; Pineda v. Canada (Minister of Citizenship and Immigration),
2006 FC 328 at paragraph 15.
[15]
In
accordance with Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the
standard of review of reasonableness simpliciter is now merged
with the reasonableness standard. Given that in Dunsmuir, at paragraph
62, there is no basis for carrying out an exhaustive review to determine the
proper standard of review when it has already been determined in a satisfactory
manner by the case law, I will therefore proceed with the judicial review of
the Board’s decision declaring the abandonment by applying the reasonableness
standard.
[16]
The
issue in this case is therefore whether the Board reached a reasonable finding
in deciding that the applicant had abandoned his refugee claim. In Ahamad v.
Canada (Minister of Citizenship and Immigration), above, at paragraph 32,
Justice Lemieux said the following:
The decided cases of the Court on a
review of abandonment claim decisions by the CRDD indicate the test or question
to be asked is whether the refugee claimant’s conduct amounts to an expression of
intention by that person, he or she did not wish or had shown no interest to
pursue the refugee claim with diligence; this assessment is to be made in the
context of the obligation of a claimant who breaches one of the elements of
subsection 69.1(6) to provide a reasonable excuse (Perez v. Canada (Solicitor
General) (1994), 93 F.T.R. 256 (F.C.T.D.), Joyal J.; Izauierdo v. Canada
(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1669 (T.D.)
(QL), Rouleau J.; Ressam v. Canada (Minister of Citizenship and Immigration)
(1996), 110 F.T.R. 50 (F.C.T.D.), Pinard J.; Alegria-Ramos v. Canada
(Minister of Citizenship and Immigration) (1999), 164 F.T.R. 150
(F.C.T.D.), Dubé J.).
[17]
In
the case at bar, given the lack of a recording of the hearing before the Board
and the cursory nature of the Board’s decision, which contains practically no
explanation of the reasons for the abandonment decision, it is difficult to
understand what led the Board to declare the abandonment. Under such
circumstances, we must act with caution and avoid attributing reasons to a
decision that does not contain any reasons.
[18]
In
his affidavit, the applicant provides explanations for his delay in submitting
his personal information form.
[19]
Indeed,
the applicant argues that he was in a crisis situation during December 2008 since
he was not receiving social assistance and did not have anything to eat or even
money to take the bus to get to his counsel’s office. The applicant also claims
that he informed the Board during the abandonment hearing that he was
continuing his claim and wished to pursue it. The applicant also submitted his
personal information form, albeit a few weeks late. Furthermore, his counsel had
written to the Board to explain the delay, to request an extension for
submitting the form and to indicate the applicant’s intention of pursuing his
claim.
[20]
In
the absence of reasons why the Board did not accept the applicant’s
explanations, I cannot but conclude that this decision is unreasonable. Indeed,
reasonableness is mostly concerned with the existence of justification,
transparency and intelligibility within the decision‑making process, and
also whether the decision falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir,
above, at paragraph 47).
[21]
The
purpose of a special hearing under subsection 52(2) of the Refugee
Protection Division Rules is to determine, given all of the circumstances
and taking into account all relevant facts, whether the applicant’s behaviour evidences,
in clear terms, a wish or intention not to proceed with his or her claim (Ahamad,
above, at paragraph 37). In light of the applicant’s uncontradicted
evidence and the lack of reasons for not accepting this evidence, the
application for judicial review is allowed, the Board’s decision that the
applicant abandoned his claim is set aside and the applicant’s file is referred
back to the Board to be dealt with in accordance with the Act.
[22]
This
matter does not raise any serious question of general importance and, consequently,
no question will be certified in accordance with paragraph 74(d) of the
Act.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the
application for judicial review be allowed, that the Board’s decision that the
applicant had abandoned his claim be set aside and that the applicant’s file be
referred back to the Board to be dealt with in accordance with the Act.
“Robert M.
Mainville”
Certified
true translation
Susan
Deichert,
Reviser
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