Date: 20090317
Docket: IMM-368-08
Citation: 2009 FC 272
Ottawa, Ontario, March 17, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
ANLA
RHODEEN SAMUELS
Applicant
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Anla Rhodeen Samuels (the “Applicant”) seeks judicial review of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
“Board”), dated January 3, 2008. In that decision, the Board rejected the Applicant’s
application to reopen her claim for refugee protection.
[2]
The
Applicant, a citizen of Jamaica, came to Canada on July 14,
2005. She claimed protection on September 11, 2007, on the basis of persecution
in Jamaica because of
her sexual orientation towards women.
[3]
The
Applicant received her Personal Information Form (“PIF”) on September 11, 2007.
By letter dated September 12, 2007, she was advised that the completed PIF was
due no later than 28 days after she received it.
[4]
The
September 12, 2007 letter also contained the following advice:
Enclosed with this letter you will find a
Notice to Appear for an Abandonment Hearing to be held on October 24,
2007. If the IRB does not receive your completed PIF within the 28 days, you
must appear at this hearing to explain why you did not provide your PIF on
time. If you do not appear at that hearing or if you appear but you cannot give
a valid reason for not providing your PIF on time, the IRB may declare your
claim abandoned. This means that you would lose your right to have your claim
heard by the IRB.
If the IRB receives your completed PIF
within the 28 days, the hearing scheduled for October 24, 2007 will be cancelled
and you will not have to appear on that date.
[5]
The
enclosed notice provided as follows:
If you fail to provide the IRB
with your completed PIF within 28 days, you must appear at a hearing to explain
why you did not provide your PIF on time. If you do not appear at that hearing
or if you appear but can not give a valid reason for not providing your PIF on
time, the IRB may declare your claim to have been abandoned and you may lose
the right to have your claim heard by the IRB. This hearing will take place at
the:
IMMIGRATION AND REFUGEE BOARD
74 Victoria St, Suite 400,
Toronto, Ontario, M5C 3C7
Telephone: 954-1000
Facsimile: 954-1165
on October 24, 2007, Room PABA, at 9:30.
[6]
By
Notice of Abandonment Decision dated November 5, 2007, the Applicant was
informed that her claim had been found to be abandoned. This Notice advised as
follows:
On September 11, 2007 your claim was
referred to the Refugee Protection Division (RPD) of the Immigration and
Refugee Board.
You were provided with your Personal
Information Form (PIF) on September 11, 2007. You failed to provide the RPD
with your completed PIF on time.
By Notice dated September 12, 2007, the
RPD advised you that a hearing would take place on October 24, 2007, to give
you an opportunity to explain why the RPD should not determine that your claim
has been abandoned. Neither you nor a representative appeared at that hearing.
[7]
On
December 14, 2007, the Applicant submitted an application to reopen her claim.
She filed an affidavit in support of that application. In that affidavit, she
deposed that she mailed her completed PIF to the Board on October 5, 2007 and
that the PIF was due on October 9, 2007. She deposed that she did not
personally receive any correspondence or telephone contact from the Board until
she received the Abandonment Decision.
[8]
The
Applicant further deposed that she did not change her address from the time
that she made her refugee claim. She said that she believes there was a breach
of natural justice since she “did not get an opportunity to have a hearing of
my claim and my show cause or abandonment hearing”.
I did not receive any notice to appear
for a hearing nor did I receive any notice to appear for an abandonment hearing
from the Immigration and Refugee Board. I only received the decision that my
case was declared abandoned.
…
I believe that there was a breach of the
principles of natural justice in the fact that I did not get an opportunity to
have a hearing of my claim and my show cause or abandonment hearing.
[9]
The
Board did not give reasons for its decision of January 3, 2008 when the
reopening application was dismissed.
[10]
The
Applicant filed an affidavit in support of this application for judicial
review. The Minister of Citizenship and Immigration (the “Respondent”) also
filed affidavits, that is the affidavits of Josephine Mayanja and of Angela
Marinos.
[11]
In
her affidavit, the Applicant stated the basis for her claim for refugee
protection in Canada. She
repeated that she had mailed her PIF on October 5, 2007, “unaware that I could
have submitted it by hand delivery”. At paragraph 16 of this affidavit, she
deposed as follows:
After filing my PIF, I had no written or
verbal correspondence with the Immigration and Refugee Board, until early
November 2007, when I received a letter stating that my claim had been declared
abandoned because I did not provide my PIF on time and that a notice dated
September 12, 2007, had been sent to me advising me of a hearing on October 24th,
2007. However, I never received such a notice. Such a notice if dated September
12, 2007, as stated on the abandonment decision, would have been sent out one
day after I received by PIF that was due 27 days later. I therefore could not
attend an abandonment hearing that I had no knowledge of.
[12]
Ms.
Mayanja is a Case Officer with the Board and was responsible for the
Applicant’s file. She deposed that she spoke with the Applicant by telephone on
October 17, 2007, to remind her of the preliminary abandonment hearing that was
scheduled for October 24, 2007. She further deposed that she made notes about
this telephone call and that she recorded that the Applicant’s PIF was both
late and incomplete.
[13]
Ms.
Marinos, a solicitor employed with the Department of Justice, Immigration
Division, deposed that she had knowledge of the documents from the Board’s file
concerning the Applicant’s refugee claim. Copies of various documents,
including the notes regarding the telephone call by Ms. Mayanja on October 17,
2007, were attached as exhibits to her affidavit.
[14]
The
test to be applied by the Board upon an application to reopen a refugee claim
that has been declared abandoned is set out in the Refugee Protection
Division Rules, SOR/2002-228 (the “Rules”) at Rule 55(4) as follows:
|
(4) The Division must allow the
application if it is established that there was a failure to observe a
principle of natural justice.
|
(4) La Section accueille la demande sur
preuve du manquement à un principe de justice naturelle.
|
[15]
The
test is whether a breach of natural justice has occurred relative to the
abandonment proceedings before the Board.
[16]
Rule
58 deals with abandonment of a claim, as follows:
|
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.
Opportunity to explain
(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.
Factors to consider
(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.
Decision 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.
Possibilité de
s’expliquer
(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.
Éléments à
considérer
(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.
Poursuite de
l’affaire
(4) Si la Section décide de ne pas
prononcer le désistement, elle commence ou poursuit l’affaire sans délai.
|
[17]
The
crux of the Applicant’s argument here is that she did not receive notice of the
abandonment hearing that proceeded on October 24, 2007. She argued that the
letter of September 12, 2007 and the enclosed Notice to Appear cannot be regarded
as proper notice since the purported notice was sent only one day after she had
received her PIF. As of September 12, the PIF was not late and when she mailed
it on October 5, 2007, she had no way of knowing that it was not received by the
Board before the deadline, that is October 9, 2007.
[18]
Rule
22 provides that the Board must give written notice of a hearing to a party to
proceedings before the Board, as follows:
|
22.The
Division must notify a party in writing of the date, time and location of a
proceeding.
|
22.La Section avise les parties par
écrit des date, heure et lieu d’une procédure.
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[19]
Rule
35(2) addresses the delivery of documents by the Board, as follows:
|
(2) A document provided by regular mail
to a party is considered to be received seven days after the day it was
mailed. If the seventh day is a Saturday, Sunday or other statutory holiday,
the document is considered to be received on the next working day.
|
(2) Tout document envoyé par courrier
ordinaire à une partie est considéré comme ayant été reçu sept jours après sa
mise à la poste. Si le septième jour est un samedi, un dimanche ou un autre
jour férié, le document est alors considéré comme ayant été reçu le premier
jour ouvrable suivant.
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[20]
Does
the notice that was provided under cover of the letter of September 12, 2007
meet the requirements of the Rules as to notice of the hearing scheduled for
October 24, 2007?
[21]
According
to the decision in Canada (Ministre de la Citoyenneté & de
l’Immmigration) c. Deffo, CF 1589, Rule 22 imposes a non-discretionary
duty upon the Board to provide written notice of a proceeding.
[22]
In
my opinion, the Board complied with the notice requirement when it sent out the
notice on September 12, 2007, about the abandonment hearing that was scheduled
for October 24, 2007. It is clear from the notice that the hearing was
conditional, that is if the completed PIF was received within 28 days after
receipt by the Applicant, then the hearing would be cancelled.
[23]
The
Applicant’s PIF was not received by its due date. The Applicant was aware, or
should have been, that failure to submit the completed PIF on time could lead
to an abandonment hearing. The letter of September 12, 2007 provided that
notice. According to Rule 35(2), that notice is deemed to have been received by
a party, once it has been mailed by regular mail. There is nothing in the
Tribunal Record to show that the document was returned to the Board or that the
Applicant notified the Board of any change in her mailing address.
[24]
In
these circumstances, the telephone call of October 17, 2007 by Ms. Mayanja is a
neutral factor. Rule 22 addresses written notice, not notice by way of a
telephone call.
[25]
In
the result, I see no basis for judicial intervention. The decision of the Board
dismissing the Applicant’s reopening application meets the applicable standard
of review, that is the standard of reasonableness, pursuant to the decision in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190. This application for judicial review will be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed, no question for certification
arising.
“E.
Heneghan”
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