Docket: IMM-6957-10
Citation: 2011 FC 924
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 22, 2011
PRESENT: The Honourable Mr. Justice
Harrington
BETWEEN:
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ISRAEL MENDOZA GARCIA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Mr. Mendoza
Garcia, who has claimed refugee protection in Canada, is a Mexican citizen. It
should be noted that the merit of the claim was not before me in the present
matter. Since he failed to appear at his hearing, the panel determined his
refugee protection claim to have been abandoned on February 6, 2009. Mr. Mendoza
Garcia subsequently asked that his refugee protection claim be reopened, on the
grounds that he had not received the notice to appear at the hearing. On
September 30, 2010, the member responsible for the case dismissed the
application to reopen the claim, hence this judicial review.
[2]
For the reasons set out
below, this application for judicial review will be dismissed.
[3]
Mr. Mendoza Garcia
arrived in Canada on June 27, 2007, and made a claim for refugee
protection upon arrival. Shortly afterwards, he submitted a change-of-address
form, on which he indicated that he was now living on Sherbrooke Street West in
Montréal. In March 2008, he moved from Sherbrooke Street West to Marquette
Street, which is also in Montréal. He alleges that he reported his change of address
to the Immigration and Refugee Board of Canada (IRB) in late March 2008 when he
visited the Montréal office, and claims that the employee at the Registry had
difficulty finding his file at the time.
[4]
On July 30, 2008,
the IRB sent a letter to Mr. Mendoza Garcia telling him that it
[translation]
. . .
had to assign a new file number to your claim for refugee protection. This
change affects neither your refugee protection claim nor the contents of your
file. Please refer to your new RPD file number in any written communications
with the IRB.
The letter was sent to him at Sherbrooke Street West, with a copy for his
counsel at the time, Claude Brodeur. It is not known how Mr. Mendoza
Garcia managed to obtain the letter, but, in any event, there is nothing in the
file to suggest that he returned to the IRB to remind it that he had submitted
a change-of-address form four months earlier. The applicant admits however that
he read the letter even though he now lives on Marquette Street.
[5]
On December 12,
2008, the IRB sent Mr. Mendoza Garcia a notice to appear, informing him
that his claim would be heard on January 21, 2009. This notice was sent to
him at the Sherbrooke Street West address, with a copy to Mr. Brodeur.
[6]
On January 15,
2009, Mr. Brodeur informed the IRB by fax that, despite several attempts,
he was unable to contact his client, writing as follows:
[translation]
I was appointed
to represent the aforementioned person before the RPD. The hearing of his claim
is scheduled for January 21, 2009. My numerous attempts to contact him
have been in vain. I sent a letter asking him to contact me, but the letter was
returned to me.
I will be unable
to represent him properly at the hearing on January 21. I ask the Board to
allow me to be removed from the case.
[7]
As a result,
Mr. Brodeur was relieved of his duties.
[8]
On January 22,
2009, the IRB sent a new notice to appear to Mr. Mendoza Garcia, notifying
him that his hearing was scheduled for February 6, 2009. Again, the IRB
sent the notice to Sherbrooke Street West, with a copy to Mr. Brodeur. The
applicant did not attend the hearing.
[9]
On February 12,
2009, the member declared the claim for refugee protection to be abandoned.
[10]
On September 10,
2009, the applicant contacted Mr. Brodeur to enquire about the status of
his file. Assessing the importance of the situation, he decided to retain new
counsel, who applied for the applicant’s refugee protection claim to be
reopened. Rule 55 of the Refugee Protection Division Rules is the
relevant rule. Subsection 4 reads as follows:
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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.
Form of application
(2) The application must be made under rule 44.
Claimant’s application
(3) A claimant who makes an application must include
the claimant’s contact information in the application and provide a copy of
the application to the Minister.
(4) The Division must allow
the application if it is established that there was a failure to observe a
principle of natural justice.
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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.
(2) La demande est faite selon
la règle 44.
(3) Si la demande est faite
par le demandeur d’asile, celui-ci y indique ses coordonnées et en transmet
une copie au ministre.
(4) La Section accueille la
demande sur preuve du manquement à un principe de justice naturelle.
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[11]
The decision presently
under review dismissed the application to reopen the applicant’s refugee
protection claim on several grounds, namely that the applicant stated that he
had received “ the IRB letter dated July 30, 2008 . . . but
that he did not receive the notices to appear that followed and were sent to
the same place” (Sherbrooke Street West), that “the applicant did not submit a
copy of his change-of-address form” and that he allegedly waited 19 months
“before telephoning [Mr. Brodeur] to inquire about
the status of his file”.
[12]
The member found that
the principles of natural justice had not been breached and that the applicant
was solely responsible for the outcome of this affair. She also found that [translation] “the applicant neglected to notify the IRB
of his change of address”.
[13]
At the hearing before
this Court, counsel for the applicant submitted that it was possible for the
change-of-address form to have ended up in the second file. However, the IRB’s
letter clearly states that all that had changed was the file number. The IRB
did not create a second file.
[14]
While it is true that
natural justice requires that every person is given the opportunity to make his
or her case, especially when a person fears for his or her life, it is
nonetheless important for applicants to pay particular attention to their
personal affairs. It was entirely reasonable for the member to determine that
the applicant had not informed the IRB of his change of address: this
conclusion is further reinforced by the fact that the applicant’s counsel at
the time asked to be removed from the applicant’s file because he was unable to
reach or contact his client, Mr. Mendoza Garcia. Matondo v Canada
(Minister of Citizenship and Immigration), 2005 FC 416, provides a good
example of the steps applicants must take to keep abreast of the progress of their
applications.
[15]
It is important to keep
in mind that Mr. Mendoza Garcia is the author of his own misfortune, and
that despite the outcome of this application for judicial review, he is still
entitled to a pre-removal risk assessment.
ORDER
FOR THE REASONS GIVEN;
THE COURT ORDERS that the application for judicial review be
dismissed. There is no serious question of general importance to certify.
“Sean Harrington”
Certified true
translation
Johanna Kratz
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