Docket:
IMM-3811-11
Citation:
2011 FC 1479
Toronto, Ontario,
December 15, 2011
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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NIZAMETTIN KARAGOZ
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Applicant
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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]
This
decision arises from an application for judicial review of a May 11, 2011
decision by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (the Board) which refused to reopen the applicant’s claim for
refugee protection. For the reasons that follow, the application is allowed.
[2]
Mr.
Karagoz, the applicant, is originally from Turkey. His claim for refugee
protection, made on January 7, 2009, was based on his political activities and
his status as an Alevi Kurd in Turkey. On December 8, 2010 the Board found that
the applicant had abandoned his claim by failing to attend his refugee claim
hearings. On April 26, 2011, the applicant filed a motion with the Board to
have his claim reopened. The Board refused his motion on May 11, 2011.
[3]
The
applicant contends that it is was not his intention to abandon his refugee
claim, but he erred by sending his change of address form to the Canada Border
Service Agency and not to the Board. When notices of the upcoming hearings were
sent out to the applicant, they did not reach him at his new address. As he did
not receive the notices regarding the hearings, he did not appear; because he
did not appear, the Board determined that he had abandoned his refugee claim.
The applicant argues that the Board acted in a capricious manner by refusing to
reopen his claim.
[4]
Section
18.1(4)(d) of the Federal Courts Act provides this Court the
jurisdiction to grant relief if the Court determines that a federal board,
commission or other tribunal:
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(d) based its decision or order
on an erroneous finding of fact that it made in a perverse or capricious
manner or without regard for the material before it…
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d) a rendu une décision
ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon
abusive ou arbitraire ou sans tenir compte des éléments dont il dispose…
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[5]
Section
55 of the Refugee Protection Division Rules (SOR/2002-228) (Rules)
provides the conditions under which a refugee claim may be re-opened:
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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.
Factor
(4) The Division must allow the
application if it is established that there was a failure to observe a
principle of natural justice.
[Emphasis added]
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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.
Forme de la demande
(2) La demande est
faite selon la règle 44.
Contenu de la demande
faite par le demandeur d’asile
(3) Si la demande est
faite par le demandeur d’asile, celui-ci y indique ses coordonnées et en
transmet une copie au ministre.
Élément à considérer
(4) La Section
accueille la demande sur preuve du manquement à un principe de justice
naturelle.
[Nous soulignons]
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[6]
The
jurisdiction of the Board to re-open is narrowly prescribed. In Nazifpour v Canada (Minister of Citizenship & Immigration), 2007 FCA 35 at para 82, the Court
of Appeal observed:
The
Federal Court has rejected the argument that, while Rule 55 expressly obliges
the Division to reopen for breach of natural justice, since this is not stated
to be the only ground for reopening, it does not preclude the Division from
reopening decisions on other grounds, including the existence of new evidence.
The Court has held that Rule 55 does not expand the jurisdiction to reopen
refugee and protection determinations. The Division may reopen only for breach
of a principle of natural justice…
[7]
None
of the critical facts are in issue. The record before the Board demonstrated a
continuing and bona fide intention to appeal. The applicant notified what he
thought was the Board of a change of address as required and followed up four
months later, re-communicating his change of address, when he had not heard of
a hearing date.
There is no suggestion that he sought to avoid or delay the
refugee determination process. He communicated his change of address openly to
Revenue Canada, the Ontario Ministry of Transportation, his bank, and Toronto
Social Services. His sole mistake was that he faxed his change of address to
CBSA and not the Board. He moved immediately to re-open his case when CBSA
contacted him for removal purposes.
[8]
In
Matondo v Canada (Minister of Citizenship and Immigration), 2005 FC 416,
Justice Sean Harrington stated that “[t]o be ‘capricious’ is to be so irregular
as to appear to be ungoverned by law.” I find, given the uncontroverted record
before it, the decision of the Board falls within the scope of s. 18.1(4) (d),
particularly given the absence of reasons as to how it reached the conclusion
that the claimant had abandoned his claim.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is allowed.
The matter is remitted to the Board for re-consideration in accordance with
these reasons. There is no question for certification.
"Donald J.
Rennie"
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