Date: 20081205
Docket: IMM-1633-08
Citation: 2008 FC 1354
Ottawa, Ontario,
December 5, 2008
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
ABDUL
GHANI ABDULLA ALI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board (Appeal Division) dated March 25,
2008, wherein it was determined that the applicant had abandoned his appeal by
reason of his failure to appear at the hearing and provide his contact
information.
FACTS
[2]
The
applicant, a citizen of Yemen who was born in Kuwait on
July 4, 1976, came to Canada in May 2002 as a permanent
resident with a conditional residence visa in the entrepreneur class.
[3]
On April
5, 2005, the Immigration Division of the Immigration and Refugee Board found
that the applicant was inadmissible pursuant to paragraph 41(b) of the Immigration
and Refugee Protection Act (IRPA) because he had not complied with the
conditions for an entrepreneur. The applicant appealed from that decision.
[4]
On August
3, 2006, the applicant obtained a stay of the removal order issued against him
by the Immigration Division of the Immigration and Refugee Board, with
conditions. One of the conditions set by the Appeal Division is explicitly set
out in paragraph 251(a) of the Immigration and Refugee Protection
Regulations:
251. Conditions – If
the Immigration Appeal Division stays a removal order under paragraph 66(b)
of the Act, that Division shall impose the following conditions on the person
against whom the order was made:
(a) to inform the Department
and the Immigration Appeal Division in writing in advance of any change in the
person's address;
[5]
The Appeal
Division was even more explicit when it added the following condition:
10. The appellant will report
any change of address in writing to the CIC and to the Immigration and Refugee
Board, Appeal Division located at 1010, Saint-Antoine Street West, 2nd
floor, Montreal (Quebec) H3C 1B2, within 5 days of making such a change of
address.
[6]
This
decision dated August 3, 2006, provided that an interim review of the stay was
to be scheduled by the Appeal Division on or around August 30, 2007. However,
on September 12, 2007, the applicant received a notice to appear at a hearing
to be held on October 16, 2007,
in order to
review the stay. This notice to appear set out the warning contained in
subsection 168(1) of the IRPA, which provided that an Appeal Division member
may determine that a proceeding has been abandoned if the Appeal 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 Appeal Division
or to communicate with the Appeal Division on being requested to do so.
[7]
At the
hearing of October 16, 2007, counsel for the applicant requested an adjournment
because he wanted to call the Minister’s counsel as a witness.
[8]
On
December 4, 2007, counsel for the applicant was advised that the date of the
hearing had been set for March 4, 2008.
[9]
On
December 19, 2007, the applicant submitted an application to renew his
permanent resident card, which expired on January 21, 2008. This application
was received by the Case Processing Centre in Sydney on December 24, 2007.
[10]
On
December 20, 2007, the date of the hearing before the Appeal Division was again
postponed to March 25, 2007, with the consent of counsel for the applicant.
[11]
On January
28, 2008, the Appeal Division sent the applicant a notice to appear confirming
the date of the hearing previously scheduled for March 25, 2008. The notice
informed the applicant that he was to provide the Appeal Division and the
Minister with a written statement of whether he had complied with the
conditions of the stay in accordance with section 26 of the Immigration
Appeal Division Rules. Like the notice dated September 12, 2007, the notice
to appear also included the following warning based on subsection 168(1) of the
IRPA:
IMPORTANT Under section 168(1) of the Immigration
and Refugee Protection Act, if you fail to appear for a hearing, or fail to
communicate with the IAD when requested, or fail to provide information
required by the IAD (such as your most recent address), the IAD may determine
that you have abandoned the appeal.
[12]
On January
31, 2008, the Case Processing Centre in Sydney advised the applicant that the
application to renew his permanent resident card was incomplete, and required
additional information. However, it was not until the end of February that this
letter was allegedly brought to the attention of counsel for the applicant.
Despite this letter, no notice was sent to the Appeal Division.
[13]
On March
4, 2008, the applicant sought a postponement of the hearing scheduled for March
25 in order to allow enough time for his permanent resident card to be renewed
and so that he could thus attend the hearing. This application was dismissed by
the Appeal Division on March 17, 2008, on the ground that the hearing date had
been set since December 20, 2007, with the consent of counsel for the
applicant. It was therefore decided that the matter would proceed as planned on
March 25, 2008, and that the applicant could be heard by teleconference.
[14]
Counsel
for the applicant was informed of this decision on March 18, 2008. He was also
asked to forward to the Appeal Division the applicant’s telephone number and
calling cards. No application for leave and judicial review of this decision
was filed.
[15]
On March
20, 2008, counsel for the applicant informed the Appeal Division that he had
only the applicant’s e-mail address, and that he had informed his client that
the request for postponement had been denied.
[16]
On March
25, 2008, the applicant did not appear before the Appeal Division, either in
person or by telephone, although his counsel was present. The latter repeated
his request for a postponement, given that the applicant could not be reached
and could not appear in Canada as long as his permanent
resident card had not been renewed. The Minister’s counsel argued that the
applicant’s behaviour warranted a determination of abandonment.
THE IMPUGNED DECISION
[17]
The Appeal
Division determined that the applicant’s appeal was abandoned under subsection
168(1) of the IRPA because of his failure to appear at the hearing and provide
his contact information as required. The Appeal Division noted that it was up
to the applicant to ensure that the documents necessary for his application for
renewal of permanent residence had been submitted in due form, and that, in
addition, it had not been informed of the fact that his file was considered incomplete.
[18]
The Appeal
Division also mentioned that the applicant could have been heard by telephone.
If the applicant had not received the notice to appear, he had only himself to
blame. It was up to him to notify the Appeal Division of any change of address.
Even though he had submitted a request to have the hearing postponed, he could
not presume what the outcome of this request would be, and he was responsible
for finding out what the decision was. For all of these reasons, the Appeal
Division dismissed the new request for postponement made by counsel for the
applicant and determined that the appeal had been abandoned.
ANALYSIS
[19]
The only
issue in this matter is whether the determination by the Appeal Division that
the applicant had abandoned his appeal is reasonable. Only the decision dated
March 25, 2008, is at issue here; the applicant could not indirectly challenge
the decision not to grant the postponement made on March 17, 2008, and he did
not attempt to do so.
[20]
Counsel
for the parties did not make any submissions concerning the appropriate
standard of review. They seemed to take for granted that the decision was to be
reviewed according to the standard of reasonableness, and they were correct to do
so. The decision made by the Appeal Division relies on the application of
subsection 168(1) of the IRPA to the facts in evidence. It is therefore a
question of mixed fact and law. Consequently, this Court will intervene only if
the decision of the Appeal Division does not fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
v. Nouveau-Brunswick, 2008 SCC 9, at para. 49).
[21]
The
respondent was correct to point out that neither the IRPA nor the Immigration
Appeal Division Rules provide that the respondent has the obligation to
hold a show cause hearing when deciding on the advisability of determining
whether a claim has been abandoned, contrary to the situation in the Refugee
Protection Division (see Rule 58 of the Refugee Protection Division Rules).
In that regard, this Court stated the following:
Furthermore, giving the person who fails to appear the opportunity
to explain the reasons for his default in all cases would render subsection
168(1) IRPA meaningless.
(…)
If the applicant's reasoning were followed, it would
imply that each time a person is absent, lacks diligence or acts in such a way
that clearly suggests that the appeal has been abandoned, the IAD would be
bound to investigate to find those persons, to remind them of their obligations
and to summon them to a new hearing before deciding that the proceedings are
abandoned. I cannot accept such an interpretation, especially because in this
case the applicant did not advise the IAD of the change in his contact
information, so that in any event the IAD would not have been able to contact
him to summon him to a new hearing if it had had such an obligation. The IAD
was not bound to act as the applicant's legal counsel, or to remind him of the
seriousness of the proceedings in which he was involved, or to ensure that he
properly understood that he had to show up at his scheduling conference or that
he was bound to advise the IAD of his change of address….
Dubrézil v. Canada (Minister of Citizenship and Immigration), 2006 FC 142, paras. 10, 12;
see also Canada (Minister of Citizenship and Immigration)
v. Ishmael,
2007 FC 212.
[22]
In this
case, the applicant was advised on September 12, 2007, that he should appear
before the Appeal Division on October 16, 2007, for a review of the stay that
was granted to him on August 3, 2006. During that hearing, he sought an initial
adjournment in order to call a witness. This adjournment was granted; it is
interesting to note that this witness was never subsequently called.
[23]
On
December 4, 2007, counsel for the applicant was advised that the date of the
hearing had been set for March 4, 2008; it was subsequently postponed to March
25, with the consent of counsel for the applicant. However, it was not until
December 19 that the applicant initiated proceedings to have his permanent
resident card renewed, three months after the first notice to appear. What is
more, the record shows that his renewal application was incomplete in many
respects. Since the applicant had not informed the Case Processing Centre in Sydney of his new contact
information, it was counsel for the applicant who finally received the letter
requesting additional information at the end of February 2008.
[24]
It is true
that counsel for the applicant submitted a request for postponement on March 4,
2008, when he realized that his client would probably not have his permanent
resident card renewed in time for the hearing set for March 25. However, this
request was submitted late because of the applicant’s negligence. The applicant
could not presume that this request would be granted, and it was up to him to be
diligent in finding out what decision had been made. The applicant gave his
counsel his e-mail address only, and went to China for business reasons. He cannot now blame
the Appeal Division for not having given him the opportunity to be heard.
[25]
The
applicant is now arguing that the determination that he had abandoned his
appeal has caused him irreparable harm. However, he has only himself to blame.
Not only was the hearing scheduled several months in advance, but the Appeal
Division also gave him the opportunity to make submissions through a telephone
call. If he was unable to take this opportunity, it is only because he did not
take the most basic steps to ensure that he could be reached by the Appeal
Division itself or by his counsel.
[26]
Given all
of these circumstances, the Appeal Division was correct to determine that the
applicant had abandoned his appeal. The applicant had every opportunity to be
heard, but he did not take this opportunity because of his own negligence. It
was up to him to be diligent; he cannot now blame the Appeal Division, arguing that
the principles of procedural fairness have been breached. The panel had discharged
its responsibilities, postponing the hearing more than once to accommodate the
applicant, and even gave him the opportunity to make his arguments by
telephone. The situation in which the applicant now finds himself is entirely
his own fault, and he must therefore suffer the consequences.
[27]
For all
these reasons, the application for judicial review of the decision made by the
Immigration Appeal Division dated March 25, 2007, is dismissed. The parties did
not propose any question to be certified, and none was certified.
ORDER
THE COURT ORDERS that the application for judicial
review is dismissed. No question is certified.
“Yves
de Montigny”
Certified
true translation
Susan
Deichert, LLB
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