Date: 20081027
Docket: IMM-5445-07
Citation: 2008 FC 1207
Ottawa, Ontario, October 27, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ALFONSO ESCORCIA TREJO
AND
ASSOCIATED CLAIMS
(TA7-10402-5)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Alfonso
Escorcia Trejo and his family apply for judicial review of a Refugee Protection
Division (the “Board”) decision dismissing their application to have their
refugee application reopened after the Board decided they had abandoned their
claim for refugee status.
[2]
Did
the Board make a reviewable error when it refused to re-open the Trejo’s
application for refugee status?
[3]
I
have decided that the Board had committed a breach of natural justice when it
decided that the Trejo’s refugee application had been abandoned and made a
reviewable error in refusing to reopen the Trejo application for refugee
status.
BACKGROUND
[4]
Mr.
Trejo, his wife and two children arrived in Canada from Mexico on October 9, 2007 and made a
claim for refugee status that same day. They were detained until October 12,
2007 when they were given documents by the Canada Immigration Centre officials
including Personal Information Forms (PIFs) that were to be completed and then
they were released.
[5]
The
same day they were released, they went to the FCJ Refugee Centre (FCJ) where
they were assisted by a caseworker. The caseworker gave them Spanish language
PIFs to complete. The Trejos completed the Spanish PIFs and returned them to the
FCJ on October 14, 2007. The caseworker undertook to have their PIFs translated
into English language forms.
[6]
Mr.
Trejo returned to the FCJ on October 19, 2007 to meet with a lawyer, Mr. Warkwa
Wanyioke, but the lawyer could not take up the case because the Trejos did not yet
have approval for legal aid assistance. The FCJ representative promised to complete
and file the PIFs while the Trejos awaited approval from Legal Aid. Mr. Trejo
called FCJ several times and was reassured the PIFs would be sent to the Board.
[7]
On
November
2, 2007
Mr. Trejo received a letter from the Board. He does not understand English so
he took the letter to FCJ to have it translated. The FCJ staff informed him
that the letter was to remind him of the 28 day deadline limit to file the
PIFs. Mr. Trejo states that the FCJ employee did not tell him the Board letter
also required him to attend an abandonment hearing scheduled for November 21,
2007 should the PIFs not be filed in time. The FCJ staff did reassure Mr.
Trejo that the FCJ would file their PIFs in time.
[8]
The
lawyer, Mr. Wanyioke, requested Mr. Trejo provide him with copies of the PIFs
so he could prepare an opinion letter for Legal Aid Ontario. Mr. Trejo
called the FCJ but could not contact the assigned caseworker. He went to FCJ
in person on November 19, 2007 to obtain English copies of the Trejo family’s PIFs.
It was at that time that Mr. Trejo learned that the PIFs had not been filed.
[9]
That
same day, November 19, 2007, FCJ gave Mr. Trejo the English language PIFS to
file as well as a letter from the FCJ to the Board advising the failure to file
the PIFs was due to an FCJ error and requesting an extension of time.
[10]
The
following day, November 20, 2007, Mr. Trejo filed the English language PIFs and
the FCJ letter requesting an extension of time with the Board. He remained
unaware of the November 21, 2007 abandonment hearing date.
[11]
On
November 21, 2007, no one having appeared, the Board decided that the Trejos
had abandoned their refugee claim. A letter was sent to Mr. Trejo advising him
of the abandonment decision on November 26, 2007.
[12]
The
lawyer, Mr. Wanyioke, who had not yet been retained, assisted the Trejos file
an application to reopen their claim for refugee status. Accompanying their
application was Mr. Trejo’s affidavit chronicling the above events and
attesting that the FCJ employee did not interpret the Board notice to appear at
the November 21, 2007 abandonment hearing.
DECISION UNDER REVIEW
[13]
On
January
18, 2008
the Board denied the Trejo’s application to reopen their refugee claim. The
Trejos’ lawyer requested reasons and received as a response:
“As there was no statutory requirement,
no formal reasons were given for the decision; however, the following
endorsement was on file.
Claimants were properly served with
Notice to Appear for November 21, 2007. Claimants also had the benefit of an
interpreter. No breach of Natural Justice.”
STANDARD OF
REVIEW
[14]
The
Trejos’ application to re-open their claim for refugee status was made pursuant
to s.55 of the Refugee Protection Division Rules, SOR/2002–228,
subsection 55(4) provides:
55(4) The Division must allow the application if it is established that
there was a failure to observe a principle of natural justice.
If a principle of natural justice was
breached in the dismissal of the Trejos’ application for refugee status the
Branch must grant the application to reopen their refugee claim.
[15]
In
Ding v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 454 at para. 6, Justice Campbell observed that if the only
jurisdiction open to the IRB to reopen is to consider whether a breach of
nature of justice occurred, it follows “that to fail to recognize a breach of
natural justice when it exists constitute reviewable error.”
ANALYSIS
[16]
The
Respondent acknowledges that a breach of natural justice is the one basis upon
which the Board may reopen an application but submits that a breach of natural
justice will only be found in exceptional cases.
[17]
The
Respondent also submits that an application to reopen is an interlocutory
matter for which only minimal reasons are required. Even though minimal
reasons were offered, the Board is presumed to have considered all of the
evidence.
[18]
Finally,
to support its submission that the application to reconsider is merely an
interlocutory matter, the Respondent notes that the Trejos are not at the end
of the refugee process in that they may still pursue an application for
permanent residence status on humanitarian and compassionate grounds or may
request a pre-risk removal assessment before removal.
[19]
The
Respondent relies on the decisions of Justice Mosley in Ali v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1153 and Justice Layden-Stevenson
in Lin v. Canada (Minister of Citizenship and Immigration), 2005 FC 512.
[20]
In
Ali, the applicant did not file his PIF because of delays in securing a
lawyer through legal aid. He attended the Abandonment hearing with legal
counsel, submitting his PIF and offering his explanation for the delay. The Board
was not satisfied that Mr. Ali’s explanation demonstrated a clear intention to
pursue his refugee claim. Mr. Ali did not apply for judicial review. Instead
he applied to reopen his claim. Justice Mosley concluded that, since Mr. Ali
had notice of the abandonment hearing, attended the hearing with counsel, and
had the opportunity to provide his explanation for not filing his PIF on time,
he did not demonstrate the existence of a breach of natural justice.
[21]
In
Lin, Madam Justice Layden-Stevenson also considered a challenge to a
Board refusal to reopen a refugee claim. In this case, Mr. Lin had relocated
from Vancouver to Toronto. He was
given an extension to file his PIF but was advised the PIF was not received by
May 20, 2002 a notice to appear for abandonment would be issued. Mr. Lin’s PIF
was not filed on time due to a delay in the delivery of the Port of Entry
Notes to his lawyer. The Board issued a notice to appear for an abandonment
hearing on June 6. Mr. Lin submitted his PIF on June 18. The abandonment
hearing was held on July 2, 2002 with Mr. Lin and counsel in attendance by
teleconference. Mr. Lin chose not to testify at the abandonment hearing. The Board
decided he had not sufficiently demonstrated an intention to pursue his refugee
claim and deemed his claim had been abandoned. Mr. Lin sought leave of the
Court for judicial review of the Board’s abandonment decision which was denied.
He applied to reopen his refugee claim which the Board denied. He then applied
to the Court for a review of the refusal to reopen. Madam Justice
Layden-Stevenson considered Mr. Lin’s application as a collateral attack on the
Board’s abandonment decision and the Court’s denial to grant leave for a
judicial review of that decision. She considered the Board’s refusal reasons,
brief as they were, to be adequate and dismissed Mr. Lin’s challenge.
[22]
I
do not disagree with these cases but I find they are factually different from
the Trejos’ circumstances. In both Ali and Lin, the applicants
had the opportunity to attend the abandonment hearing with counsel. In this
case, the Trejo family did not attend the abandonment hearing nor did they have
the assistance of counsel.
[23]
I
note that the Notice of an Abandonment Hearing was given provisionally, prior
to the deadline for the Trejos to file their PIFs. The Board’s reminder to
file a PIF before the deadline is for the Trejos’ benefit; however, the
practice of sending a provisional Notice of Abandonment in the same letter,
while no doubt a convenience for the Board, increases the complexity of the
reminder letter and the opportunity for error.
[24]
The
FCJ is a non-profit organization which provides assistance to refugee
claimants. It is not a governmental agency and its interpreters are not
government interpreters. In that respect, one cannot assume that
interpretation by FCJ interpreters will be maintained at a consistent level of
competency. The accuracy or completeness of non-official interpreters is a
matter of evidence. The only evidence in the Record is Mr. Trejo’s affidavit
stating that he was not told of the abandonment hearing date. Given his
affidavit evidence was not challenged, the evidence is that Mr. Trejo was not
aware of the abandonment hearing date set for November 21, 2007. The fact that
he physically attended to file the PIFs and deliver the FCJ letter the day
before, on November 20, 2007, confirms that he was doing what he could to advance
his refugee claim. Mr. Trejo’s evidence establishing that an error, a failure
in the process of giving notice of the abandonment hearing, did occur.
[25]
The
Respondent also submitted that arguments of incompetent counsel are only relevant
at the abandonment hearing or judicial review of that hearing and not
thereafter at an application to reopen.
[26]
The
Board would have had at its abandonment hearing the FCJ letter taking full
responsibility for the late filing of the Trejos’ PIFs. That FCJ letter also placed
a request for an extension of time for filing the PIFs before the Board. The
FCJ letter states:
“… We are helping the above-mentioned
Refugee Claimaints; Mr. Escorica came to Canada from Mexico. Mr. Escorica received the Personal
Information Form on October 11, 2007. Mr. Escorica came to us for help
regarding his refugee claim. Due to a technical error we lost all of Mr.
Escorica’s information including his PIF and other personal information.
Therefore we had not realized that his PIF was overdue until the deadline had
passed. I assume full responsibility for the tardiness of his PIF,
as Mr. Escorica made all attempts possible to try to have his PIF at the IRB in
time. Please accept this request of an extension at this time…”
(underlining added)
[27]
The
Board, in its abandonment decision reasons, only referred to the non-attendance
of the Trejos or any representative. It did not consider the FCJ’s
acknowledgement of responsibility for the late filing nor did it consider the
request for an extension of time.
[28]
The
error by the FCJ is not the sort of error that should be attributed to the
Trejo family. It is the type of error that must be considered by the Board
because it indicates that the late filing of the PIFs has gone amiss through no
fault of the Trejos.
[29]
The
short answer is that, unlike Mr. Ali or Mr. Lin, Mr. Trejo has not been heard.
He had an explanation to offer and it should have been considered. The Board
was bound to consider the FCJ letter.
[30]
I
find a breach of natural justice occurred when the Board failed to have regard
to the FCJ letter which was before it.
[31]
Finding
as I have there was a breach of natural justice; I conclude the Board committed
a reviewable error in deciding there was no breach of natural justice in
refusing to reopen the Trejo application for refugee status.
[32]
The
refusal to reopen is set aside and the Trejo application is referred to the Board
for reconsideration.
[33]
In
Ding at para 11, Justice Campbell set aside a Board
refusal to reopen and directed the options were to rehear the issue of
abandonment or proceed with the refugee claim. I direct that the options available
on reconsideration in conformity with these reasons are either to rehear the
issue of abandonment or to reopen the Trejo’s refugee claim.
ORDER
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
decision of the Board is set aside;
2.
The
matter is referred to the Board for reconsideration either to rehear the issue
of abandonment or to reopen the refugee claim.
“Leonard
S. Mandamin”
Email this Content