Date: 20080728
Docket: IMM-245-08
Citation: 2008 FC 915
Ottawa, Ontario, July 28, 2008
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
JORGE
ANDRES DAVILA RUIZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), following an
application to reopen made to the Refugee Protection Division (the panel). On
December 20, 2007, the panel dismissed the application to reopen. In his
initial decision, the panel declared the refugee claim abandoned.
ISSUE
[2]
This
application raises only one issue: did the panel err by refusing to reopen the
decision declaring the refugee claim abandoned?
BACKGROUND
[3]
The
applicant is a Mexican citizen, born on May 19, 1967. He arrived in Canada
on March 27, 2007, and claimed refugee status. On September 13, 2007,
he was advised that a hearing would take place on November 5, 2007.
[4]
A
month and a half later, on October 31, 2007, the panel received a
power of attorney from the applicant’s new counsel (Mr. Centurion), designating
him as counsel to the case. The panel also received an application to join the
applicant’s file with that of his son who, in turn, had just filed a refugee
claim. This application was accompanied by another application to adjourn the
hearing.
[5]
On
November 1, 2007, both applications were dismissed, and the applicant
and his counsel were so advised.
[6]
At
the hearing on November 5, the applicant presented his two applications
again, and the panel dismissed them again. Counsel for the applicant indicated
to the panel that he was not ready to proceed and removed himself from the record.
[7]
The
panel asked the applicant if he was ready to proceed. He replied that he would
be ready to proceed if he had legal representation. At the hearing, the panel declared
the claim abandoned.
[8]
On
November 30, 2007, the applicant, represented by Mr. Centurion, filed
an application with the panel to reopen, alleging a breach of his right to
counsel. No application for judicial review of the abandonment decision was brought.
IMPUGNED DECISION
[9]
The
application to reopen was dismissed. The panel stated that his jurisdiction
over applications to reopen was limited to cases where the applicant claimed
that there had been a breach of the rules of natural justice.
[10]
The
panel stated that he listened to the tapes of the hearing and reviewed
the entire record. He determined that that there was no basis for finding that
the rules of natural justice had been breached, since the applicant had had the
opportunity to seek counsel. It was the solicitor-client relationship that
generated the declaration of abandonment.
RELEVANT LEGISLATION
[11]
Refugee
Protection Division Rules, SOR/2002-228.
|
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.
(2)
The application must be made under rule 44.
(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.
|
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.
|
ANALYSIS
Standard of review
[12]
The
issue is whether there was a breach of natural justice. The Court has no
obligation to show deference in such matters (Diraviam v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1470, at paragraph 30,
[2004] F.C.J. No. 1772).
Did
the panel err by refusing to reopen the decision declaring the refugee claim
abandoned?
[13]
The
applicant submits that the panel made a reviewable error by declaring the claim
abandoned, in violation of the right to counsel. He relies on the statements of
Madam Justice Layden-Stevenson in Ramadani v. Canada (Minister of
Citizenship and Immigration), 2005 FC 211, at paragraphs 10 and 11,
[2005] F.C.J. No. 251:
[10] However, the RPD did not
consider any of the other factors identified by the Federal Court of Appeal in Siloch
v. Canada (Minister of Employment and Immigration) (1993),
151 N.R. 76 (F.C.A.) - whether the applicants had done everything in
their power to be represented by counsel at the hearing; the number of previous
adjournments granted (none in this case); the fault or blame to be placed on
the applicants for not being ready; whether any previous adjournments were
granted on a peremptory basis. The decision not to adjourn affected the
applicants’ ability to be represented by counsel at the show cause hearing. The
consequences of an abandonment decision are not insignificant. It terminates a
claim without consideration of its merits; a conditional removal order becomes
effective; and, a claimant is barred from seeking refugee protection in the
future.
[11] In my view, the RPD must, at a
minimum, indicate that it has had regard to the relevant factors enumerated in Siloch,
supra, before arriving at a negative decision. Its failure to do so
constitutes a reviewable error. I note that my colleagues Madam Justice
Heneghan and Mr. Justice O'Keefe arrived at a similar conclusion in Dias v.
Canada (Minister of Citizenship and Immigration) 2003 FC 84 and Sandy
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1468.
[14]
The
facts in this case are distinguishable from Ramadani. Here, the
applicant and his counsel were advised that the application to adjourn was
dismissed a number of days before the date fixed for the hearing. This is an
excerpt from the transcript of the hearing:
[translation]
Member: Considering the foregoing, you
knew we were going to proceed this morning because the refugee claim, the application
for an adjournment was dismissed. So you knew full well that you might be heard
this morning.
Counsel for the applicant: Yes, yes, sir.
. . .
Member: Then you knew full well that this
morning, your decision for an adjournment, your application for an adjournment had
been denied and that you had to be ready to proceed. Are you ready to proceed
this morning?
Counsel for the applicant: No, sir.
[15]
The
applicant was able to fully exercise his right to be represented by counsel. It
was his responsibility to choose counsel who was available to proceed on the
day of the hearing. Since they were informed that the application for an
adjournment had been refused, the applicant and his counsel must have expected
that the panel would insist on proceeding with the case on the date fixed for
the hearing. I adopt Madam Justice Tremblay-Lamer’s remarks in Gapchenko v.
Canada (Minister of Citizenship and Immigration), 2004 FC 427, at
paragraphs 7, 8 and 15, [2004] F.C.J. No. 518:
[7] The applicants requested a
postponement, but were refused. The Board stated that it was the applicants’
responsibility to ensure that Mr. Popov be present at the hearing. The
applicants did not want to proceed without counsel. As a result, the Board
declared the applicants’ claim abandoned.
[8] The applicants submit that the
Board's decision was manifestly unfair and abusive and was made contrary to the
principles of natural justice because the Board insisted on proceeding without
applicants' counsel even though they wanted to postpone the hearing and proceed
only if he was there to represent them.
. . .
[15] It was the duty of the
applicants, before changing counsel at the last minute, to verify if the new
one was available (Natchev v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 1601 (Q.L.)). The applicants
could not request a postponement because the counsel of their choice was not
available at the date of the hearing (Pierre v.
Minister of Manpower and Immigration, [1978] 2 F.C. 849
(C.A.)). [My emphasis.]
[16]
No
question was submitted for certification, and there is none in the record.
JUDGMENT
THE COURT ORDERS
that the application for judicial review is
dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Mary
Jo Egan, LLB
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