Date: 20081008
Docket: IMM-1011-08
Citation: 2008 FC 1141
Ottawa, Ontario, October 8, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
SELVIJE KASTRATI, VANESSA
KASTRATI, AIDA KASTRATI
and ARDIANA KASTRATI
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision on the
Refugee Protection Division (RPD), dated February 20, 2008 wherein the Panel
member determined that the Applicants’ claim had been abandoned.
BACKGROUND
[2]
The
Applicants are a mother and her three daughters ranging in age from seven to
eleven years of age. They are ethnic Albanian citizens of Serbia. They came
to Canada on July 25,
2007 on a visitor’s visa and made a claim for refugee protection in December
21, 2007.
[3]
The
Immigration officer provided them with Personal Information Forms (PIF), and
informed them that the forms were to be filed within 28 days (i.e. January 18,
2008). The Applicants do not speak or understand English. They were assisted
by a nephew living in Canada, who acted as their translator. He was,
however, in Vancouver until
January 10, 2008.
[4]
When
the Applicant’s nephew returned, they tried to retain counsel but were only
successful on their third attempt. They were able to retain Mr. Robert Young
who received them on January 22, 2008. He then wrote a letter to the IRB on
January 25, 2008 seeking an extension of time to file the Applicants’ PIF. No
reply was made.
[5]
The
IRB scheduled two abandonment hearings; one was cancelled because there was no
translator. The Board proceeded on February 20, 2008, but the Applicants’
counsel was not present.
[6]
The
Applicants’ explained that the delay to produce their PIF was due to the delay
in finding and meeting their counsel. She explained that she was on welfare
but felt she needed legal counsel.
[7]
Their
PIF were filed on February 13, 2008 (due on January 18, 2008). During the
February 20, 2008 abandonment hearing, the RPD member acknowledged the
Applicants’ told him they intended to pursue their refugee claim.
The
Decision
[8]
The
RPD Panel member found the delay and the difficulties in obtaining counsel was
a reasonable explanation as to why the PIF were not filed before February 13,
2008. They could have completed their PIF themselves. He decided that
counsel’s letter of January 25, 2008 for extension of time was made after the
28 days required and because there were no exceptional circumstances envisaged the
requirement of Guideline 5 was not met, the extension could not be granted. He
then concluded that the claims were abandoned because the PIF had not been
filed on time.
ISSUE
1. Did the Panel
err in finding Applicant’s refugee claim to be abandoned?
ANALYSIS
Relevant
Statutory Provisions
|
58. (1) A claim may be declared abandoned, without giving
the claimant an opportunity to explain why the claim should not be declared
abandoned, if
(a) the Division has not
received the claimant's contact information and their Personal Information
Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if
any, do not have the claimant's contact information.
(2) In every other case, the Division must give the
claimant an opportunity to explain why the claim should not be declared
abandoned. The Division must give this opportunity
(a) immediately, if the
claimant is present at the hearing and the Division considers that it is fair
to do so; or
(b) in any other case, by
way of a special hearing after notifying the claimant in writing.
(3) The Division must consider, in deciding if the claim
should be declared abandoned, the explanations given by the claimant at the
hearing and any other relevant information, including the fact that the
claimant is ready to start or continue the proceedings.
(4) If the Division decides not to declare the claim
abandoned, it must start or continue the proceedings without delay.
|
58. (1) La
Section peut prononcer le désistement d'une demande d'asile sans donner au
demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne
devrait pas être prononcé si, à la fois :
a) elle n'a reçu ni les coordonnées, ni le
formulaire sur les renseignements personnels du demandeur d'asile dans les
vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire;
b) ni le ministre, ni le conseil du demandeur
d'asile, le cas échéant, ne connaissent ces coordonnées.
(2) Dans tout autre cas, la Section donne au demandeur d'asile la
possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé.
Elle lui donne cette possibilité :
a) sur-le-champ, dans le cas où il est présent
à l'audience et où la Section juge qu'il est équitable de le faire;
b) dans le cas contraire, au cours d'une
audience spéciale dont la Section l'a avisé par écrit.
(3) Pour décider si elle prononce le désistement, la Section prend en
considération les explications données par le demandeur d'asile à l'audience
et tout autre élément pertinent, notamment le fait que le demandeur d'asile
est prêt à commencer ou à poursuivre l'affaire.
(4) Si la Section décide de ne pas prononcer le désistement, elle
commence ou poursuit l'affaire sans délai.
|
Standard of Review
[9]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 1 S.C.R. 190, determined that there are now only two standards of review:
correctness and reasonableness (para. 34).
[10]
The
standard of correctness applies to questions of law, of natural justice, or of procedural
fairness while the standard of reasonableness applies to questions of fact or
mixed facts and law.
[11]
The
determination of the Applicant’s standard of review requires a two-step
process. First, the Court must consider the jurisprudence to decide whether an
appropriate standard of review is already instituted. If not, then the Court
should undertake an analysis of the four factors required for a standard of
review analysis (Dunsmuir, above, para. 62).
[12]
Since
Dunsmuir, the jurisprudence has established that the appropriate
standard of review of facts, credibility and plausibility assessments, is that
of reasonableness (Saleem
v. Canada (Minister of Citizenship and
Immigration), 2008 FC 389, 166 A.C.W.S. (3d) 321; Malveda
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
447, 166 A.C.W.S. (3d) 337). In the present case, involves a determination
of credibility and interpretation of facts, therefore the applicable standard
of review, is reasonableness.
The
issue of abandonment
[13]
The
Applicants submits that subsection 58(3) of the RPD rules, require the Board to
consider whether the claimant is ready to proceed before determining that the
claim has been abandoned. This implies that the PIF has been filed within the
required 28 days.
[14]
In
the present case, the PIF was filed nearly one month later. The Board member considered
the reasons given to justify the delay (i.e. the time required to obtain legal
counsel), and found it to be unreasonable. He did not consider the language
barrier the Applicants allege they experienced and the lack of funds or
difficulty to find legal counsel.
[15]
The
Applicants’ alleged that the Board member applied a mechanical usage of the
rules and rejected the explanations for the delay because they did not
constitute “exceptional circumstances”.
[16]
In
the Applicants’ opinion, this decision is unreasonable and the Member failed to
apply the rule set out in subsection 58(3) of the RPD rules.
[17]
The
Respondent pleads that the Member rendered a correct decision because the Applicants’
had not provided sufficient persuasive evidence that they had diligently
pursued the claim, and failed to file the PIF within the 28 days limit.
[18]
The
Respondent also adds a practical argument in that if the claimant was allowed
to file her claim outside the time limit without a valid excuse, there would be
chaos and delays in a system which is already overloaded.
[19]
The
Applicants’ answer that the system was already backed-up and a delay of less
than one month would not greatly alter the system.
[20]
RPD
rule 58 requires that the PIF must be received within 28 days after the claim
form is filed. Subsection 2 & 3 of rule 58, however, stipulates that in
case of lateness, the board must give the claimants the opportunity to explain
why it should not be declared abandoned and to state if the claimant is ready
to start or to continue the proceedings.
[21]
In
the present case, the Applicants’ declared at their hearing they wished to
continue the claims.
[22]
The
Applicants’ explained to the Board their reasons for the delay in filing their
PIFs; they relied on a nephew to translate for them and he was away in Vancouver until
January 10, 2008. They claimed to lack funds as they are on social
assistance. They wanted to be represented by counsel but were refused by two and
it was only on January 20, 2007 that they could retain the services of Mr.
Young.
[23]
It
has been decided in one case that a delay incurred by the search for counsel
was not, in itself, a sufficient excuse to let a time limit expire (Kogo v. Canada (Minister of Citizenship
and Immigration), 2006
FC 325, 146 A.C.W.S. (3d) 1042). But in Kavunzu v. Canada (Minister of Citizenship and
Immigration), 172 F.T.R.
240, 91 A.C.W.S. (3d) 807, the question whether counsel was retained in a
timely fashion was considered. A late filing, per se, does not, however,
constitute a general determination of abandonment (Anjum v. Canada (Minister of Citizenship and
Immigration), 2004 FC
496, 130 A.C.W.S. (3d) 355)
[24]
To
decide if abandonment of a claim is achieved, the claimants; conduct must
indicate his or her intent not to pursue the claim but to attain that
conclusion; all relevant intents must be considered (Siloch v. Canada (Minister of Employment
and Immigration)
(1993), 151 N.R. 76, 38 A.C.W.S. (3d) 570 (F.C.A.), Ahamad v. Canada (Minister of Citizenship
and Immigration), [2000]
3 F.C. 109, 95 A.C.W.S. (3d) 713, Luttra Nievas v. Canada
(Minister of Citizenship and Immigration) (1998), 144 F.T.R. 224, 78
A.C.W.S. (3d) 1189
(Fed. T.D.) (medical reasons).
[25]
In
Ressam v. Canada (Minister of Citizenship and
Immigration) (1996), 110
F.T.R. 50, 62 A.C.W.S. (3d) 349 an application for judicial review lodged against
a that decision Ressam had abandoned his refugee claim was refused because the
latter neglected to attend a hearing to determine refugee status. In Smejsa v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 2071 (QL), 47
A.C.W.S. (3d) 1044, an application for judicial review was dismissed because
the Applicant did not provide a satisfactory explanation for his absence at a
previous hearing.
[26]
In
Ahamad decision (above), Justice François L. Lemieux granted a judicial
review against an abandonment decision because the Applicant’s counsel made an
honest mistake in interpreting a medical report and in telling his Applicant
not to appear at his hearing. This decision was followed.
[27]
Moreover,
in Anjum v. Canada
(Minister of Citizenship and Immigration), 2004 FC 496, 130 A.C.W.S. (3d) 355, where a judicial
review was granted against a decision of abandonment because the applicants did
not appear for his hearing because he had not yet acquired legal,
financial assistance and his wife had been ill.
[28]
In
the instant case, the Applicants’ appeared at both abandonment hearings and at
the hearing of February 20, 2008, she explained her reasons for not having
filed her PIF within the required 28 days, i.e.:
a) She did not
understand English and required a translator to explain and fill the required
forms;
b) She was
without funds, and being on welfare;
c) She had great
difficulty in obtaining legal counsel for various reasons;
d) She always
intended to continue her refugee claim.
[29]
The
RPD Member considered that those reasons did not constitute “extraordinary
circumstances” for justifying the delaying involved in filing the PIF forms.
[30]
Justice
Michael L. Phelan in Anjum (above) rightfully decided that from the
rules governing abandonment, the question of “extraordinary circumstances”, is
not the test.
[31]
It
is not the right question to ask, when applying Rule 58 of RPD rules (Anjum,
above, para. 27). Furthermore, the Board had not directed its attention to the
question of whether the Applicants’ were ready to proceed with their claims (Anjum,
above, para. 29).
[32]
In
my view, the Board made these two same errors in the present case.
[33]
The
Board did not reasonably consider and assess the totality of the reasons
mentioned before explaining why the Applicants’ could not have filed their PIF
before February 13, 2008.
[34]
These
are review reviewable errors; therefore, this application must be granted.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application in judicial review is granted;
2.
The
decision of the IRB determining the Applicants claim for refugee to be
abandoned, is quashed;
3. The
Applicants’ refugee claim is remitted to IRB for a determination by a different
member;
4. No question
was submitted for certification.
"Orville
Frenette"
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