Date: 20081008
Docket: IMM-1397-08
Citation: 2008
FC 1143
Toronto, Ontario, October 8, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
EDGAR HERNAN CLAVIJO
ALBARRACIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns the quality of the decision-making of a member of the
Refugee Protection Division (RPD) in rejecting an application by the Applicant
to have a refugee claim abandonment decision re-opened on the ground that it is
made in denial of natural justice. The fact matrix resulting in the abandonment
decision exposes a course of conduct on the Applicant’s part to meet the Immigration
Division Rules (Rules) with respect to the proper prosecution of a
refugee claim. This course of conduct is capable of providing a compelling
argument that the Rules should be judiciously applied to the Applicant’s
claim. That is, there is evidence that, despite being unable to speak English,
and despite not having the wherewithal to launch and advance his refugee claim
in conformity with the usual procedural requirements, nevertheless, he showed a
strong interest in maintaining his claim. Therefore, the question for
determination in the present Application is: Was the RPD on the re-opening
alive to this course of conduct in determining that no denial of natural
justice occurred in reaching the abandonment decision? For the reasons which
follow, I find that the answer to this question is “no”.
[2]
The course
of conduct leading to the abandonment decision is as follows: the RPD delivered
a Personal Information Form (PIF) to the Applicant on September 25, 2007; the
form cited the Rules that stipulate that the Applicant had 28 days to complete
and return the form; the PIF was filed on October 24, 2007, 1 day past the
deadline; the RPD placed the Applicant’s lawyer on notice that the PIF was
deficient because it was missing the Applicant’s narrative (see Tribunal
Record, p. 77); the Applicant was required to attend an abandonment hearing on
November 7, 2007; on November 6th, a case officer of the IRB
telephoned the lawyer to inform him that the abandonment hearing was scheduled
for the following day (see Tribunal Record p. 71-72); in response, by fax on
November 6, 2007, the lawyer sent the required narrative, in Spanish, to the
RPD and informed the RPD that the English translation would be sent the next
day, he was unable to attend the abandonment hearing; and the Applicant was not
contactable because he does not have a phone and would not be able to read any
notice to attend because he only speaks and reads Spanish (Tribunal record p.
71-72); the RPD received and apparently considered the November 6, 2007 fax
prior to making the abandonment decision on November 7, 2007; and on November
7, 2007, the lawyer faxed the English translation to the RPD.
[3]
With
respect to the reopening application made by the Applicant, the limit of the
RPD’s understanding of the course of conduct leading to the making of the
abandonment decision is contained in the following paragraphs of the decision:
The
Applicant made his claim for refugee protection and was provided with a
Personal Information Form (PIF) on September 25, 2007. By a Notice to
Appear, Abandonment of a Claim for Refugee Protection, dated September 26,
2007. The RPD advised the claimant by regular mail at the address on file, 552 Blackthorn Avenue, Apt. 1, Toronto, Ontario M6M
3C8, that a hearing would
take place on November 7, 2007, to give the claimant an opportunity to explain
why the RPD should not determine that his claim be Abandoned. Neither the
claimant, nor a representative appeared at that hearing and his claim was
abandoned for failure to provide the PIF.
By
Application dated January 22, 2008, the Applicant brought an Application to the
Refugee Protection Division to reopen his claim, alleging a failure to observe
a principle of natural justice. There is no indication that the Applicant has
contacted the authorities regarding his alleged activities of his previous
counsel. Alternatively, the Board determines that the Applicant has not
established that there was failure to observe a principle of natural justice in
the abandonment proceedings.
The
Applicant acknowledges having received the PIF and instructions regarding
completion of same. [Emphasis added]
(Decision,
p.1)
[4]
It is
evident from these statements that the RPD only saw part of the picture of the
course of conduct in scrutinizing for a denial of natural justice in the making
of the abandonment decision. In my opinion, in rendering a decision on such an
important issue as denial of natural justice, the RPD must demonstrate that it
has knowledge of the full picture of the course of conduct leading to the
making of an abandonment decision. It is obvious on the face of the decision
under review that the RPD failed to reach a determination on all the evidence
before it, and, as a result, I find that the decision under review is made in
reviewable error.
ORDER
Accordingly, the re-opening
decision under review in the present Application is set aside and is sent back
to a differently constituted panel of the RPD for redetermination.
There is no question to certify.
“Douglas
R. Campbell”
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