Date:
20130207
Docket:
IMM-846-12
Citation:
2013 FC 136
BETWEEN:
|
|
THADCHANAMOORTHY MAYILVAHANAM
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT
PHELAN
J.
I. INTRODUCTION
[1]
These
are a brief set of reasons for an oral decision issued from the Bench granting
this judicial review. The matter turns entirely on procedural fairness – or the
lack thereof in this case.
II. FACTS
[2]
The
Applicant is a Sri Lankan of Tamil ethnicity. He applied for refugee protection
on July 14, 2010.
[3]
The
original hearing was scheduled for October 14, 2011 but, at the Immigration and
Refugee Board’s [IRB] request, it was rescheduled to November 18, 2011. It was
rescheduled again at the request of the Applicant’s lawyer due to his vacation
time to December 18, 2011.
[4]
When
the Applicant arrived at his counsel’s office prior to the scheduled hearing,
counsel informed him that he was not available due to a scheduling conflict and
that the Applicant would have to go to the IRB hearing alone and request an
adjournment. This latest adjournment requested on December 18, 2011 was not
granted.
[5]
The
Member concluded that he did not consider his excuse for adjournment reasonable
as the case had been ongoing for 1.5 years and that there had been ample time
to prepare.
[6]
The
following excerpt is indicative of the tone of the hearing and the openness of
the Member to the Applicant’s plight:
Member: I am denying your request as I mentioned a while
ago, I am not going to repeat myself. Since you are not prepared to proceed I
am going to abandon your claim, which means your claim is finished. What do you
say sir?
Applicant: You may what?
Member: If I abandon your claim finished, no more. What is
your final answer? No more postponements.
Applicant: Okay, will it be possible to get
another date?
Member: Sorry?
Applicant: Will it be possible to get
another date?
Member: No. Give me your final answer sir. Proceed or not
proceed?
Applicant: I cannot proceed on my own, no.
Member: Okay, so as of now as it has been put on record
that the claimant does not [wish] to proceed I am abandoning this claim.
Applicant: Excuse me I am getting letters…
(CTR at 151-152)
III. ANALYSIS
[7]
This
is an issue of procedural fairness subject to the correctness standard of
review (Vasquez v Canada (Minister of Citizenship and Immigration), 2012
FC 385, 407 FTR 167). Even if the issue were the reasonableness of the Member’s
decision, the result would be the same.
[8]
Abandonment
proceedings are governed by Rule 58 (now Rule 65 of the Refugee Protection
Division Rules, SOR/2012-256).
|
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.
|
Refugee
Protection Division Rules, SOR/2002-228
[9]
As
held in Ahamad v Canada (Minister of Citizenship and Immigration) (T.D.),
[2000] 3 FC 109, 184 FTR 283, the test for abandonment is showing that an
applicant has no interest in proceeding with his claim. The evidence here is
that the Applicant wished to proceed but was left on his own by counsel.
[10]
The
Member did not take into account all the relevant facts but merely focused on
the length of time that the application had been in the IRB system.
[11]
The
evidence clearly establishes that the Applicant wished to proceed. The only
evidence of abandonment is abandonment by counsel of his client. The
unfortunate irony of the case is that if that counsel had told the Applicant
not to go to the hearing, the Applicant would have had a show cause hearing and
potentially a better opportunity to address the issue of abandonment.
[12]
The
IRB’s decision was unfair and unreasonable, narrow in its reasoning and devoid
of fairness. The only abandonment was by counsel.
IV. CONCLUSION
[13]
For
these reasons, the judicial review was granted, the decision quashed and the
matter remitted back to be determined (if the abandonment is still a live
issue) by a different Member.
[14]
There
is no question for certification.
“Michael
L. Phelan”
Ottawa, Ontario
February 7, 2013
Email this Content