Date:
20130228
Docket:
IMM-4105-11
Citation:
2013 FC 210
Ottawa, Ontario,
February 28, 2013
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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MARIA ALEJANDRA POSADA ARCILA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act (Act) for judicial review of the decision of the
Refugee Protection Division [RPD] of the Immigration and Refugee Board, dated
May 13, 2011. The RPD refused the applicant’s application to reinstate her
refugee claim pursuant to Rule 53 of the Refugee Protection Division Rules
[RPD Rules].
[2]
For
the reasons that follow, this application is dismissed.
Background
[3]
The
applicant, Maria Alejandra Posada Arcila, is a citizen of Colombia. She was named as a minor claimant in her mother’s claim for refugee protection. Her
PIF was signed and filed by her mother, as she was only 17 years old at the
time.
[4]
The
qapplicant states that she and her mother had a serious argument on December
29, 2010, and, as a result, she made the dangerous and irrational decision to
call Immigration and ask to cancel her refugee claim so she could obtain her
passport and return to Colombia.
[5]
She
states that shortly afterwards, she realized withdrawing her claim was
reckless. She states that she prepared a letter to Immigration on January 19,
2011, asking that her claim not be withdrawn, but she did not send it because
she wanted to consult with a lawyer and show the letter to the lawyer first.
[6]
The
applicant states that she did not obtain Legal Aid until March 2011 and there
was also a delay in obtaining her mother’s PIF, which contained the narrative
upon which she was basing her refugee claim. She applied to reinstate the claim
on March 24, 2011.
Decision Under
Review
[7]
In
the reasons for its decision, dated May 13, 2011, the RPD noted that the Board
received the request to withdraw the refugee claim on December 30, 2010, stating
the applicant wanted to return to Colombia. The applicant sent an additional
note by fax on January 4, 2011, indicating that she had booked a flight to Bogota for January 15, and she therefore needed her passport as soon as possible. In that
note, the applicant stated her father had sent her passport by UPS on December
20, 2010, but it had been seized at customs.
[8]
The
RPD acknowledged the applicant’s evidence that she withdrew the claim
impulsively and recklessly because of the fight with her mother. The RPD also
noted her claim to have written the January 19 letter without ever sending it.
[9]
The
RPD stated that it only had jurisdiction to reinstate the claim if there was a
breach of natural justice or if it is otherwise in the interests of justice.
The RPD concluded that there had been no failure to observe a principle of
natural justice, because the applicant voluntarily took all of the steps to
return to her country. The RPD noted that her father sent the passport several
days before the alleged fight with her mother on December 29, 2010. Furthermore,
the applicant was an adult when she made the decision, and her failure to
consider the consequences did not represent a breach of natural justice.
[10]
The
RPD went on to state that, pursuant to Rule 44 of the RPD Rules, an
application to reinstate a refugee claim must be made without delay. The RPD
found that the applicant had not acted without delay, as she did not apply to
reinstate until nearly three months after withdrawing her claim.
[11]
The
RPD found that the applicant’s behaviour was not that of someone with a genuine
fear for her life if she returned to Colombia. She had not explained why she
did not take the January 15, 2011 flight to Colombia, nor had she provided a
satisfactory explanation for her failure to retain counsel until March 2011.
The RPD also noted that she could have obtained her PIF upon request and thus
did not accept the applicant’s allegation that the delay was attributable to
waiting to receive her own PIF.
[12]
The
Board concluded that the evidence had not established that it would be in the
interests of justice to reinstate the applicant’s claim, and the application to
reinstate was therefore dismissed.
Relevant
Legislation
[13]
Refugee
Protection Division Rules (SOR/2002-228).
44.
(1) Unless these Rules provide otherwise, an application must be made in
writing and without delay. The Division may allow a party to make an
application orally at a proceeding if the party with reasonable effort could
not have made a written application before the proceeding…
53.
(1) A person may apply to the Division to reinstate a claim that was made by
that person and withdrawn.
Form
and content of application
(2)
The person must follow rule 44, include their contact information in the
application and provide a copy of the application to the Minister.
Factors
(3)
The Division must allow the application if it is established that there was a
failure to observe a principle of natural justice or if it is otherwise in
the interests of justice to allow the application.
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44.
(1) Sauf indication contraire des présentes règles, toute demande est faite
sans délai par écrit. La Section peut permettre que la demande soit faite
oralement pendant une procédure si la partie n’aurait pu, malgré des efforts
raisonnables, le faire par écrit avant la procédure…
53.
(1) Toute personne peut demander à la Section de rétablir la demande d’asile
qu’elle a faite et ensuite retirée.
Forme
et contenu de la demande
(2)
La personne fait sa demande selon la règle 44; elle y indique ses coordonnées
et transmet une copie de la demande au ministre.
Éléments
à considerer
(3)
La Section accueille la demande soit sur preuve du manquement à un principe
de justice naturelle, soit s’il est par ailleurs dans l’intérêt de la justice
de le faire.
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Issue
[14]
The
issue in the present application is whether the RPD decision to refuse to
reinstate the applicant’s claim was reasonable.
Standard of
Review
[15]
The
question of whether a refugee claim must be reinstated pursuant to Rule 53 of
the RPD Rules is a question of mixed fact and law, and therefore to be
reviewed on a standard of reasonableness. Dunsmuir v New Brunswick, 2008
SCC 9 [Dunsmuir], De Lourdes Diaz Ordaz Castillo v Canada (Minister of Citizenship and Immigration), 2010 FC 1185 [De Lourdes] at
para 3.
Analysis
[16]
The
RPD considering a request for reinstatement must examine whether there was a
failure to observe a principle of natural justice, and whether it was in the
interests of justice to reinstate the claim. De Lourdes at para 7.
Further, this
Court has also held that reinstatement is the exception to the norm. Ohanyan v Canada (Minister of Citizenship and Immigration), 2006 FC 1078 [Ohanyan].
Breach of a
Principle of Natural Justice
[17]
The
applicant does not advance any substantive argument there was a breach of
natural justice, other than to submit her act was made when she was only 18
years old and she now understands her act was ill advised and dangerous. She
says she started the process of requesting her refugee claim be reopened on
January 19, 2011 but did not apply until March 23, 2011 after she obtained the
services of a lawyer.
[18]
The
RPD did consider whether there was a failure to observe a principle of natural
justice. The RPD decided it could not conclude there had been such a failure because
the applicant acted voluntarily and without constraint. Moreover, she had taken
steps earlier to return to Colombia by asking her father to send her passport
on December 20, 2010 before the confrontation with her mother on December 29,
2010.
[19]
The
RPD noted the applicant was an adult when she made the decision and concluded
the applicant’s failure to inform herself did not result from a breach of
natural justice by the RPD.
[20]
I
find the RPD’s decision to be reasonable. It considered the question in light
of the evidence before it which was drawn in the main from the applicant’s
affidavit. The RPD decision on this point is within the range of reasonable
outcomes.
In the Interests
of Justice
[21]
The
applicant says within a week of withdrawing her refugee claim she changed her
mind and prepared correspondence to request reopening her claim. However, she
did not send the correspondence. She says she was advised to get the help of a
lawyer. She says she was attempting to obtain documentation, specifically her Personal
Information Form [PIF] and that of her mother. She says she was not provided
her mother’s documentation until March 10, 2011 by her mother’s solicitor. She
says her PIF did not contain her mother’s narrative. She says she consulted a
lawyer in January 2011 but was unable to retain a lawyer until she had Legal Aid.
She applied for Legal Aid by January 19, 2011 and was able to retain a lawyer
by March 1, 2011.
[22]
The
applicant submits it was a material misapprehension of the facts to conclude
the applicant did not bother to consult a lawyer until March of 2011.
[23]
Some
of the evidence submitted by the applicant in this hearing was not before the
RPD when it made its decision. I agree with the respondent that such evidence
cannot be considered when assessing the reasonableness of the RPD decision. Kabama
v Canada (Minister of Citizenship and Immigration) 2010 FC 1128 at paras 4,
5 [Kabama].
[24]
The
RPD considered Ohanyan as requiring the RPD to weigh all of the
circumstances of a case and not just from the applicant’s viewpoint. It noted
the applicant’s behaviour was not the behaviour of one who fears for her life
if she returned to Colombia. The note the applicant wrote in January was not
sent to the RPD at that time. The RPD observed the applicant did not explain
why she did not take the flight she booked on January 15, 2011 nor did she
explain the delay in retaining a lawyer until March 2011. Finally, the RPD
considered the applicant’s claim she was awaiting her PIF before making her
application to reinstate and had difficulty in obtaining it. The RPD commented
that, had the applicant made the request for her PIF to the RPD office, she
would have received a copy.
[25]
In
response to a question by the Court, the respondent subsequently confirmed the
applicant could obtain her own PIF on making a direct request to the RPD
office.
[26]
By the time the
applicant brought forth her application, she had the assistance of a lawyer and
nothing suggests she was prevented from providing the RPD with more evidence to
complete the picture of her situation. Since reinstatement of a claim is
exceptional and the applicant provided the RPD with a paucity of evidence, I
find the RPD decision on the issue of considering the interests of justice to
be reasonable.
Request
for a Stay
[27]
The
applicant also makes submissions regarding a stay of removal. Particularly, her
refugee claim has not been heard on its merits, and she will suffer irreparable
harm if removed to Colombia.
[28]
The
respondent submits that this request is premature, as the Court has held that
until a Direction to Report is issued, there is “nothing for this Court to
stay”. The respondent also notes that, because of her pending PRRA
application, she benefits from a statutory stay of removal.
[29]
Regarding
the request for a stay of removal, as the respondent submits, the applicant has
not received a Direction to Report, and she benefits from a statutory stay of
removal while her PRRA application is in process. Without a Direction to
Report, this request is premature.
[30]
The
application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed.
“Leonard S. Mandamin”