Date:
20130506
Docket:
IMM-6595-12
Citation:
2013 FC 468
Ottawa, Ontario,
May 6, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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RECILIOME SAINVRY
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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 for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of the decision
rendered by the Refugee Protection Division of the Immigration and Refugee
Board [the Board] refusing the applicant’s request that his claim for refugee
protection be reopened.
FACTS
[2]
The
applicant is a citizen of Haiti. He applied for refugee protection in Canada in 2008.
[3]
The
applicant alleges that he is functionally illiterate. On his French
language personal information form which he submitted to the Board on September
25, 2008, he also stated that he required a Creole interpreter.
[4]
On
January 16, 2012 the Board advised the applicant in writing to attend a
scheduling conference which he attended. The applicant was unrepresented at the
time. He was given the peremptory hearing date of March 8, 2012, but he
claims he understood the hearing date to be May 8, 2012. An interpreter
was not present at the scheduling conference.
[5]
The
applicant did not ask anyone to read the written hearing notice to him when he
left the scheduling conference because he assumed he understood the date of the
hearing. Thus, he did not attend the March 8, 2012 refugee hearing.
[6]
The
applicant received a written notice of an abandonment hearing scheduled
for March 30, 2012, but he alleges he assumed it was a second notice
reminding him of his May hearing. As he did not attend the abandonment hearing,
the Board declared his claim abandoned and sent a written notice to the
applicant. He showed this notice to a friend, who brought the applicant to a
lawyer. The lawyer applied to the Board to have the claim reopened. The
resulting decision is the subject of the present application for judicial
review.
[7]
The
Board noted that during a scheduling conference, the date of the hearing
is spoken aloud to the applicants present and repeated orally several
times for an applicant to hear. It was the applicant’s choice to ignore a
subsequent document the Board sent him, due to assumptions he had made.
The Board found no reasonable explanation had been provided for the applicant’s
failure to attend his peremptory hearing date and abandonment hearing.
[8]
The
issue in this application is whether the Board reasonably determined that there
was no failure to observe a principle of natural justice.
[9]
Rule
55 of the Board’s Refugee Protection Division Rules, SOR/2002-228
[Repealed, SOR/2012-256, s. 73] [the Rules] sets out how an abandoned refugee
claim may be reopened:
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Application to reopen a claim
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.
Form of application
(2) The application must be
made under rule 44.
Claimant’s application
(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.
Factor
(4) The Division must allow the
application if it is established that there was a failure to observe a
principle of natural justice.
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Demande de réouverture d’une
demande d’asile
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.
Forme de la demande
(2) La demande est faite selon la règle 44.
Contenu de la demande faite par le demandeur
d’asile
(3) Si la demande est faite par le demandeur
d’asile, celui-ci y indique ses coordonnées et en transmet une copie au
ministre.
Élément à considérer
(4) La Section accueille la demande sur preuve du
manquement à un principe de justice naturelle.
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[10]
Justice
Rennie observed in Karagoz v Canada (Minister of Citizenship and
Immigration), 2011 FC 1479 at para 6 that the jurisdiction of the Board to
reopen a refugee claim is narrowly prescribed (see also Lopez Diaz v Canada (Citizenship and Immigration), 2010 FC 131 at para 11). As the Court of Appeal
stated in Nazifpour v Canada (Minister of Citizenship & Immigration),
2007 FCA 35 at para 82:
The Federal Court has rejected the argument that,
while Rule 55 expressly obliges the Division to reopen for breach of natural
justice, since this is not stated to be the only ground for reopening, it does
not preclude the Division from reopening decisions on other grounds, including
the existence of new evidence. The Court has held that Rule 55 does not
expand the jurisdiction to reopen refugee and protection determinations. The
Division may reopen only for breach of a principle of natural justice...
[Emphasis added]
[11]
The
applicant first submits that the Board violated natural justice by not
informing him that it would take judicial notice of the fact that Board
staff repeatedly tell claimants the date of their hearing at a scheduling
conference. Had the applicant been informed, he could have addressed the
Board’s concern with further evidence, such as a further affidavit and further
pleadings.
[12]
The
respondent maintains in his written submissions that as Rule 21
of the Rules states that a scheduling hearing helps the Board fix a date for a
proceeding, it is common sense that at a scheduling hearing there would
be an exchange between a claimant and the Board with respect to when the
hearing would be held and that the actual date of the hearing would be given to
the claimant.
[13]
I
agree with the respondent that it is common sense that at a scheduling hearing
there would be an exchange between a claimant and the Board with respect to
when the hearing would be held and that the actual date of the hearing would be
given to the claimant and does not amount to specialized knowledge.
[14]
The
applicant further argues that he was innocently mistaken about the
hearing date and cannot be blamed for the simple fact of not being more capable
than he is.
[15]
The
respondent notes that on three occasions the applicant was given a written
notice for a hearing at the Board. He attended the scheduling hearing, yet
failed to attend the refugee and abandonment hearings. The respondent contends
that the applicant’s treatment of the written notices for the refugee and
abandonment hearings indicates a level of indifference which cannot be
explained merely as an inadvertent misunderstanding or shame regarding his
literacy level.
[16]
I
agree with the respondent. At a certain point, the applicant must take some
responsibility to ensure that he understood the written correspondence he
received regarding his refugee claim (Capelos v Canada (Minister of
Employment and Immigration), [1991] FCJ 217 at para 5; Wackowski v Canada
(Minister of Citizenship and Immigration), 2004 FC 280 at para 13). Despite
the fact that the applicant identifies himself as having limited literacy, he
chose not to ask anyone to verify the date on the written notice he had
received at the scheduling hearing. He even had a friend waiting for
him in the reception area of the Board while he was attending the
scheduling hearing, yet did not show her the written hearing notice when he
exited the hearing.
[17]
Again,
the applicant ignored a written notice of the date of his abandonment hearing,
allegedly because he assumed it was a second notice reminding him of his
hearing. The applicant chose not to ask anyone to verify what the letter
said. This behaviour was simply not that of a person diligently pursuing a
refugee claim and the applicant must bear the onus for these irresponsible
decisions. Therefore, given the totality of the circumstances, I am
satisfied that there was no breach of the principles of natural justice
and that the Board did not commit a reviewable error in refusing to reopen the
refugee claim.
[18]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
The application
for judicial review is dismissed. There is no question for certification.
“Danièle
Tremblay-Lamer”
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