Date:
20130613
Docket:
IMM-8765-12
Citation:
2013 FC 632
Ottawa, Ontario,
this 13th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
Zsoltne CSIKOS
Jozsef Daniel OLAH
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
(the “Act”) for judicial review of the decision of the Refugee Protection Division
(the “RPD”) of the Immigration and Refugee Board rendered orally on March 16,
2012 and in writing on July 27, 2012. In the decision, the RPD declared the
applicants’ claim for refugee protection abandoned.
[2]
The
applicants are citizens of Hungary. On August 13, 2009, Zsoltne Csikos (the
female applicant), along with her husband, daughter, and son-in-law (the male
applicant), filed a refugee claim in Canada.
[3]
The
applicants requested and obtained two extensions to file their Personal
Information Forms (“PIFs”). They filed their PIFs on September 25, 2009.
[4]
On
April 5, 2011, the applicants’ lawyer informed the RPD that the female
applicant’s husband was deceased.
[5]
The
applicants’ hearing scheduled for July 21, 2011 was postponed to November 7,
2011 due to the applicants’ counsel’s health issues.
[6]
On
November 7, 2011, the applicants requested a two-month postponement of their
hearing based on a letter from the psychologist of the female applicant and her
daughter. The RPD granted the postponement, but advised the applicants’ counsel
that any future postponement request would need to be made well in advance of
the new hearing date and would require medical evidence.
[7]
A
new hearing date was set for January 30, 2012.
[8]
On
January 27, 2012, the applicants requested another postponement based on
another letter from the same psychologist. The RPD granted the postponement and
rescheduled a peremptory hearing for March 15, 2012 at 1:00 p.m., but required
the applicants to submit to the RPD a detailed medical report from their family
physician by February 20, 2012.
[9]
The
RPD also sent the applicants a letter requiring them to complete a Confirmation
of Readiness report indicating that they were ready, willing and available to
proceed with the hearing of their claim on the date and time indicated on the
Notice to Appear. The letter explaining the Confirmation of Readiness report
stated, in part, the following:
[…] You must return the form completed, signed and
dated to the RPD no later than 20 days from the date on which you
receive this letter. The requirement for you to provide this form is in
accordance with Rule 21 of the RPD Rules.
If the RPD does not receive the completed
reply form within the 20 days, the RPD will commence abandonment
proceedings in connection with your claim under section 168 of the Immigration
and Refugee Protection Act. In that case, the hearing scheduled on the
date indicated above will become a show cause or abandonment hearing. You
will be given an opportunity to explain why your claim should not be declared
abandoned at that hearing.
[Emphasis
in original]
[10]
The
applicants claim that on the morning of March 15, 2012, the male applicant
experienced severe chest pain and difficulty breathing. An ambulance was
called. The female applicant affirms that she chose to accompany the male
applicant to the hospital because her husband was murdered in 2011 and she was
afraid of losing another family member. She also wanted to be able to advise
her daughter as to the medical condition of her husband (the male applicant).
[11]
The
male applicant was diagnosed at the Burnaby Hospital as having suffered a
“panic attack”.
[12]
Only
the female applicant’s daughter, Ivett Olahne Csikos, appeared at the hearing
on March 15, 2012. She was accompanied by counsel. She informed the RPD that
her husband had been taken to the hospital by ambulance and that her mother had
accompanied him.
[13]
The
RPD gave the applicants 24 hours to provide the ambulance record and full
clinic records from the hospital, at which point it would rule on whether to
adjourn or abandon the claim.
[14]
The
RPD continued the hearing on March 16, 2012. Shortly after the hearing began
that day, the RPD received by fax a one-page document from the Burnaby Hospital that the applicants’ counsel had submitted. The RPD telephoned the
applicants’ counsel. He informed the RPD that his clients had told him that it
would take at least a couple of days to obtain the ambulance record and only if
the male applicant’s family physician requested it. Counsel stated that if the
male applicant requested the record personally, it would take even longer than
that.
* * *
* * * * *
[15]
The
RPD was not satisfied by the document from the Burnaby Hospital. It noted that
the document had no entries of tests undertaken or objective findings made by
the hospital, nor an actual time the male applicant was admitted to hospital.
The RPD acknowledged that the document did state the following:
Loss of consciousness, dyspnea, fluid retention,
possible cardiac arrhythmias, decreased cardiac output, further cardiac testing
required.
[16]
The
RPD stated that it understood the explanation for why the paramedic report was
not ready, but determined that the applicants’ claim was abandoned given the
history of the applicants’ file and the fact that the applicants had failed to
provide more detailed medical notes to justify the previous adjournment of
their hearing, despite the RPD requesting on two occasions for more detailed
medical information and the applicants’ failure to provide a reasonable explanation
for not complying with this request.
[17]
The
RPD found that if the ambulance notes were produced at a later date, they could
be the subject of a re-opening application if the information in the ambulance
record was useful or outweighed the continued attempts of the family to not
comply with the RPD’s numerous requests.
[18]
The
RPD also noted that no explanation was provided for why the female applicant
took the liberty of accompanying the male applicant to the hospital instead of
attending a hearing that was peremptory given that it had been scheduled for
the third time.
[19]
The
RPD stated that it would give Ivett Olahne Csikos the benefit of the doubt and
not find that her claim was abandoned.
* * *
* * * * *
[20]
Subsection
168(1) of the Act deals with the abandonment of a proceeding before a Division
of the Immigration and Refugee Board and reads as follow:
|
168. (1) A Division may determine that a
proceeding before it has been abandoned if the Division is of the opinion
that the applicant is in default in the proceedings, including by failing to
appear for a hearing, to provide information required by the Division or to
communicate with the Division on being requested to do so.
|
168. (1) Chacune des
sections peut prononcer le désistement dans l’affaire dont elle est saisie si
elle estime que l’intéressé omet de poursuivre l’affaire, notamment par
défaut de comparution, de fournir les renseignements qu’elle peut requérir ou
de donner suite à ses demandes de communication.
|
[21]
Rule
58 of the Refugee Protection Division Rules, SOR/2002-228 (the “Rules”)
sets out how the RPD may declare a refugee claim abandoned:
|
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.
|
* * * * * * * *
[22]
The
issue in this matter is whether it was reasonable for the RPD to declare the
applicants’ claim abandoned.
[23]
The
standard of review applicable to the RPD’s decision to declare a refugee claim
abandoned is reasonableness (Gonzalez v The Minister of Citizenship and
Immigration, 2009 FC 1248 at para 15; Singh v The Minister of
Citizenship and Immigration, 2012 FC 224 at para 22 [Singh]).
[24]
Accordingly,
the Court will consider “the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190
at para 47).
* * *
* * * * *
[25]
This
Court has repeatedly held that the central consideration with respect to
abandonment proceedings is whether the applicant’s conduct amounts to an
expression of his or her intention to diligently prosecute his or her claim (Ahamad
v Canada (Minister of Citizenship and Immigration), [2000] 3 FC 109 at para
32; Peredo v The Minister of Citizenship and Immigration, 2010 FC 390 at
para 30; Mayilvahanam v The Minister of Citizenship and Immigration,
2013 FC 136 at para 9).
[26]
The
onus is on the refugee claimant to establish why his or her claim should not be
abandoned. As explained by Justice James Russell in Singh, supra,
at paragraph 75:
The Court notes that
the consequences of a declaration that a claim has been abandoned may be
severe, even fatal to a claimant. This does not, however, absolve claimants of
the onus on them to establish why their claims should not be abandoned. It also
does not mean that the RPD is always bound to accept claimants’ arguments as to
why their claims should not be abandoned. The severity of consequences means
only that the RPD must ensure that claimants have a full opportunity to present
their case and that it fully considers the case presented to it. […]
[27]
Pursuant
to subsection 168(1) of the Act, the RPD may determine that a proceeding before
it has been abandoned if it is of the opinion that the applicant is in default
in the proceedings, including by failing to appear for a hearing or by failing
to provide information required by the RPD upon being requested to do so.
[28]
In
the case at bar, considering the relevant statutory provisions and case-law, in
my view it was reasonable for the RPD to find that the applicants were in
default in the proceedings and declare their proceedings abandoned. As subsection
58(2) of the Rules required in the circumstances, the applicants were notified
by letter in advance of the hearing that they would be given an opportunity to
explain why their claim should not be declared abandoned. I cannot agree with
the applicant that the RPD appears to have declared the female applicant’s
claim abandoned without giving her an opportunity to explain her absence at the
March 15, 2012 hearing or considering her explanation for why she was absent.
Both applicants were given the opportunity to explain their absence on March 16,
2012, but only their counsel participated in the proceedings on that date.
Paragraph 35 of the decision demonstrates that the RPD considered counsel’s
representations for why the female applicant was also absent at the hearing:
[…] I also note that the first claimant, Zsoltne
Csikos, she was not present because she supposedly accompanied her son-in-law
to the hospital when ambulance was called. There was no explanation provided as
to why she took the liberty of making that decision over the importance of
attending a hearing that was scheduled for the third time when she ought to
have known that she had not complied with the request of the Board on the
previous medical reports that were requested as well and that this was a
peremptory hearing, which meant that without a very good reason she has to be
present.
[29]
Moreover,
as required by subsection 58(3) of the Rules, in deciding whether the
applicants’ claim should be declared abandoned, the RPD considered the
applicants’ explanations and all other relevant information, including the fact
that the applicants had failed to provide more detailed medical information to
justify their most recent request for postponement of their hearing. As noted
by the applicants, there was sufficient medical documentation submitted to the
RPD to postpone the hearing on two previous occasions due to the mental health
of the female applicant and her daughter. However, this fact does not negate
the reasonableness of the RPD’s concern that the applicants had not complied
with its request for more detailed medical information.
[30]
It
was also reasonable for the RPD to take into account the fact that the
applicants never submitted a signed Confirmation of Readiness form in advance
of their hearing, despite having been mailed the document in a letter dated
January 30, 2012. They were warned in this letter that abandonment proceedings
would be commenced on their hearing scheduled for March 15, 2012 if they did
not submit the report.
[31]
At
the abandonment hearing, the applicants had not provided any explanation for
why they had not complied with the RPD’s request for more detailed medical
information or why they had not submitted a signed Confirmation of Readiness form
as the RPD had requested.
[32]
The
RPD also noted that if the remaining requested documents were forthcoming at a
later date, the applicants could be the subject of a re-opening application.
However, there is no indication in the record that those documents have been
forthcoming.
[33]
As
for the applicants’ allegation that the RPD misconstrued the document from
Burnaby Hospital, upon receipt of this document, the RPD read aloud all the
medical information it contained and reasonably analyzed it as lacking the time
of admission to the hospital as well as any objective findings. The RPD only
once later referred to the information as “complaints” and this was in the
context of the following analysis:
[31] As I said
yesterday, I had made a request for the paramedic report, as well as – not a
detailed medical/legal report, but full clinical notes from the hospital due by
one o’clock this afternoon. In the interests of fairness, I allowed the time
that counsel requested. However, what he provided to me, which is now on the
record, which is a one-page document with a computer printout that does not
even contain the time of admission to the hospital or that he was admitted to
the hospital by the ambulance. In the “Complaints” there is no suggestion whether
there were objective signs that were ascertained by medical tests or the observations
which could or could not have been fabricated. I am not making a finding on
that, but I am just saying that what is before me it’s not clear whether
objectively anything was done and, in any event, the claimant has failed to
comply with the Board’s request, not just on this occasion, but on the previous
two occasions as well, without a reasonable explanation.
[34]
As
noted by the respondent, the fact that the word “complaints” was not written on
the form does not mean that the references on the form to loss of consciousness,
dyspnea, fluid retention, possible cardiac arrhythmias, and decreased cardiac
output could not reasonably be construed as “complaints”. Accordingly, I am not
persuaded by the applicants’ argument that the RPD’s reference to the
information on the document from the Burnaby Hospital as “complaints”
misconstrued the evidence.
[35]
In
my view, it was therefore reasonable for the RPD to determine based on the
evidence before it and the history of the applicants’ file that the applicants’
conduct did not demonstrate an intention to diligently pursue their claim
before the RPD.
* * *
* * * * *
[36]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[37]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada, rendered orally on March 16, 2012 and
in writing on July 27, 2012, declaring the applicants’ claim for refugee
protection abandoned, is dismissed.
“Yvon Pinard”
Email this Content