Docket: IMM-2849-13
Citation: 2014 FC 9
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, January 7,
2014
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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HEKMAT GURGUS
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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
I. Preliminary
[1]
The power of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board to reopen a refugee claim is very
limited. It may not exercise its duty a second time in the same case without a
situation or circumstance of breach of natural justice (Longia v Canada (Minister
of Employment and Immigration), [1990] 3 FC 288 (CA)).
II. Introduction
[2]
This is a an application for judicial review by
the applicant under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA), of an RPD decision dated
April 5, 2013, by which the application to reopen the applicant’s file was
dismissed.
III. Facts
[3]
The applicant, Hekmat Gurgus, is a citizen of
Egypt. She came to Canada on April 14, 2011, with a visitor’s visa. Ms. Gurgus
has been a widow since 2004 and she has a daughter and son that still live in
Egypt and no problems were noted in relation to them.
[4]
When she arrived, the applicant went to live
with her daughter in Laval, Quebec.
[5]
On April 18, 2011, with the help of her counsel,
Anthony Karkar, the applicant filed a refugee claim in Canada.
[6]
On July 19, 2012, the applicant apparently
had an altercation with her daughter and son-in-law and was forced to leave
their residence.
[7]
On September 4, 2012, a notice of change of
address was sent to Citizenship and Immigration Canada (CIC); but the RPD was
not informed of this change of address.
[8]
On September 21, 2012, the RPD sent a
notice to appear to the applicant at her daughter’s address and to her counsel,
informing them that the refugee claim hearing would be held on
November 15, 2012.
[9]
On November 15, 2012, the applicant failed to
attend the hearing. Counsel for the applicant informed the RPD at that time
that he was not able to contact the applicant and that her family had asked him
to close her file because she was returning to Egypt.
[10]
The same day, the RPD sent a notice to appear – refugee
claim declared abandoned to the applicant at her daughter’s address and to her
counsel, informing them that a new hearing would be held on November 30,
2012, so as to allow the applicant to explain her absence before the RPD
declared her claim abandoned.
[11]
On November 30, 2012, the applicant failed to
attend the hearing.
[12]
On December 4, 2012, the RPD sent a notice of
decision – refugee claim declared abandoned to the applicant at her daughter’s
address and to her counsel.
[13]
On December 10, 2012, an application to reopen
the claim was submitted to the RPD.
[14]
On April 5, 2013, the RPD rejected the request
to reopen the claim.
IV. Decision
under review
[15]
In its decision, the RPD found that there was no
breach of the principles of natural justice and that the applicant was the only
one responsible for the result of her application to reopen the claim. It specified
that “the applicant provided the Minister with her change of address on
September 4, 2012, but failed to provide her change of address in writing
to the RPD, as required under rule 4” (at para 14).
[16]
The RPD emphasized that its power to reopen a
refugee claim is very limited. The RPD may not exercise its duty a second time
in the same case without a situation or circumstance of breach of natural
justice (Longia v Canada (Minister of Employment and Immigration),
[1990] 3 FC 288 (CA)).
IV. Issue
[17]
Was the decision not to reopen the refugee claim
reasonable?
V. Relevant
legislative provisions
[18]
Section 55 of the Refugee Protection Division
Rules SOR/2002-228 [Repealed, SOR/2012-256, section 62] (Rules) applies in
this matter:
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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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VI. Standard
of review
[19]
The issue of whether to reopen a refugee claim
is a question of mixed fact and law reviewable on a standard of reasonableness
(Yan v Canada (Minister of Citizenship and Immigration), 2010 FC
1270, at para 20; Hurtado v Canada (Minister of Citizenship and
Immigration), 2008 FC 270, 324 FTR 192, at para 24-25).
VII. Analysis
[20]
Under section 55 of the Rules, the RPD
cannot reopen a claim for refugee protection unless an applicant shows that
there was a failure to observe a principle of natural justice (Lakhani v
Canada (Minister of Citizenship and Immigration), 2006 FC 612; Ali
v Canada (Minister of Citizenship and Immigration), 2004 FC 1153,
228 FTR 226). Therefore, when the RPD finds that an applicant has been afforded
a fair hearing, there are no grounds for reopening a refugee protection claim.
[21]
In this case, counsel for the applicant
submitted on her behalf that [translation]
“the deficiences that led the RPD to determine the abandonment and to dismiss
the application to reopen” are not [translation]
“the result of her own turpitude” and that the decision made against his
client breached the rules of natural justice and procedural fairness. However,
counsel for the applicant did not specify how the RPD had breached such
principles.
[22]
Furthermore, the evidence in the record clearly shows
that the RPD gave enough chances to justify the inability to attend the hearings
scheduled for November 15 and 30, 2012.
[23]
The Court does not see any breach of the
principles of natural justice in this case. In fact, the Court agrees with the
respondent with respect to the RPD’s decision. No attention was given to the
refugee protection claim after the move. As Justice Sean Harrington stated in Garcia
v Canada (Minister of Citizenship and Immigration), 2011 FC 924,
natural justice requires that every stakeholder is given the opportunity to argue
the case in question (at para 14) (see also Matondo v Canada (Minister
of Citizenship and Immigration), 2005 FC 416).
[24]
In this case, the RPD was not informed of the
change of address, despite the clear indication of the obligation to do so on
form IMM-5292 on filing the refugee claim. However, a change of address was
communicated to CIC less than one month after the alleged move.
[25]
The Court finds it difficult to see how the new
address was communicated to CIC but was not also sent to the RPD. By carefully
reading the facts on the record regarding the events since counsel for the
applicant has been working with the applicant, i.e. since April 2011, the Court
had noticed that the applicant successfully, one way or another, obtained the
notice of decision sent by the RPD, on December 4, 2012, even if this notice
was sent to her daughter’s address, where she alleges that she received no
correspondence from the RPD after her move. The Court, as the RPD (itself) did,
finds that this fact remains ambiguous; the actions in this regard leaves the
Court with significant questions with respect to what information counsel may
have received, given the whole of the events that may have taken place at the
home of the applicant’s daughter in Canada and, also, that may have taken place
entirely outside of her daughter’s home in Canada.
[26]
Thus, the Court finds that it was entirely
reasonable for the RPD to determine that there was no breach of natural
justice. This finding falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47).
[27]
The Court considers that the RPD analyzed the
applicant’s application to reopen a claim in accordance with the new rule on
reopening a claim at section 62 of the Refugee Protection Division
Rules, SOR/2012-256, and the previous rule at section 55 of the Refugee
Protection Division Rules, SOR/2002-228. Although the RPD only noted the
rule at section 62 of the Refugee Protection Division Rules,
SOR/2012-256, in its decision, the rule at section 55 is identical to it. Thus,
the Court is satisfied that the application was dealt with in the same way as it
would have been if the analysis had been done only in accordance with the
previous rule.
VII. Conclusion
[28]
For all of the above reasons, the applicant’s
application for judicial review is dismissed.
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