Docket:
IMM-4505-13
Citation: 2014 FC 62
Ottawa, Ontario, January 20, 2014
PRESENT: The Honourable
Madam Justice Mactavish
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BETWEEN:
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HARJEET SINGH SARRAN
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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]
Harjeet Singh Sarran
seeks judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board which found his refugee claim to have been
abandoned. He asserts that the Board erred in law in making this finding by
failing to take relevant considerations into account, in particular, the fact
that he was ready to proceed with his refugee claim on the date set for his
abandonment hearing.
[2]
It is, however,
apparent from paragraph 18 of the Board’s reasons that the Board was well aware
that the applicant was ready to proceed with his refugee hearing on the date
set for his abandonment hearing, and that it took this into account. The Board
was also clearly aware that the applicant was there with counsel, that an
interpreter was present and that the applicant had provided pre-hearing
disclosure.
[3]
The fact that the
Board referred to the applicant being “ready to testify”, and did not
specifically mention that he also had other witnesses present at the hearing
does not impugn the reasonableness of the Board’s decision, as it is presumed
to have considered all of the evidence before it unless the contrary is shown: Florea
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598
(CA).
[4]
The Board properly
asked itself whether the applicant’s conduct in this matter evidenced a lack of
intention to pursue his refugee claim with diligence: Ali v. Canada (Minister of Citizenship and Immigration), 2005 FC 908, [2005] FCJ No. 1150, at
para. 10.
[5]
I agree with the
respondent that the applicant is essentially asking this Court to reweigh the
fact that he was ready to proceed with his refugee claim on the date set for
his abandonment hearing against the numerous other factors favouring a
declaration of abandonment. These included the applicant’s failure to keep in
contact with his counsel prior to the date originally set for his refugee
hearing, the fact that he was unprepared to proceed on that date, causing the
hearing to be adjourned to a future date, and his failure to appear for the
re-scheduled hearing.
[6]
The applicant was
verbally advised of the date for the rescheduled hearing by the Board. He was
also told that this new date was peremptory to him and it was explained to him
what this meant. This information was, moreover, provided to the applicant by
the Board through a Punjabi interpreter, undermining his claim that linguistic
problems contributed to his confusion.
[7]
Written notice of the
new hearing date was subsequently sent to the applicant by mail, and this
notice was admittedly received by him several weeks before the new date set for
his hearing. Despite all of this, the applicant still failed to appear for his
refugee hearing on the second hearing date.
[8]
The Board’s finding
that the above factors evidenced a lack of intention on the applicant’s part to
pursue his refugee claim with diligence is well within the range of possible, acceptable outcomes which
are defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. As a consequence, there is no basis for this
Court to interfere with the Board’s decision.
[9]
Finally, the
applicant argues that it was an error for the Board to rely on this Court’s
decision in Sainvry v. Canada (Minister of
Citizenship and Immigration), 2013 FC 468, [2013] F.C.J. No. 497 [Sainvry] to
find that the applicant’s behaviour was less than diligent. The applicant
submits that Sainvry is distinguishable as it relates to an application
to reopen a refugee proceeding rather than an abandonment proceeding, and
because the applicant in Sainvry failed
to attend either his original hearing or his abandonment hearing.
[10]
There is no merit to
this submission. The Board relied on Sainvry as
authority for the proposition that “[a]t a certain point, the applicant must
take some responsibility to ensure that he understood the written
correspondence he received regarding his refugee claim”: Sainvry at
para. 16. The applicant does not take issue with this common sense
proposition, and the factual differences between the two cases are not material
to this point.
[11]
For these reasons,
the application for judicial review is dismissed. I agree with the parties that
the case does not raise a question for certification.
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