Docket:
IMM-12831-12
Citation: 2014 FC 217
Toronto, Ontario, March 6, 2014
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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DANIEL GROMER
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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 ORDER AND ORDER
(Reasons delivered
orally in Toronto on March 4, 2014)
[1]
Daniel Gromer (the Applicant) seeks judicial
review pursuant to subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated November 27, 2012, in which it
decided that the Applicant’s refugee claim had been abandoned and that his
refugee claim was dismissed (the Decision).
Background
[2]
The Applicant had filed a Personal Information
Form (PIF) and had retained counsel but on October 10, 2012 at 1:00 p.m., when
his refugee claim was to be heard on the merits ,(the First Hearing) the
Applicant failed to appear at the Board’s office in downtown Toronto. His car had
broken down on the Gardiner Expressway in Etobicoke at 11:15 a.m. His counsel
did appear before the Board and explained that the Applicant would be unable to
attend. He mentioned a motor vehicle accident but did not indicate that the Applicant
had been injured. The Board ordered that a hearing be held on November 27 at
9:30 a.m. (the Second Hearing). At that time the Applicant was to explain his
earlier absence and, if the explanation was accepted, the hearing would proceed
on the merits.
[3]
The Applicant appeared at the Second Hearing with
a service station repair invoice showing that his car’s alternator had failed
and had been repaired on the day of the First Hearing. A breakdown had been the
problem not an accident. In my view, the difference between an accident and a
breakdown is not material. The important point was that the Applicant could not
appear in time for the First Hearing at 1:00 p.m. and the Board was so advised.
The Applicant’s counsel did not attend the Second Hearing.
The Evidence
[4]
At the Second Hearing the Applicant was
questioned by the Board. He testified that his car broke down at 11:15 a.m. and
that, by the time he had it towed to a garage, it was 2 p.m. He estimated that if
he had left the garage at 2 p.m. he could have reached the Board’s office by 3 p.m.
using public transit. However, he admitted that he did not try to travel
downtown.
The Decision
[5]
The Board concluded that the Applicant had not
been diligent in pursuing his claim because he did not take public transit and
arrive two hours late for the First Hearing.
Conclusion
[6]
In my view the Decision was unreasonable because
there was no evidence that the Applicant or his counsel had any reason to believe
that the Board would have proceeded with the First Hearing at 3 p.m. when it
was scheduled to start at 1 p.m.
[7]
No question was posed for certification.
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