Date:
20140227
Docket:
IMM-3294-13
Citation:
2014 FC 189
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
February 27, 2014
PRESENT: The Honourable Mr.
Justice Roy
BETWEEN:
Marie Josée
BOLOMBU NDOMBA
Applicant
and
THE MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application for judicial review brought under
section 72 of the Immigration and Refugee Protection Act, SC (2001), c
27 (Act). In this case, the Refugee Protection Division of the Immigration and
Refugee Board of Canada (RPD) found that the applicant had abandoned her
refugee claim.
[2]
Section 168 of the Act allows each division of the Board to
determine that a proceeding before it has been abandoned. Clearly, the Act will
not allow immigration proceedings to be drawn out; a person who is in Canada and
who does not want to leave it quite often has no interest in moving forward
with those proceedings. The Act allows the RPD to declare a claim abandoned
when the refugee claimant is not advancing the file. The decision to declare a
claim abandoned is discretionary, but cannot be arbitrary. In this case,
section 65 of the Refugee Protection Division Rules, SOR/2012-256 (Rules),
applies. Subsections (4), (5) and (7) of section 65 of the Rules, which address
abandonment cases before the Refugee Protection Division, may be examined to
find that they were followed in this case. Those subsections read as follows:
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(4) The Division must consider, in deciding
if the claim should be declared abandoned, the explanation given by the
claimant and any other relevant factors, including the fact that the claimant
is ready to start or continue the proceedings.
(5) If the claimant’s explanation includes
medical reasons, other than those related to their counsel, they must
provide, together with the explanation, the original of a legible, recently
dated medical certificate signed by a qualified medical practitioner whose
name and address are printed or stamped on the certificate.
. . .
(7) If a claimant fails to provide a medical
certificate in accordance with subrules (5) and (6), the claimant must
include in their explanation
(a) particulars of any efforts they made to obtain
the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons included in
the explanation, supported by corroborating evidence; and
(c) an explanation of how the medical condition
prevented them from providing the completed Basis of Claim Form on the due
date, appearing for the hearing of the claim or otherwise pursuing their
claim, as the case may be.
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(4) Pour décider si elle prononce le
désistement de la demande d’asile, la Section prend en considération
l’explication donnée par le demandeur d’asile et tout autre élément
pertinent, notamment le fait qu’il est prêt à commencer ou à poursuivre les
procédures.
(5) Si l’explication du demandeur d’asile
comporte des raisons médicales, à l’exception de celles ayant trait à son
conseil, le demandeur d’asile transmet avec l’explication un certificat
médical original, récent, daté et lisible, signé par un médecin qualifié, et
sur lequel sont imprimés ou estampillés les nom et adresse de ce dernier.
[…]
(7) À défaut de transmettre un certificat
médical, conformément aux paragraphes (5) et (6), le demandeur d’asile inclut
dans son explication :
a) des précisions quant aux efforts qu’il a faits pour
obtenir le certificat médical requis ainsi que des éléments de preuve à
l’appui;
b) des précisions quant aux raisons médicales incluses
dans l’explication ainsi que des éléments de preuve à l’appui;
c) une explication de la raison pour laquelle la situation
médicale l’a empêché de poursuivre l’affaire, notamment par défaut de
transmettre le Formulaire de fondement de la demande d’asile rempli à la date
à laquelle il devait être transmis ou de se présenter à l’audience relative à
la demande d’asile.
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[3]
The applicant claimed refugee protection on June 8, 2012. She
arrived in the country from Congo-Kinshasa in May of that same year. Essentially,
she states that she was a victim of the police system in the Congo. A hearing
before the Refugee Protection Division was held on March 8 to address her
refugee claim, following a notice issued on February 15, 2013.
[4]
However, an abandonment hearing had already taken place on September
12, 2012, because the Personal Information Form had not been provided. Contrary
to what was claimed at the hearing, the abandonment had not been lifted: none
had been declared. At the end of the hearing, the refugee claim was allowed to
continue because the form was produced (subsection 65(2) of the Rules). In
fact, in September 2012, the presiding member noted the need for a medical
certificate because counsel for the applicant had already mentioned his
client’s health problems. As will be discussed, none was ever produced.
[5]
On March 8, 2013, counsel for the applicant, who was her
counsel in September 2012 and is her counsel before this Court, argued that he
had not had contact with his client for some time, even though the refugee
claim was supposed to be heard that day. The abandonment issue was again raised
given that the applicant did not want to proceed. Counsel again stated that the
applicant has health problems, without further explanation. The abandonment
could have been declared immediately (subsection 65(1) of the Rules) but was
not. The applicant, who had already been notified on September 12, 2012, was
notified again. Counsel complained that the notice to appear for the hearing on
March 8 was not sufficient (February 15) and that a bit more time was needed to
obtain the medical evidence. At the hearing itself, the date of March 21 was
chosen after counsel argued that the proposed date of March 15 was a bit
too soon. He thus communicated with his office while at the hearing itself in
the presence of the applicant and her niece, as stated in the hearing
transcript, to confirm his availability.
[6]
The hearing was therefore scheduled for March 21, 2013. On
that date, neither the applicant nor her counsel was present and the proceeding
did not advance to abandonment or the granting of refugee status; a notice to
appear was issued for a hearing to be held on April 3.
[7]
On April 3, counsel for the applicant requested an
adjournment because he was held up at the Federal Court. The applicant was
present at the hearing.
[8]
The special hearing regarding the abandonment finally took
place on April 19, 2013. The explanations for the absences on March 21 were
short, and the medical certificates, which had been previously mentioned in
September 2012, were still unavailable, despite the hearings on March 8, March
21, April 3 and April 19. Moreover, the applicant was not prepared to proceed
with her refugee claim on April 19.
[9]
It is the reasonableness standard of review that applies to
these issues (Abrazaldo v The Minister of Citizenship and Immigration,
2005 FC 1295; Revich v The Minister of Citizenship and Immigration, 2004
FC 1064; Gonzalez v The Minister of Citizenship and Immigration,
2009 FC 1248; Singh v The Minister of Citizenship and Immigration,
2012 FC 224 (Singh); Csikos v The Minister of Citizenship and
Immigration, 2013 FC 632 (Csikos)). Evidently, as a result, this
Court must show deference to the decision ordering the abandonment. Only
decisions with no basis of reasonableness should be overturned. As stated by
the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, “reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision‑making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[10]
In judicial review, the applicant simply repeated that her
state of health is the reason for her delay in proceeding. The explanations provided
are simply inadequate. To this day, the problems affecting the applicant are unbeknownst
to us apart from her counsel’s pleading/testimony. To claim that physical
suffering is visible, as counsel for the applicant did repeatedly, is no
reason, in my opinion, to overturn the decision by the Refugee Protection
Division, which was there to see it. In particular, I note the following observation
by the RPD, which seems very informative:
[translation]
. . . As for myself, what I can
tell you about my point of view or about what I have thought up until now, I
looked in the file and there is no medical document that tells me what state of
health you are in, in those medical documents there is no indication. I see
your discomfort, at least I observe your conduct in the room and the fact that
you are in a wheelchair, but I have no information from an expert like, for
example, a doctor, who can explain your specific medical condition and who can
explain how you are unable to continue with the proceeding.
[11]
The RPD was alert from the start, and certainly starting
from March 8, 2013, to the applicant’s health situation. In fact, she was
questioned in that respect. Furthermore, the abandonment issue was addressed
and the need to prove the medical condition was once again raised. Counsel for
the applicant opposed the suggestion that the hearing continue on March 15
because he needed [translation] “a
little more time to be able to seek medical evidence”. As indicated above, the March
21 date was agreed upon, but neither the counsel, nor the applicant nor her
niece, all of whom were present on March 8, were present on March 21.
[12]
On April 3, the applicant was present but her counsel was
not. The medical evidence supporting the counsel’s statements were still not
produced on April 19. There were numerous opportunities for the medical
evidence, if it exists, to be produced. The applicant and her counsel knew that
it had been required since September 2012 and most certainly to justify the March
21 absence. Persons seeking to avail themselves of the protection of the
Canadian state must be diligent and prompt. In the words of the Honourable Yvon
Pinard in Csikos, above, “ . . . [i]n the case at
bar, considering the relevant statutory provisions and case-law, . . . it was
reasonable for the RPD to find that the applicants were in default in the
proceedings and declare their proceedings abandoned”. I find that the decision
to declare the claim abandoned was a possible acceptable outcome based on the
law and the facts.
[13]
I agree with the following observation by Justice James Russell
in Singh, supra:
[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. In this case, both of these things occurred, and I see no
reason to interfere with the Decision.
[14]
In extremis, the applicant
also argues that the principles of natural justice and, in particular, the
so-called audi alteram partem rule, were breached.
[15]
I can find no basis for agreeing with that claim. The applicant
was notified of the issues and, when she was provided with the opportunity to
give explanations during the hearing on April 19, those explanations were
nothing more than what had been said before and do not fulfil the requirements
for such explanations. Consequently, the decision by the Refugee Protection
Division is not inappropriate because it is the product of a process launched
in September 2012, with hearings held on September 12, 2012; March 8, 2013; March
21, 2013; April 3, 2013; and April 19, 2013.
[16]
Moreover, there is no need to address the argument that the
RPD breached the guideline on procedures with respect to vulnerable persons
appearing before the IRB (December 15, 2006). First, that text is not as binding
as the applicant would like. In fact, the Act gives the Chairperson of the
Board the power to issue guidelines “to assist members in carrying out
their duties” (paragraph 159(1)(h) of the Act). In addition, however, in
a more fundamental way, the RPD, in this case, showed as much concern as the
applicant could have expected. I read all of the transcripts and found nothing
to repeat. Counsel for the applicant was always present. In fact, more than
once his intervention could have been mistaken for testimony. While the
applicant might have wanted to proceed on April 3 despite her counsel’s absence,
intervention by someone from her counsel’s office resulted in the matter being
adjourned. The guideline is in no way useful to the applicant.
[17]
The RPD demonstrated patience, but it could not substitute
itself for the applicant, who is the only one who could obtain the medical
evidence. There can be no confusion as to its need and to the fact that no
effort was made to obtain it, as indicated by the evidence at the hearings.
[18]
Some might argue that the RPD could have demonstrated more
understanding with respect to the applicant. Two observations can be made. In
as much as increased understanding could have led to a final adjournment, the
fact remains that the decision to declare the claim abandoned was a possible
and acceptable outcome: the Court cannot intervene. Furthermore, the RPD acted in
a systematic manner, giving the applicant time to obtain the essential
documents; when they were not produced, the applicant refused the holding of a
hearing of her refugee claim that same day and indicated that she would
probably be unable to do so at future hearings. It is difficult to think of any
other available options, especially since the RPD even stated at the hearing
that the applicant could make an application to reopen, which she did not do.
[19]
The decision to declare the claim abandoned is reasonable
and, evidently, the application for judicial review must be dismissed. The
parties did not submit a serious question of general importance for
certification and I found none.
ORDER
The
application for judicial review of the decision dated June 6, 2013, by the
Refugee Protection Division of the Immigration and Refugee Board is dismissed. There
is no question for certification.
“Yvan Roy”
Certified
true translation
Janine Anderson,
Translator
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