Docket: IMM-5225-13
Citation:
2015 FC 254
Ottawa, Ontario, February 27, 2015
PRESENT: The
Honourable Mr. Justice Russell
|
BETWEEN:
|
|
CECILIE VEHAMIS UANDARA
|
|
OPERI MUATIJE
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board [Board], dated July 24, 2013 [Decision], which declared the Applicants’
claim for refugee protection abandoned under s. 168 of the Act.
II.
BACKGROUND
[2]
The Applicants are common-law spouses and citizens
of Namibia. They arrived in Canada on November 20, 2010 and made a claim for
refugee protection the same day. Their claim for protection was based on their
fear of the female Applicant’s [Ms. Uandara] parents.
[3]
The Applicants claim that Ms. Uandara’s parents
did not approve of their relationship. They say her parents locked the male
Applicant [Mr. Muatije] in a room, beat him, and cut his neck. Ms. Uandara says
that she was also beaten for trying to free Mr. Muatije.
[4]
The Applicants claim that Mr. Muatije escaped,
and they continued their relationship in secret. They say that, nearly one year
later, Ms. Uandara’s parents saw the couple together and Ms. Uandara’s father
shot Mr. Muatije in the leg.
[5]
The Applicants left Namibia and arrived in Canada on November 20, 2010. Their claim was referred to the Board on November 22, 2010.
[6]
On October 19, 2012, the Applicants were notified
that their hearing was scheduled for November 19, 2012 in Toronto. On November 2,
2012, the Applicants requested that the hearing be postponed because their
child was ill and would be unable to fly to Toronto. The Applicants also asked
that their file be transferred because they were living in Edmonton. The Board
granted their request: the hearing was postponed, and the Applicants’ file was
transferred to the Western region.
[7]
On December 24, 2012, the Applicants requested
that their file be transferred back to Toronto. The Applicants said that they
had nobody to stay with in Vancouver (the location of the Western region’s
office) and that they could not afford to fly their counsel to Vancouver. The Board denied the request. It said that the Applicants could appear by
videoconference.
[8]
On February 15, 2013, the Applicants were notified
that their hearing was scheduled for April 26, 2013 in Toronto to be heard by
videoconference.
[9]
The Applicants did not appear at the April 26,
2013 hearing. Their counsel appeared and said that the Applicants would not be
attending because they were ill.
[10]
On May 9, 2013, the Applicants were notified
that a special hearing was scheduled for July 18, 2013 to allow the Applicants
to explain their failure to attend the April hearing. The letter stated that
the Applicants were required to provide documentation if their failure to
appear was due to medical reasons. The letter also stated that if the Board
decided not to declare the claim abandoned, the Applicants should be prepared
to proceed with the hearing of their claim.
[11]
On June 11, 2013, the Applicants requested that
the hearing be postponed. They claimed that their employer would not give them a
day off for the rest of the year because they had already been given a day off
for the April hearing. The Board denied the request because the Applicants had
been granted two previous postponements. The Board also noted that the claim
had been outstanding since November 2010 and needed to be heard.
[12]
On July 10, 2013, Ms. Uandara requested that the
hearing be postponed. She claimed that she was eight months pregnant and
feeling unwell. She said that her due date was soon and asked that the hearing
be postponed until after she gave birth. She said that she would send a
doctor’s note later. The Board denied the request. The Board, again, noted that
the hearing had been postponed in the past and that there was no medical
documentation to support Ms. Uandara’s request.
[13]
Neither the Applicants nor their counsel
appeared at the July 18, 2013 hearing.
III.
DECISION UNDER REVIEW
[14]
The Applicants’ claim was declared abandoned on
July 18, 2013. The Applicants were notified in a letter sent July 24, 2013. The
letter states (Certified Tribunal Record [CTR] at 2):
On November 22, 2010, your claims were
referred to the Refugee Protection Division (RPD) of the Immigration and
Refugee Board.
In the Notice to Appear Notice dated
February 15, 2013, you were advised that the hearing of your claims would take
place on April 26, 2013. You did not appear at that hearing.
In the Notice to Appear dated May 09, 2013,
you were advised that a special hearing would take place on July 18, 2013, to
give you an opportunity to explain why the RPD should not determine that your
claims have been abandoned. You did not appear at that hearing.
ACCORDINGLY, THE REFUGEE PROTECTION
DIVISION DETERMINES THAT YOUR CLAIMS HAVE BEEN ABANDONED.
[emphasis in original]
[15]
The transcript of the July 18, 2013 hearing
provides further reasons for the Decision.
[16]
The Board said that it had received three requests
to postpone the July 18, 2013 hearing. The Board said that the June 11 request
was implausible because the Applicants’ employers would be in contravention of
the Canada Labour Code and provincial labour codes if the Applicants were
permitted only one day off a year. There was also no documentary evidence to
support their claim that their employers would not give them the day off. The
Board also said that a refugee hearing should take precedence over a day of
work.
[17]
Regarding the July 10 request, the Board noted
the lack of medical documentation to support Ms. Uandara’s claim. The Board
also noted that there were credibility concerns given that the request one
month earlier had only mentioned that the Applicants were unable to get the day
off work.
[18]
The Board also said that it had received a
doctor’s note on July 17, 2013. The note indicated that Ms. Uandara was
pregnant and expected to deliver her baby on October 19, 2013. The note
indicated that Ms. Uandara had “back pain and nausea
related to her pregnancy, and probably should not be flying on an airplane to Toronto at this time. Is it possible to reschedule her hearing till after October 19,
2013, after her baby delivers [sic]” (CTR at 222).
[19]
The Board gave the doctor’s note very little
weight. The Board said that the note merely provided that Ms. Uandara probably should
not fly. The Board also noted that previous correspondence had suggested that
Ms. Uandara was working full-time which led to a conclusion that Ms. Uandara
was more than likely able to fly as well. There was also a credibility issue in
that Ms. Uandara claimed to be eight months pregnant but the doctor’s note
indicated that she was six months pregnant. Further, the Board noted that there
was no need for the Applicants to travel to Toronto for the hearing. The Board
said that the hearing could have been held by videoconference in Edmonton, or the Applicants could have had an in-person hearing in Calgary with counsel attending
in Toronto by videoconference.
[20]
The Board concluded that the Applicants’ claim
was declared abandoned because: their claim had been outstanding for three
years; they had failed to appear twice for refugee hearings; there were
credibility issues with their postponement requests; and, they had failed to
appear for the special hearing to decide whether their claim should be declared
abandoned.
[21]
The transcript indicates that shortly after the
Decision was rendered, the Board received a couriered letter from counsel that
indicated that counsel and the Applicants were sick and unable to attend the
hearing. The Board said that it was functus because it had already
rendered the Decision but would consider the letter “in
an abundance of caution.” The Board said that counsel’s failure to
appear was immaterial because the Applicants had already indicated that they
would not attend the hearing. The Board confirmed the Decision to declare the
claim abandoned.
IV.
ISSUES
[22]
The Applicants raise the following issues in
this application:
1. Whether the Decision is a violation of the fundamental principles of
natural justice, in particular the Applicants’ right to a fair hearing;
2. Whether the Board erred in principle;
3. Whether the Decision is unreasonable.
V.
STANDARD OF REVIEW
[23]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[24]
The Applicants submit that the standard of
review of an abandonment decision is reasonableness. The Respondent submits
that the standard of review applicable to the Board’s findings of fact or mixed
fact and law is reasonableness: Dunsmuir, above, at para 53.
[25]
The first issue raises a question of procedural
fairness and will be reviewed on a standard of correctness: Mission
Institution v Khela, 2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31.
[26]
The second and third issues require the review
of the Decision to declare a claim abandoned. These decisions involve questions
of mixed fact and law and so are reviewed on a standard of reasonableness: Gonzalez
Gonzalez v Canada (Citizenship and Immigration), 2009 FC 1248 at paras
14-15; Singh v Canada (Citizenship and Immigration), 2012 FC 224 at para
22; Csikos v Canada (Citizenship and Immigration), 2013 FC 632 at para
23; Cabrera Peredo v Canada (Citizenship and Immigration), 2010 FC 390
at para 26.
[27]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another
way, the Court should intervene only if the Decision was unreasonable in the
sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[28]
The following provision of the Act is applicable
in this proceeding:
|
Abandonment
of proceeding
|
Désistement
|
|
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.
|
[29]
The following
provisions of the Refugee Protection Division Rules, SOR/2012-256 [Refugee
Protection Division Rules] are applicable in this proceeding:
|
ABANDONMENT
|
DÉSISTEMENT
|
|
Opportunity
to explain
|
Possibilité
de s’expliquer
|
|
65. (1) In
determining whether a claim has been abandoned under subsection 168(1) of the
Act, the Division must give the claimant an opportunity to explain why the
claim should not be declared abandoned,
|
65. (1)
Lorsqu’elle détermine si elle prononce ou non le désistement d’une demande
d’asile aux termes du paragraphe 168(1) de la Loi, la Section donne au
demandeur d’asile la possibilité d’expliquer pourquoi le désistement ne
devrait pas être prononcé :
|
|
(a)
immediately, if the claimant is present at the proceeding and the Division
considers that it is fair to do so; or
|
a)
sur-le-champ, dans le cas où le demandeur d’asile est présent à la procédure
et où la Section juge qu’il est équitable de le faire;
|
|
(b) in any
other case, by way of a special hearing.
|
b) au cours
d’une audience spéciale, dans tout autre cas.
|
|
Special
hearing — Basis of Claim Form
|
Audience
spéciale — Formulaire de fondement de la demande d’asile
|
|
(2) The
special hearing on the abandonment of the claim for the failure to provide a
completed Basis of Claim Form in accordance with paragraph 7(5)(a) must be
held no later than five working days after the day on which the completed
Basis of Claim Form was due. At the special hearing, the claimant must
provide their completed Basis of Claim Form, unless the form has already been
provided to the Division.
|
(2)
L’audience spéciale sur le désistement de la demande d’asile pour défaut de
transmettre en vertu de l’alinéa 7(5)a) un Formulaire de fondement de la
demande d’asile rempli, est tenue au plus tard cinq jours ouvrables après la
date à laquelle le formulaire devait être transmis. À l’audience spéciale, le
demandeur d’asile transmet son Formulaire de fondement de la demande d’asile
rempli, à moins qu’il ne l’ait déjà transmis à la Section.
|
|
Special
hearing — failure to appear
|
Audience
spéciale — omission de se présenter
|
|
(3) The
special hearing on the abandonment of the claim for the failure to appear for
the hearing of the claim must be held no later than five working days after
the day originally fixed for the hearing of the claim.
|
(3)
L’audience spéciale sur le désistement de la demande d’asile pour défaut de
se présenter à l’audience relative à la demande d’asile est tenue au plus
tard cinq jours ouvrables après la date initialement fixée pour l’audience
relative à la demande d’asile.
|
|
Factors to
consider
|
Éléments à
considérer
|
|
(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.
|
(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.
|
|
Medical
reasons
|
Raisons
médicales
|
|
(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.
|
(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.
|
|
Content of
certificate
|
Contenu du
certificat
|
|
(6) The
medical certificate must set out
|
(6) Le
certificat médical indique, à la fois :
|
|
(a) the
particulars of the medical condition, without specifying the diagnosis, that
prevented the claimant 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; and
|
a) sans
mentionner de diagnostic, les particularités de la situation médicale qui ont
empêché le demandeur d’asile 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;
|
|
(b) the date
on which the claimant is expected to be able to pursue their claim.
|
b) la date à
laquelle il devrait être en mesure de poursuivre l’affaire.
|
|
Failure to
provide medical certificate
|
Défaut de
transmettre un certificat médical
|
|
(7) If a
claimant fails to provide a medical certificate in accordance with subrules
(5) and (6), the claimant must include in their explanation
|
(7) À défaut
de transmettre un certificat médical, conformément aux paragraphes (5) et
(6), le demandeur d’asile inclut dans son explication :
|
|
(a)
particulars of any efforts they made to obtain the required medical
certificate, supported by corroborating evidence;
|
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)
particulars of the medical reasons included in the explanation, supported by
corroborating evidence; and
|
b) des
précisions quant aux raisons médicales incluses dans l’explication ainsi que
des éléments de preuve à l’appui;
|
|
(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.
|
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.
|
|
Start or
continue proceedings
|
Commencer
ou poursuivre les procédures
|
|
(8) If the
Division decides not to declare the claim abandoned, other than under subrule
(2), it must start or continue the proceedings on the day the decision is
made or as soon as possible after that day.
|
(8) Si la
Section décide de ne pas prononcer le désistement, sauf dans le cas prévu au
paragraphe (2), elle commence ou poursuit les procédures le jour même de
cette décision ou, dès que possible après cette date.
|
VII.
ARGUMENT
A.
Applicants
[30]
The Applicants submit that the Refugee Protection Division Rules’ abandonment
provisions act to prevent claimants from abusing the process and ensure that only
those claimants who are willing, able and prepared to pursue their claims may
do so. The Applicants submit that the Refugee
Protection Division Rules cannot be interpreted to authorize the
abandonment of a claim where the claimant has shown or indicates a continued
willingness to proceed with his or her claim. The Applicants submit that they
have demonstrated this requisite willingness in pursuing their claim.
[31]
The Applicants also submit that the Board erred
in describing the July 18, 2013 hearing as a “show cause” hearing.
[32]
Finally, the Applicants submit that the Board
erred in failing to consider their explanations which they say were legitimate
and unforeseeable. The failure to consider their explanations constitutes the
denial of a fair hearing and is a violation of the fundamental principles of
natural justice: see Uysal v Canada (Minister of Citizenship and
Immigration), 2004 FC 1310; Espinoza Pineda v Canada (Minister of
Citizenship and Immigration), 2006 FC 328.
B.
Respondent
[33]
The Respondent submits that in determining
whether to declare a claim abandoned, the Board must consider the explanation
provided by the claimant and any other relevant factors: Refugee Protection Division Rules, s. 65(4); Ahamad
v Canada (Minister of Citizenship and Immigration), [2000] 3 FC 109, 184
FTR 283; Markandu v Canada (Minister of Citizenship and Immigration), 2004
FC 1596. The Refugee Protection Division Rules
are clear regarding the documentation that a claimant is required to provide
when he or she fails to appear due to a medical reason.
[34]
The Respondent submits that the Applicants have
not provided any evidence, before either the Board or the Court, to demonstrate
that the Board erred in declaring the Applicants’ claim abandoned. The
Respondent also highlights the number of accommodations that the Applicants
received, including two hearing postponements, the transferring of their file,
and the scheduling of a videoconference. Further, the Board provided a number
of reasons for declaring the claim abandoned.
[35]
The Respondent also submits that, contrary to
the Applicants’ submissions, the Applicants were notified that their July 18,
2013 hearing date was a special hearing and an opportunity for them to explain
why their claim should not be declared abandoned. The Respondent says that the
Board considered the Applicants’ explanations but found them not credible due
to the inconsistencies in the documentary evidence.
VIII.
ANALYSIS
[36]
For people who claim to fear returning to Namibia, the Applicants appear to have made little effort to establish their claim for refugee
protection in Canada. The record suggests repeated accommodation by the Board
and failures to appear by the Applicants that are more consistent with an
attitude of avoidance than an attempt to assert a claim.
[37]
In any event, as far as the Decision under
review is concerned there is clearly no legal error. The Applicants were made
fully aware of the consequences for non-attendance at the July 18, 2013 hearing
and of what they needed to provide in order to avoid an abandonment decision.
Yet, once again, they failed to appear and did not provide the Board with
convincing evidence of their inability to attend. The Board’s Decision was
reasonable and the Court cannot interfere simply because the Applicants want it
to be set aside.
[38]
The Applicants are critical of the Board’s
consideration of the doctor’s note of July 17, 2013, but they have really told
the Court nothing that would allow me to question the Board’s alternative
finding (CTR at 136):
In any event, the claimant has chose [sic],
for reasons unknown to the Board, to have counsel in Toronto represent her. The
claimant is living in Edmonton. The Board has videoconferencing in Edmonton. Indeed, the videoconferencing can be set up between Toronto and Calgary and Edmonton, or the claimant could travel down to Calgary to have an in-person hearing and
have counsel present. All of these locations are publicly know [sic], or
all of these locations are made available to the public and it is up to the
claimant to determine the closest place to come to the Board for a refugee
hearing. There’s no reason why she would have to fly to Toronto. She could have
a videoconference in Edmonton.
[39]
The Applicants have been advised that they do
not need to travel to Toronto for the hearing and that they can participate from
Edmonton by videoconference. In fact, their own counsel was participating by videoconference.
The doctor’s note says that the female Applicant “probably
should not be flying on an airplane to Toronto at this time.” There is
no explanation from the Applicants, or anyone else, as to why they did not ask
to attend by videoconference. They simply informed the Board that they would
not be attending the hearing and the doctor’s note they eventually provided
only speaks to air travel. The Decision clearly states this as one of the
reasons for finding the claim abandoned, and yet the Applicants have chosen not
to address it in their materials. The Court can only assume that they have no
reason for their failure to attend the hearing in this way, even though they were
told that it was always an option for them.
[40]
With no real refutatory evidence on point, it is
not possible for the Court to say that the Decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. The Applicants were given a full and fair opportunity to make their case
for non-abandonment before the Board. For reasons that are not clear from the
record, they chose not to avail themselves of that opportunity even though they
were fully aware of the consequences.
[41]
Counsel agree there is no question for
certification and the Court concurs.
Email this Content