Docket: IMM-1704-14
Citation:
2015 FC 845
Toronto, Ontario, July 09, 2015
PRESENT: The
Honourable Mr. Justice Diner
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Docket: IMM-1704-14
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BETWEEN:
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SWHA HUSEEN
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BATOL MOHAMMAD
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HAMZA MOHAMMAD
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HUZAIFA
MOHAMMAD
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Applicants
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And
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Swha Huseen, a woman of Palestinian ethnicity,
was living in Syria with her husband when civil strife intensified in that
country in 2013. She was a nurse, and fears persecution on account of her
husband’s work as a doctor that tended to injured rebel soldiers. For this
reason, her husband was arrested and he disappeared thereafter. He was never
heard from again. The Primary Applicant and her three young children eventually
fled to Canada, seeking refugee protection. The Huseens’ refugee claim was
never heard, having been declared abandoned after the Applicants failed to
submit certain forms and appear at an abandonment hearing.
[2]
This is a judicial review of a Decision of the Refugee
Protection Division [RPD] dated February 24, 2014, denying the Applicants’
application to reopen their refugee claim. The only issue to be decided in this
case is whether that refusal was reasonable in light of the principles of
natural justice.
II.
OVERVIEW: What led to the Abandonment of the
refugee claim?
[3]
Swha Huseen, the Primary Applicant [PA], is the
mother of the three other Applicants, all minor children. She is a stateless
Palestinian woman who, before coming to Canada, was living in Syria and was registered with the United Nations Relief and Works Agency. She worked in Syria as a
nurse, and her husband was a doctor.
[4]
In January 2013, soldiers visited her husband’s
clinic and told him he would pay heavily if he continued to treat the rebel
forces. The family immediately fled Damascus and settled in Jaramana, another
city in Syria. According to the Applicant’s Affidavit, her husband was arrested
in Jaramana in August 2013 and sent to prison for treating rebel soldiers. She
has not spoken to or heard from him since that time. This evidence has not been
challenged.
[5]
The Applicants fled Syria on September 29, 2013,
fearing that the authorities would persecute them in retribution of the acts of
her husband. They first travelled to and resided in Egypt, but the Applicants’
request for extensions to their temporary resident status was denied. Ms.
Huseen thereafter began to make plans to come to Canada, where she had
relatives.
[6]
The Applicants landed in Canada at Toronto’s Lester B. Pearson Airport on December 15, 2013, where they made a claim for
refugee protection, and her brother-in-law helped the family to complete their
paperwork.
[7]
The RPD provides a 15-day deadline to submit the
Basis of Claim [BOC] form, along with a Notice to Appear for an abandonment
hearing, should this deadline be missed. The Applicant failed to follow the BOC
instructions and missed her December 30, 2013 deadline. The evidence is not
clear as to whether the misunderstanding stemmed from misinformation provided
to the Applicant by her brother-in-law, or from her own misreading of the BOC
instructions, for which she had an Arabic translation. What is clear is that
the Applicant did not have legal representation for the period from her arrival
on December 15 until her January 7 abandonment hearing three weeks later.
[8]
Almost immediately after landing in Toronto, and
well before the BOC filing deadline, the Applicants relocated to Alberta. On
December 18, 2013, the PA attended the Calgary Immigration and Refugee Board
[IRB] office in person to request a change of venue for her refugee hearing.
Her brother-in-law once again assisted her with this request. The PA asserts
that she thought that this venue change application suspended the 15-day BOC
filing deadline. In other words, her unchallenged and sworn testimony is that
she believed nothing further was required until she received confirmation that
her claim had been transferred to Calgary.
[9]
The Board moved swiftly towards abandonment:
once the Applicants missed their BOC filing deadline, the Board held the
abandonment hearing on January 7, 2014 in Toronto. The Applicants, then all
living in Alberta, missed this hearing. Their claims were declared abandoned.
[10]
The Applicants retained counsel on January 10,
2014, who continues to act for them to this day. Mr. Harsanyi, upon being
retained, contacted the IRB-Toronto that day to explain the situation,
including the Applicant’s misunderstanding of the dates, lack of intention to
abandon, and prior absence of legal counsel. On January 14, 2014, Mr. Harsanyi
submitted an application to reopen the Refugee Claim on behalf of the
Applicants.
[11]
The RPD ultimately refused to reopen the claim,
finding no failure to observe a principle of natural justice. It noted that
nothing in the Refugee Protection Division Rules (SOR/2012-256) [Rules],
the Immigration and Refugee Protection Act, (SC 2001, c 27) [Act],
or the BOC forms indicates a hold period pending a venue change request. The
Board applied the legal maxim, “ignorance of the law is
no defence” in denying the Applicants’ request to reopen their refugee
claim.
III.
ISSUE: Did the RPD err in refusing to reopen
the Applicants’ refugee claim?
[12]
The only issue to be decided is whether the RPD
made a reviewable error in declining to reopen the Applicants’ abandoned claim
for refugee protection. I am aware that certain case law referenced by the
Applicants holds that the correct standard of review is correctness: Martinez v Canada (Citizenship and Immigration), 2009 FC 1306, at paras 19-20;
Emani v Canada (Citizenship and Immigration), 2009 FC 520, at para 14.
[13]
However, the jurisprudence has evolved since
these decisions. Recent case law has established that RPD decisions considering
applications to re-open are to be reviewed on a reasonableness standard,
because the RPD’s assessment is a question of mixed fact and law (Gurgus v
Canada (Citizenship and Immigration), 2014 FC 9, at para 19 [Gurgus];
Yan v Canada (Citizenship and Immigration), 2010 FC 1270, at para 21).
[14]
The RPD’s power to reopen a refugee claim is
very limited. The Rules are highly prescriptive. Rule 62(6) states the RPD “must not allow the application unless it
is established that there was a failure to observe a principle of natural
justice” [emphasis added]. This rule updated the Rule 55(4) found in the
previous version of the Refugee Protection Division Rules, (SOR/2002-228),
which was broader in scope and read that the RPD “must
allow the application if it is established that there was a failure
to observe a principal of natural justice” [emphasis added].
[15]
The primary question in this judicial review is
whether there was a violation of a principle of natural justice, despite the
Applicants’ failure to adhere to the precise letter of the law in submitting
her BOC in a timely manner or attending her abandonment hearing. I conclude
that there was.
[16]
In my view, the door should not slam shut on all
those who fail to meet ordinary procedural requirements. Such a restrictive
reading would undermine Canada’s commitment to its refugee system and underlying
international obligations (section 3(2) of the Act). Indeed, one of the
purposes of the Refugee Convention, to which Canada is a signatory, is to
allow refugees the widest possible exercise of fundamental rights and freedoms
(Febles v Canada (Citizenship and Immigration), 2014 SCC 68, at para
27).
[17]
The opportunity to free a family from the
scourge of persecution, the actors of which presumably caused the death of their
husband and father, should not rest on an overly rigid application of
procedural requirements. This is particularly where, as I shall explain, the Rules
themselves allow for the flexibility to safeguard fairness.
[18]
I note that the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations], address a
comparable procedure to the process of reopening a refugee claim: the extension
of the timelines required for filing a BOC. Regulation 159.8(3) states that the
RDP “may, for reasons of fairness and natural
justice, extend the timeline by the number of days that is necessary in the
circumstances” [emphasis added].
[19]
Regulation 159.8(3) differs from Rule 62(6) in
that the latter only employs considerations of “natural
justice”, whereas the former adds the concept of “fairness”. I invited the parties to provide
submissions on whether there is any meaningful difference between the concepts
of natural justice and fairness (more commonly referred to as procedural
fairness). The Respondent provided the following helpful explanation in its
Further Memorandum of Fact and Law (filed May 26, 2015, p. 2), which the
Applicant also relied on in his Reply:
3. In the past a distinction between
procedural fairness and natural justice existed in both the Canadian and
English courts. In English Courts, the rules of natural justice were seen as
being more “substantial and adjudicative”, requiring an oral hearing, notice,
legal representation, cross-examination of witnesses, etc.1 Procedural
fairness was seen as less formal, imposing a general duty to act fairly which
only required an opportunity to respond.
4. More recently, the distinction
between the two terms have been swept aside.2 Courts now often use
the two terms either interchangeably or together, where the “requirements of
natural justice and procedural fairness” are treated as encompassing the
general duty to be fair.3 Procedural fairness and the duty to be
fair are seen as “overarching terms which incorporate all the rules of natural
justice” as they apply to administrative decisions.4
5. Generally, it appears that the
term “procedural fairness” was initially brought on to differentiate between
the stricter rules of natural justice as they applied to judicial or
quasi-judicial decisions and those rules of fairness which would apply only to
administrative decisions. However, this distinction has been eroded and at
present the Courts have accepted a general duty of fairness which can be
referred to by using either “natural justice” or “procedural fairness”.
[1]
G Régimbald, Canadian Administrative Law, 2d ed (Markham: LexisNexis
Canada Inc., 2015) at 265.
2 Nicholson
v Haldimand Norfolk (Regional Municipality) Police Commissioners, [1979] 1
SCR 311; Ridge v Baldwin, [1964] AC 40 (HL).
3
ATA v Alberta (Information & Privacy Commissioner), 2011 SCC
61 at para 82; Godbout c. Longueuil (Ville), [1997] 3 S.C.R. 844 at para
74; Syndicat des employés de production du Québec & de l'Acadie v.
Canada (Human Rights Commission), [1989] 2 S.C.R. 879 at para 21; Baker v
Canada, supra note 4 at para 26; Singh v Canada (Minister of
Employment & Immigration), [1985] 1 S.C.R. 177 at para 116.
4 DP Jones & AD de Villars, Principles of
Administrative Law, 6th ed (Toronto: Thomson Reuters Canada Limited, 2014)
at 263.
[20]
Therefore, with respect to this case, one can
interpret Rule 62(6) as permitting the RPD to reopen a claim where there has
been a denial of natural justice or procedural unfairness to the applicant.
[21]
Rule 62(7), sets out factors that the RPD must
consider in coming to its determination:
62(7) In deciding the application, the
Division must consider any relevant factors, including
(a) whether the application was made
in a timely manner and the justification for any delay; and
(b) the reasons why
(i) a
party who had the right of appeal to the Refugee Appeal Division did not
appeal, or
(ii) a
party did not make an application for leave to apply for judicial review or an
application for judicial review.
[22]
The language of “including”
embedded in the Rule, by the norms of statutory interpretation, connotes that
the factors to be considered by the RPD are not limited to whether the
application was made in a timely manner (United Taxi Drivers' Fellowship of
Southern Alberta v Calgary (City), 2004 SCC 19, at para 14). Thus, while the
timeliness of submitting a claim is therefore a factor to be considered, it is
certainly not the only one.
[23]
Even then, the RDP’s sole focus on the missed
deadlines inhibited analysis of the second portion of Rule 62(7)(a): the
justification for any delay. In combination with failing to look at other
factors, this meant that the RPD took an unreasonably restrictive approach to applying
the Rules.
[24]
After citing the missed (i) 15-day timeline for
the BOC, and (ii) abandonment hearing, the Board tersely concluded that no
violation of natural justice occurred in this case. Absent from this conclusion
and reasons was any rationale that took into account the Applicants’ personal
circumstances surrounding the missed deadline, other than mentioning that the
BOC kit was provided in Arabic, their first language. In short, the Board failed
to meaningfully consider that the Applicants took appropriate steps to immediately
request a change of venue after moving across the country, to engage counsel,
and to correct misapprehensions.
[25]
The legal maxim the RPD applied, that the “ignorance of the law is no excuse”, cannot absolve it
from looking at the particular circumstances surrounding a late claim falling
within the purview of Rule 62(6). If such were the case, the factors
illustrated in Rule 62(7)(a), the timeliness of the application and any
justification for its delay, would serve no purpose. In other words, it does
not follow that Parliament intended the RPD analyse whether there is a valid
justification for a delayed claim, and then have this analysis carry no weight
in a decision to reopen. As I see it, Rules 62(6) and 62(7) are meant to
relieve the draconian results inevitable in barring every delayed refugee claim,
not perpetuate them.
[26]
Simply relying on the principle “ignorance of the law is no excuse” constituted unreasonable
reasons, because there was no consideration of the other significant factors in
play in this case. For example, the Applicants:
i.
had no counsel during the entire period under
review by the Board;
ii.
attended the IRB Office in Calgary in person to
present the new address and change of venue request;
iii.
mistakenly believed that proceedings were suspended
until a decision was taken on the change of venue request;
iv.
had difficulty finding a lawyer between the move
to Alberta on December 18, 2013 and the January 7, 2014 abandonment hearing due
to the Christmas holiday season;
v.
immediately addressed the missed date after the
first meeting with counsel on January 10, 2014, merely three days after the
scheduled abandonment hearing, by informing the IRB that they never had any
intention to abandon the claim.
[27]
To expand on the last point, as soon as the
Applicants retained counsel, which was less than two weeks after the BOC deadline,
counsel called the IRB and explained the situation, putting it on notice that
an application to reopen would be filed shortly. That occurred four days later,
on January 14, 2014. All requisite BOC forms were also filed on that date.
[28]
In my view, this conduct cannot reasonably be described
as dilatory conduct with unexplained gaps. It cannot reasonably be described as
an intentional effort to circumvent or prolong the refugee claim process.
[29]
I wish to stress that a failure or delay in
engaging counsel is, in itself, not an acceptable panacea to all the harm that
results from missteps in the refugee process. Equally unacceptable, however, is
a failure on the Board’s part to consider an individual’s circumstances in
these situations.
[30]
Indeed, the PA in this case did not forgo the
use of counsel, but obtained legal assistance within weeks of her arrival to
help guide her through the process. Counsel moved with haste to rectify the PA’s
misapprehension, and I see no reason why the claim would not have proceeded smoothly
had it been reopened. I cite Cervenakova v Canada (Citizenship and
Immigration), 2012 FC 525, at paras 64, 67 to demonstrate not only that applicants
are often lost without counsel, but that they can make a significant impact in
the smooth progression of a proceeding.
[31]
Various cases of this Court have found breaches
of natural justice even when an applicant missed a deadline or hearing (Andreoli
v Canada (Minister of Citizenship and Immigration), 2004 FC 1111 at para
20-23 [Andreoli]; Matondo v Canada (Minister of Citizenship and
Immigration), 2005 FC 416 at para 21; Clavijo Albarracin v. Canada
(Citizenship and Immigration), 2008 FC 1143 at para 4). In each of these
cases, the Court found that the decision maker did not consider all the
evidence before it, including various reasons that could have justified the
delay or conduct
[32]
As Justice Harrington noted in Andreoli:
[16] In order to assess a case such as
this, it is absolutely paramount to opt for a contextual approach and to avoid
the mire of procedural dogma. I refer to the words of the Honourable Mr.
Justice Pigeon in Hamel v. Brunelle, [1977] 1 S.C.R. 147, 156., where he very
aptly wrote that "procedure [should] be the servant of justice not its
mistress."
[17] In this case, the evidence
establishes that the interpreter forgot to advise the panel and that it was
this error alone that led to the dismissal of the applicants' claim. We must
also remember that the applicants do not speak French or English, which made
them particularly vulnerable and dependant on their interpreter. Finding that
they were the authors of their own misfortune amounts to punishing them for the
carelessness of a third party, which is not only unfair in purely human terms,
but also disregards the purpose of the Act….
…
[19] We can also ask ourselves what
harm could possibly be caused to the respondent if a hearing on the merits of
the claim were to take place.
[20] I am well aware of the abundant
case law from this Court to the effect that the applicants are responsible for
their files and cannot use their own wrongdoing as a means to justify fatal
omissions, procedural though they may be. But it must be understood that in
this case the applicants were not negligent and merely trusted their
interpreter, on whom rests the entire procedural error.
[33]
The same reasoning employed by Justice
Harrington in Andreoli applies here. I would note that Justice
Harrington ruled in a more recent decision that a refusal to reopen was
reasonable: Mendoza Garcia v Canada (Citizenship and Immigration),
2011 FC 924 [Mendoza]. However, in Mendoza, the Applicant could
not be located despite (i) several months of both his counsel and the IRB
trying unsuccessfully to locate and contact him, and (ii) the IRB thereafter
rescheduling the hearing in the hope of giving the applicant a final chance (Mendoza
at paras 5-8). The factual matrix in Mendoza is vastly
different from the instant case.
[34]
Finally, the Respondent also points out that the
IRB Office in Toronto only received the venue change request one day before the
abandonment hearing. I would make two observations in response. First, this
speaks to the internal communications between regional offices at the IRB, as
the Calgary IRB office was handed the change of venue request, in person, about
three weeks prior. It would be unfair to fault the Applicants for the Board’s
delay in internal communications, over which the Applicants had no control or
influence.
[35]
Secondly, if anything, the RPD’s internal delay underlines
that the Board had the opportunity and time to contact the PA to inquire about any
desire to abandon her claim. Indeed, the change request form had her telephone
number and the address at which the PA could have been reached in Alberta (Certified Tribunal Record [CTR], p. 278). However, the Board did not do so,
choosing instead to presume that she intended to have her claim abandoned,
despite the message implicit in her change of venue request.
IV.
CONCLUSION
[36]
The Board relied on the maxim that the ignorance
of the law is no defence in its refusal to reopen the Applicants’ claim. This Court,
however, has held on numerous occasions that refugee applications may be
allowed to proceed, despite procedural defects, to ensure that the requirements
of natural justice are fulfilled. Natural justice encompasses the overarching
right to be heard (Canada v Garber, 2008 FCA 53, at para 40), and this should
not be denied unreasonably. The matter will therefore be referred back to the
RPD so that a differently constituted panel may reconsider the application in
light of these reasons.
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