Docket: IMM-1251-14
Citation:
2015 FC 533
Ottawa, Ontario, April 24, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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QINBIN GUO
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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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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board of Canada determining that the applicant’s refugee claim was
abandoned. For the reasons set out below, I have concluded that this
application should be granted and the RPD’s decision set aside.
II.
Facts
[2]
The applicant’s hearing before the RPD was
scheduled to take place on January 27, 2014. On January 23, 2014, applicant’s
counsel requested that the hearing be postponed because the applicant was sick.
In support of this request, counsel filed a letter from the applicant’s doctor
dated January 23, 2014, indicating that the applicant: (i) had bronchitis and
possibly hypertension, (ii) was prescribed antibiotics and cough syrup, and
(iii) told his doctor that he had a fever on the night on January 22, 2014. Applicant’s
counsel appeared before the RPD on January 27, 2014, but the applicant was not
present. During this brief hearing, the presiding member stated that he did not
find the medical note to be sufficient evidence that the applicant had not
abandoned his claim. The RPD scheduled a special hearing on February 17, 2014
to give the applicant an opportunity to explain why his claim should not be
considered abandoned.
[3]
On February 17th, 2014, the applicant and his
counsel appeared before the same RPD member who had previously heard
applicant’s counsel on January 27, 2014. For a second time, the presiding
member expressed that the medical letter dated January 23, 2014, was insufficient
to establish that the applicant was in a condition that prevented him from
appearing before the RPD on January 27, 2014. The applicant later received a
letter dated February 18, 2014, stating that he had failed to show reason why
the RPD should determine that his claim was not abandoned. This letter is the
impugned decision under review.
III.
Analysis
[4]
This matter raises one issue:
- Did the RPD err
in determining that the applicant’s refugee claim has been abandoned?
[5]
The reasonableness standard applies to this
issue: Ndomba v Canada (Citizenship and Immigration), 2014 FC 189 at
para 9, Uandara v Canada (Citizenship and Immigration), 2015 FC 254 at
para 26.
[6]
Subrules 65(4) to 65(7) of the Refugee
Protection Division Rules (SOR/2012-256) (RPDR) provide the factors
that are to be considered in deciding if a refugee claim should be declared
abandoned:
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Factors to
consider
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Éléments à considérer
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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.
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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.
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Medical
reasons
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Raisons
médicales
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(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.
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(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.
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Content of
certificate
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Contenu du
certificat
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(6) The medical
certificate must set out
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(6) Le certificat
médical indique, à la fois :
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(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
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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,
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(b) the date on
which the claimant is expected to be able to pursue their claim.
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b) la date à
laquelle il devrait être en mesure de poursuivre l’affaire.
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Failure to
provide medical certificate
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Défaut de
transmettre un certificat médical
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(7) If a claimant
fails to provide a medical certificate in accordance with subrules (5) and
(6), the claimant must include in their explanation
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(7) À défaut de
transmettre un certificat médical, conformément aux paragraphes (5) et (6),
le demandeur d’asile inclut dans son explication :
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(a) particulars
of any efforts they made to obtain the required medical certificate,
supported by corroborating evidence;
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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;
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(b) particulars
of the medical reasons included in the explanation, supported by
corroborating evidence; and
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b) des précisions
quant aux raisons médicales incluses dans l’explication ainsi que des éléments
de preuve à l’appui;
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(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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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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[7]
In reviewing an abandonment of claim decision,
this Court must determine “whether the refugee
claimant's conduct amounts to an expression of intention by that person, he or
she did not wish or had shown no interest to pursue the refugee claim with
diligence”: Ahamad v Canada (Citizenship and Immigration), [2000]
3 FCR 109 (FC) at para 32, Csikos v Canada (Citizenship and Immigration),
2013 FC 632 at para 25.
[8]
The respondent argues that the RPD made a
reasonable assessment of the medical letter and reasonably considered whether
the applicant was ready to start or continue the proceedings. The respondent
also underlines that the presiding member gave the applicant an opportunity to
explain why he was not present on January 27, 2014. In my opinion, the RPD made
an unreasonable analysis of the situation.
[9]
The central aspect of the RPD’s reasoning is the
assessment of the medical letter dated January 23, 2014, which was considered
insufficient evidence.
[10]
First, the RPD acted unreasonably in concluding
that the applicant’s symptoms were insufficient to postpone the hearing. The
applicant's doctor had diagnosed acute bronchitis and had recommended that he
stay home for a week. The respondent argues that the RPD reasonably considered
that the applicant’s medical condition does not indicate that he would have
been unable to participate in the hearing. I am not satisfied that the
situation required that the applicant go against his doctor’s recommendation.
The respondent notes that the medical letter refers to a likely
diagnosis. I am not satisfied that the word “likely”
changes anything. Any diagnosis is merely a statement of a likely cause of a
problem.
[11]
Second, the RPD acted unreasonably in concluding
that the applicant’s medical letter was deficient by failing to indicate the
date on which the applicant was expected to be able to pursue the claim. The
applicant’s absence from the original hearing was clearly based on the doctor’s
recommendation to stay home for one week. It follows that the end of that week
indicates the date on which the applicant could be expected to be available. To
ask for more seems pedantic.
[12]
Third, the RPD erred in assessing the factor
expressed under subrule 65(4) of the RPDR that the applicant should be “ready to start or continue the proceedings.” The record
of the hearing of February 17, 2014, indicates that the RPD asked the applicant
whether he was ready to proceed right away. The applicant answered: “I was not feeling very well this morning, but right now I’m
feeling okay. I think so. I think I’m ok.” While this answer may not be
as firm and unequivocal as the RPD member would like, it nevertheless indicates
that the applicant was ready to proceed. Moreover, applicant’s counsel
mentioned during the hearing: “today’s date we are both
here because we are ready to proceed.” The only reasonable conclusion is
that the applicant was ready to proceed. The record of the hearing suggests
that the RPD ignored these statements.
[13]
I cannot conclude this decision without
expressing my surprise that the respondent chose to oppose the present
application. The evidence is perfectly clear, in my view, that it was unreasonable
to expect the applicant to appear on the day of the original hearing. The
applicant’s medical letter appears to be as clear as a doctor could be at that
time. To deprive a person of a potentially life-saving refugee claim by
quibbling over whether prescribing a week at home constitutes providing “the date on which the claimant is expected to be able to
pursue their claim” smacks of trying to save RPD resources on the backs
of the very people the RPD exists to protect, diligent refugee claimants.
[14]
The respondent’s continued insistence that the
applicant did not clearly state, at his abandonment hearing, that he was ready
to proceed, is even more difficult to understand. Though counsel did not press
the point in oral submissions, the respondent’s written argument does so,
relying on the incorrect and misleading statement by the RPD that, with respect
to whether the applicant was ready to proceed with his claim, he said “only he thought so, as he had not been feeling well
earlier.”
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