Docket: IMM-5258-13
Citation:
2015 FC 587
Toronto, Ontario, May 5, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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JINWOO KANG
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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
[1]
UPON MOTION for
Dismissal of this application for judicial review [Dismissal] filed by the
Respondent, pursuant to Rule 369 of the Federal Courts Rules; on April
9, 2015;
[2]
AND UPON reading
the materials filed, both with this motion and the judicial review
application;
[3]
AND UPON determining
that this Motion should be granted for the following reasons:
1.
The Applicant commenced this application for
leave and for judicial review on April 8, 2013, challenging the negative
decision of the Refugee Protection Division of the Immigration and Refugee
Board [RPD].
2.
At the December 9, 2014 Federal Court hearing,
Ms. Katrina Bérubé appeared as an agent for Ms. Meerai Cho, legal counsel who
was retained by the Applicant in this matter. Ms. Bérubé advised the Court and
the Respondent that (i) Ms. Cho had been suspended by the Law Society of Upper
Canada, and that (ii) while Ms. Bérubé had taken over many of Ms. Cho’s files,
she had neither been retained by, nor had any contact with, the Applicant
despite making several attempts to do so.
3.
In addition, Ms. Bérubé claimed that she had
become aware of information concerning the Applicant during the file transfer
process from Ms. Cho that meant she would not represent the Applicant, even if
she were in contact with him.
4.
By order of the Court dated January 19, 2015
(annexed hereto), Ms. Bérubé was removed from the proceedings, subject to
certain undertakings, which she proceeded to comply with in the intervening
months, the most important of which was to attempt to find the Applicant and
secure legal representation for him.
5.
The matter was adjourned sine die, in the
hope of appointing new counsel to represent the Applicant.
6.
The status quo remains as it was since last
December: the Applicant has not been found, despite consistent efforts, first
by Ms. Bérubé, and subsequently by Ms. Catherine Bruce. Ms. Bruce, counsel at
the Refugee Law Office [RLO], sent correspondence in two letters to the Court,
copying the Respondent, on March 26, 2015 and March 30, 2015, advising the RLO
had made efforts to contact the Applicant, but had also been unsuccessful in
communicating with him (Respondent’s Motion Record, Affidavit of Karen
Mendonca, Exhibit “C”, pp 24-28).
7.
Ms. Bruce, in these letters, stated that if the
Court “is minded to” hear the judicial review,
the RLO wished to submit a motion to be appointed amicus curiae.
8.
Further communication was received from Ms.
Bruce of the RLO, in a follow up letter dated April 26, 2105, a full month
after the initial RLO correspondence, stating that the situation, and RLO
position, as described above vis-à-vis the Applicant, remained unchanged.
9.
The Court is not minded to hear this judicial
review. I agree with the Respondent, that the Applicant has not made any
attempts to pursue this matter to completion, and appears to have abandoned the
litigation. He has not been in communication with the agent, acting on behalf
of his former counsel, despite numerous attempts to communicate with him since
October 2014. Consequently, the agent was unable to receive instructions from
the Applicant. Subsequent to the agent’s involvement, the RLO also had no
success in communicating with the Applicant. There are no reasonable grounds to
believe that the Applicant will present himself to the Court to pursue this
matter.
10.
In addition to the Applicant’s whereabouts being
unknown, there is a warrant for the Applicant’s arrest that has been
outstanding for approximately one year due to his failure to appear at a
pre-removal interview. It is possible that he is not even resident in Canada.
11.
The Court has faced similar scenarios in
previous cases where an applicant’s whereabouts were unknown and/or an
applicant’s counsel had not been able to obtain instructions (Sakarya [IMM-5181-12]
and Oduko [IMM-1623-10]). In those cases, the Court allowed a certain
period of time to attempt to find the applicant and upon the failure to do so
by the end of the allotted period of time, the Court dismissed the judicial
review.
12.
The facts were similar in Sakarya, for
example, where the Court adjourned the hearing because applicant’s counsel had
not been able to receive instructions from the applicant, and the fact that the
applicant’s whereabouts were unknown. When the matter came back before the
Court, applicant’s counsel advised that various unsuccessful efforts had been
made to communicate with the applicant, and the Court dismissed the
application.
13.
In Oduko, there was also a breakdown in
solicitor-client communication. The Court, considering the procedural history
of the case, determined that the Minister’s motion to deem the litigation
abandoned should be granted.
14.
I see no reason to diverge from the case law,
based on all the reasons set out above.
Docket: IMM-5258-13
Toronto, Ontario, January 19, 2015
PRESENT: The Honourable Mr. Justice Diner
BETWEEN:
JINWOO KANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON AN ORAL MOTION
AND IN WRITING MADE TO THE COURT by Katrina Bérubé appearing as agent for
the Applicant, seeking to remove herself from any further involvement in this
litigation and Michael Butterfield, counsel for the Respondent, consenting to
the Motion based on the submission made by Katrina Bérubé.
THIS COURT ORDERS that:
1. Katrina Bérubé is permitted to have no further involvement in this
litigation;
2. Pursuant to her oral submissions and written representation, Katrina
Bérubé undertakes to contact Legal Aid Ontario to advise that the Applicant has
no legal representation before this court in this matter because she cannot act
on the Applicant’s behalf;
3. In addition, Katrina Bérubé undertakes to ask Legal Aid Ontario to
facilitate retaining a new legal counsel on behalf of the Applicant in pursuit
of the litigation herein and that she will advise this Honourable Court and the
Respondent of the response (if any) provided by Legal Aid Ontario;
4. Katrina Bérubé will update this Honourable Court and Mr. Butterfield
of the Department of Justice with the file status on the 30th of
every month until such time as Legal Aid Ontario has communicated its position
on the file;
5. This matter is adjourned sine die and is to be rescheduled
when a new counsel has been appointed.
"Alan S. Diner"
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