Docket: IMM-10400-12
Citation:
2016 FC 502
Ottawa, Ontario, May 4, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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JAN BANOM
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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]
This is an application for judicial review of
the August 21, 2012 decision of the Immigration and Refugee Board of Canada,
Refugee Protection Division Panel member [the Board] to refuse the Applicant’s
application for refugee protection on the basis that he was neither a
Convention refugee or person in need of protection.
I.
Background
[2]
This file was one of a number of files that had
initially been involved in an action which has been resolved. In Court file
T-1700-11 on October 21, 2014, Justice Russell ordered that the action be
discontinued on a no-cost basis and that any applications for judicial review
listed in Annex A (including this one), which are granted leave, shall not rely
on the topics listed in Annex B to his order. Specifically, Justice Russell
ordered that any judge hearing leave and judicial review of a matter in Annex A
to his order shall not consider arguments made based on institutional bias
which rely on:
a)
allegations of institutional bias with respect
to the 2009 Issue Paper, including jurisdictional issues surrounding the
Immigration and Refugee Board of Canada [IRB]’s ability to send “fact-finding”
missions and produce investigative reports;
b)
all allegations of bias arising from comments
made by the former Minister of Citizenship and Immigration, Jason Kenney; and
c)
allegations of conspiracy between the Minister
of Citizenship and Immigration, the Minister of Foreign Affairs, the employees
and agents of both Ministers, and the IRB, it’s Board Members and employees.
[3]
Leave for this matter was granted by Justice
Annis on May 29, 2015.
[4]
The Applicant, Jan Banom, is a citizen of the
Czech Republic of Roma descent.
[5]
There is some inconsistency within the
Applicant’s personal information form [PIF] and testimony regarding his marital
history, residence of family members and work experience. It is established
though that the Applicant married his first wife in 1981, who is the mother of
his two children who are both refugee claimants living in Canada.
[6]
At some point in the 1990s, the Applicant owned
and operated his own restaurant. While there he was attacked by “White Czech”
people and rocks were thrown into its windows. The police never found the
offender(s). He claims that he was turned away from other restaurants due to
his ethnicity.
[7]
The Applicant ran his own construction business
in the Czech Republic beginning in 1997, but closed it in 2005 until he left
for Canada in 2009 due to illness. During that period he was supported by
social benefits.
[8]
In 2002, the Applicant went to pick up his
workers when four men verbally insulted him, pushed him, sprayed him with
pepper spray, and busted the wheels out on his car. He was hospitalized for a
few days after this incident.
[9]
On April 21, 2009, the Applicant was in a
parking lot with his wife when unidentified men allegedly attacked them. The
Applicant and the Applicant’s wife allegedly went to the police and the doctor.
The police informed them they could do nothing.
[10]
The Applicant travelled to Canada on May 1,
2009, along with his daughter and family.
[11]
The Applicant’s application for refugee
protection was refused in a decision dated August 21, 2012.
[12]
The Board refused the Applicant’s application
for refugee protection on the basis of credibility concerns as well as a
failure to rebut the presumption of state protection.
[13]
The Applicant’s former counsel was removed as
counsel of record (in response to a motion by counsel) by order dated August
27, 2015.
[14]
There had been no communication between the
former counsel and the Applicant since November 12, 2012.
[15]
Several efforts were made by the Applicant’s
former counsel to contact him in May and June 2015, at both his last known
telephone number and last known address, to no avail.
[16]
The last known address in the Respondent’s
database for the Applicant is: 2248 Keele Street, Apt/Unit #5, Toronto,
Ontario, M6M 3Y9.
II.
Issues
[17]
The issues are:
A.
Should the Applicant’s application for judicial
review be dismissed without consideration of the substantive issues raised? If
not,
B.
Did the Board err in law in applying the wrong
legal test in assessing state protection?
C.
Was the Board’s decision unreasonable with
respect to subjective fear of persecution or credibility?
III.
Standard of Review
[18]
The question of law in assessing state
protection should be decided on a standard of correctness. The remaining
questions of fact and mixed fact and law should be decided on the standard of
reasonableness.
IV.
Analysis
A.
Should the Applicant’s application for judicial
review be dismissed without consideration of the substantive issues raised?
[19]
The Applicant nor any representative on his
behalf appeared at the hearing.
[20]
This Court has, in a number of cases where no
one has appeared on behalf of the Applicant, dismissed judicial review
applications without considering the substantive issues raised (Edirisnghe v
Canada (Minister of Citizenship and Immigration), 29 April 2015, Doc. No.
IMM-191-14; Akter v Canada (Minister of Citizenship and Immigration),
2001 FCT 431; Martinez v Canada (Minister of Citizenship and Immigration),
2000 Canlii 16015).
[21]
However, the Court has also decided judicial
review applications on the written record before the Court, notwithstanding the
failure of anyone to appear on behalf of the applicant at the hearing (Bojchuk
v Canada (Minister of Citizenship and Immigration), 2003 FC 967; Zinta
Valleyjos v Canada (Minister of Citizenship and Immigration), 2009 FC 289).
[22]
In this case, the application was commenced
three years ago and the Applicant has shown no interest in disposition of the
application since the last communication with his counsel in November, 2012. Moreover,
notwithstanding repeated attempts by the Applicant’s counsel to obtain
instructions since the granting of leave to the Applicant in this matter, the Applicant’s
counsel has been unable to either locate or contact the Applicant, and has been
unable to obtain any instructions, resulting in counsel’s removal as solicitor
of record shortly before the hearing scheduled for August 27, 2015.
[23]
Based on the Applicant’s failure to participate
in this proceeding over an extended period of time, without any justification,
I have decided that the application for judicial review should be dismissed.
[24]
However, I should add that I am also not
satisfied on the record before me that the Board made any error on the analysis
of the issues of state protection or credibility, or that the decision was
unreasonable with respect to the failure to establish subjective fear of
persecution or lack of credibility.
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