Docket: IMM-5873-21
Citation: 2022 FC 1292
Toronto, Ontario, September 13, 2022
PRESENT: Madam Justice Go
| BETWEEN:
|
| NADER EL SAYED BADRAN
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| Applicant
|
| and
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| THE MINISTER OF CITIZENSHIP & IMMIGRATION
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| Respondent
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JUDGMENT AND REASONS
I.
Overview
[1] The Applicant, Mr. Nader El Sayed Badran, a citizen of Egypt, entered Canada on an Egyptian passport in 1999. He was granted refugee protection in 2001 and permanent resident status in 2003. He never received the reasons for the decision granting him refugee status, and the Immigration and Refugee Board destroyed the reasons and record for the refugee claim under its Retention and Disposition Authority 96/037.
[2] When applying for his permanent resident card renewals in 2008, 2014 and 2018, the Applicant declared the following days absent from Canada in the five-year period preceding each renewal application:
206 days outside of Canada in the five-year period preceding May 2008.
1065 days outside of Canada in the five-year period preceding April 2014.
165 days outside of Canada in the five-year period preceding March 2019.
[3] When applying for Canadian citizenship, the Applicant declared 23 trips outside of Canada, including 14 to Egypt, in the six-year period preceding June 2017. The time spent in Egypt during these trips ranged from one to 14 weeks per visit. He travelled on an Egyptian passport, which he renewed several times.
[4] The Applicant was interviewed by the Canada Border Services Agency [CBSA] upon returning to Canada from Egypt in 2013, 2016, 2017 and 2018. According to the CBSA, the Applicant declared during these interviews that he had not made a refugee claim against Egypt, but rather Sudan; that at least two of his returns to Egypt in 2017 were to visit friends; that he returns to Egypt all of the time to visit family; and that things had changed in Egypt, enabling him to return.
[5] The Minister of Public Safety and Emergency Preparedness [Minister] brought an application for the cessation of the Applicant’s refugee status, pursuant to s. 108(2) of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) [IRPA]. The cessation hearing took place on May 25, 2021. The Applicant was self-represented.
[6] While the Minister brought the cessation application under s. 108(1)(a) of the IRPA (the re-availment provision), the Applicant argued before the Refugee Protection Division [RPD] that it should be heard under s. 108(1)(e) of the IRPA (the change in circumstances provision). The RPD found that according to the case law, any ground set out in s. 108(1) of IRPA can be considered in a cessation application and proceeded to assess the Applicant’s case under both s. 108(1)(e) as well as s. 108(1)(a).
[7] On August 5, 2021, the RPD issued a decision granting the Minister’s application for cessation, finding that the Applicant voluntarily re-availed himself of Egypt’s protection by travelling on an Egyptian passport and returning to Egypt on numerous occasions. The RPD also found that there was insufficient reliable and trustworthy evidence to conclude that the reasons for which the Applicant sought refugee protection have ceased to exist [Decision].
[8] The Applicant challenges the Decision, arguing it was unreasonable and that there was an abuse of process, citing Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe] in support.
[9] The hearing before this Court was held on June 22, 2022. Shortly thereafter, the Supreme Court of Canada released its decision in Law Society of Saskatchewan v Abrametz, 2022 SCC 29 [Abrametz] confirming the three-step test set out in Blencoe to determine abuse of process as it relates to administrative delay. The Supreme Court elaborated on the application of the Blencoe test, and the remedies that may be available to the affected parties.
[10] I directed the parties to provide additional written submissions on how Abrametz may apply to the herein application and I received submissions from both parties.
[11] For the reasons set out below, I find there was no abuse of process and the Decision was reasonable. I therefore dismiss the application.
II.
Issues and Standard of Review
[12] The Applicant puts forward the following issues:
a)
Was the Decision unreasonable because of the destruction of the reasons for accepting the original claim?
b)
Was the Decision an abuse of process given the destruction of the reasons?
c)
Was the refusal of the Applicant’s postponement request reasonable? and
d)
Was the Applicant deprived of a fair hearing because of the absence of counsel?
[13] The parties submit that the standard of review is reasonableness, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. The Respondent also submits that for issues of procedural fairness, the standard of review is correctness (or no standard): Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54.
[14] I will apply the “correctness”
standard to issues of procedural fairness and the reasonableness standard to the remaining issues.
[15] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker: Vavilov, at para 85. Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences: Vavilov, at paras 88-90, 94, 133-135.
[16] For a decision to be unreasonable, the Applicant must establish the decision contains flaws that are sufficiently central or significant: Vavilov, at para 100. Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances: Vavilov, at para 125. Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep”
: Vavilov, at para 100.
III.
Analysis
[17] The relevant provisions are ss. 108, 46(1)(c.1) and 40.1 (1) of the IRPA and can be found in Appendix A.
[18] The Applicant raises four issues in his written submission. In his oral submission at the hearing, the Applicant focused on the reasonableness of the RPD’s decision not to grant his postponement request. The Applicant also argued that he met the high threshold set out in Blencoe for abuse of process due to the unreasonable refusal of his adjournment request, the destruction of his refugee file, and his subsequent inability to obtain documents and retain counsel.
[19] I will thus reframe the Applicant’s issues as follow:
Issue 1: Was the refusal of the Applicant’s postponement request reasonable?
[20] The Minister notified the RPD and the Applicant of the cessation application on approximately July 16, 2020, and the Applicant acknowledged receipt on August 6, 2020.
[21] The Applicant notified the RPD of the name of his counsel on October 7, 2020. On March 11, 2021, the Applicant notified the RPD that he had dismissed his counsel. On March 18, 2021, he requested a postponement of the cessation hearing, giving the following reasons:
- Waiting for some official government document to be issued from Egypt that will support my case.
- the processing time for this documents could take More than 90 Days to be issued plus it need to be translate and certified by the Egyptian Ministry of Foreign Affairs and sent by carrier to Canada.
- Due to COVID 19 all legal and government activity are very slow, therefore I need more time than usual to find the right legal representative and attend “several”
legal consultation. Need more than usual time to contact, arrange for witnesses to attained an actual or vertical hearing and presents there evidence documents if any.
[Emphasis and typos in original]
[22] On March 31, 2021, about two months before the hearing, the RPD refused the Applicant’s request for postponement.
[23] The Applicant argues that the RPD unreasonably failed to consider his personal situation before refusing his request for a change of hearing date. He submits that the relevant factors in whether to grant a postponement are articulated in Siloch v Canada (Minister of Employment and Immigration), [1993] FCJ No 10 [Siloch] and that the RPD failed to account for these factors, as follows:
a)
whether the applicant has done everything in her power to be represented by counsel;
b)
the number of previous adjournments granted;
c)
the length of time for which the adjournment is being sought;
d)
the effect on the immigration system;
e)
would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry;
f)
the fault or blame to be placed on the applicant for not being ready;
g)
were any previous adjournments granted on a peremptory basis;
h)
any other relevant factors.
[24] The Applicant disputes the following reasons given by the RPD, which he says ignore his submission that he was waiting on an important document and trying to find witnesses:
The respondent states the request for the CDT is twofold. Firstly, he has not been able to find a suitable legal counsel. Secondly, COVID-19 restrictions add complications meet [sic] with potential counsel.
[25] While the RPD found that the Applicant had not set out factors outside of his control, the Applicant argues that obtaining documents in a foreign jurisdiction was outside his control. The Applicant further argues that while one of the factors set out by the Federal Court of Appeal in Siloch was the number of previous adjournments granted, the RPD failed to consider that the Applicant had not requested a postponement previously.
[26] I am not persuaded by the Applicant’s arguments. The Applicant quoted one paragraph from the postponement decision and attempted to characterize that as the reasons in their entirety. In fact, the postponement decision set out a number of factors considered by the RPD for rejecting the Applicant’s request. They were:
The Board’s mandate pursuant to subsection 162(2) of the IRPA, to proceed quickly, but in accordance with considerations of fairness and the principles of natural justice;
The Chairperson’s Guideline 6 concerning Scheduling and Changing the Date and Time of a Proceeding;
All relevant factors, including those enumerated in Regulation 159.9 of the Immigration and Refugee Protection Regulations (SOR/2002-227) and in Rule 54 of the Refugee Protection Division Rules (SOR/2012-256) [Rules];
The Applicant’s request did not comply with Rule 54(2)(c) of the Rules as he did not provide 3 alternate hearing dates;
While acknowledging that in some instances, claimants might face challenges caused by COVID-19, that was not the case here. The Applicant received the Minister’s cessation application in August 2020, retained counsel in September 2020, and returned his Intent to Proceed form in October 2020, all actions taken during the COVID-19 pandemic;
Provincial restrictions on businesses did not apply to the operation of tribunals, courts and government services;
Lawyers are permitted to continue providing services during the lockdown, and meetings with potential counsel can occur via tele/video-conferencing;
There was no indication that there has been a medical emergency, or that exceptional circumstances exist;
Pursuant to Guideline 6 the Applicant must choose counsel who was ready and willing to proceed on the date scheduled, and as no exceptional circumstances exist, the RPD must abide by Rule 54(4);
The RPD could not operationally accommodate the Applicant’s request, as outlined in Rule 54(5); and
The Applicant had ample time to prepare for the hearing, and the reasons for requesting the change of date did not indicate an emergency or factors that were beyond his control.
[27] The Applicant makes no submissions on why the above noted considerations were unreasonable.
[28] The Respondent argues that the 2012 amendments to Rule 54(4) removed all of the previously enumerated factors in Siloch and replaced them with the more restrictive language of “exceptional circumstances”
, according to Gallardo v Canada (Citizenship and Immigration), 2021 FC 441:
[8] I accept the Minister’s point that the 2012 amendments that brought in Rule 54(4) were intended to make it more difficult to obtain an adjournment of a scheduled RPD hearing. The previous applicable rule listed 11 non-exhaustive factors that the RPD was required to take into account before it granted or refused an adjournment. The listed factors were similar to those identified in Siloch v Canada (MEI), [1993] FCJ No 10 (FCA), 10 Admin LR (2d) 285. The 2012 amendments removed all of the enumerated factors and replaced them with the more restrictive language of “exceptional circumstances”.
[29] In my view, the Respondent’s submission comports with the postponement decision which referenced Rule 54(4) indicating that the change of date and time of the proceeding will only be granted “if there are exceptional circumstances.”
The postponement decision also discussed what might constitute exceptional circumstances and listed such conditions as “whether the claimant was vulnerable claimant or if there was an emergency beyond the control of the party and the party has acted diligently”
, and whether there was a “medical emergency.”
The RPD reasonably concluded that there were no exceptional circumstances in this case in light of the Applicant’s request.
[30] The Applicant argues that he has no control over when documents from Egypt would arrive. While the RPD did not address the Applicant’s argument in detail, I agree with the Respondent that in his request for postponement the Applicant disclosed no timeline for when he sought the documents, what they were, how they were relevant, or how long they would take to arrive.
[31] In light of the above, I find the RPD’s decision not to postpone the hearing reasonable.
Issue 2: Was there an abuse of process?
[32] The Applicant submits that the destruction of his refugee claim record, in conjunction of the passage of time, and the lack of legal representation, means that he has met the high threshold in Blencoe for abuse of process.
[33] As noted above, the Supreme Court recently reaffirmed the three-part test in Blencoe to determine whether delay that does not affect hearing fairness nonetheless amounts to an abuse of process: “First, the delay must be inordinate. Second, the delay must have directly caused significant prejudice. When these two requirements are met, courts or tribunals will proceed to a final assessment of whether the delay amounts to an abuse of process. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute”
: Abrametz, at para 43.
[34] The Supreme Court specifically rejected the call to “Jordanize”
Blencoe, in reference to R v Jordan, 2016 SCC 27, noting that the right to be heard within a reasonable time under s.11(b) of the Canadian Charter of Rights and Freedoms does not apply to administrative proceedings: Abrametz, at paras 45 to 48.
[35] In his additional submission, the Applicant argues that the inordinate delay was manifestly unfair to the Applicant and contrary to the interests of justice. The Applicant submits the Supreme Court’s decision in Abrametz militates in favour of the granting of this judicial review.
[36] The Respondent submits that the Applicant never raised the issue of inordinate delay before the RPD, or in his judicial review application, and should not be able to raise this new issue.
[37] I note the Applicant did raise the issue of inordinate delay before the RPD, in the context of the delay in the processing of his citizenship application and of the destruction of his refugee file. But I agree with the Respondent that not all of the arguments made by the Applicant fall under the type of abuse of process addressed in Blencoe and Abrametz.
[38] With that, I will turn to the abuse of process arguments specifically raised by the Applicant.
A.
The Destruction of the Refugee Record was not an abuse of process
[39] Before the RPD, the Applicant argued that his treatment by immigration authorities was an abuse of process, based on several factors, the key one being that his refugee claim file was destroyed. The RPD found this was not an abuse of process, as the lack of access to the refugee claim file did not prejudice him given the RPD’s ability to consider his summary of the claim.
[40] Citing Blencoe at para 120, the Applicant concedes that the threshold for abuse of process is very high and that the proceedings must be unfair to the point that they are contrary to the interests of justice. He argues that the destruction of his refugee claim file rose to this threshold, as “the lynchpin of evidence in a cessation case in his circumstances was the reasons associated with his positive refugee determination.”
[41] The Applicant claims that the Decision failed to recognize the difference between a claimant’s recollection of the claim and the actual reasons on which the positive decision was based. The Applicant argues that a claimant may not necessarily be aware of which elements of their experience and personal history provided the ultimate basis for a positive decision unless they are provided with the reasons supporting the decision. To the extent that this affected the RPD’s analysis of whether there has been a change in circumstances related to his fear of harm or persecution, the Applicant argues that the Decision is speculative and unreasonable.
[42] The Applicant further argues that because he lacked any firsthand knowledge of the actual reasons that supported the decision granting him refugee status, he was unable to make a full answer and defense to the allegations against him.
[43] I am not persuaded by the Applicant’s argument.
[44] The Federal Court of Appeal in Torre v Canada (Citizenship and Immigration), 2016 FCA 48, also referred to in the Decision, noted at para 5 that the applicant in that case had not made out an abuse of process because he “had to do more than make vague allegations that the delay endangered his physical and psychological integrity and drained his ability to submit a full and complete defence, without providing any evidence to support them”
and because he “never tried to show how he was prejudiced by the passage of time.”
[45] Although self-represented, the Applicant provided extensive pre-hearing written submission to the RPD, including a chronology of his immigration history, and the reasons why the Minister’s cessation application must fail.
[46] Having reviewed the Decision and the audio recording of the hearing, I note the Applicant provided information about his original claim, including information about the agents of persecution and their subsequent demise. While the Applicant stated in his written submission to the RPD that “the cessation application is an abuse of process because of uncertainty around why I was granted a refugee status almost 20 years earlier, which would result in difficulty assessing the reasons for which I sought refugee protection have ceased to exist”
, the Applicant did not elaborate what that difficulty might be. Before this Court, the Applicant continues to pursue the same argument without providing any basis for his assertion.
[47] I agree with the Respondent that the Applicant’s assertion that he was not in a position to provide any real insight into the reasons for granting his refugee claim in 2001 is difficult to reconcile with the amount of information he was able to provide to the RPD about his original claim.
[48] I also agree, as the Respondent submits, that the absence of the original files has not caused the Applicant prejudice and that this is not one of the extremely rare examples of an abuse of process cited in Blencoe. The Applicant’s arguments, in my view, amount to a disagreement with the RPD’s conclusion and are premised on the mere assertion that because the original 2001 files have been destroyed, any cessation would be an abuse of process, regardless of the facts in his case. The Applicant must show more than the destruction of files to sustain an abuse of process argument.
[49] Finally, I adopt the Respondent’s submission that the Applicant has not disputed any of the findings underlying the RPD’s s. 108(1)(e) determination. Most importantly, as the Respondent points out, the RPD accepted the Applicant’s factual assertions about his original refugee claim and the Applicant’s testimony that he remembered the reasons for his claim. The Applicant has not demonstrated how the original refugee claim files would have advanced his case any further. His argument that the destruction of his file amounts to an abuse of process must therefore fail.
B.
The Applicant was not deprived of a fair hearing because of the absence of counsel
[50] The Applicant submits that he was denied a fair hearing because he was not represented by counsel. He cites Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC 1206 [Mervilus], in which the Court quashed a decision where a postponement to obtain counsel had been requested and denied. The Court reviewed the case law and made the following conclusions:
[25] The following principles can therefore be drawn from the case law: although the right to counsel is not absolute in an administrative proceeding, refusing an individual the possibility to retain counsel by not allowing a postponement is reviewable if the following factors are in play: the case is complex, the consequences of the decision are serious, the individual does not have the resources - whether in terms of intellect or legal knowledge - to properly represent his interests.
[51] In Mervilus, the Court relied on the following factors:
[26] All of these factors are present in this case. The purpose of the hearing was to establish that the applicant had met the conditions for the stay. Apparently unbeknownst to the applicant, it was also a hearing to decide the appeal of the deportation order. The member brought out the shortcomings in the file; nobody argued the favourable points. The applicant learned just the day before the hearing that he would appear alone. The consequences are very serious: by removing the applicant from Canada, he is removed from the only family he has, since he no longer has family in Haïti. Moreover, he is removed from his children. The first decision in 1997 referred to the applicant's limited intellect, also an obstacle to his integrating easily in society. Reviewing the transcript, we cannot believe for an instant that the applicant had the right to a fair hearing, since he was unable to argue his case. Moreover, I would add that the applicant had a reasonable expectation of a postponement, since he had always appeared accompanied by counsel.
[52] The Applicant argues that similarly, his case was complex, the consequences of the decision were serious and he lacked the legal knowledge or the required documentation to represent his interests.
[53] The Respondent argues that the absence of legal counsel does not result in a breach of procedural fairness unless it deprives the claimant of the opportunity to “participate meaningfully”
in the hearing: Ait Elhocine v Canada (Citizenship and Immigration), 2020 FC 1068 [Ait Elhocine] at para 15. In the Respondent’s view, the Applicant has not established that he was unable to participate meaningfully in the hearing, that his hearing was unfair in any way, or that his case was particularly complex.
[54] I am not persuaded by the Applicant’s argument. While I agree the consequences of the Decision are serious, his case can be distinguished from that in Mervilus on several grounds, not the least of which is that the Applicant is not facing imminent deportation, and it was months prior to the RPD hearing that he ended his relationship with counsel.
[55] As Justice Grammond notes in Ait Elhocine:
[16] There are circumstances in which an asylum claimant who has chosen self-representation is in fact unable to participate meaningfully in the hearing, resulting in an unfair decision. In my view, however, this is not the case here. The applicants were given a fair hearing in which they were able to participate meaningfully. In the end, their decision not to be represented by counsel did not affect the fairness of the hearing. For the reasons below, I reject the applicants’ three arguments to the contrary.
[56] While I cannot presume that it was the Applicant’s decision not to be represented by counsel, the Applicant has not pointed out how the lack of counsel has affected the fairness of the hearing. My review of the audio recording of the hearing confirms that the Applicant was able to participate meaningfully at the hearing. The Applicant answered all the questions asked, and at times even disputed the legal positions put forward by the Minister’s Representative while challenging the way he framed his questions. The Applicant offered not only his evidence but his own interpretation of the law to explain why he should not be caught by s.108 of the IRPA.
[57] As such, I find the Applicant has failed to demonstrate he has been denied a fair hearing due to a lack of counsel.
C.
Conclusion on Abuse of Process
[58] The threshold for establishing abuse of process in Blencoe is high. Even assuming that there is an “inordinate delay”
by the Minister in bringing the cessation application, the Applicant has not demonstrated that he met the second and third part of the Blencoe test. The Applicant has failed to show that the delay has directly caused significant prejudice, including any significant psychological harm (Blencoe, at para 115), let alone bringing the administration of justice into dispute.
[59] The application for judicial review is dismissed.
[60] There is no question for certification.
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