Date: 20060314
Docket: IMM-651-05
Citation: 2006 FC 325
Ottawa, Ontario, March 14, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
HANNINGTON KIPL KOGO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 10, 2005, which declared pursuant to subsection 168(1) of IRPA that the applicant's refugee claim had been abandoned as a result of his delay in filing his Personal Information Form (PIF).
[2] The applicant seeks:
1. an order directing the Board to reopen the applicant's claim to refugee protection;
2. in the alternative, an order setting aside the decision of the Board and referring the matter to a differently constituted panel of the Board for re-determination; and
3. costs of this application.
Background
[3] Hannington Kipl Kogo (the applicant) is a citizen of Kenya who came to Canada in September 2000 on a student visa. After his student visa expired in 2004, he submitted a refugee claim.
[4] On November 30, 2004, the applicant received a blank PIF. He was aware of the requirement to complete and submit the PIF within 28 days of receiving the form. On December 29, 2004, he requested an extension of time to submit his PIF, due to the holiday season and the wait for Legal Aid. This request was denied on December 31, 2004.
[5] The Board held an abandonment show cause hearing on January 10, 2005 to provide the applicant with an opportunity to explain why the Board should proceed with the refugee claim. The applicant represented himself at the hearing. He testified that he had completed the PIF himself and filed it that morning, prior to coming to the hearing. He also testified that he was late in submitting the PIF because until recently he believed that he needed a lawyer to fill out the PIF and he had difficulty in securing legal counsel and Legal Aid.
[6] At the conclusion of the hearing, the Board determined that the applicant's claim had been abandoned. This is the judicial review of that decision.
Reasons for the Board's Decision
[7] The Board gave its reasons orally at the abandonment hearing. The Board stated that it was giving the benefit of the doubt to the applicant's testimony that he had submitted his PIF prior to the hearing, although the applicant did not bring a stamped copy of his PIF to the hearing. The Board noted that the applicant was an educated man who had lived in Canada as a student for four years and had completed the PIF himself after being advised by a lawyer that he could perform this task on his own. The Board further noted that the applicant had testified that he approached Legal Aid in mid-December, that he had mistakenly believed that he required a lawyer to complete the PIF, and that he had unsuccessfully requested an extension of time to submit the PIF.
[8] The Board found that the delay in submitting the PIF at least ten days past the deadline was a serious delay, given the above-noted circumstances. It was found that waiting for Legal Aid is not a sufficient excuse for the delay, and that the applicant had not demonstrated that he was pursuing his claim in a serious and diligent manner.
Issue
[9] The issue to be determined is whether the Board erred in determining that the applicant's claim had been abandoned.
Applicant's Submissions
[10] The applicant submitted that in determining whether the claim has been abandoned, the Board is required to consider the preparedness of a claimant to proceed with his claim.
[11] The applicant submitted that it was reasonable for him to have attempted to obtain the services of a lawyer. It was submitted that the delay in completing his PIF was partly due to the Board itself, as he was advised by the Board on December 31 that he should bring his PIF to the abandonment hearing.
[12] The applicant submitted that the Board made a perverse and capricious assessment of the delay because it failed to consider that the delay occurred during the Christmas and New Year holidays.
[13] At the hearing, the applicant submitted that the decision of the Board was not reasonable because it denied his right to counsel; it failed to address the issue of whether the applicant was ready to proceed (Refugee Protection Division Rules, SOR/2002-228, subsection 58(3)); and the Board cast doubt on the applicant's testimony by stating that it was giving him the benefit of the doubt with respect to the filing of the PIF.
Respondent's Submissions
[14] The respondent submitted that the purpose of an abandonment hearing is limited to allowing claimants to explain why they believe they did not abandon their claim (see Ressam v. Canada(Minister of Citizenship and Immigration) (1996), 110 F.T.R. 50 at paragraph 6 (T.D.)).
[15] The respondent submitted that the delay in obtaining Legal Aid and in securing legal counsel is not a sufficient excuse for allowing a prescribed time limit to pass (see Shokri v. Canada (Minister of Citizenship and Immigration), 2002 FCT 785 at paragraph 11).
[16] The respondent submitted that the applicant's true complaint is that the Board did not find his explanation for delay to be reasonable. The respondent submitted that this is a question of fact within the discretion of the Board.
Analysis and Decision
[17] Standard of Review
On the issue of the standard of review to be applied to an abandonment decision by the Board, I would adopt the statements of Justice Phelan in Anjum v. Canada(Minister of Citizenship and Immigration), 2004 FC 496 at paragraphs 17 to 18:
Lemieux J. in Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 analysed the function of the Convention Refugee Determination Division (the IRB's predecessors) and the nature of the decision to be made on an abandonment case. He held that the standard of review is reasonableness because the decision is of mixed law and fact. That conclusion remains good law despite the changes in legislation.
I would go further in this case because the IRB's jurisdiction and the decision under review is circumscribed by certain legal criteria; a factor not involved in Ahamad, supra. As to the proper question to which the IRB must direct itself, that is a matter of law for which the standard is correctness.
[18] I propose to deal with the following arguments raised by the applicant at the hearing:
1. Denial of right to counsel;
2. Whether the applicant is ready to proceed;
3. Benefit of the doubt.
[19] 1. Denial of Right to Counsel
The applicant was attempting to obtain Legal Aid funding in order to retain a lawyer to help him complete his PIF which was due to be filed on December 29, 2004. He was unable to obtain approval for his lawyer prior to this date and he requested a two week extension in which to file his request. That request was denied. The applicant submitted that it was patently unreasonable to expect him to dispense with the services of a lawyer to assist him with the preparation of his PIF. I do not agree, as this Court and the Federal Court of Appeal have held that a delay in obtaining Legal Aid and legal counsel is not in and of itself a sufficient reason for allowing a prescribed time limit to pass.
[20] The applicant also submitted that the Board was insensitive in questioning him as to why he needed a lawyer to complete his PIF. I have reviewed the transcript and I cannot detect any lack of sensitivity to the applicant. The Board was eliciting information.
[21] I find that the aspect of the Board's decision relating to the wait for legal counsel was reasonable.
[22] 2. Whether the Applicant is Ready to Proceed
The applicant submitted that the Board did not determine whether the applicant was ready to proceed and that this was a reviewable error, as subsection 58(3) of the Refugee Protection Division Rules requires the Board to consider this factor in determining whether the claim should be declared abandoned. The applicant stated that the Board never asked him whether he was ready to start the proceeding. A review of the transcript discloses the following exchange at page 119 of the tribunal record:
MEMBER: Okay, anything else you wish to tell me before I make a final decision, sir?
CLAIMANT: Well, it's my recourse that my hearing proceed. I do request the IRB, through you, - -
MEMBER: Pardon me? Repeat that. I have a hard time - -
CLAIMANT: I say, I do request the IRB, through you, for my hearing to proceed.
The respondent submitted that it was not necessary for the Board to ask the applicant if he was ready to proceed if in fact the applicant himself stated that he was ready to proceed. I agree with the respondent. The information that the applicant was ready to start had been communicated to the Board by the applicant.
[23] 3. Benefit of the Doubt
The Board stated that it was giving the benefit of the doubt to the applicant's testimony that he had submitted his PIF prior to the hearing. The relevant portion of the decision states:
The Panel, in reaching its decision, has noted the following: that the claimant is present today at the hearing; the Panel gives benefit of doubt to the claimant's evidence that he has submitted a PIF this morning on January 10th and prior to this proceeding. These two elements are taken into consideration in making a determination.
[24] In order to address the applicant's concern, it is necessary to look at the paragraph immediately preceding the above-cited paragraph, which states:
His evidence indicates that last Friday when he called IRB questioning with respect to the abandonment hearing he was told to bring his personal information form today and he did so and submitted it this morning. However, he does not have a stamped copy of that and Madam Clerk's computer does not show that anything was received from the claimant. But anyhow, I will give the claimant the benefit of the doubt that he had submitted his personal information form and it's somewhere enroute to be registered on the computer or to make its way to the file.
[25] The Board is not casting doubt on the applicant's testimony. Instead, it is merely stating that even though there is no record of the filing, the Board will still accept the applicant's evidence that he filed the PIF. This does not create a problem with the Board's decision.
[26] The applicant stated that the application for an extension of time was reasonable. I will address the matter by stating that it is within the discretion of the Board to decide whether or not to grant an extension of time. The Board did not grant the extension of time in this case and I cannot conclude that this was an unreasonable decision.
[27] The applicant also mentioned that the Christmas holidays made it more difficult for him to obtain Legal Aid and legal counsel. The Board did not address this. I would note that there was not any specific evidence as to how long the relevant offices were closed. Since a delay in obtaining Legal Aid and counsel, in and of itself, does not justify a late filing, I find that the Board did not make a reviewable error in this respect.
[28] The application for judicial review is therefore dismissed.
[29] The applicant requested costs but since his application did not succeed, I am not prepared to make an award of costs.
[30] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[31] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
ANNEX
Relevant Legislation
Subsection 168(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides the Board with jurisdiction to determine that a proceeding has been abandoned. It reads as follows:
| 168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
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168. (1) Chacune des sections peut prononcer le désistement dans l'affaire dont elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication.
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Concerning the discretion that may be exercised by the Board in determining that a claim has been abandoned, rule 58 of the Refugee Protection Division Rules, SOR/2002-228provides that:
| 58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
(2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity
(a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing after notifying the claimant in writing.
(3) The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.
(4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay.
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58. (1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé si, à la fois:
a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire;
b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées.
(2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité:
a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire;
b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit.
(3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire.
(4) Si la Section décide de ne pas prononcer le désistement, elle commence ou poursuit l'affaire sans délai.
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