Date: 20060811
Docket: IMM-4850-05
Citation: 2006 FC 975
BETWEEN:
NILDA
ALBIN ALBERTI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT
SIMPSON J.
[1]
These
reasons relate to an application for judicial review of a decision of the
Refugee Protection Division of the Immigration Refugee Board (the Board) dated
November 26, 2004 in which the Board declined to reopen the Applicant’s
refugee protection claim.
BACKGROUND
[2]
The
Applicant is a 56 year old female citizen of Uruguay. She
arrived in Canada on or about
March 7, 2001 and filed a claim for refugee status on April 29, 2004.
[3]
On
June 1, 2004, the Applicant was sent a notice to appear at a Board hearing
on June 21, 2004. She failed to appear. On June 21, 2004, she was
sent a notice to appear for a “show-cause” hearing to be held on July 9, 2004. She
also failed to appear for that hearing. Accordingly, the Board found that her
claim had been abandoned and she was sent a notice of abandonment. The notices
setting dates for these hearings will be described collectively as the Notices.
[4]
On
November 26, 2004, the Applicant brought an application to re-open her refugee
claim.
DECISION
[5]
The
Board concluded that it had properly carried out its duty by mailing the
notices to the Applicant’s last known address.
[6]
The
Board also noted that Dr. Julius Ehikwe was shown as the Applicant’s counsel on
her Personal Information Form (PIF). However, the Board concluded that since
Dr. Ehikwe is not authorized to act as counsel according to the Canadian
Society of Immigration Consultants (CSIC), he was not entitled to receive
copies of the Notices.
[7]
Lastly,
the Board found that there had been no breach of natural justice and refused to
reopen the Applicant’s claim.
ISSUES
[8]
It
is useful to note that the following matters are not in issue:
·
There
is no issue that the Applicant failed to meet her obligation to keep the Board
informed of her current address contrary to Rule 4(3) of the Refugee
Protection Division Rules, SOR/2002-228 (the Rules) and that, accordingly,
her failure to receive the Notices was not a breach of the principles of
natural justice.
·
There
is no issue that the provisions of section 167 of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 (IRPA) and subsection 13.1(1) of
the Immigration and Refugee Protection Regulations, SOR/2002-227 mean
that the following three types of counsel may represent applicants before the
Board:
(i)
lawyers
in good standing (Lawyer)
(ii)
members
in good standing of the CSIC who charge a fee (Consultant)
(iii)
if
no fee is charged, others who I will describe as “Assistants”
·
There
is no issue that Dr. Ehikwe is described as counsel retained by the
Applicant in her PIF and that he is not described as a Lawyer or Consultant and
that he must therefore charge no fee to be considered an Assistant.
·
There
is no issue that on May 20, 2004, the Board was advised by Dr. Ehikwe
that he was receiving no fees and that in an affidavit dated July 4, 2004,
the Applicant described Dr. Ehikwe as a No Fee immigration counsel.
·
There
is no issue that the Board did not send the Notices to Dr. Ehikwe.
[9]
Against
this background the narrow issue is whether the Board erred when it concluded
that the failure to send the Notices to Dr. Ehikwe was not a breach of the
principles of natural justice.
DISCUSSION
[10]
Respondent’s
counsel suggested that the fact that the Board did not send the Notices to
Dr. Ehikwe and the fact that a note on the Board’s New File Checklist which
says that Dr. Ehikwe is a “Non Authorized Counsel” indicate that the Board
did not believe that Dr. Ehikwe was, in fact, representing the Applicant
without charging a fee. However, in my view, if the Board was concerned that
Dr. Ehikwe was misrepresenting his status, it should have asked the
appropriate authorities to investigate his practices. That said, on the record
before me, there is no evidence that Dr. Ehikwe lied to the Board about
the fact that he was not charging the Applicant a fee or that the Applicant swore
a false affidavit when she attested to that fact. Accordingly, Dr. Ehikwe will
be treated as counsel in the “Assistant” category in these reasons.
[11]
The
question then becomes whether Dr. Ehikwe should have received the Notices
even though the Applicant was not entitled to receive them because she had failed
to update her address. In this regard, the Rules provide as follows:
|
31. Rules 32
to 35 apply to any document, including a notice or a request in writing.
32(3) A document provided to
a claimant or a protected person must be provided to the claimant or
protected person OR, if the claimant or protected person has counsel,
to their counsel.
[my emphasis]
|
31. Les règles 32 à 35 s'appliquent à tout document,
notamment l'avis écrit ou la demande écrite.
32(3) Pour transmettre un
document au demandeur d'asile ou à la personne protégée, il faut le lui faire
parvenir directement OU, s'il est représenté par un conseil, le faire
parvenir à celui-ci.
[je souligne]
|
[12]
Counsel
for the Respondent submitted that, because the Rule reads “or” instead of “and”
before reference is made to notice to counsel, the Board had a choice about
where a document would be sent and was entitled to send it only to the Applicant
even though counsel was on record.
[13]
In
my view, while the Board may have complied with its Rule, its conduct was not
compatible with the principles of natural justice. A person who chooses to be
represented by counsel has a right to such representation. While it is true
that an applicant could contact counsel on receipt of a notice of hearing, such
a procedure does not make sense in the context of refugee cases in which
applicants may not read English or understand the significance of a document and
in which the PIF asks an applicant to provide contact information for counsel.
In these circumstances, it appears reasonable to conclude that the right to
counsel includes a right to have counsel sent critical documents such as the
Notices.
[14]
Since
Dr. Ehikwe was counsel and since he was not sent the Notices, the Board
erred in concluding that there had been no failure of natural justice. This
application for judicial review will, therefore, be allowed.
Sandra J.
Simpson
Ottawa, Ontario
August 11, 2006
Email this Content