Date: 20060908
Docket: IMM-7142-05
Citation: 2006 FC 1078
Ottawa, Ontario, September 8,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
GARNIK
OHANYAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is a judicial review of an Immigration and Refugee Board (Board) decision which
refused to reinstate a refugee claim which had been abandoned.
II. Facts
[2]
The
Applicant is a 29 year old citizen of Armenia who claimed refugee
protection on September 13, 2004. Shortly thereafter he withdrew his claim
because his wife informed him that government agents had stopped looking for
him and it was safe to return.
[3]
A
few weeks later his wife advised him that the government agents had returned to
his house looking for him. The Applicant brought a motion under Rule 53 of the Refugee
Protection Division Rules to reinstate his refugee claim.
[4]
The
Board denied his application. The Applicant says that he never received reasons
for the decision although the Board says that it mailed out a letter with an
endorsement attached which contained the reasons for the refusal to reinstate.
[5]
This
endorsement referred to as Appendix A to the Board’s letter makes the following
findings:
·
the
Applicant had the same counsel on the motion to reinstate as appeared in the
application for refugee protection;
·
there
was no breach of natural justice as the Applicant withdrew his application
after consulting counsel;
·
there
was no breach of natural justice as the absence of a hearing did not constitute
a denial of natural justice because the merits of the case are not being
tested; and
·
there
was no substantial defect such that it taints the entire proceedings and
therefore it is not in the interests of justice to reopen.
III. Analysis
[6]
I
adopt the conclusion of Justice Kelen in Sathasivam v. Canada (Minister of
Citizenship and Immigration), 2004 FC 438, [2004] F.C.J. No. 541 (QL)
that the standard of review in these circumstances is reasonableness simpliciter.
[7]
The
particular rule in question is Rule 53.
|
53. (1) A person may
apply to the Division to reinstate a claim that was made by that person and
withdrawn.
(2) The person must follow rule 44, include their
contact information in the application and provide a copy of the application
to the Minister.
(3) The Division must allow the application if it is
established that there was a failure to observe a principle of natural
justice or if it is otherwise in the interests of justice to allow the
application.
|
53.
(1) Toute personne peut demander à la Section de rétablir la demande d'asile
qu'elle a faite et ensuite retirée.
(2) La personne fait sa demande selon la
règle 44; elle y indique ses coordonnées et transmet une copie de la demande
au ministre.
(3) La Section accueille la demande soit sur
preuve du manquement à un principe de justice naturelle, soit s'il est par
ailleurs dans l'intérêt de la justice de le faire.
|
[8]
In
my view, there is no breach of natural justice because a hearing was
unnecessary. Neither the Applicant’s credibility nor any of the relevant facts
were in issue. The Applicant was able to make all of his representations in
writing.
[9]
There
was no breach of natural justice for failure to give reasons. While the reasons
contained in the endorsement may not have been received concurrent with
the decision, there were reasons and they were sufficiently fulsome for the
Applicant to know why his motion to reinstate was dismissed. No prejudice for
late delivery of the reasons was established.
[10]
With
respect to whether to allow reinstatement is in “the interests of justice”, the
Applicant has made no substantial submissions on this point. At most, the
Applicant says it is unfair to him and that the hearing of his case would not
inconvenience the Board.
[11]
The
Applicant has taken Justice von Finckenstein’s decision in Ahmad v. Canada (Minister of
Citizenship and Immigration), 2005 FC 279, [2005] F.C.J. No. 359 (QL) to
have established a more restrictive meaning of “interests of justice”.
[12]
As
I understand that decision, Justice von Finckenstein simply held that on the
facts in that case – where that applicant was contending that the Board applied
a wrong legal test – such an argument does not constitute grounds of “otherwise
in the interests of justice”. Nor do I take his decision to be an exhaustive
conclusion as to what the words “otherwise in the interests of justice” may mean
under Rule 53.
[13]
The
term “otherwise in the interests of justice” are broad words giving the Board a
wide discretion to reinstate but which requires the Board to weigh all the
circumstances of a case – not just from the vantage point of an applicant’s
interests. Reinstatement is an exception to the norm and must be interpreted
and applied in that context.
[14]
In
the current circumstances, the Applicant had counsel and the decision to
withdraw his application was informed, not made under mistake or duress. The
Applicant made a strategic decision which apparently did not work to his
advantage. The Rule is not designed to protect applicants from the consequences
of their freely chosen course of conduct even where they have made a decision
or taken a step which did not work out as they may have hoped.
[15]
Therefore,
I can find no good reason for this Court to intervene in this matter. The
application for judicial review will be dismissed.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
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