Date: 20050916
Docket: IMM-10097-04
Citation: 2005 FC 1257
BETWEEN:
Eleazar Maurici DURAN ZALETA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated October 27, 2004, dismissing the applicant's application to reopen, following an earlier decision determining that the applicant had abandoned the proceeding.
[2] In his notes, the member/coordinator explains that there was no change of address notification and that there was no evidence in the record indicating that a new confirmation of address had been filed.
[3] The relevant provision of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) is the following:
| 169. In the case of a decision of a Division, other than an interlocutory decision:
. . .
(b) reasons for the decision must be given;
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169. Les dispositions qui suivent s'appliquent aux décisions, autres qu'interlocutoires, des sections :
[. . .]
b) elles sont motivées;
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[4] The relevant provisions of the Immigration and Refugee Protection Regulations, SOR/2002-228 (the Regulations) read as follows:
| 4. (1) The claimant must provide the claimant's contact information in writing to the Division and the Minister.
. . .
(3) If the claimant's contact information changes, the claimant must without delay provide the changes in writing to the Division and the Minister.
(4) A claimant who is represented by counsel must, on obtaining counsel, provide the counsel's contact information in writing to the Division and the Minister. If that information changes, the claimant must without delay provide the changes in writing to the Division and the Minister.
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4. (1) Le demandeur d'asile transmet ses coordonnées par écrit à la Section et au ministre.
[. . .]
(3) Dès que ses coordonnées changent, le demandeur d'asile transmet ses nouvelles coordonnées par écrit à la Section et au ministre.
(4) Dès qu'il retient les services d'un conseil, le demandeur d'asile transmet les coordonnées de celui-ci par écrit à la Section et au ministre. Dès que ces coordonnées changent, le demandeur d'asile transmet les nouvelles coordonnées par écrit à la Section et au ministre.
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[5] The respondent submits that the applicant did not establish that he had been diligent with regard to his claim. In fact, it is the applicant who is ultimately responsible for advising the IRB of his change of address. The applicant could not have been unaware that he had to advise the IRB of any change of address, as indicated in bold on the Personal Information Form (PIF) that he signed.
[6] Further, subsections 4(3) and (4) of the Regulations state that if the clamant's contact information changes, the claimant must without delay provide the changes in writing to the Division and to the Minister, as is the case when his counsel's contact information changes. The applicant never provided the IRB with his change of address. He alleges that he asked his first counsel's assistant to do so, but that assistant could not be found to confirm this . . . in the record, there is no notification of the applicant's change of address. Further, even though there is a document in the record indicating that the applicant had advised the IRB on June 8, 2004, that he was changing counsel, he did not at that time provide the contact information of his new counsel, any more than he had advised them of his new address. Under the circumstances, although the IRB had not communicated with the applicant's new counsel, it was reasonable and sufficient for the IRB to communicate with the applicant at his last known address.
[7] In order to set aside a decision refusing to reopen a hearing, an applicant must establish that the initial decision by the board was tainted by a denial of natural justice (Rus v. Canada (M.C.I.), [1998] F.C.J. No. 118 (F.C.T.D.) (QL) and Bhullar v. Canada (M.C.I.), [2000] F.C.J. No. 652 (F.C.T.D.) (QL)). That is not the case here. In Hall v. Canada (M.E.I.), [1994] F.C.J. No. 1032 (QL), the Federal Court of Appeal decided that a decision made in the absence of a person who had not provided their change of address to the decision-maker, as they were bound to do, is not a breach of natural justice. In the circumstances, here, it was not unreasonable for the IRB to find as it did.
[8] The applicant submits that the IRB erred in law by failing to give reasons for its decision as required by paragraph 169(b) of the Act. This is not the case. The board gave reasons for its decision in the form of notes dated October 25, 2004. In its notes it wrote that the applicant was obliged to provide notice of his change of address, that no change of address had been provided and that there was no evidence in the record that a confirmation of a new address had been filed.
[9] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 16, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10097-04
STYLE OF CAUSE: Eleazar Maurici DURAN ZALETA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 16, 2005
REASONS FOR ORDER: Pinard J.
DATE OF ORDER: September 16, 2005
APPEARANCES:
Rachel Benaroch FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rachel Benaroch FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Certified true translation
Kelley A. Harvey, BCL, LLB
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