Chapa v. Canada (Minister of Citizenship and Immigration), 2005 FC 1151

Date: 20050823

Docket: IMM-2418-04

Citation: 2005 FC 1151

BETWEEN:

AGUILAR CHAPA, LILIANA

(A.K.A. SAMARIA CAROLINA ENAMORADO PENATE)

SANCHEZ AGUILAR, ELVIS ULISES

SANCHEZ AGUILAR, ALAN FERNANDO

SANCHEZ AGUILAR, CRISTOPHER ALEX

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

SIMPSON J.

[1]    This application is for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated February 23, 2004 in which it declined to reopen the Applicants' refugee claim.

[2]    The Applicants made their refugee claim on September 10, 2002. An officer with Citizenship and Immigration Canada ("CIC") made a preliminary determination of eligibility and referred the claim to the Refugee Protection Division (the "RPD") with the required information which included the Applicants' address. In referring the matter, the CIC officer was complying with section 100 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") and rules 3(1) and (2), 4(1) and (4) and 71 of the Refugee Protection Division Rules, SOR/2002-228.

[3]    On September 26, the Applicants returned to CIC and disclosed new identities and a new address. On receipt of this information, CIC destroyed the record of the claim made on September 10 by drawing a line across it and marking it "Void". CIC then prepared a determination of eligibility using the new identity pursuant to subsection 100(1) of the IRPA. The new form which was dated September 26, 2002, also noted that the Applicants' claim for refugee protection was referred to the RPD.

[4]    However, the information listed on Schedule 2, including the new address, was not sent to the RPD. Because the RPD did not receive the new address, the Applicants were not advised that hearings had been scheduled and, later, that their claim had been declared abandoned.

[5]    Against this background, the narrow issue is whether the refugee claim made on September 26 was a claim which required a referral. If it did, then CIC failed in its duty to provide the RPD with the Applicants' new address and there has been a failure of natural justice which was not considered by the Board and which would justify setting aside its Decision.

[6]    The Respondent argues that, in spite of the fact that the first claim document was marked "Void", there was only one claim for refugee status and it was made on September 10. He said that the events of September 26 only constituted amendments to the claim of September 10 and that there was never a new claim.

[7]    However, I have concluded that this argument is defeated by the documentary record. The changes made on September 26 were not treated as amendments. The first claim was destroyed and a new claim was established, a fresh determination of eligibility was made and a fresh referral was made. In those circumstances, CIC was obligated by Rule 3(2)(b) to provide the RPD with the information on Schedule 2 and it did not do so. If it had taken this step the RPD would have had the Applicants' new address.

[8]    Accordingly, an order will be made setting aside the Decision and the Notice of Abandonment of June 30, 2003 and directing the RPD to take the steps necessary to bring the claim on for a hearing.

CERTIFIED QUESTION

[9]    The Applicants posed the following question:

If Citizenship and Immigration Canada declares a claim "void" does Rule 3(2)(b) require CIC to forward replacement information to the Refugee Protection Division?

[10]                        I agree with counsel for the Respondent that this question is not one of general importance and, therefore, does not qualify for certification under subsection 74(d) of the IRPA.

"Sandra J. Simpson"