Date: 20050324
Docket: IMM-7490-04
Citation: 2005 FC 416
BETWEEN:
PROENCA VICTOR FRANCISCO MATONDO
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] To be "capricious" is to be so irregular as to appear to be ungoverned by law. Section 18.1 of the Federal Courts Act permits this Court to grant relief if satisfied that a federal board, commission or other tribunal:
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18.1.(4)(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
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18.1(4) d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
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[2] This Court may similarly grant relief if the board, commission or tribunal:
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18.1(4)(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
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18.1(4)b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
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[3] The Immigration and Refugee Board, Refugee Protection Division, is such a tribunal. Its decision to refuse an application to reopen a refugee claim which it had determined to be abandoned was not only based an erroneous finding of fact made capriciously but also resulted from a failure to observe principles of natural justice.
[4] It began in December 2003 when Mr. Matondo arrived at Pearson International Airport from Angola and claimed refugee status. Two days later he was given his Personal Information Form (PIF) which was due 20 January 2004. The accompanying notice said that if it was not filed in time he would have to show cause on 2 February why the claim should not be declared abandoned.
[5] Mr. Matondo provided a Toronto address and gave a written acknowledgement to Citizenship and Immigration Canada to inform it of any change in that address.
[6] In fact, Mr. Matondo was on his way to Montreal to join his parents who had been granted refugee status some years ago. In Montreal, he visited the Citizenship and Immigration office and gave them his new address. It was suggested to him that it might be wise to retain the services of a lawyer. On 13 January 2004, he retained the services of the law office of Stewart Istvanffy. The very next day, a paralegal in Mr. Istvanffy's office faxed Citizenship and Immigration in Mississauga to advise that Mr. Matondo was now in Montreal, that they knew they had to submit the PIF before asking for a change of venue "but we cannot find the address where we can mail you the documents". It was also mentioned that his documents had been seized at the Port of Entry and a copy was not given to him. "Could you please send us a copy?" The letter concluded: "We are waiting for your answers. We thank you for your co-operation."
[7] In the circumstances, 20 January 2004 came and went without the PIF being filed.
[8] On 26 January, Mr. Istvanffy's office wrote again, as no reply had been received to the fax of 14 January.
[9] On 2 February, the Board issued an abandonment decision and apparently mailed a copy to the Toronto address. Mr. Matondo has sworn that he never received copy.
[10] Mr. Istvanffy's office faxed again on 15 March and again received no reply. Finally, on 5 April they went to the Montreal office, where they were informed that the refugee claim had been declared abandoned.
[11] An application was then made under section 55 of the Refugee Protection Division Rules, to reopen the claim. The relevant sections read:
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55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned.
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(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
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55. (1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement.
[...]
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle.
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[12] The facts and faxes referred to above were all brought to the attention of the Board. The most important evidence before the Board was the affidavit of Jocelyne-Ann Proulx, paralegal at Mr. Istvanffy's office, a position which to that point she had held for nine years. She explained that apart from the fax of 14 January she had called the Citizenship and Immigration telephone number found on form IMM-1262. This is an "acknowledgement of conditions" form signed by Mr. Matondo and countersigned by an "authorized officer" and stamped "Citizenship and Immigration Greater Toronto Enforcement Centre, Mississauga".
THE DECISION UNDER REVIEW
[13] The decision rendered 22 September 2004 noted that Mr. Istvanffy had been in the file since 14 January. The Board had declared the claim abandoned because the PIF had not been filed as due 20 January, Mr. Matondo had not advised the Commission of his change of address and Mr. Istvanffy knew or should have known the address in Toronto where to send the documents. Therefore, there was no denial of natural justice.
[14] Section 55(4) of the Regulations is clear. If there was a breach of natural justice, the claim has to be reopened. There is no discretion vested with the Board.
[15] In reaching the decision he did, the Member took a sterile approach to the Regulations and was of the view the lawyer should have known better. No mention whatsoever was made of the futile communications the lawyer's office had with Citizenship and Immigration Canada or Mr. Matondo's visit to the Montreal office. In the circumstances, his refugee claim was dismissed without him having an opportunity to be heard.
[16] The claim was said to be abandoned. "Abandoned" means "to give up absolutely". It was plain as day that Mr. Matondo had not abandoned his claim.
[17] Section 55(4) of the Regulations specifically refers to the principles of natural justice. The fundamental principle is the right to be heard by an impartial decision maker.
RIGHT TO BE HEARD
[18] Perhaps there are those who have to be reminded that the right to be heard is at the heart of our sense of justice and fairness.
...That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden.
[Footnotes omitted]
de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed) (London: Sweet & Maxwell, 1995), pp. 378-379.
[19] The reference to the Garden of Eden is a reference to Dr. Bentley's case (The King v. the Chancellor, & c., of Cambridge, (1723) 1 Stra. 557). This is what Byles J. had to say about it in Cooper v. The Wandsworth Board of Works (1863), 143 E.R. 414 at p. 420:
.. The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, "The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence...
[20] See the 5th edition of Evans, Janisch, Mullan, Risk "Administrative Law - Cases, Text, and Materials", pp. 99 and following.
[21] What the member is really saying is this:
- They should have known better than to believe that procedure is not the master but rather the servant of justice. ([1977] 1 S.C.R. 147">Hamel v. Brunelle, [1977] 1 S.C.R. 147, per Pigeon J., at page 156; see also Andreoli c. Canada (Ministre de la citoyenneté et de l'immigration), 2004 CF 1111, [2004] A.C.F. No. 1349);
- They should have known better than to believe the Refugee Program is about saving lives and offering protection to the displaced and persecuted (Immigration and Refugee Protection Act, s. 3(2)(a));
- They should have known better than to believe that fair consideration would be given to those who come to Canada claiming persecution (IRPA, s. 3(2)(c));
- They should have known better than to believe that the purpose of the Regulations is "to establish fair and efficient procedures (IRPA, s. 3(2)(e));
- They should have known better than to believe Citizenship and Immigration Canada's "mandate, mission and vision", i.e. "CIC is also committed to being a model of public service management"; and
- They should have known better than to believe that their legitimate queries would actually be answered.
[22] Well, they should have known better and did know better than to believe that this aberrant, abhorrent decision represents the law of this land. Had costs been sought, they would have been granted on a solicitor-own client basis.
[23] This is why I granted judicial review yesterday.
"Sean Harrington"
Judge
Ottawa, Ontario
March 24, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7490-04
STYLE OF CAUSE: PROENCA VICTOR FRANCISCO MATONDO
AND
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MARCH 23, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: MARCH 24, 2005
APPEARANCES:
Mélanie Brouillette FOR APPLICANT
Sherry Rafai Farr FOR RESPONDENT
SOLICITORS OF RECORD:
Étude légale Stewart Istvanffy FOR APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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