Date: 20050407
Docket: IMM-129-04
Citation: 2004 FC 465
Toronto, Ontario, April 7th, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
BUTT HAFIZ MUQEEM
NASREEN SHAGUFTA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to s.72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") for judicial review of the decision, dated December 18, 2003, wherein the Refugee Protection Division ("RPD") dismissed the Applicants' application to reopen their refugee protection claims.
[2] By way of background, the Applicants, a husband and wife who are citizens of Pakistan, filed their refugee claims on April 26, 2003, but filed their PIFs three days late. As a result, the Refugee Protection Division ("RPD") served the Applicants with notice to appear at an abandonment hearing on July 4, 2003. The Applicants attended at the hearing with counsel and attempted to show cause for why their claims should not be ruled as abandoned, but their submissions were rejected. In an attempt to rectify the resultant abandonment order, the Applicants brought an application to reopen their claims. It is from a negative decision on this application that the present judicial review is brought.
[3] The Applicants argue that the statement made by the RPD in rejecting the application to reopen discloses an erroneous finding of fact. I agree with this argument.
[4] With respect to the procedure and substantive grounds on an application to reopen, Rule 55 of the Refugee Protection Division Rules, Can. Reg. 2002-228, reads as follows:
| Application to reopen a claim
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.
Form of application
(2) The application must be made under rule 44.
Claimant's application
(3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister.
Factor
(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
[Emphasis added]
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Demande de réouverture d'une demande d'asile
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.
Forme de la demande
(2) La demande est faite selon la règle 44.
Contenu de la demande faite par le demandeur d'asile
(3) Si la demande est faite par le demandeur d'asile, celui-ci y indique ses coordonnées et en transmet une copie au ministre.
Élément à considérer
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle.
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[5] Thus, an important issue in the present case is whether the material placed before the RPD by the Applicants with respect to the reopening application provides evidence of a breach of natural justice. In the material filed, the Applicants supplied evidence and argument to establish that the reason their PIF was not filed by the due date was due solely to the conduct of their lawyer (Tribunal Record, pp.188-189). It is common ground that such conduct can constitute a breach of natural justice. In Mahood v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1480 at paragraph 24, Justice Lemieux cited a decision of Justice Pinard to this effect as follows:
I add that in the case of Taher v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 1327 (T.D.), Justice Pinard found a breach of natural justice dealing with a case where a tribunal failed to reopen an abandonment decision based on the non-filing of a PIF occasioned solely by the attorney's fault. He found the applicant was denied natural justice and deprived through no fault of his own, of a fair opportunity to be heard before her claim was declared abandoned.
As a result, I find that the evidence and argument placed before the RPD on the reopening application was capable of supporting a finding that the Applicants had suffered a failure to observe a principle of natural justice.
[6] However, the statement made by the RPD with respect to the reopening application is as follows:
The material filed does not contain any new evidence that would allow me to determine that a denial natural justice has taken place.
[Tribunal Record, p. 199]
Given the substance of the material placed before the RPD by the Applicants on their reopening application, and the precedent just cited, I find that the RPD's statement exposes a fundamental error of fact. As a result, I find that the RPD's decision was rendered in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision on the reopening application and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-129-04
STYLE OF CAUSE: BUTT HAFIZ MUQEEM
NASREEN SHAGUFTA
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: APRIL 5, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: APRIL 7, 2005
APPEARANCES BY:
Krassina Kostadinov FOR THE APPLICANTS
Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman and Associates
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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