Date: 20050613
Docket: IMM-5414-04
Citation: 2005 FC 833
Vancouver, British Columbia this 13th day of June, 2005
Present: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
HAZRAT OMAR KHAN,
SANITA NARINE and
ALLIYAH ARIANA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of a decision on May 13, 2004 by the Refugee Protection Division of the Immigration and Refugee Board (the "Board") refusing an application to reopen the applicants' claim for refugee protection. The applicants' claim had been declared abandoned on July 4, 2003 when they failed to appear for a hearing on the merits of their claim on June 11, 2003 and at an abandonment show cause hearing on June 27, 2003.
[2] Mr. Khan and his family arrived in Canada as visitors from Guyana in November 2001. They claimed refugee protection and retained the services of an immigration consultant, Silas Tilluckdharry, to represent them the same month. For some reason not apparent on the record, their Personal Information Forms ("PIF") were not completed until April 7, 2002 and not received by the Board until June 10, 2002. The forms, as completed, included their address for service and that of their consultant.
[3] In his affidavit filed in these proceedings, Mr. Khan deposes that the Board was "notified of our change of addresses in a timely manner." There is no evidence on the certified tribunal record to support that statement. The applicants have moved several times since their PIF's were filed. There is no record of any change of address notice having been filed prior to the abandonment decision. Notices of each of the scheduled hearing dates were properly sent by the Board to the addresses on record. There is no issue in this case that the Board failed to provide adequate notice.
[4] In an affidavit filed in the application to reopen before the Board, Mr. Khan deposes that when the family moved in July 2002, he attended at his consultant's office, completed a change of address form and was told by his consultant that the form would be sent to the Board. There is no evidence that any change of address form was completed for the applicants' subsequent moves.
[5] Mr. Khan deposes that Mr. Tilluckdharry did not inform the applicants that they had a hearing for the determination of their claim scheduled on June 11, 2003, that they had an abandonment/show cause hearing scheduled for June 27, 2003, or that a notice of abandonment decision had been issued by the Board on July 4, 2003. This happened, according to the applicants, despite repeated inquiries about the status of their application by telephone and attendance at his office.
[6] In July 2003, when the applicants came to his office to fill out forms for employment renewal authorizations, Mr. Khan deposes that Mr. Tilluckdharry informed them that no hearing dates had been set yet. In January 2004, they went to his office again. At that time he gave them a letter dated October 27, 2003 from the respondent telling them that their work permits could not be renewed because their refugee claims were abandoned or withdrawn.
[7] Undated correspondence from Mr. Tilluckdharry on the tribunal record indicates that he sought an adjournment of one of the hearing dates, which is not stated, to dates in October 2003 when he would be available.
[8] When informed of the decision to declare their claims abandoned in January 2004, the applicants changed representatives. On April 8, 2004 their new consultant brought the application to reopen their claim that was dismissed on May 13, 2004. This application for judicial review was brought on June 9, 2004. An amended notice of decision (correcting the name of the member who made the decision) was released on 5 August 2004.
[9] The respondent did not cross-examine Mr. Khan on his affidavit evidence and there is no evidence to contradict his account of what he was told by the consultant.
DECISION
[10] The reasons for decision, dated May 5, 2004, read:
(1) NTA sent to claimants' last known address & counsel (2) Claimants and counsel did not appear (3) If this was caused by counsel error, claimants must bear the loss (4) Claimants are vicariously liable for negligent omissions of counsel (5) not persuaded that there has been a denial of natural justice.
LEGISLATION
[11] Refugee Protection Division Rules, SOR/2002-228
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.
(2) The application must be made under rule 44.
(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.
(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
(2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity
(a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing after notifying the claimant in writing.
(3) The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.
(4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay.
69. The Division may
(a) act on its own initiative, without a party having to make an application or request to the Division;
(b) change a requirement of a rule;
(c) excuse a person from a requirement of a rule; and
(d) extend or shorten a time limit, before or after the time limit has passed.
ISSUES
[12] 1. Did the Board err by not finding a failure to observe a principle of natural justice in the abandonment hearing process such that the hearing should have been reopened?
ARGUMENT & ANALYSIS
Breach of natural justice
[13] In Masood v. Canada (Minister of Citizenship and Immigration) 2004 FC 1224, at para. 7, the standard of review on the merits or substance of a reopening decision was determined to be reasonableness simpliciter. I agree that a pragmatic and functional analysis of the degree of deference to be accorded the Board's decision leads to that conclusion, save that for any question of law arising from interpretation of the statute and rules, the standard should be one of correctness.
[14] The Khans submit that they diligently pursued their claims at all times. The fact that they did not appear for any of the scheduled hearings, prior to the application to re-open, is not attributable to any fault on their part but rather to the negligence or incompetence of their counsel. They had put their trust in that counsel to advise them of any proceedings before the Board and he failed to do that.
[15] There is nothing in the Board's decision that indicates that the applicants' credibility was in question. It should be assumed that the Board accepted the evidence provided in Mr. Khan's affidavit as credible and trustworthy. The Board also implicitly accepts that the Khans had negligent counsel.
[16] In their written submissions, the applicants asked the Court to find that in the circumstances, the Board failed to observe a principle of natural justice. The Board made a perverse and unreasonable finding that the applicants must bear the loss and that they are vicariously liable for their counsel's negligence.
[17] In oral submissions, the Khans acknowledged that the Board had done nothing incorrect in declaring the claims abandoned in the absence of any appearance by them or their counsel. However, in determining whether a breach of natural justice had occurred in arriving at that decision, they argue that the Board erred in finding that they were bound by their counsel's error and "vicariously liable" for his mistakes.
[18] The Khans argue that they have been completely denied an opportunity to be heard in this case because of the negligence of their counsel: Drummond v. Canada (Minister of Citizenship and Immigration) (1996), 112 F.T.R. 33 (T.D.); Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.); Huynh v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 11 (T.D.); Shirwa v. Canada (Minister of Employment and Immigration) [1994] 2 F.C. 51 (T.D.).
[19] In the abandonment/reopening context, a breach of natural justice has been found in similar circumstances in these cases: Masood, supra; Taher v. Canada (Minister of Citizenship and Immigration) (2002) 224 F.T.R. 317 (T.D.); Mathon v. Canada (Minister of Employment and Immigration) (1993), 28 F.T.R. 217.
[20] The respondent submits that the Board has no inherent or continuing jurisdiction to reopen a claim. It may reopen claims only under Rule 55, which requires a finding that the Refugee Protection Division breached the rules of natural justice in declaring the claim abandoned: Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288; Ali v. Canada (Minister of Citizenship and Immigration) (2004), 258 F.T.R. 226 (T.D.); Shahid v. Canada (Minister of Citizenship and Immigration) 2004 FC 1607.
[21] The delinquency of counsel does not address the fact that the applicants did not notify the Board of their changes of address, as they were responsible for doing. There was an 18-month period of inaction during which they made no inquiries of the Board from July 2002 to January 2004, which is inconsistent with a genuine fear of persecution: Luo v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 160 (T.D.); Mussa v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 2047.
[22] The negligent conduct of counsel is not sufficient reason to find a breach of natural justice: Cove v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 482 (T.D.). Failure to change an address so that communications are misdirected does not lead to a breach of natural justice: Adex v. Canada (Minister of Citizenship and Immigration) 2004 FC 1266 at para. 10; Wackowski v. Canada (Minister of Citizenship and Immigration) 2004 FC 280.
[23] Finally, the respondent argues, counsel's incompetence will only create a breach of natural justice in clearly established and exceptional cases. It is too easy and contrary to public policy to allow allegations of misconduct to govern. Clients must bear the consequences of their choice of counsel: Jouzichin v. Canada (Minister of Citizenship and Immigration) [1994] F.C.J. No. 1886 (T.D.); Huynh v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 11 (T.D.); Lopez v. Canada (Minister of Citizenship and Immigration) (December 13, 2001) IMM-3999-01; Vincent v. Canada IMM-2659-04.
[24] I am satisfied that in the absence of any contradictory evidence, the applicants have established negligence on the part of their counsel. It seems from the terse language of its decision that the Board also accepted that this occurred. But the Board was not prepared to find that such negligence, external to the Board's own operations, amounted to a breach of procedural fairness. Is egregious negligence by counsel sufficient for this court to overturn the Board's decision? The cases would seem to indicate that it may be, but only where there has been no contributing negligence or fault on the part of the applicants.
[25] In Shirwa, supra at para. 11 this Court found:
[T]he incompetence of counsel in the context of a refugee hearing provides grounds for review of the tribunal's decision on the basis of a breach of natural justice. The criteria for reviewing such a decision are not as clear, but it is possible to derive a number of principles from these cases. In a situation where through no fault of the applicant the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred.
And at para. 13:
In the particular circumstances of this case and on the basis of essentially uncontradicted evidence, the cumulative effect of all of these reasons is such that the conduct of the applicant's representatives was inherently prejudicial to the applicant. This prejudice amounted to a denial of natural justice, in that the applicant was denied a full and fair hearing, and the decision of the tribunal is reviewable on this basis.
[26] In Taher, supra at paras. 2- 3:
There was clear and uncontradicted evidence before the Board showing that the applicant, who did not speak or understand any of our Canadian official languages, had retained an experienced attorney within a reasonable time. It is through the unique fault of his counsel that the applicant's PIF was not filed and his address, phone number and name of counsel were not provided. The applicant was therefore not negligent.
As a result, even though the Board could not be blamed for not giving the applicant a reasonable opportunity to be heard pursuant to subsection 69.1(6) of the Act before declaring the claim to have been abandoned, the applicant was nonetheless denied natural justice and deprived, through no fault of his own, of a fair opportunity to be heard before his claim was declared abandoned.
[27] In Mathon, supra:
It is precisely because of the error and/or negligence of her counsel, who did not file the application for redetermination within the required deadline even though the applicant had signed it at the proper time, that the applicant was deprived of a full and complete hearing before the Immigration Appeal Board. Accordingly, as the exclusion was solely the result of a lawyer's error and/or negligence, a litigant who has acted with care should not be required to bear the consequences of such an error or negligence.
[28] I find it difficult to conclude that the errors in this case were solely those of the consultant, although I accept that his negligence has been established, in the absence of any evidence to the contrary. The seeming indifference of the Khans in allowing matters to drag on for so long (and then in delaying in filing this application) makes these cases distinguishable. There was evidence that there was more than one change of address, but only one change of address was alleged to have been filed with the consultant.
[29] In Mussa, supra this Court found at para. 3:
It is beyond my comprehension that a refugee claimant, a refugee claimant who knows that he's claiming refugee status because he's concerned about persecution, shows little or no interest in what is happening to his application and doesn't take it upon himself to make sure immediately upon moving or almost immediately upon moving of notifying the Immigration authorities of a move. There is no doubt that the onus of notifying immigration of change of addresses rests with the refugee claimant.
[30] The same could be said of the applicants in this proceeding. However, they appear to have put their trust in a consultant who led them to believe that he would take care of all of the correspondence with the Board, that they need not contact the Board directly and he would advise them of any scheduled proceedings. In these circumstances, I am prepared to accept that their fault is not of such a degree that they should be held accountable for the counsel's failures. With considerable misgivings, I conclude that the Board erred in not finding that they had been denied an opportunity to present their case at the abandonment hearing and thus were denied procedural fairness. The application, therefore, will be granted.
[31] As the parties were not provided with an opportunity to propose serious questions of general importance at the conclusion of the hearing, they will have seven days from receipt of these reasons to propose such questions before the order is issued.
(Sgd.) "Richard Mosley"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5414-04
STYLE OF CAUSE: HAZRAT OMAR KHAN, SANITA NARINE
and ALLIYAH ARIANA
- and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 9, 2005
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE MOSLEY
DATED: June 13, 2005
APPEARANCES:
Ian Wong FOR THE APPLICANTS
Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
IAN WONG FOR THE APPLICANTS
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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