Suchit v. Canada (Minister of Citizenship and Immigration), 2005 FC 800

Date: 20050602

Docket: IMM-5862-04

Citation: 2005 FC 800

Toronto, Ontario, June 2^nd, 2005

Present:           The Honourable Madam Justice Mactavish                                    

BETWEEN:

URVASHI SUCHIT

                                                                                                                                                                                                                                                                                                         Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The Refugee Protection Division of the Immigration and Refugee Board declared that Urvashi Suchit's refugee claim had been abandoned. She now seeks judicial review of the Board's decision.

[2]         Although her memorandum of fact and law raises several arguments, the essence of Ms. Suchit's oral submissions is that the Board's decision was simply not fair. Ms. Suchit argues that she has worked hard to make a good life for herself in Canada, and that she deserves the chance to have her refugee claim determined on its merits.

Background

[3]         Ms. Suchit is a citizen of Trinidad, who alleges that she is a victim of domestic violence. She came to Canada on a visitor's visa in August of 2000. Approximately three years later, Ms. Suchit filed her claim for refugee protection.

[4]         Her refugee hearing was scheduled for April 21^st, 2004. Several weeks before the hearing, Ms. Suchit confirmed, in writing, that she was ready to proceed on April 21^st. However, she was evidently ill on that date, and, at the request of her counsel, the matter was rescheduled to May 3^rd, 2004, for an abandonment hearing.

[5]         Ms. Suchit again became ill, and was unable to attend her abandonment hearing on May 3^rd. However, it appears that no Board member was available to hear the case on May 3^rd, and the matter was again rescheduled, this time to May 28^th, 2004. On May 6^th, 2004, Ms. Suchit again confirmed, in writing, that she was ready to proceed on that date.

[6]         Some time between May 6^th and May 27^th, Ms. Suchit advised her counsel that as she did not have the money to pay him, she would be seeking other counsel "in due course of time". The day before her abandonment hearing, Ms. Suchit's counsel advised the Board that he was no longer representing her.

[7]         At some point during this three-week period, Ms. Suchit also applied for Legal Aid.

[8]         Ms. Suchit appeared without counsel at her abandonment hearing. She advised the presiding member that she was not ready to proceed with her refugee claim, and asked for more time to retain a lawyer. After considering her submissions, and reviewing the history of the file, the presiding member concluded that Ms. Suchit had been given ample time to retain counsel, and accordingly declared her refugee claim to have been abandoned.

Standard of Review

[9]         On an application such as this the question is not whether I agree with the Board's decision, but rather, whether the decision was reasonable, in all of the circumstances: see, for example, Ahamad v. Minister of Citizenship and Immigration, [2000] 3 F.C. 109.                     

Analysis

[10]       Before declaring a refugee claim to have been abandoned, the Board must consider the claimant's explanation, and the surrounding circumstances, including whether the individual is ready to proceed with his or her claim: see ss. 58(3) of the Refugee Protection Division Rules.

[11]       In this case, the only explanation provided by Ms. Suchit for her inability to proceed with her claim was her need to secure Legal Aid funding in order to retain counsel.

[12]       It is well established in the jurisprudence that delays in securing Legal Aid do not, by themselves, provide a sufficient basis for applicants to disregard dates set by the Board: see, for example, Yang v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1998.

[13]       Moreover, the documentary evidence demonstrates clearly that on several occasions between October of 2003 and May of 2004, Ms. Suchit was reminded of her right to be represented by counsel, and the need for her counsel to be available on the dates set for her hearing. She was also repeatedly informed of the availability of Legal Aid, in the event that she was able to retain counsel for financial reasons.

[14]       On her own evidence, Ms. Suchit did not make the necessary financial arrangements for her counsel to represent her in the months leading up to her refugee hearing, nor did she take any steps to secure Legal Aid until days before the hearing of her abandonment hearing.

[15]       In the circumstances, I am satisfied that the Board's finding that Ms. Suchit failed to provide a reasonable explanation as to why her refugee claim should not have been declared to have been abandoned is one that was reasonably open to it.

[16]       In her written submissions, Ms. Suchit also argues that she has been denied fundamental justice as guaranteed by sections 7 through 14 of the Canadian Charter of Rights and Freedoms.

[17]      As I understand it, her argument appears to be premised on the assumption that every refugee claimant has an absolute and unqualified right to have his or her claim determined on its merits.

[18]       There are several reasons why Ms. Suchit's Charter arguments cannot succeed. However, the issue can be disposed of on the basis that this Court has no jurisdiction to entertain the arguments, given that Ms. Suchit did not raise the Charter issues before the Board itself: see Chen v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1954.

Conclusion

[19]       Ms. Suchit believes that she has worked very hard to make a life for herself in this country. She also says that she would suffer great hardship if she were forced to return to Trinidad. While there may be other avenues of relief available to Ms. Suchit under the Immigration and Refugee Protection Act, this argument does not provide a basis for allowing this application.

[20]       Having considered Ms. Suchit's oral and written submissions, along with the record, I am not persuaded that the Board erred in declaring her refugee claim to have been abandoned. Accordingly, the application is dismissed.

Certification

[21]       The certification process was explained to Ms. Suchit in the course of the hearing, and she was offered an opportunity to consider whether she wished to propose a question for certification. Neither Ms. Suchit nor the respondent proposed a question for certification, and none arises here.                    

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is dismissed.

2.          No serious question of general importance is certified.

     "A. Mactavish"

                                                                                                                                                   J.F.C.                        

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                           IMM-5862-04   

STYLE OF CAUSE:             URVASHI SUCHIT

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING:                       JUNE 1, 2005

PLACE OF HEARING:                     TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                             MACTAVISH J.

DATED:                                              JUNE 2, 2005

APPEARANCES BY:            

Urvashi Suchit                           FOR THE APPLICANT

Gordon Lee                                           FOR THE RESPONDENT

SOLICITORS OF RECORD:          

Urvashi Suchit

Toronto, Ontario                                   FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada      FOR THE RESPONDENT