Date: 20041123
Docket: IMM-6441-03
Citation: 2004 FC 1622
Toronto, Ontario, November 23rd, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
TAE HYUK YANG
HA SOOK KIM
SUNG HO YANG
and SUNG JI YANG
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Yang family arrived in Canada in 2001 on visitors visas. They later applied to become
permanent residents, but withdrew their applications. In April 2003, they applied for refugee status
but failed to submit their Personal Information Forms (PIFs) within the required 28 days. The PIFs were due on May 27, 2003; the Yangs filed them on July 10, 2003. By then, the Immigration and Refugee Board had sent them a notice informing them that they would have to show cause why their claims should not be declared abandoned. The Board heard the Yangs' explanation on August 7, 2003 and did not find it reasonable. It declared their applications abandoned.
[2] The Yangs argue that the Board erred by failing to find their explanation satisfactory and by
considering irrelevant criteria. They ask me to order a new hearing. However, in my view, the Board's decision was reasonable. I must, therefore, dismiss this application for judicial review.
I. Issue
[3] Did the Board fail to accept a reasonable explanation and take irrelevant considerations into
account when it declared the Yangs' refugee applications abandoned?
II. Analysis
[4] I can overturn the Board's decision only if I find that it was unreasonable: Levieva v. Canada (Minister of Citizenship and Immigration), 2002 FCT 163, [2002] F.C.J. No. 215 (T.D.) (QL).
[5] The Yangs told the Board that they failed to file their PIFs on time because they had entrusted them to a translator who had become ill. But the Board did not accept that explanation. It noted that the Yangs met with the translator two weeks before their PIFs were due, but they did not follow up to ensure that the deadline was met. Similarly, they had engaged counsel in early May, but did not meet with counsel until a month later, after the deadline had passed. The Yangs eventually signed their PIFs on June 30, 2003, but did not file them for another ten days.
[6] The Board felt that the Yangs could have found another translator if they had tried. They had been in Canada for two years. They could have asked members of their church congregation for help. Their conduct did not manifest a serious and diligent effort to pursue their claims.
[7] Before declaring a claim to be abandoned, the Board must consider the claimant's explanation and the surrounding circumstances, including whether the person is ready to proceed with the claim (Refugee Protection Division Rules, SOR/2002-228, s. 58(3), set out in the attached Annex). Here, the Board did consider the Yangs' explanation and the surrounding circumstances. I cannot find that its conclusion was unreasonable on the evidence before it.
[8] The Yangs also argued that the Board considered an irrelevant factor when it noted that the PIFs were filed 44 days late. According to the notice they received from the Board, their PIFs could have been filed at, or even after, the hearing. If that is the case, they say, it is irrelevant how late their PIFs were.
[9] I cannot agree. The Board must consider all of the circumstances surrounding the late filing of the PIF. Obviously, the actual date on which the PIF was filed is a relevant piece of information for the Board to consider.
[10] Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed;
2. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
| Refugee Protection Division Rules, SOR/2002-228
Abandonment without hearing the claimant
Factors to consider
58. (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.
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Règles de la Section de la protection des réfugiés, DORS/2002-228
Désistement sans audition du demandeur d'asile
Éléments à considérer
58. (3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6441-03
STYLE OF CAUSE: YANG, TAE HYUK, KIM, HA SOOK, YANG, SUNG HO and YANG, JI SUNG
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 16, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: NOVEMBER 23, 2004
APPEARANCES BY:
Mr. John M. Guoba FOR THE APPLICANTS
Msr. Gordon Lee FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN M. GUOBA FOR THE APPLICANTS
Toronto, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
FEDERAL COURT
Date: 20041123
Docket: IMM-6441-03
BETWEEN:
TAE HYUK YANG, HA SOOK KIM, SUNG HO YANG and SUNG JI YANG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
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