Date: 20041019
Docket: IMM-6586-03
Citation: 2004 FC 1380
BETWEEN:
JACEK MICHAL NOREK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
Introduction
[1] The Applicant was deemed to have abandoned his refugee application because the member of the Immigration and Refugee Board (the "Board") disbelieved his excuse for not appearing at the abandonment hearing. Part of that excuse reflected adversely on the Board. The question is whether the Board's rejection of the excuse is reasonable.
Background
[2] The Applicant is a citizen of Poland who bases his refugee claim on the grounds of persecution of homosexuals, of which he is one.
[3] The Applicant was advised on March 2, 2003 that his refugee claim would be heard on June 11, 2003. He waited until June 9, 2003 to retain counsel who was not available to attend on the scheduled hearing day.
[4] The Applicant says that, on June 11, 2003 he attended alone at the Board offices a few minutes past 1:00 p.m. and after speaking to an interpreter, was told that he was to return for a Board hearing on July 9,2003.
[5] The Applicant then received a Notice dated June 13, 2003 informing him that a hearing would take place on July 9, 2003 "to give you an opportunity to explain why the Refugee Protection Division should not declare your claim to be abandoned".
[6] The Board's Member hearing the abandonment proceeding rejected the Applicant's explanation for failure to appear at the June 11 hearing. As a result the Board declared the refugee application abandoned.
[7] The Board's decision contains 2 particularly pertinent paragraphs in which the Member places great weight on the timing of the Applicant's arrival at the Board's offices, and attacks the Applicant's credibility.
Now, I do not believe the claimant when he said he arrived here and spoke to someone at the window at 1:15, and was at that time told that his hearing was set for today's date, since the earliest that information could have gotten to the clerks at the front window would have been at 1:35.
* * * * * * * * * *
What I find most troubling is the lack of truthfulness surrounding the reason for the non-attendance. Were the claimant to have told me this morning that he did arrive, but was late, without trying to excuse himself by changing the time lines to make it appear as though the Board is at fault, my decision might have been different. But I cannot overlook the credibility gap that has arisen in his explanations.
[8] Before this Court, the Applicant filed an affidavit giving more precise timelines for the events of June 11, 2004. In particular the Applicant says he arrived at the Board offices at 1:25 p.m. and requested an interpreter. The interpreter told him to wait and then returned to advise him that another hearing would take place and that he need not remain at the Board's offices. The Applicant's affidavit evidence was unchallenged.
Analysis
[9] This whole case can be distilled down to whether it was unreasonable for the Board to disbelieve the Applicant's explanation for lateness. The standard of review in this instance is reasonableness.
[10] A great deal of importance seems to turn on whether the Applicant arrived at the Board offices at 1:15 p.m. in which case the Member concludes that the Applicant's story is a fabrication. The Member says that the earliest time the Applicant could have known of the new date for his abandonment hearing was 1:35 p.m.
[11] The Applicant's affidavit refers to a 1:25 p.m. arrival after which there was a period of delay involving translators which would make it possible for the Applicant to have been advised after 1:35 p.m. of the new date. In oral testimony at the Board, the time of arrival was said to have been "approximately" 1:15 p.m.
[12] In view of the importance to the Applicant of a decision to declare his application abandoned, given the imprecision of the evidence on timing, and the obvious intention of the Applicant to proceed with his refugee application, I find it unreasonable for the Board to have placed so much emphasis on 10 minutes, one way or the other.
[13] Given the unchallenged evidence before this Court as to the Applicant's arrival time, his excuse was more than plausible - it is the only concrete evidence of timing.
[14] Since the authorities in this Court are that all of the circumstances must be considered in an abandonment hearing, see Kavunzu v. Canada (Minister of Citizenship and Immigration) (1999) 172 F.T.R. 240, I conclude that the Board failed to properly do so in this instance.
[15] For these reasons the Board's decision will be quashed and the Board will be directed to proceed with the processing of the Applicant's refugee claim.
[16] As no party proposed, and as I see no issue of general importance, no question will be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6586-03
STYLE OF CAUSE: JACEK MICHAL NOREK v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: AUGUST 5, 2004
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER
AND ORDER: PHELAN J.
DATED: OCTOBER 19, 2004
APPEARANCES BY:
Mr. Thomas R. McIver FOR THE APPLICANT
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
McIver & McIver
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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