[1] When Victor Martynovich was seven days late in filing his Personal Information Form (or 'PIF') with the Immigration and Refugee Board, the Board scheduled an abandonment hearing. Mr. Martynovich appeared at the abandonment hearing, and explained why he had been late in filing his PIF. The Board rejected Mr. Martynovich's explanation, and declared his refugee claim to have been abandoned. Mr. Martynovich now seeks to have this decision set aside, asserting that the Board breached its duty to provide him with meaningful reasons for its decision, and further, that the decision was not reasonable.
Background
[2] Mr. Martynovich's testimony at the abandonment hearing was somewhat confusing. Although it appears that he was aware that he had 28 days in which to file his PIF, he says that the individual assisting him in the prosecution of his refugee claim advised him that Saturday and Sundays were not included in the calculation of the 28 day period. Based upon this understanding, he believed that he had until July 8, 2003 to file his PIF. Mr. Martynovich's completed PIF was sent to the Board under cover of a letter dated June 27, and was received by the Board on June 30, 2003. In actual fact, the 28 day period expired on June 23.
[3] Mr. Martynovich also described the difficulties that he encountered in the preparation of his PIF, given his unfamiliarity with the refugee process, his lack of financial resources and his limited ability to speak English. He explained that it wasn't until he spoke to a Russian priest that he became aware of the availability of Legal Aid. Mr. Martynovich was unsure, but thought that this discussion may have taken place on June 22. He says that he applied for Legal Aid shortly thereafter.
[4] By late June Mr. Martynovich had retained a lawyer. He testified that he understood that the lawyer had requested an extension of time for him to file his PIF, and that this extension had been granted. However, the only documentation on the record from his counsel is the June 27 letter enclosing Mr. Martynovich's completed PIF. This letter acknowledges that the form was being filed out of time.
The Board's Decision
[5] The Board noted the discrepancy between Mr. Martynovich's claim that an extension had been granted, and wording of the letter from his counsel, observing that if an extension had truly been requested, one would have expected to see a reference to the extension in counsel's letter. The Board further noted the late application for Legal Aid, stating that while Mr. Martynovich had attended to 'minor matters', he had not filed his PIF on time.
[6] While noting that there was now a completed PIF on file, the Board nevertheless concluded that Mr. Martynovich had not demonstrated due diligence in pursuing his refugee claim. As a result, the claim was declared to have been abandoned.
Analysis
[7] I am of the view that this matter can be disposed of on the basis that the Board failed to provide sufficient reasons for its decision, and that it is therefore unnecessary to address the merits of the decision itself.
Did the Board Err in Failing to Provide Meaningful Reasons?
[8] A question as to the adequacy of reasons engages an issue of procedural fairness. As such, the standard of review is correctness: Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49.
[9] As I noted in Jang v. Minister of Citizenship and Immigration, 2004 FC 486, the profound significance of abandonment decisions for refugee claimants requires that such decisions be supported by meaningful reasons.
[10] In this case, the Board failed to consider much of Mr. Martynovich's evidence. Most notably, it failed to address either his explanation for his late application for Legal Aid, or his mistaken understanding that his PIF was not due until July 8, 2003. It was open to the Board to reject Mr. Martynovich's testimony on both of these issues, but given that it was central to the question of whether he had an ongoing intention to pursue his refugee claim, it was not open to the Board to simply ignore it.
[11] As a result, the Board's abandonment decision must be set aside, and the matter remitted to a different member for redetermination.
Certification
[12] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious questionof general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6058-03
STYLE OF CAUSE: VICTOR MARTYNOVICH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: AUGUST 24, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: AUGUST 24, 2004
APPEARANCES BY:
D. Clifford Luyt
FOR THE APPLICANT
Catherine Vasilaros
FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040824
Docket: IMM-6058-03
BETWEEN:
VICTOR MARTYNOVICH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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